SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 21, 1997
PLAYTEX PRODUCTS, INC.
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(Exact name of registrant as specified in charter)
Delaware 33-25485-01 51-0312772
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
300 Nyala Farms Road, Westport, CT 06880
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (203) 341-4000
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N/A
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(Former name or former address, if changed since last report)
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits:
The exhibits listed below relate to the issuance by Playtex
Products, Inc. (the "Registrant") of $150,000,000 aggregate principal amount
87/8% Senior Notes due 2004 pursuant to Rule 144A under the Securities Act of
1933, as amended, and the execution of two new credit agreements providing, in
the aggregate, up to $320 million in available credit.
Exhibit Number
(Referenced to
Item 601 of
Regulation S-K) Description of Exhibit
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4.1 Form of 87/8% Senior Notes due 2004 of the Registrant
4.2 Indenture dated July 21, 1997 among the Registrant, as
Issuer, Playtex Beauty Care, Inc., Playtex Investment
Corp., Playtex International Corp., Playtex Sales &
Services, Inc., Playtex Manufacturing, Inc., Smile-Tote,
Inc., Sun Pharmaceuticals Corp., TH Marketing Corp.
(collectively, the "Guarantors") and Marine Midland Bank,
as Trustee.
4.3 Registration Rights Agreement dated July 21, 1997
among the Registrant, the Guarantors and Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJ").
10.1 Purchase Agreement dated July 14, 1997 among the
Registrant, the Guarantors and DLJ.
10.2 Credit Agreement among the Registrant, the several
lenders from time to time parties thereto, DLJ Capital
Funding, Inc. ("DLJ Funding"), as the syndication
agent, and Wells Fargo Bank, N.A. ("Wells Fargo"),
as the administrative agent, dated as of July 21, 1997.
10.3 Term Loan Agreement among the Registrant, the several
lenders from time to time parties thereto, DLJ Funding, as
the syndication agent, and Wells Fargo, as the facility
manager, dated as of July 21, 1997.
99 Press Release dated July 21, 1997.
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Signatures
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: July 25, 1997
PLAYTEX PRODUCTS, INC.
By: /s/ Michael F. Goss
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Michael F. Goss
Executive Vice President & Chief Financial Officer
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4
EXHIBIT INDEX
Exhibit number Page Number in Rule 0-
(Referenced to 3(b) sequential
Item 601 of numbering system where
Regulation S-K) Description of Exhibit Exhibits can be found
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4.1 Form of 87/8% Senior Notes due 2004 of 5
the Registrant.
4.2 Indenture dated July 21, 1997 among
the Registrant, the Guarantors and
Marine Midland Bank.
4.3 Registration Rights Agreement dated
July 21, 1997 among the Registrant,
the Guarantors and DLJ
10.1 Purchase Agreement dated July 14,
1997 among the Registrant, the
Guarantors and DLJ.
10.2 Credit Agreement among the Registrant,
the several lenders from time to time
parties thereto, DLJ Funding, as the
syndication agent, and Wells Fargo, as
the administrative agent, dated as of
July 21, 1997.
10.3 Term Loan Agreement among the Registrant,
the several lenders from time to time
parties thereto, DLJ Funding, as the
syndication agent, and Wells Fargo, as
the facility manager, dated as of July
21, 1997.
99 Press Release dated July 21, 1997.
Exhibit 4.1
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A UNDER THE SECURITIES ACT, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO
A FOREIGN PURCHASER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b),
(c) OR (d), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO
THE COMPANY, OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OR ANY NOTE ISSUED IN EXCHANGE
FOR OR IN SUBSTITUTION HEREOF OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
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PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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PLAYTEX PRODUCTS, INC.
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8 7/8% SENIOR NOTES due 2004, Series A
No. 1 $148,000,000
CUSIP No. 72813P AB 6
PLAYTEX PRODUCTS, INC., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO. or registered assigns, the principal sum of One Hundred Forty Eight Million
United States dollars on July 15, 2004, at the office or agency of the Company
referred to below, and to pay interest thereon from July 21, 1997 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on January 15 and July 15 commencing January 15,
1998 at the rate of 8 7/8% per annum, in United States dollars, until the
principal hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be January 1 or July 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so paid, or duly provided for, and interest on such defaulted interest at
the interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder in whose name such Security is registered as
of such Regular Record Date, and may be paid on the Special Payment Date to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee (and for which notice shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date) or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest and
Liquidated Damages on this Security will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of interest may be made at the option of the Company by check mailed to
the address of the Person entitled thereto as such address shall appear on the
Security Register. Interest shall be accrued on the basis of a 360-day year of
twelve 30-day months.
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Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by the manual or facsimile signature of its authorized officers.
Dated: July 21, 1997 PLAYTEX PRODUCTS, INC.
By: /s/ Michael F. Goss
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4
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This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 7/8% Senior Notes due 2004 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $150,000,000, which may be issued
under and are subject to the terms of an indenture (herein called the
"Indenture") dated as of July 21, 1997, among the Company, the Guarantors named
therein and Marine Midland Bank, as trustee (together with any successor Trustee
under the Indenture, the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee and the Holders, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on this Security and (b) certain covenants and related
Defaults and Events of Default, in each case upon compliance with certain
conditions set forth therein.
The Indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, PARI PASSU in right of payment to all
Senior Indebtedness, and senior in right of payment to all Subordinated
Indebtedness, whether Outstanding on the date of the Indenture or thereafter,
and this Security is issued subject to such provisions.
The Securities are not redeemable by the Company prior to July 15,
2001. Thereafter, the Securities are subject to redemption, in whole or in part,
at the option of the Company upon not less than 30 nor more than 60 days' prior
notice to the Holders by first-class mail, at the election of the Company, in
amounts of $1,000 or integral multiples of $1,000 at the following redemption
prices (expressed as a percentage of the principal amount) if redeemed during
the 12-month period beginning July 15 of the years indicated below:
Redemption
Year Price
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2001.............................. 104.438%
2002.............................. 102.219%
2003.............................. 100.000%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest and Liquidated Damages, if any, to the Redemption
Date (subject to the right of Holders of record on relevant Regular Record Dates
or Special Record Dates to receive interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2000,
the Company, at its option, may redeem up to 35% of the aggregate principal
amount of the Securities Outstanding on the date of the Indenture in amounts of
$1,000 or integral multiples of $1,000, with the net proceeds from the sale by
the Company of Qualified Capital Stock in one or more offerings, within 60 days
of receipt of such proceeds, on not less than 30 nor more than 60 days'
5
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prior notice to the Holders, at a redemption price equal to 108 7/8% of the
principal amount, together, in each case, with accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date (subject to the right of
Holders of record on relevant Record Dates or Special Record Dates to receive
interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2001,
the Company, at its option, may redeem the Securities, in whole or in part, at
any time within 90 days after a Change of Control upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities to be redeemed in
amounts of $1,000 or an integral multiple thereof, at a redemption price equal
to the sum of (i) the principal amount thereof plus (ii) accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date (subject to the
right of Holders of record on relevant Record Dates or Special Record Dates to
receive interest due on an Interest Payment Date) plus (iii) the Applicable
Premium.
If less than all of the Securities are to be redeemed, such portion
of the Securities shall be redeemed pro rata, by lot or by any other method the
Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Company to purchase all or a portion of such Holder's
Securities in amounts of $1,000 or integral multiples of $1,000, at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase.
Under certain circumstances, in the event the Net Cash Proceeds that
are received by the Company from any Asset Sale, and that are not applied to
repay permanently any secured Senior Indebtedness then outstanding or invested
in properties or assets used in the businesses of the Company, equal or exceed
$25 million, the Company will be required to apply such proceeds to the
repayment of the Securities and certain Indebtedness ranking PARI PASSU with the
Securities.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities of record as of the close of business on the
relevant Regular Record Date or Special Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the
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Indenture. Notwithstanding the foregoing, in the case of an Event of Default
from certain events of bankruptcy or insolvency with respect to the Company, all
outstanding Securities will become due and payable without further action or
notice.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture, the Securities and
the Guarantees at any time with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
not less than a majority in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture, the
Securities and the Guarantees and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, the Guarantors or any other obligor under the Securities (in the event
any Guarantor or such other obligor is obligated to make payments in respect of
the Securities), which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the times, place, and rate,
and in the coin or currency, herein prescribed.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless (a) such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (c) the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Securities a direction inconsistent with such request
and (d) the Trustee shall have failed to institute such proceeding within 60
days; PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of (and
premium, if any) or any interest on this Security on or after the respective due
dates expressed herein.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or
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<PAGE>
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and none of
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition (other than pursuant to a lease) of all or
substantially all of the properties and assets of the Company or any Guarantor
in accordance with the Indenture, subject to the terms and conditions of the
Indenture, the successor Person to such transaction shall become the obligor on
this Security, and the Company and each such Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Security and
the Indenture.
This Security is entitled to the benefits of any Guarantee of any
Guarantor made for the benefit of the Holders in accordance with the provisions
of the Indenture. Upon the terms and subject to the conditions set forth in the
Indenture, such Guarantors will unconditionally guarantee that the principal of,
premium, if any, and interest on the Securities will be duly and punctually paid
in full when due, whether at maturity, by acceleration or otherwise, and
interest on overdue principal, premium, if any, and (to the extent permitted by
law) interest on any interest, if any, on the Securities and that all other
Indenture Obligations of the Company to the Holders or the Trustee under the
Securities or the Indenture (including fees, expenses or other Indenture
Obligations) will be promptly paid in full.
Pursuant to the Registration Rights Agreement between the Company
and the Initial Purchaser, the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for the Company's 8 7/8% Senior Notes due 2004,
Series B (the "Exchange Securities"), which have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects to the Initial Securities. The Holders of the Initial
Securities shall be entitled to receive Liquidated Damages in the event such
exchange offer is not consummated and upon
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certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK, as Trustee
By: /s/ Frank Godino
----------------------------
Authorized Signatory
10
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ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
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(Insert assignee's social security or federal tax I.D. no.)
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(Print. or type assignee's name, address and zip code)
and irrevocably appoint
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agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
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Date:
---------------
Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
11
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 912 or Section 913 of the Indenture
check the appropriate box:
o Section 912 o Section 913
If you want to have only part of the Security purchased by the
Company pursuant to Section 912 or Section 913 of the Indenture, state the
amount (in integral multiples of $1,000) you elect to have purchased:
$
-----------------
Date:
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Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
12
<PAGE>
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A UNDER THE SECURITIES ACT, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO
A FOREIGN PURCHASER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b),
(c) OR (d), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO
THE COMPANY, OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY OR ANY NOTE ISSUED IN EXCHANGE
FOR OR IN SUBSTITUTION HEREOF OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
<PAGE>
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE>
PLAYTEX PRODUCTS, INC.
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8 7/8% SENIOR NOTES due 2004, Series A
No. 1 $2,000,000
CUSIP No. 72813P AC 4
PLAYTEX PRODUCTS, INC., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO. or registered assigns, the principal sum of Two Million United States
dollars on July 15, 2004, at the office or agency of the Company referred to
below, and to pay interest thereon from July 21, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 15 and July 15 commencing January 15, 1998 at the rate
of 8 7/8% per annum, in United States dollars, until the principal hereof is
paid or duly provided for.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be January 1 or July 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so paid, or duly provided for, and interest on such defaulted interest at
the interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder in whose name such Security is registered as
of such Regular Record Date, and may be paid on the Special Payment Date to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee (and for which notice shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date) or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest and
Liquidated Damages on this Security will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of interest may be made at the option of the Company by check mailed to
the address of the Person entitled thereto as such address shall appear on the
Security Register. Interest shall be accrued on the basis of a 360-day year of
twelve 30-day months.
3
<PAGE>
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by the manual or facsimile signature of its authorized officers.
Dated: July 21, 1997 PLAYTEX PRODUCTS, INC.
By: /s/ Michael F. Goss
-------------------------------
4
<PAGE>
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 7/8% Senior Notes due 2004 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $150,000,000, which may be issued
under and are subject to the terms of an indenture (herein called the
"Indenture") dated as of July 21, 1997, among the Company, the Guarantors named
therein and Marine Midland Bank, as trustee (together with any successor Trustee
under the Indenture, the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee and the Holders, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on this Security and (b) certain covenants and related
Defaults and Events of Default, in each case upon compliance with certain
conditions set forth therein.
The Indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, PARI PASSU in right of payment to all
Senior Indebtedness, and senior in right of payment to all Subordinated
Indebtedness, whether Outstanding on the date of the Indenture or thereafter,
and this Security is issued subject to such provisions.
The Securities are not redeemable by the Company prior to July 15,
2001. Thereafter, the Securities are subject to redemption, in whole or in part,
at the option of the Company upon not less than 30 nor more than 60 days' prior
notice to the Holders by first-class mail, at the election of the Company, in
amounts of $1,000 or integral multiples of $1,000 at the following redemption
prices (expressed as a percentage of the principal amount) if redeemed during
the 12-month period beginning July 15 of the years indicated below:
Redemption
Year Price
---- ----------
2001.............................. 104.438%
2002.............................. 102.219%
2003.............................. 100.000%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest and Liquidated Damages, if any, to the Redemption
Date (subject to the right of Holders of record on relevant Regular Record Dates
or Special Record Dates to receive interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2000,
the Company, at its option, may redeem up to 35% of the aggregate principal
amount of the Securities Outstanding on the date of the Indenture in amounts of
$1,000 or integral multiples of $1,000, with the net proceeds from the sale by
the Company of Qualified Capital Stock in one or more offerings, within 60 days
of receipt of such proceeds, on not less than 30 nor more than 60 days'
5
<PAGE>
prior notice to the Holders, at a redemption price equal to 108 7/8% of the
principal amount, together, in each case, with accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date (subject to the right of
Holders of record on relevant Record Dates or Special Record Dates to receive
interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2001,
the Company, at its option, may redeem the Securities, in whole or in part, at
any time within 90 days after a Change of Control upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities to be redeemed in
amounts of $1,000 or an integral multiple thereof, at a redemption price equal
to the sum of (i) the principal amount thereof plus (ii) accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date (subject to the
right of Holders of record on relevant Record Dates or Special Record Dates to
receive interest due on an Interest Payment Date) plus (iii) the Applicable
Premium.
If less than all of the Securities are to be redeemed, such portion
of the Securities shall be redeemed pro rata, by lot or by any other method the
Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Company to purchase all or a portion of such Holder's
Securities in amounts of $1,000 or integral multiples of $1,000, at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase.
Under certain circumstances, in the event the Net Cash Proceeds that
are received by the Company from any Asset Sale, and that are not applied to
repay permanently any secured Senior Indebtedness then outstanding or invested
in properties or assets used in the businesses of the Company, equal or exceed
$25 million, the Company will be required to apply such proceeds to the
repayment of the Securities and certain Indebtedness ranking PARI PASSU with the
Securities.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities of record as of the close of business on the
relevant Regular Record Date or Special Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the
6
<PAGE>
Indenture. Notwithstanding the foregoing, in the case of an Event of Default
from certain events of bankruptcy or insolvency with respect to the Company, all
outstanding Securities will become due and payable without further action or
notice.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture, the Securities and
the Guarantees at any time with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
not less than a majority in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture, the
Securities and the Guarantees and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, the Guarantors or any other obligor under the Securities (in the event
any Guarantor or such other obligor is obligated to make payments in respect of
the Securities), which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the times, place, and rate,
and in the coin or currency, herein prescribed.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless (a) such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (c) the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Securities a direction inconsistent with such request
and (d) the Trustee shall have failed to institute such proceeding within 60
days; PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of (and
premium, if any) or any interest on this Security on or after the respective due
dates expressed herein.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or
7
<PAGE>
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and none of
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition (other than pursuant to a lease) of all or
substantially all of the properties and assets of the Company or any Guarantor
in accordance with the Indenture, subject to the terms and conditions of the
Indenture, the successor Person to such transaction shall become the obligor on
this Security, and the Company and each such Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Security and
the Indenture.
This Security is entitled to the benefits of any Guarantee of any
Guarantor made for the benefit of the Holders in accordance with the provisions
of the Indenture. Upon the terms and subject to the conditions set forth in the
Indenture, such Guarantors will unconditionally guarantee that the principal of,
premium, if any, and interest on the Securities will be duly and punctually paid
in full when due, whether at maturity, by acceleration or otherwise, and
interest on overdue principal, premium, if any, and (to the extent permitted by
law) interest on any interest, if any, on the Securities and that all other
Indenture Obligations of the Company to the Holders or the Trustee under the
Securities or the Indenture (including fees, expenses or other Indenture
Obligations) will be promptly paid in full.
Pursuant to the Registration Rights Agreement between the Company
and the Initial Purchaser, the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for the Company's 8 7/8% Senior Notes due 2004,
Series B (the "Exchange Securities"), which have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects to the Initial Securities. The Holders of the Initial
Securities shall be entitled to receive Liquidated Damages in the event such
exchange offer is not consummated and upon
8
<PAGE>
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
9
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK, as Trustee
By: /s/ Frank Godino
-------------------------------
Authorized Signatory
10
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
- ------------------------------------------------------------------------------
(Insert assignee's social security or federal tax I.D. no.)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print. or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
- ------------------------------------------------------------------------------
Date:
--------------------
Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
11
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 912 or Section 913 of the Indenture
check the appropriate box:
o Section 912 o Section 913
If you want to have only part of the Security purchased by the
Company pursuant to Section 912 or Section 913 of the Indenture, state the
amount (in integral multiples of $1,000) you elect to have purchased:
$
-----------------
Date:
------------------
Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
12
Exhibit 4.2
PLAYTEX PRODUCTS, INC., as Issuer
and
PLAYTEX BEAUTY CARE, INC.,
PLAYTEX INVESTMENT CORP.,
PLAYTEX INTERNATIONAL CORP.,
PLAYTEX SALES & SERVICES, INC.,
PLAYTEX MANUFACTURING, INC.,
SMILE-TOTE, INC.,
SUN PHARMACEUTICALS CORP.,
TH MARKETING CORP., as Guarantors
and
MARINE MIDLAND BANK, as Trustee
INDENTURE
Dated as of July 21, 1997
$150,000,000
8 7/8% Senior Notes due 2004
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
ARTICLE ONE
<S> <C>
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............................2
Section 101. Definitions...........................................................2
Section 102. Other Definitions....................................................21
Section 103. Compliance Certificates and Opinions.................................22
Section 104. Form of Documents Delivered to Trustee...............................23
Section 105. Acts of Holders......................................................24
Section 106. Notices, etc., to Trustee, the Company and the Guarantors............25
Section 107. Notice to Holders; Waiver............................................25
Section 108. Conflict with Trust Indenture Act....................................26
Section 109. Effect of Headings and Table of Contents.............................26
Section 110. Successors and Assigns...............................................26
Section 111. Separability Clause..................................................26
Section 112. Benefits of Indenture................................................27
Section 113. Governing Law........................................................27
Section 114. Legal Holidays.......................................................27
Section 115. Schedules............................................................27
Section 116. Counterparts.........................................................27
Section 117. Incorporation by Reference of Trust Indenture Act....................27
ARTICLE TWO
THE SECURITIES.....................................................................28
Section 201. Form and Dating......................................................28
Section 202. Execution and Authentication.........................................31
Section 203. Temporary Securities.................................................32
Section 204. Registrar, Registration of Transfer and Exchange.....................33
Section 205. Mutilated, Destroyed, Lost and Stolen Securities.....................34
Section 206. Payment of Interest; Interest Rights Preserved.......................35
Section 207. Persons Deemed Owners................................................36
Section 208. Cancellation.........................................................36
Section 209. Computation of Interest..............................................37
Section 210. Book-Entry Provisions For Global Security..................................37
Section 211. Special Transfer Provisions................................................39
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
ARTICLE THREE
<S> <C>
DEFEASANCE AND COVENANT DEFEASANCE.................................................44
Section 301. Company's Option to Effect Defeasance or Covenant Defeasance.........44
Section 302. Defeasance and Discharge.............................................44
Section 303. Covenant Defeasance..................................................45
Section 304. Conditions to Defeasance or Covenant Defeasance......................45
Section 305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions...............................47
Section 306. Reinstatement........................................................48
ARTICLE FOUR
REMEDIES...........................................................................48
Section 401. Events of Default....................................................48
Section 402. Acceleration of Maturity; Rescission and Annulment...................50
Section 403. Collection of Indebtedness and Suits for Enforcement by Trustee......51
Section 404. Trustee May File Proofs of Claim.....................................52
Section 405. Trustee May Enforce Claims Without Possession of Securities..........53
Section 406. Application of Money Collected.......................................53
Section 407. Limitation on Suits..................................................53
Section 408. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................54
Section 409. Restoration of Rights and Remedies...................................54
Section 410. Rights and Remedies Cumulative.......................................55
Section 411. Delay or Omission Not Waiver.........................................55
Section 412. Control by Holders...................................................55
Section 413. Waiver of Past Defaults..............................................55
Section 414. Undertaking for Costs................................................56
Section 415. Waiver of Stay, Extension or Usury Laws..............................56
Section 416. Remedies Subject to Applicable Law...................................57
ARTICLE FIVE
THE TRUSTEE........................................................................57
Section 501. Duties of Trustee....................................................57
Section 502. Notice of Defaults...................................................58
Section 503. Certain Rights of Trustee............................................58
Section 504. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.......................60
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 505. Trustee and Agents May Hold Securities; Collections; etc.............60
Section 506. Money Held in Trust..................................................60
Section 507. Compensation and Indemnification of Trustee and Its Prior Claim......60
Section 508. Conflicting Interests................................................61
Section 509. Corporate Trustee Required; Eligibility..............................61
Section 510. Resignation and Removal; Appointment of Successor Trustee............62
Section 511. Acceptance of Appointment by Successor...............................63
Section 512. Merger, Conversion, Consolidation or Succession to Business..........64
Section 513. Preferential Collection of Claims Against Company....................64
ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..................................65
Section 601. Company to Furnish Trustee Names and Addresses of Holders............65
Section 602. Disclosure of Names and Addresses of Holders.........................65
Section 603. Reports by Trustee...................................................65
Section 604. Reports by Company and the Guarantors................................66
ARTICLE SEVEN
CONSOLIDATION, MERGER, SALE OF ASSETS..............................................66
Section 701. Company, Guarantors May Merge, Consolidate, etc., Only on Certain
Terms...............................................................66
Section 702. Successor Substituted................................................69
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES............................................................69
Section 801. Supplemental Indentures and Agreements without Consent of Holders....69
Section 802. Supplemental Indentures and Agreements with Consent of Holders.......70
Section 803. Execution of Supplemental Indentures and Agreements..................72
Section 804. Effect of Supplemental Indenture.....................................72
Section 805. Conformity with Trust Indenture Act..................................72
Section 806. Reference in Securities to Supplemental Indentures...................72
Section 807. Record Date..........................................................72
ARTICLE NINE
COVENANTS..........................................................................73
Section 901. Payment of Principal, Premium, Interest and Liquidated Damages.......73
Section 902. Maintenance of Office or Agency......................................73
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 903. Money for Security Payments to be Held in Trust......................74
Section 904. Corporate Existence..................................................75
Section 905. Payment of Taxes and Other Claims....................................75
Section 906. Maintenance of Properties............................................75
Section 907. Insurance............................................................76
Section 908. Limitation on Indebtedness...........................................76
Section 909. Limitation on Restricted Payments....................................77
Section 910. Limitation on Transactions with Affiliates...........................79
Section 911. Limitation on Liens..................................................80
Section 912. Limitation on Sale of Assets.........................................81
Section 913. Purchase of Securities upon a Change of Control......................85
Section 914. Limitation on Issuance and Sale of Capital Stock of Subsidiaries.....89
Section 915. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries........................................................89
Section 916. Provision of Financial Statements....................................89
Section 917. Additional Subsidiary Guarantors.....................................90
Section 918. Statement by Officers as to Default..................................90
Section 919. Waiver of Certain Covenants..........................................91
ARTICLE TEN
REDEMPTION OF SECURITIES...........................................................91
Section 1001. Right of Redemption.................................................91
Section 1002. Applicability of Article............................................92
Section 1003. Election to Redeem; Notice to Trustee...............................92
Section 1004. Selection by Trustee of Securities to Be Redeemed...................92
Section 1005. Notice of Redemption................................................92
Section 1006. Deposit of Redemption Price.........................................93
Section 1007. Securities Payable on Redemption Date...............................94
Section 1008. Securities Redeemed or Purchased in Part............................94
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE.........................................................94
Section 1101. Satisfaction and Discharge of Indenture.............................94
Section 1102.Application of Trust Money............................................96
ARTICLE TWELVE
GUARANTEE OF SECURITIES............................................................96
Section 1201.Guarantees............................................................96
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C>
Section 1202.Limitation of the Guarantors' Liability...............................97
Section 1203.Release of the Guarantors.............................................97
Section 1204.Execution and Delivery of Guarantees..................................98
</TABLE>
v
<PAGE>
EXHIBIT A Form of Initial Security
EXHIBIT B Form of Exchange Security
EXHIBIT C Form of Guarantee
EXHIBIT D Intentionally Omitted
EXHIBIT E Form of Certification to be given by the holders of
beneficial interest in a temporary Regulation S global
security to Euroclear and CEDEL
EXHIBIT F Form of certification to be given by Euroclear operator
or CEDEL
EXHIBIT G Form of certification to be given by transferee of
beneficial interest in a temporary Regulation S global
security
EXHIBIT H Form of certification for transfer or exchange of
restricted global security to temporary Regulation S
global security
EXHIBIT I Form of certification for transfer or exchange of
restricted global security to permanent Regulation S
global security
EXHIBIT J Form of certification for transfer or exchange of
temporary Regulation S global security or permanent
Regulation S global security to restricted global
security
EXHIBIT K Form of certification for transfer or exchange of
non-global restricted security to global security
EXHIBIT L Form of certification for transfer or exchange of
non-global restricted security to permanent Regulation
S global security or temporary Regulation S global
security
EXHIBIT M-1 Form of certification for transfer or exchange of
non-global permanent Regulation S security to
restricted security
EXHIBIT M-2 Form of certification for transfer or exchange of
non-global permanent Regulation S security to permanent
Regulation S global security
EXHIBIT N Form of Transferee Letter of Representation
EXHIBIT O Form of Legend for Book-Entry Securities
vi
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of July 21, 1997
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- --------------- --------
ss.310(a)(1) ............................ 509
(a)(2) ............................ 509
(b) ............................ 508, 510
ss.312(a) ............................ 601
(c) ............................ 602
ss.313(a) ............................ 603
(c) ............................ 603
ss.314(a) ............................ 604
(a)(4) ............................ 918
(c)(1) ............................ 103
(c)(2) ............................ 103
(e) ............................ 103
ss.315(a) ............................ 501(b)
(b) ............................ 502
(c) ............................ 501(a)
(d) ............................ 501(c), 503
(e) ............................ 414
ss.316(a)(last sentence) ............................ 101 ("Outstanding")
(a)(1)(A) ............................ 412
(a)(1)(B) ............................ 413
(b) ............................ 408
(c) ............................ 807
ss.317(a)(1) ............................ 403
(a)(2) ............................ 404
ss.318(a) ............................ 108
- ----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
INDENTURE, dated as of July 21, 1997, among PLAYTEX PRODUCTS, INC.,
a Delaware corporation (the "Company"), PLAYTEX BEAUTY CARE, INC., a Delaware
corporation, PLAYTEX INVESTMENT CORP., a Delaware corporation, PLAYTEX SALES &
SERVICES, INC., a Delaware corporation, PLAYTEX MANUFACTURING, INC., a Delaware
corporation, SMILE-TOTE, INC., a California corporation, SUN PHARMACEUTICALS
CORP., a Delaware corporation and TH MARKETING CORP., a Delaware corporation
(collectively, the "Guarantors"), and MARINE MIDLAND BANK, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 8 7/8%
Senior Notes due 2004, Series A (the "Initial Securities") and 8 7/8% Senior
Notes due 2004, Series B (the "Exchange Securities" and, together with the
Initial Securities, the "Securities"), of substantially the tenor and amount
hereinafter set forth, and to provide therefor, the Company has duly authorized
the execution and delivery of this Indenture;
Each of the Guarantors has duly authorized the issuance of a
guarantee (the "Guarantee") of the Securities, of substantially the tenor
hereinafter set forth, and to provide therefor, each Guarantor has duly
authorized the execution and delivery of this Indenture and the Guarantee;
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act; and
All acts and things necessary have been done to make (i) the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
(ii) the Guarantees, when executed by the Guarantors and delivered hereunder,
the valid obligation of each Guarantor and (iii) this Indenture a valid
agreement of the Company and each Guarantor in accordance with the terms of this
Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(e) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America.
The following terms shall have the meanings set forth in this
Section:
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time such Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed
to be incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
"Affiliate" means, with respect to any specified Person, (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person or (ii) any other Person
that owns, directly or indirectly, 10% or more of such Person's equity ownership
or Voting Stock or any officer or director of any such Person or other Person or
with respect to any natural Person, any person having a relationship with such
Person by blood, marriage or adoption not more remote than first cousin. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person
directly or indirectly, whether through ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
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"Applicable Premium" means, with respect to any Security to be
redeemed, the greater of (i) 1.0% of the then Outstanding principal amount of
such Security and (ii) (a) the sum of the present values, discounted for all
full semiannual periods at a discount rate equal to one-half multiplied by the
Treasury Rate plus 75 basis points (PROVIDED, HOWEVER, that the discount rate
for the period from the Redemption Date to the next Interest Payment Date shall
equal the result of multiplying the Treasury Rate plus 75 basis points by the
Day Count Fraction), of (I) the remaining payments of interest on such Security
and (II) the payment of the principal amount that, but for such redemption,
would have been payable on such Security at Stated Maturity, MINUS (b) the then
Outstanding principal amount of such Security, MINUS (c) accrued and unpaid
interest paid on the Redemption Date.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease
or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction but not the grant of a pledge or
security interest) (collectively, a "transfer"), directly or indirectly, in one
or a series of related transactions, of (i) any Capital Stock of any Subsidiary;
(ii) all or substantially all of the properties and assets of any division or
line of business of the Company or any of its Subsidiaries; or (iii) any other
properties or assets (other than cash) of the Company or any Subsidiary, other
than in the ordinary course of business. For the purposes of this definition,
the term "Asset Sale" shall not include any transfer of properties and assets
(A) that is governed by the provisions described under Article Seven, (B) from
any Wholly Owned Subsidiary to the Company in accordance with the terms of this
Indenture, (C) having a market value of less than $1,000,000 (it being
understood that if the market value of the properties or assets being
transferred exceeds $1,000,000, the entire value and not just the portion in
excess of $1,000,000, shall be deemed to have been the subject of an Asset
Sale), (D) to any Wholly Owned Subsidiary which is a Guarantor, (E) which are
obsolete to the Company's and its Subsidiaries' businesses or (F) from any
Wholly Owned Subsidiary to any other Wholly Owned Subsidiary which is a
Guarantor.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
"Bankruptcy Law" means Title 11 of the United States Code, as
amended, or any similar United States federal or State law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of such board.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means any Securities bearing the legend
specified in Exhibit O evidencing all or a part of a series of Securities,
authenticated and delivered to the Depository for such series or its nominee,
and registered in the name of such Depository or nominee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Canadian Subsidiary" means any Subsidiary organized under the laws
of Canada or any province thereof, a majority of the assets of which are located
in Canada.
"Capital Lease Obligation" of any Person means any obligations of
such Person under any capital lease of real or personal property which, in
accordance with GAAP, has been recorded as a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock.
"Cash Equivalents" means (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(PROVIDED that the full faith and credit of the United States of America is
pledged in support thereof); (ii) certificates of deposit or acceptances with a
maturity of 180 days or less of any financial institution that is a member of
the Federal Reserve System having combined capital and surplus and undivided
profits of not less than $500,000,000; (iii) commercial paper with a maturity of
180 days or less issued by a corporation that is not an Affiliate of the Company
organized under the laws of any state of the United States or the District of
Columbia and rated A-1 (or higher) according to S&P or P-1 (or higher) according
to Moody's or at least an equivalent rating category of another nationally
recognized securities rating agency; (iv) any money market deposit accounts
issued or offered by a domestic commercial bank having capital and surplus in
excess of $500,000,000; and (v) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or unconditionally
guaranteed by the government of the United States of America or issued by any
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within 180 days from the date of acquisition.
"CEDEL" means Cedel Bank, Societe Anonyme (or any successor
securities clearing agency).
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"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial ownership of all shares
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the Voting Stock of all classes of Voting Stock of the Company; (ii)
the Company consolidates with or merges with or into any Person or conveys,
transfers or leases all or substantially all of its assets to any Person, or any
corporation consolidates with or merges with or into the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of the
Company is changed into or exchanged for cash, securities or other property,
other than any such transaction (1) where the outstanding Voting Stock of the
Company is not changed or exchanged at all (except to the extent necessary to
reflect a change in the jurisdiction of incorporation of the Company) or (2)
where (A) the outstanding Voting Stock of the Company is changed into or
exchanged for (x) Voting Stock of the surviving corporation or the Company which
is not Redeemable Capital Stock or (y) cash, securities and other property
(other than Capital Stock of the surviving corporation) in an amount which could
be paid by the Company as a Restricted Payment as described under Section 909
(and such amount shall be treated as a Restricted Payment subject to the
provisions of Section 909) and (B) no "person" or "group" other than Permitted
Holders owns immediately after such transaction, directly or indirectly, more
than 50% of the total outstanding Voting Stock of the surviving corporation, or
(iii) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with the provisions of
Article Seven.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Company" means Playtex Products, Inc., a corporation incorporated
under the laws of Delaware. To the extent necessary to comply with the
requirements of the provisions of Trust Indenture Act Sections 310 through 317
as they are applicable to the Company, the term "Company" shall include any
other obligor with respect to the Securities for purposes of complying with such
provisions, or any successor thereto succeeding pursuant to Article Seven
hereof.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by any one of its Chairman of the Board,
its Vice-Chairman, its President or a Vice President (regardless of Vice
Presidential designation), and by any one of its
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Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Assets" means with respect to the Company, the total
assets shown on the balance sheet of the Company and its Consolidated
Subsidiaries, as determined on a consolidated basis in accordance with GAAP, as
of the last day of the Company's latest full fiscal quarter.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, as
applied to any Person, the ratio of (a) the sum of Consolidated Net Income,
Consolidated Interest Expense, Consolidated Income Tax Expense and Consolidated
Non-Cash Charges deducted in computing Consolidated Net Income (Loss) in each
case, for such period, of such Person and its subsidiaries on a Consolidated
basis, all determined in accordance with GAAP to (b) the sum of Consolidated
Interest Expense for such period and cash dividends paid on any Preferred Stock,
and non-cash dividends (other than any such non-cash dividends in the form of
Qualified Capital Stock which does not provide for the payment of cash dividends
prior to any Stated Maturity of the principal of the Securities) paid on any
Preferred Stock, of such Person during such period; PROVIDED that (i) in making
such computation, the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a PRO FORMA basis and (A) bearing a floating
interest rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period and (B) which was
not outstanding during the period for which the computation is being made but
which bears, at the option of such Person, a fixed or floating rate of interest,
shall be computed by applying, at the option of such Person, either the fixed or
floating rate and (ii) in making such computation, the Consolidated Interest
Expense of such Person attributable to interest on any Indebtedness under a
revolving credit facility computed on a PRO FORMA basis shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period.
"Consolidated Income Tax Expense" means for any period, as applied
to any Person, the provision for federal, state, local and foreign income taxes
of such Person and its Consolidated subsidiaries for such period as determined
in accordance with GAAP.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, as applied to any Person, the sum of (a) the
interest expense of such Person and its Consolidated subsidiaries for such
period, on a Consolidated basis, including, without limitation, (i) amortization
of debt discount, (ii) the net cost under interest rate contracts including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation and (iv) accrued interest, plus (b) (i) the interest component of
Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued
by such Person during such period and (ii) all capitalized interest of such
Person and its Consolidated subsidiaries, in each case as determined in
accordance with GAAP.
"Consolidated Net Income (Loss)" of any Person means, for any
period, the Consolidated net income (or loss) of such Person and its
Consolidated subsidiaries for such
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period as determined in accordance with GAAP, adjusted, to the extent included
in calculating such Consolidated net income (or loss), by excluding, without
duplication, (i) all extraordinary gains and losses, (ii) the portion of
Consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries allocable to minority interests in unconsolidated Persons to the
extent that cash dividends or distributions have not actually been received by
such Person or one of its Consolidated subsidiaries, (iii) net income (or loss)
of any Person combined with such Person or any of its subsidiaries on a "pooling
of interests" basis attributable to any period prior to the date of combination,
(iv) any gain or loss, net of taxes, realized upon the termination of any
employee pension benefit plan, (v) aggregate net gain (less all fees and
expenses relating thereto) in respect of dispositions of assets other than in
the ordinary course of business, (vi) the net income of any subsidiary to the
extent that the declaration of dividends or similar distributions by that
subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to that
subsidiary or its stockholders, (vii) all non-cash interest income arising from
Indebtedness owed to the Company or any of its Subsidiaries from Playtex Apparel
Partners, L.P. (net of any non-cash interest expense arising from Indebtedness
in existence on the date of this Indenture or any refinancings thereof (or any
pay-in-kind obligation issued pursuant to the terms thereof) owed by the Company
or any of its Subsidiaries to Playtex Apparel Partners, L.P. or its partners or
their transferees), (viii) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of income
accrued at any time following the date of this Indenture, (ix) any net gain from
the collection of proceeds of life insurance policies or (x) any gain arising
from the acquisition of any securities, or the extinguishment, under GAAP, of
any Indebtedness of such Person.
"Consolidated Net Worth" of any Person means the Consolidated
stockholders' equity (excluding Redeemable Capital Stock) of such Person and its
Consolidated subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-Cash Charges" of any Person means, for any period,
the aggregate depreciation, amortization and other non-cash charges of such
Person and its Consolidated subsidiaries for such period, as determined in
accordance with GAAP (excluding any non-cash charge which requires an accrual or
reserve for cash charges for any future period).
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 140
Broadway, 12th Floor, New York, New York 10005.
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"Credit Facilities" means (a) the Credit Agreement, among the
Company, the several Lenders from time to time parties thereto, DLJ Capital
Funding, Inc., and the agent thereunder, and (b) the Term Loan Agreement among
the Company, the several banks and other financial institutions from time to
time parties thereto, DLJ Capital Funding, Inc. and the facility manager
thereunder, each to be entered into on the Issue Date, as each such agreement
may be amended, renewed, extended, substituted, refinanced, restructured,
replaced, supplemented or otherwise modified from time to time (including,
without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplementations or other
modifications of the foregoing).
"Day Count Fraction" means the number of days from the redemption
date to (but excluding) the next scheduled Interest Payment Date divided by 360
(which assumes a 360-day year composed of twelve 30-day months).
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors who does not
have any material direct or indirect financial interest in or with respect to
such transaction or series of related transactions.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Article Four.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of the Initial Securities to exchange all the Initial Securities
held by such Holder for the Exchange Securities in an aggregate principal amount
equal to the aggregate principal amount of the Initial Securities held by such
Holder, all in accordance with the terms and conditions of the Registration
Rights Agreement.
"Exchange Securities" has the meaning specified in the first recital
of this Indenture.
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"Excluded Assets" means the assets and other property held by the
Company (including shares of Capital Stock) relating to the Jhirmack Business.
"Foreign Subsidiary" means any Subsidiary organized in a
jurisdiction outside one of the States of the United States or the District of
Columbia.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, which
are in effect on the date of this Indenture.
"Global Security" means, as the context may require, any or all of
the Temporary Regulation S Global Security, the Permanent Regulation S Global
Security and the Restricted Global Security.
"Guarantee" means the guarantee by any Guarantor of the Indenture
Obligations.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of Indebtedness
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (i) to pay
or purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (ii) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to take payment of such Indebtedness or to assure the holder
of such Indebtedness against loss, (iii) to supply funds to, or in any other
manner invest in, the debtor (including any agreement to pay for property or
services without requiring that such property be received or such services be
rendered), (iv) to maintain working capital or equity capital of the debtor, or
otherwise to maintain the net worth, solvency or other financial condition of
the debtor or (v) otherwise to assure a creditor against loss; PROVIDED that the
term "guarantee" shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Guarantor" means any guarantor of the Securities.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other similar facilities
and in connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Capital Stock of such Person, or any warrants,
rights or options to acquire such Capital Stock, now or hereafter outstanding,
(ii) all obligations of such Person evidenced by bonds, notes, debentures or
other
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similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade payables arising in the ordinary course
of business, (iv) all obligations under Interest Rate Agreements of such Person,
(v) all Capital Lease Obligations of such Person, (vi) all Indebtedness referred
to in clauses (i) through (v) above of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien, upon or with respect to property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness, (vii) all
Guaranteed Debt of such Person, (viii) all Redeemable Capital Stock valued at
the greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends, and (ix) any amendment, supplement, modification,
deferral, renewal, extension, refunding or refinancing of any Indebtedness of
the types referred to in clauses (i) through (viii) above. For purposes hereof,
the "maximum fixed repurchase price" of any Redeemable Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
fair market value of such Redeemable Capital Stock, such fair market value to be
determined in good faith by the Board of Directors of such Person.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules thereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company under
this Indenture or under the Securities to pay principal of, premium, if any, and
interest when due and payable, and all other amounts due or to become due under
or in connection with this Indenture, the Securities and the performance of all
other obligations to the Trustee and the Holders under this Indenture and the
Securities, according to the terms thereof.
"Initial Purchaser" means Donaldson, Lufkin & Jenrette Securities
Corporation.
"Initial Securities" has the meaning specified in the first recital
of this Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as the term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means the Stated Maturity of a regular
installment of interest on the Securities or the Special Payment Date with
respect to Defaulted Interest.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements
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(including, without limitation, interest rate swaps, caps, floors, collars and
similar agreements) and/or other types of interest rate hedging agreements from
time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by,
any other Person and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
"Issue Date" means July 21, 1997.
"Jhirmack Business" means the assets and liabilities of the Company
and its Subsidiaries relating to Jhirmack hair care products, including the
Capital Stock of any Subsidiary, substantially all of the assets and liabilities
of which relate to Jhirmack hair care products.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Liquidated Damages" means all liquidated damages owing pursuant to
Section 5 of the Registration Rights Agreement.
"Marketing Corporation" means Playtex Marketing Corporation, a
Delaware corporation, or its successors.
"Material Subsidiary" means each Subsidiary of the Company which (i)
for the most recent fiscal year of the Company accounted for more than 10% of
the Consolidated revenues of the Company and its Subsidiaries or (ii) at the end
of such fiscal year, was the owner (beneficial or otherwise) of more than 10% of
the Consolidated Assets of the Company and its Subsidiaries, all as shown on the
Company's Consolidated financial statements for such fiscal year. In addition,
Marketing Corporation shall be deemed to be a "Material Subsidiary."
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein provided
or as provided in this Indenture, whether at Stated Maturity, the Purchase Date
or the Redemption Date and whether by declaration of acceleration, Offer in
respect of Excess Proceeds, Change of Control, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. or any successor
rating agency.
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"Net Cash Proceeds" means (a) with respect to any Asset Sale by any
Person, the proceeds thereof in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when received in the form
of, or stock or other assets when disposed of for, cash or Cash Equivalents
(except to the extent that such obligations are financed or sold with recourse
to the Company or any Subsidiary) net of (i) brokerage commissions and other
reasonable fees and expenses (including fees and expenses of counsel and
investment bankers) related to such Asset Sale, (ii) provisions for all taxes
payable as a result of such Asset Sale, (iii) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale, (iv) amounts required to be paid to
any Person (other than the Company or any Subsidiary) owning a beneficial
interest in the assets subject to the Asset Sale and (v) appropriate amounts to
be provided by the Company or any Subsidiary, as the case may be, as a reserve,
in accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Company or any Subsidiary, as the case may be, after such
Asset Sale, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an Officers' Certificate delivered to the Trustee and
(b) with respect to any issuance or sale of Capital Stock or options, warrants
or rights to purchase Capital Stock, or debt securities or Capital Stock that
have been converted into or exchanged for Capital Stock, as referred to in
Section 909, the proceeds of such issuance or sale in the form of cash or Cash
Equivalents, including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for, cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Subsidiary), net of attorneys' fees,
accountants' fees and brokerage, consultation, underwriting and other fees and
expenses actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, Vice Chairman, President or a Vice President (regardless of Vice
Presidential designation), and by the Treasurer, Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Trustee, and who shall be reasonably acceptable
to the Trustee, including but not limited to an Opinion of Independent Counsel.
"Opinion of Independent Counsel" means a written opinion by someone
who is not an employee or consultant of the Company and who shall be reasonably
acceptable to the Trustee.
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"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; PROVIDED, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee has been
made;
(c) Securities, except to the extent provided in Sections 302 and
303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Three; and
(d) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee and the Company proof reasonably satisfactory to each of them that such
Securities are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, any Guarantor or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the reasonable satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company, any Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal, premium, if any, or interest on any Securities on behalf of the
Company.
"Permanent Regulation S Security" means, after such time as the
Restricted Period shall have expired and an Owner Securities Certification and a
Depository Securities Certification shall have been provided, the interests into
which the Temporary Regulation S Global Securities shall have been exchanged,
whether or not such interest is a Global Security.
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"Permitted Holders" means each of (i) HWH Capital Partners, L.P.,
HWH Valentine Partners, L.P., HWH Surplus Valentine Partners, L.P. (each a
"Partnership") or Haas Wheat & Partners Incorporated and any of their respective
Affiliates; (ii) any officer or other member of management employed by the
Company or any Subsidiary as of the date of the Indenture; (iii) Robert B. Haas
and Douglas D. Wheat; (iv) family members or relatives of the persons described
in clauses (ii) and (iii); (v) any trusts created for the benefit of the persons
described in clause (ii), (iii) or (iv); (vi) in the event of the incompetence
or death of any of the persons described in clauses (ii), (iii) and (iv), such
person's estate, executor, administrator, committee or other personal
representatives or beneficiaries; and (vii) upon a distribution by a Partnership
of all or any of the stock of the Company, the limited partners of such
Partnership.
"Permitted Indebtedness" means the following:
(i) Indebtedness of the Company under the Credit Facilities in
an aggregate principal amount at any one time outstanding not to exceed $320
million, reduced by (A) any scheduled principal payment actually made and (B)
any amount by which any revolving credit facility commitment is permanently
reduced and the revolving credit loans, to the extent required, are indefeasibly
and irrevocably paid in cash;
(ii) guarantees by, and Liens on the property of, any
Subsidiary guaranteeing or securing the Company's Indebtedness under the Credit
Facilities;
(iii) Indebtedness of the Company pursuant to the Securities
and Indebtedness of any Guarantor pursuant to a Guarantee of the Securities;
(iv) Indebtedness of the Company or any Subsidiary outstanding
on the date of this Indenture, including, without limitation, the Senior
Subordinated Notes;
(v) Indebtedness (a) of the Company owing to a Wholly Owned
Subsidiary which is a Guarantor or (b) of a Wholly Owned Subsidiary which is a
Guarantor owing to the Company or another Wholly Owned Subsidiary which is a
Guarantor; PROVIDED that any such Indebtedness is made pursuant to an
intercompany note and, in the case of Indebtedness of the Company owing to a
Subsidiary, is subordinated in right of payment from and after such time as the
Securities shall become due and payable (whether at Stated Maturity,
acceleration or otherwise) to the payment and performance of the Company's
obligations under the Securities; PROVIDED, FURTHER, that (x) any disposition,
pledge or transfer of any such Indebtedness to a Person (other than the Company
or a Wholly Owned Subsidiary which is a Guarantor) shall be deemed to be an
incurrence of such Indebtedness by the obligor not permitted by this clause (v)
and (y) any transaction pursuant to which any Wholly Owned Subsidiary, which has
Indebtedness owing to the Company or any other Wholly Owned Subsidiary, ceases
to be a Wholly Owned Subsidiary shall be deemed to be the incurrence of
Indebtedness by the Company or such other Wholly Owned Subsidiary that is not
permitted by this clause (v);
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(vi) obligations of the Company or any Subsidiary pursuant to
Interest Rate Agreements designed to protect the Company or any Subsidiary
against fluctuations in interest rates in respect of Indebtedness of the Company
or any of its Subsidiaries, which obligations do not exceed the aggregate
principal amount of such Indebtedness;
(vii) trade and standby letters of credit issued for the
account of the Company or any Subsidiary of the Company in the ordinary course
of its business (excluding letters of credit described in clauses (viii) and
(ix) below);
(viii)letters of credit of up to $7,500,000 in the aggregate
at any time outstanding issued for the account of the Company or any Subsidiary
of the Company for any purpose other than in the ordinary course of business;
(ix) letters of credit issued for the account of the Company
in support of the Company's self-insurance obligations and in support of
Indebtedness under industrial revenue bonds, to the extent that such obligations
or such Indebtedness are recorded on the balance sheet of the Company;
(x) Capital Lease Obligations, industrial revenue bonds and
Purchase Money Obligations of the Company or any Subsidiary, not to exceed
$10,000,000 in the aggregate at any time outstanding;
(xi) Indebtedness of the Company or any Canadian Subsidiary
incurred to fund the working capital requirements necessary for the Canadian
operations of any Canadian Subsidiary in an amount not to exceed $10,000,000 in
the aggregate at any time outstanding;
(xii) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any Indebtedness
described in clauses (ii), (iii), (iv) and (xiii) of this definition of
"Permitted Indebtedness," including any successive refinancings so long as such
refinancing does not increase the aggregate principal amount of Indebtedness
represented thereby plus the lesser of (I) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing pursuant
to the terms of the Indebtedness being refinanced or (II) the amount of premium
or other payment actually paid at such time to refinance the Indebtedness, plus,
in either case, the amount of expenses of the Company incurred in connection
with such refinancing and, in the case of Senior Indebtedness or Subordinated
Indebtedness, such refinancing does not reduce the Average Life to Stated
Maturity or the Stated Maturity of such Indebtedness;
(xiii)guarantees by any Subsidiary which is a Guarantor given
in accordance with Section 1013 of the indenture governing the Senior
Subordinated Notes; and
(xiv) Indebtedness of the Company or any Subsidiary which is a
Guarantor in addition to that described in clauses (i) through (xiii) of this
definition of "Permitted Indebtedness" in an aggregate principal amount
outstanding at any given time not to exceed
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$50,000,000, which amount, notwithstanding the provisions of paragraph (i)
hereof, may be incurred under the Credit Facilities.
"Permitted Investment" means (i) Investments in the Company or in
any Wholly Owned Subsidiary which is a Guarantor or Investments by the Company
or any Subsidiary in a Person, if as a result of such Investment (a) such Person
becomes a Wholly Owned Subsidiary which is a Guarantor or (b) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or any
Wholly Owned Subsidiary which is a Guarantor; (ii) Investments in the Securities
and the Guarantees; (iii) Indebtedness owing to a Subsidiary described under
clause (v) of the definition of "Permitted Indebtedness"; (iv) Temporary Cash
Investments; (v) Investments acquired by the Company or any Subsidiary in
connection with an Asset Sale permitted under Section 912 to the extent such
Investments are non-cash consideration as permitted under such covenant; (vi)
Investments in existence on the date of this Indenture; and (vii) in addition to
the Investments described in clauses (i) through (vi) of this definition of
"Permitted Investments," Investments in any Subsidiary, Unrestricted Subsidiary
or in any joint venture or other entity in an amount not to exceed $35,000,000
in the aggregate since the date of this Indenture.
"Permitted Liens" means (i) Liens securing Indebtedness under the
Credit Facilities, (ii) Liens for taxes, assessments or governmental charges or
claims that either (A) are not yet delinquent or (B) are being contested in good
faith by appropriate proceedings and as to which appropriate reserves have been
established or other provisions have been made in accordance with GAAP; (iii)
statutory Liens of landlords and carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen's or other Liens imposed by law and arising
in the ordinary course of business and with respect to amounts that, to the
extent applicable, either (A) are not yet delinquent or (B) are being contested
in good faith by appropriate proceedings and as to which appropriate reserves
have been established or other provisions have been made in accordance with
GAAP; (iv) Liens on property of a Person existing at the time such Person is
merged into, consolidated with or acquired by the Company or any Subsidiary of
the Company which is a Guarantor, PROVIDED that such Liens were not incurred in
contemplation of such merger or consolidation and do not extend to any assets
other than those of (A) the Person merged into or consolidated with the Company
or any Subsidiary which is a Guarantor or (B) those of an unrelated third party;
(v) Liens on property existing at the time of acquisition thereof by the Company
or any Subsidiary of the Company which is a Guarantor, PROVIDED that such Liens
were not incurred in contemplation of such acquisition; (vi) Liens existing on
the date of this Indenture; (vii) replacement Liens securing any Indebtedness
refinanced as permitted in clause (xii) of the definition of "Permitted
Indebtedness"; (viii)Liens arising under licensing agreements entered into by
the Company or any Subsidiary in the ordinary course of business for the use of
Intellectual Property (as defined in the Credit Facilities) or other intangible
assets of the Company or such Subsidiary, and settlements, permissions, consents
to use, and other similar agreements concerning Intellectual Property or
judgments adjudicating rights in Intellectual Property; (ix) Liens securing
Capital Lease Obligations, industrial revenue bonds and Purchase Money
Obligations permitted to be incurred under clause (x) of the definition of
"Permitted Indebtedness"; (x) Liens securing any Indebtedness of the Company or
any Subsidiary which is a
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Guarantor permitted to be incurred pursuant to clauses (viii), (xi) and (xiv) of
the definition of "Permitted Indebtedness"; (xi) Liens (other than any Lien
imposed by the Employer Retirement Income Security Act of 1974, as amended)
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; (xii) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds, progress
payments, government contracts and other obligations of like nature (exclusive
of obligations for the payment of borrowed money), in each case, incurred in the
ordinary course of business; (xiii) attachment or judgment Liens not giving rise
to a Default or an Event of Default; and (xiv) easements, rights-of-way,
restrictions and other similar charges or encumbrances not materially
interfering with the ordinary conduct of business of the Company or any of its
Subsidiaries.
"Person" means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivisions thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 205 in exchange for a
mutilated Security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Preferred Stock" means, with respect to any Person, any Capital
Stock of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of such Person, over the
Capital Stock of any other class in such Person.
"Purchase Money Obligation" means any Indebtedness secured by a Lien
on assets related to the business of the Company or its Subsidiaries, and any
additions and accessions thereto, which are purchased by the Company or any
Subsidiary at any time after the Securities are issued; PROVIDED that (i) the
security agreement or conditional sales or other title retention contract
pursuant to which the Lien on such assets is created (collectively a "Purchase
Money Security Agreement") shall be entered into within 90 days after the
purchase or substantial completion of the construction of such assets and shall
at all times be confined solely to the assets so purchased or acquired, any
additions and accessions thereto and any proceeds therefrom, (ii) at no time
shall the aggregate principal amount of the outstanding Indebtedness secured
thereby be increased, except in connection with the purchase of additions and
accessions thereto and except in respect of fees and other obligations in
respect of such Indebtedness and (iii)(A) the aggregate outstanding principal
amount of Indebtedness secured thereby (determined on a per asset basis in the
case of any additions and accessions) shall not at the time such Purchase Money
Security Agreement is entered into exceed 100% of the purchase price to the
Company or any Subsidiary of the assets subject thereto or (B) the Indebtedness
secured thereby shall be with recourse solely to the assets so purchased or
acquired, any additions and accessions thereto and any proceeds therefrom.
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"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Qualified Institutional Buyer" or "QIB" has the meaning specified
in Rule 144A under the Securities Act.
"Redeemable Capital Stock" means any Capital Stock that, either by
its terms, by the terms of any security into which it is convertible or
exchangeable or otherwise, is, or upon the happening of an event or passage of
time would be, required to be redeemed prior to any Stated Maturity of the
principal of the Securities or is redeemable at the option of the holder thereof
at any time prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such Stated Maturity
at the option of the holder thereof.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed pursuant to a provision in this Indenture means the price at which it
is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the Issue Date between the Company and the Initial Purchaser.
"Regular Record Date" for the interest payable on any Interest
Payment Date means January 1 or July 1, as the case may be (whether or not a
Business Day), next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Responsible Officer" when used with respect to the Trustee means
any officer assigned to the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture or any other officer of
the Trustee to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act; provided that the Trustee shall be entitled to request
and conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
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"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Securities" has the meaning specified in the first recital of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means any Indebtedness of the Company which
ranks PARI PASSU in right of payment with, and which is not expressly by its
terms subordinated in right of payment of principal, interest or premium, if
any, to the Securities, whether or not such Indebtedness is secured.
"Senior Subordinated Notes" means the Company's 9% Senior
Subordinated Notes due 2003.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 206.
"S&P" means Standard & Poor's Ratings Services, or any successor
rating agency.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
subordinated in right of payment to the Securities, including, without
limitation, the Senior Subordinated Notes.
"Subsidiary" means any Person a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries; PROVIDED that, an Unrestricted Subsidiary shall not be
deemed a Subsidiary for purposes of this Indenture.
"Temporary Cash Investments" means (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by the
United States of America, or an instrumentality or agency thereof, and
guaranteed fully as to principal, premium, if any, and interest by the United
States of America, (ii) any certificate of deposit, maturing not more than one
year after the date of acquisition, issued by, or time deposit of, the Trustee
or a commercial banking institution that is a member of the Federal Reserve
System and that has combined capital and surplus and undivided profits of not
less than $500,000,000, whose debt has a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or "A-1"
(or higher) according to S&P, (iii) commercial paper, maturing not more than one
year after the date of acquisition, issued by a corporation (other than an
Affiliate or Subsidiary of the Company) organized and existing under the laws of
the United States of America with a rating,
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at the time as of which any investment therein is made, of "P-1" (or higher)
according to Moody's or "A-1" (or higher) according to S&P, (iv) any money
market deposit accounts issued or offered by the Trustee or a domestic
commercial bank having capital and surplus in excess of $500,000,000.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by, and published in, the most recent Federal Reserve Statistical
Release H.15 (5-19) which has become publicly available at least two Business
Days prior to the date fixed for redemption of the Securities following a Change
of Control (or, if such Statistical Release is no longer published, any publicly
available source of similar market data) most nearly equal to the then remaining
Average Life to Stated Maturity of the Securities; PROVIDED, HOWEVER, that if
the Average Life to Stated Maturity of the Securities is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (rounded, if necessary, to four decimal places) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the Average Life to Stated Maturity of the Securities is
less than one year, the weekly average yield on actually traded United States
treasury securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Unrestricted Subsidiary" means any subsidiary that would but for
this definition of "Unrestricted Subsidiary" be a Subsidiary organized or
acquired after the date of this Indenture as to which all of the following
conditions apply: (a) neither the Company nor any of its other Subsidiaries
(other than Unrestricted Subsidiaries) provides credit support for any
Indebtedness of such Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness); (b) such Subsidiary is not liable,
directly or indirectly, with respect to any Indebtedness other than Unrestricted
Subsidiary Indebtedness; (c) neither the Company nor any of its Subsidiaries
(other than Unrestricted Subsidiaries) has made an Investment in such
Unrestricted Subsidiary unless such Investment was permitted by the provisions
of Section 909; and (d) the Board of Directors of the Company, as provided
below, shall have designated such Subsidiary (including any newly formed or
acquired Subsidiary) to be an Unrestricted Subsidiary; PROVIDED that after
giving effect to such designation, such Subsidiary does not own, directly or
indirectly, any Capital Stock of any other Subsidiary. Any such designation by
the Board of Directors of the Company shall be evidenced to the Trustee by
filing with the Trustee a Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complies with the
foregoing conditions. The Board of Directors of the Company may designate any
Unrestricted Subsidiary as a Subsidiary; PROVIDED that (i) immediately after
giving PRO FORMA effect to such designation, the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
restrictions under
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Section 908; and (ii) all Indebtedness of such Unrestricted Subsidiary shall be
deemed to be incurred on the date such Unrestricted Subsidiary becomes a
Subsidiary. Any subsidiary of an Unrestricted Subsidiary shall be an
Unrestricted Subsidiary for purposes of this Indenture.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (a) as to which
neither the Company nor any Subsidiary is directly or indirectly liable (by
virtue of the Company or any such Subsidiary being the primary obligor on,
guarantor of, or otherwise liable in any respect to, such Indebtedness), and (b)
which, upon the occurrence of a default with respect thereto, does not result
in, or permit any holder of any Indebtedness of the Company or any Subsidiary to
declare, a default on such Indebtedness of the Company or any Subsidiary or
cause the payment thereof to be accelerated or payable prior to its Stated
Maturity.
"Voting Stock" means stock of the class or classes pursuant to which
the holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of
a corporation (irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary all the outstanding
Capital Stock (other than directors' qualifying shares) of which are owned by
the Company or another Wholly Owned Subsidiary.
Section 102. OTHER DEFINITIONS.
Defined
Term in Section
---- ----------
"Act" 105
"Agent Members" 210
"Applicable Procedures" 201
"Change of Control Offer" 913
"Change of Control Purchase Date" 913
"Change of Control Purchase Notice" 913
"Change of Control Purchase Price" 913
"covenant defeasance" 303
"Defaulted Interest" 206
"defeasance" 302
"Defeasance Redemption Date" 302
"Defeased Securities" 301
"Deficiency" 912
"Depository Securities Certification" 201
"Excess Proceeds" 912
"incur" 908
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"Non-Global Permanent Regulation S Security" 211
"Note Amount" 912
"Offer" 912
"Offered Price" 912
"Owner Securities Certification" 201
"Pari Passu Debt Amount" 912
"Pari Passu Offer" 912
"Permanent Regulation S Global Security" 201
"Permitted Payment" 909
"Physical Securities" 201
"Private Placement Legend" 211
"Purchase Date" 912
"refinancing" 909
"Required Filing Dates" 916
"Restricted Global Security" 201
"Restricted Payments" 909
"Restricted Period" 201
"Security Register" 204
"Security Registrar" 204
"Special Payment Date" 206
"Supplemental Indenture" 701
"Surviving Entity" 701
"Temporary Regulation S Global Security" 201
"Transferee Securities Certification" 211
"U.S. Government Obligations" 304
Section 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate to the effect that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance which constitutes a condition precedent) relating to the proposed
action have been complied with and an Opinion of Counsel to the effect that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of any certificates and/or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement to the effect that each individual or firm signing
such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
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(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement to the effect that, in the opinion of each such
individual or such firm, he has made such examination or investigation as is
necessary to enable him or them to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been complied with.
Prior to the issuance of any Exchange Security in the Exchange
Offer, the Company must furnish to the Trustee an Opinion of Counsel with
respect to the following matters:
(i) the Exchange Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered in exchange for Initial Securities in
accordance with the Indenture and the Exchange Offer, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
their terms except as (x) the enforceability thereof may be limited
to bankruptcy, insolvency, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally and
(y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability (whether considered in an action at law or in equity);
and
(ii) when the Exchange Securities are executed and
authenticated in accordance with the provisions of the Indenture and
delivered in exchange for Initial Securities in accordance with the
Indenture and the Exchange Offer, the Guarantees endorsed thereon
will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Guarantors, enforceable in accordance
with their terms except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability (whether considered in an action at law or in equity).
Section 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters
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and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any
Guarantor or other obligor of the Securities may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are erroneous. Any
certificate or opinion of such an officer or of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company with respect to such
factual matters and which contains a statement to the effect that the
information with respect to such factual matters is in the possession of the
Company, unless such officer or counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous. Opinions of Counsel
required to be delivered to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of Counsel
may rely on certificates of the Company or government or other officials
customary for opinions of the type required, including certificates certifying
as to matters of fact, including that various financial covenants have been
complied with.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The ownership of Securities shall be proved by the Security
Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the
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Trustee, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(d) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate of affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
Section 106. NOTICES, ETC., TO TRUSTEE, THE COMPANY AND THE
GUARANTORS.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company, any Guarantor or
any other obligor of the Securities shall be sufficient for every purpose
hereunder if made, given, furnished or filed, in writing, by first-class mail
postage prepaid (return receipt requested) or delivered in person or by
recognized overnight courier to or with the Trustee at 140 Broadway, 12th Floor,
New York, New York 10005, Attention: Corporate Trust Department or at any other
address furnished in writing prior thereto to the Holders, the Company, the
Guarantors or any other obligor of the Securities by the Trustee; or
(b) the Company or any Guarantor shall be sufficient for every
purpose (except as provided in Section 501(c)) hereunder if in writing and
mailed, first-class postage prepaid or delivered by recognized overnight
courier, to the Company or any Guarantor addressed to it at 300 Nyala Farms
Road, Westport, Connecticut 06880, Attention: Chief Financial Officer, or at any
other address previously furnished in writing to the Trustee by the Company,
with a copy, in the case of any notice under Section 402, to Paul, Weiss,
Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York
10019-6064, Attention: Robert M. Hirsh, Esq.
Section 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any
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notice when mailed to a Holder in the aforesaid manner shall be conclusively
deemed to have been received by such Holder whether or not actually received by
such Holder. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before of after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, such provision
of the Trust Indenture Act shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company, the
Guarantors and any other obligor of the Securities shall bind their successors
and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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Section 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at
Maturity or the Stated Maturity, and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. SCHEDULES.
All schedules attached hereto are by this reference made a part with
the same effect as if herein set forth in full.
Section 116. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
Section 117. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture.
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The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act have the meanings so
assigned to them.
ARTICLE TWO
THE SECURITIES
Section 201. FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of EXHIBIT A or EXHIBIT B hereto, as the case may
be, the terms of which are incorporated in and made a part of this Indenture.
The Securities may have notations, legends or endorsements approved as to form
by the Company and required by law, stock exchange rule, agreements to which the
Company is subject or usage. Each Security shall be dated the date of its
authentication. The Securities shall be issuable only in denominations of $1,000
and integral multiples thereof.
Securities offered and sold to QIBs in reliance on Rule 144A or to
Institutional Accredited Investors shall be issued initially in the form of two
Global Securities in registered form, substantially in the form set forth in
EXHIBIT A (collectively, and together with their Successor Securities, the
"Restricted Global Security"), with such applicable legends as are provided for
in EXHIBIT A and EXHIBIT O, registered in the name of the Depository or its
nominee and deposited with the Trustee, as custodian for the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided, for credit by the Depository to the respective accounts of beneficial
owners of the Securities represented thereby (or such other accounts as they may
direct). One Global Security (which may be represented by more than one
certificate, if so required by the Depository's rules regarding the maximum
principal amount to be represented by a single certificate) will represent
Initial Securities sold to QIBs and the other will represent Initial Securities
sold to Institutional Accredited Investors. The
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aggregate principal amount of the Restricted Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided. Transfers of
Initial Securities from QIBs to Institutional Accredited Investors, and from
Institutional Accredited Investors to QIBs, will be represented by appropriate
increases and decreases to the respective amounts of the appropriate Global
Security as provided in Section 211 hereof.
Securities offered and sold in their initial distribution in
reliance on Regulation S may be initially issued in the form of temporary Global
Securities in fully registered form without interest coupons, substantially in
the form set forth in EXHIBIT A, with such applicable legends as are provided
for in EXHIBIT A and EXHIBIT O. Such temporary Global Securities shall be
registered in the name of the Depository or its nominee and deposited with the
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit by the
Depository to the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct), PROVIDED that
upon such deposit all such Securities shall be credited to or through accounts
maintained at the Depository by or on behalf of Euroclear or CEDEL. Until such
time as the Restricted Period (as defined below) shall have expired, such
temporary Global Securities, together with their Successor Securities which are
Global Securities other than the Restricted Global Security, shall be referred
to herein as a "Temporary Regulation S Global Security." After such time as the
Restricted Period shall have expired and the certifications referred to below in
the next succeeding paragraph shall have been provided, interests in such
Temporary Regulation S Global Securities shall be exchanged for interests in
like Global Securities, referred to herein collectively as the "Permanent
Regulation S Global Security," substantially in the form of the Security set
forth in EXHIBIT A, with such applicable legends as are provided for in EXHIBIT
A and EXHIBIT O. Such Permanent Regulation S Global Securities shall be
registered in the name of the Depository or its nominee and deposited with the
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct). The aggregate principal
amount of the Temporary Regulation S Global Security or the Permanent Regulation
S Global Security may be increased or decreased from time to time by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided. As used herein, the term "Restricted Period" means the
period of 40 days commencing on the day after the later of (a) the day on which
the Securities are first offered to persons other than distributors (as defined
in Regulation S) in reliance on Regulation S and (b) the Issue Date.
Interests in a Temporary Regulation S Global Security may be
exchanged for interests in a Permanent Regulation S Global Security only after
(a) the expiration of the Restricted Period, (b) the delivery by a beneficial
owner of an interest therein to Euroclear or CEDEL of a written certification
(an "Owner Securities Certification") substantially in the form of EXHIBIT E
hereto, and (c) upon delivery by Euroclear or CEDEL to the Trustee of a written
certification (a "Depository Securities Certification") substantially in the
form attached hereto as EXHIBIT F. Upon satisfaction of such conditions, the
Trustee will exchange the portion of the
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Temporary Regulation S Global Security covered by such certification for
interests in a Permanent Regulation S Global Security. The delivery by such
Holder of a beneficial interest in such Temporary Regulation S Global Security
of such certification shall constitute an irrevocable instruction by such holder
to Euroclear or CEDEL, as the case may be, to exchange such Holder's beneficial
interest in the Temporary Regulation S Global Security for a beneficial interest
in the Permanent Regulation S Global Security upon expiration of the Restricted
Period in accordance with the next succeeding paragraph.
Upon:
(i) the expiration of the Restricted Period;
(ii) receipt by Euroclear or CEDEL, as the case may be, of
Owner Securities Certifications described in the preceding paragraph;
(iii) receipt by the Depository of:
(1) written instructions given in accordance with the rules
and procedures of the Depository, Euroclear and CEDEL, in each case to the
extent applicable and as in effect from time to time (the "Applicable
Procedures"), from an Agent Member directing the Depository to credit or
cause to be credited to a specified Agent Member's account a beneficial
interest in a Permanent Regulation S Global Security in a principal amount
equal to that of the beneficial interest in a corresponding Temporary
Regulation S Global Security for which the necessary certifications have
been delivered; and
(2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent
Member, and the Euroclear or CEDEL account for which such Agent Member's
account is held, to be credited with, and the account of the Agent Member
to be debited for, such beneficial interest; and
(iv) receipt by the Trustee of notification from the
Depository of the transactions described in (iii) above and from Euroclear
or CEDEL, as the case may be, of Depository Securities Certifications,
the Trustee, as Registrar, shall instruct the Depository to reduce the principal
amount of such Temporary Regulation S Global Security and to increase the
principal amount of such Permanent Regulation S Global Security by the principal
amount of the beneficial interest in such Temporary Regulation S Global Security
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in such
Permanent Regulation S Global Security having a principal amount equal to the
amount by which the principal amount of such Temporary Regulation S Global
Security was reduced upon such transfer.
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Securities offered and sold in reliance on Regulation S and
Securities offered and sold to QIBs in reliance on Rule 144A or to Institutional
Accredited Investors may be originally issued at the request of the Holders
thereof in the form of permanent certificated Securities in registered form, in
substantially the form set forth in EXHIBIT A (the "Physical Securities") with
appropriate legends. Beneficial owners of Physical Securities may request
registration of such Physical Securities in their names or the names of their
nominees.
If the Securities are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that shall represent and shall be in
minimum denominations of $1,000.
Exchange Securities may be issued only in exchange for a like
principal amount of Initial Securities pursuant to an Exchange Offer.
The principal of and interest on Book-Entry Securities shall be
payable to the Depository or its nominee, as the case may be, as the sole
registered owner and the sole holder of the Book-Entry Securities represented
thereby. The principal of and interest on Securities in certificated form shall
be payable at the office of the Paying Agent.
Section 202. EXECUTION AND AUTHENTICATION.
The Securities shall be executed on behalf of the Company by one of
its Chairman of the Board, Vice-Chairman, President or one of its Vice
Presidents. The Guarantees shall be executed on behalf of each Guarantor by one
of its Chairman of the Board, President or one of its Vice Presidents. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities and the Officer's Certificate and
Opinion(s) of Counsel required by Section 103, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is
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entitled to the benefits of this Indenture. The form of Trustee's certificate of
authentication to be borne by the Securities shall be substantially as set forth
in EXHIBIT A hereto.
In case the Company, pursuant to Article Seven, shall be
consolidated or merged with or into any other Person or shall sell, convey,
assign, transfer, lease or otherwise dispose of substantially all of its
properties and assets to any Person, and the successor Person resulting from
such consolidation, or surviving such merger, or into which the Company shall
have been merged or consolidated, or the successor Person which shall have
received a conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article Seven, any of the Physical Securities authenticated or delivered prior
to such consolidation, merger, conveyance, transfer, lease or other disposition
may, from time to time, at the request of the successor Person, be exchanged for
other Physical Securities executed in the name of the successor Person with such
changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Company Request of the successor
Person, shall authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of a Holder but without
expense to such Holder, shall provide for the exchange of all Securities at the
time Outstanding held by such Holder for Securities authenticated and delivered
in such new name.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities on behalf of the Trustee.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Security Registrar or
Paying Agent to deal with the Company and its Affiliates.
Section 203. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 902, without charge to the Holders thereof. Upon surrender
for cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall
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authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 204. REGISTRAR, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee, or such other office as the Trustee may designate, a register (the
register maintained in such office and in any other office or agency designated
pursuant to Section 902 being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as the Security
Registrar may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. The Trustee or an agent thereof or of
the Company shall initially be the "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. The
Company may appoint one or more co-registrars.
Subject to Sections 210 and 211 hereof, upon surrender for
registration of transfer of any Physical Security at the office or agency of the
Company designated pursuant to Section 902, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Physical Securities of any authorized
denomination or denominations, of a like aggregate principal amount.
At the option of the Holder, Physical Securities may be exchanged
for other Physical Securities of any authorized denomination or denominations,
of a like aggregate principal amount, upon surrender of the Physical Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption, shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any registration of,
transfer, exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges that may be imposed in connection
with any registration of, transfer, exchange or redemption of
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Securities, other than exchanges pursuant to Section 202, 203, 205, 806, 912,
913 or 1008 not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business (i) 15 days before the mailing of a notice of redemption of the
Securities selected for redemption under Section 1004 and ending at the close of
business on the day of such mailing or (ii) 15 days before an Interest Payment
Date and ending on the close of business on the Interest Payment Date, or (b) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of Securities being redeemed in
part.
Section 205. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee, or (b)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee, such security and/or indemnity, in each case as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section,
the Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, the Guarantors and any other
obligor of the Securities, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
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Section 206. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on the Stated Maturity of such interest shall be paid to the
Person in whose name that Security is registered at the close of business on the
Regular Record Date for such interest payment.
Any interest on any Security which is payable, but is not paid or
duly provided for on the Stated Maturity of such interest (or within 15 days
after the Stated Maturity of such interest) and interest on such defaulted
interest at the then applicable interest rate borne by the Securities, to the
extent lawful (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
in whose name such Security is registered as of the Regular Record Date; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment (the "Special Payment Date"), and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the Special Payment Date,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this subsection
provided. Such notice shall be received by the Trustee no less than
30 days prior to the Special Payment Date. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which Special Record Date shall be not more than 15 days
and not less than 10 days prior to the Special Payment Date and not
less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company
in writing of such Special Record Date and Special Payment Date. In
the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Payment Date therefor to be mailed,
certified or registered (return receipt requested) first-class
postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities are registered on such Special Record Date and shall
no longer be payable pursuant to the following Subsection (b).
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(b) The Company may make payment to the Persons in whose name
the Securities are registered at the close of business on the
Special Record Date and Special Payment Date of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may
be listed, and upon such notice as may be required by such exchange,
unless, after written notice given by the Company to the Trustee of
the proposed payment pursuant to this subsection, such manner of
payment shall not be deemed practicable by the Trustee (acting
reasonably). The Trustee shall give prompt written notice to the
Company of any such determination.
Subject to the foregoing provisions of this Section 206, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 207. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, premium, if any,
and (subject to Section 206) interest and Liquidated Damages on such Security
and for all other purposes whatsoever, whether or not such Security is overdue,
and none of the Company, any Guarantor, the Trustee or any agent of the Company,
any Guarantor or the Trustee shall be affected by notice to the contrary.
Section 208. CANCELLATION.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already cancelled, shall be promptly cancelled by it. The Company, any
Guarantor or any Subsidiary may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company, any Guarantor or any such Subsidiary may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be destroyed in accordance with its customary procedures and certification of
their destruction delivered to the Company unless by a Company Order received by
the Trustee prior to such destruction the Company shall direct that the
cancelled Securities be returned to it. The Trustee shall provide the Company a
list of all Securities that have been cancelled from time to time as requested
by the Company.
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Section 209. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 210. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.
(a) Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security. With respect to any
Global Security deposited with the Trustee as custodian for the Depository for
credit to the Agent Members' respective accounts (or to such other accounts as
they may direct) at Euroclear or CEDEL, the provisions of the "Operating
Procedures of the Euroclear System" and the "Terms and Conditions Governing Use
of Euroclear," and the "Management Regulations" and "Instructions to
Participants" of CEDEL, respectively, shall be applicable to such Global
Security.
(b) Transfers of a Global Security shall be limited to transfers, in
whole or in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be transferred
or exchanged for Physical Securities upon request of a Holder but only upon at
least 20 days' prior written notice given to the Trustee by or on behalf of the
Depository in accordance with the rules and procedures of the Depository and the
provisions of Section 211. In addition, Physical Securities shall be transferred
to all beneficial owners in exchange for their beneficial interests in a Global
Security if (i) the Depository (x) notifies in writing the Company that it is
unwilling or unable to continue as Depository for such Global Security and a
successor depository is not appointed by the Company within 90 days of such
notice or (y) has ceased to be a clearing agency registered under the Exchange
Act, (ii) the Company, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Physical Securities or (iii) an Event of Default
has occurred and is continuing and the Security Registrar has received a written
request from the Depository to issue Physical Securities.
(c) If any Global Security is to be exchanged for other Securities
or cancelled in whole, it shall be surrendered by or on behalf of the Depository
or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation as provided in this Article Two. If any Security is to be exchanged
for other Securities or canceled in part, or if a Physical Security is to be
exchanged in whole or in part for a beneficial interest in any Global Security,
such Global Security shall be so surrendered for exchange or cancellation as
provided in this Article Two or,
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if the Trustee is acting as custodian for the Depository or its nominee (or is
party to a similar arrangement) with respect to such Global Security, the
principal amount thereof shall be reduced or increased by an amount equal to the
portion thereof to be so exchanged or cancelled, or the principal amount of such
other Security to be so exchanged for a beneficial interest therein, as the case
may be, in each case by means of an appropriate adjustment made on the records
of the Trustee, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depository or its authorized representatives to
make a corresponding adjustment to its records (including by crediting or
debiting any Agent Member's account as necessary to reflect any transfer or
exchange of a beneficial interest). Upon any such surrender or adjustment of a
Global Security, the Trustee shall, subject to this Article Two, authenticate
and deliver any Securities issuable in exchange for such Global Security (or any
portion thereof) to or upon the order of, and registered in such names as may be
directed by, the Depository or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph or in paragraph (b) above, the Company shall promptly
make available to the Trustee a reasonable supply of Securities that are not in
the form of Global Securities. The Trustee shall be entitled to rely upon any
order, direction or request of the Depository or its authorized representative
which is given or made pursuant to this Article Two if such order, direction or
request is given or made in accordance with the Applicable Procedures.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b), the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Security, an equal aggregate principal amount of Physical Securities
of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(d) shall, except as otherwise provided by paragraphs (a)(i)(x) and (e) of
Section 211, bear the legend regarding transfer restrictions applicable to the
Physical Securities set forth in EXHIBIT A.
(f) If an Initial Security is a Restricted Security and a Physical
Security, then as provided in this Indenture and subject to the limitations
herein set forth, the Holder, provided it is a Qualified Institutional Buyer or
an Institutional Accredited Investor, may exchange such Security for a
Book-Entry Security by instructing the Trustee (by completing the Transferee
Certificate in the form of EXHIBIT K or L hereto) to arrange for such an Initial
Security to be represented by a beneficial interest in the appropriate Global
Security in accordance with the customary procedures of the Depository.
(g) The Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action such Holder is entitled to
take under this Indenture or the Securities.
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Section 211. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS OF PHYSICAL SECURITIES AND CERTAIN RESTRICTED GLOBAL
SECURITIES TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The following
provisions shall apply with respect to the registration of any proposed transfer
of a Physical Security constituting a Restricted Security and certain Restricted
Global Securities to any Institutional Accredited Investor which is not a QIB:
(i) the Security Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Restricted
Security bears the private placement legend substantially in the form of EXHIBIT
A hereto (the "Private Placement Legend"), if (x) the requested transfer is
after July 21, 1998 and, to the knowledge of the Trustee, the transferor is not
an Affiliate of the Company or any Guarantor or (y) the proposed transferee has
delivered to the Security Registrar a certificate substantially in the form of
EXHIBIT N hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Restricted Global Security representing Initial
Securities held by QIBs, upon receipt by the Security Registrar of (x) the
certificate, if any, required by paragraph (i) above and (y) instructions given
in accordance with the Depository's and the Security Registrar's procedures, (a)
the Registrar shall reflect on its books and records the date and (if the
transfer does not involve a transfer of outstanding Physical Securities) a
decrease in the principal amount of such Restricted Global Security in an amount
equal to the principal amount of the beneficial interest in such Restricted
Global Security to be transferred, and (b) (x) the Company shall execute and the
Trustee shall authenticate and deliver one or more Physical Securities of like
tenor and amount or (y) the Security Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Restricted
Global Security representing Initial Securities held by Institutional Accredited
Investors in an amount equal to the principal amount of such Restricted Global
Security to be so transferred.
(b) TRANSFERS OF PHYSICAL SECURITIES AND CERTAIN RESTRICTED GLOBAL
SECURITIES TO QIBS. The following provisions shall apply with respect to the
registration of any proposed transfer of a Physical Security constituting a
Restricted Security and certain Restricted Global Securities to a QIB:
(i) the Security Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has advised the Company and
the Security Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has otherwise
advised the Company and the Security Registrar in writing, that it is purchasing
the Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A, and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or
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has determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of (a) Physical Securities which after
transfer are to be evidenced by a beneficial interest in the Restricted Global
Security representing Initial Securities held by QIBs, or (b) an interest in the
Restricted Global Security representing Initial Securities held by Institutional
Accredited Investors, upon receipt by the Security Registrar of instructions
given in accordance with the Depository's and the Security Registrar's
procedures, the Security Registrar shall reflect on its books and records the
date and an increase in the principal amount of such Restricted Global Security
in an amount equal (x) the principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so transferred
or (y) the amount of the interest in the Restricted Global Security representing
Initial Securities held by Institutional Accredited Investors to be so
transferred (in which case the Security Registrar shall reflect on its books and
records the date and an appropriate decrease in the principal amount of such
Restricted Global Security).
(c) TRANSFER OF PHYSICAL SECURITIES TO NON-U.S. PERSONS. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Physical Security constituting a Restricted Security to
any Non-U.S. Person:
(i) the Security Registrar shall register the transfer of any
Security constituting a Restricted Security, whether or not such Restricted
Security bears the Private Placement Legend, if (x) the requested transfer is
after July 21, 1998, to the knowledge of the Trustee, and the transferor is not
an Affiliate of the Company or any Guarantor or (y) the proposed transferee has
delivered to the Security Registrar a certificate including the information
substantially to the effect of EXHIBIT G hereto and the transferor has delivered
to the Security Registrar a certificate including the information substantially
to the effect of EXHIBIT H or EXHIBIT I hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Restricted Global Security, upon receipt by the
Security Registrar of (x) the certificate, if any, required by (i) above and (y)
instructions given in accordance with the Depository's and the Security
Registrar's procedures, (a) the Security Registrar shall reflect on its books
and records the date and (if the transfer does not involve a transfer of
outstanding Physical Securities) a decrease in the principal amount of such
Restricted Global Security in an amount equal to the principal amount of the
beneficial interest in such Restricted Global Security to be so transferred, and
(b) the Company shall execute and the Trustee shall authenticate and deliver one
or more Physical Securities of like tenor and amount.
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(d) CERTAIN TRANSFERS AND EXCHANGES.
(i) TEMPORARY REGULATION S GLOBAL SECURITY. If the holder of a
beneficial interest in a Temporary Regulation S Global Security wishes at any
time to transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in such Temporary Regulation S Global
Security, such transfer may be effected, subject to the Applicable Procedures,
only in accordance with this clause (i). Upon delivery (a) by a beneficial owner
of an interest in a Temporary Regulation S Global Security to Euroclear or
CEDEL, as the case may be, of an Owner Securities Certification, (b) by the
transferee of such beneficial interest in the Temporary Regulation S Global
Security to Euroclear or CEDEL, as the case may be, of a written certification
(a "Transferee Securities Certification") substantially in the form of EXHIBIT G
hereto and (c) by Euroclear or CEDEL, as the case may be, to the Trustee, as
Security Registrar, of a Depository Securities Certification, the Trustee may
direct either Euroclear or CEDEL, as the case may be, to reflect on its records
the transfer of a beneficial interest in the Temporary Regulation S Global
Security from the beneficial owner providing the Owner Securities Certification
to the Person providing the Transferee Securities Certification.
(ii) RESTRICTED GLOBAL SECURITY TO TEMPORARY REGULATION S
GLOBAL SECURITY OR PERMANENT REGULATION S GLOBAL SECURITY. If the holder of a
beneficial interest in the Restricted Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Temporary Regulation S Global Security or
the Permanent Regulation S Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with the provisions of
this clause (ii) and clause (vii) below. Upon receipt by the Trustee, as
Security Registrar, of (A) written instructions given by or on behalf of the
Depository in accordance with the Applicable Procedures directing the Trustee to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in the Temporary Regulation S Global Security or the
Permanent Regulation S Global Security, as the case may be, in a specified
principal amount and to cause to be debited from another specified Agent
Member's account a beneficial interest in the Restricted Global Security in an
equal principal amount and (B) a certificate in substantially the form set forth
(i) in EXHIBIT H for holders taking delivery in the form of a beneficial
interest in the Temporary Regulation S Global Security or (ii) in EXHIBIT I for
holders taking delivery in the form of a beneficial interest in the Permanent
Regulation S Global Security signed by or on behalf of the holder of such
beneficial interest in the Restricted Global Security, the Trustee, as Security
Registrar, shall, subject to clause (vii) below, reduce the principal amount of
the Restricted Global Security, and increase the principal amount of the
Temporary Regulation S Global Security or the Permanent Regulation S Global
Security, as the case may be, by such specified principal amount.
(iii) TEMPORARY REGULATION S GLOBAL SECURITY OR PERMANENT
REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY. If the holder of a
beneficial interest in the Temporary Regulation S Global Security or Permanent
Regulation S Global Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial interest
in the Restricted Global Security, such transfer may be effected,
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subject to the Applicable Procedures, only in accordance with this clause (iii)
and clause (vii) below; PROVIDED that with respect to any transfer of a
beneficial interest in a Temporary Regulation S Global Security, the transferor
and Euroclear or CEDEL, as the case may be, must have previously delivered an
Owner Securities Certification and a Depository Securities Certification,
respectively, with respect to such beneficial interest. Upon receipt by the
Trustee, as Security Registrar, of (A) written instructions given by or on
behalf of the Depository in accordance with the Applicable Procedures directing
the Trustee to credit or cause to be credited to a specified Agent Member's
account a beneficial interest in the Restricted Global Security in a specified
principal amount and to cause to be debited from another specified Agent
Member's account a beneficial interest in the Temporary Regulation S Global
Security or the Permanent Regulation S Global Security, as the case may be, in
an equal principal amount and (B) a certificate in substantially the form set
forth in EXHIBIT J signed by or on behalf of the holder of such beneficial
interest in the Temporary Regulation S Global Security or the Permanent
Regulation S Global Security, as the case may be, the Trustee, as Security
Registrar, shall, subject to clause (vii) below, reduce the principal amount of
such Temporary Regulation S Global Security or Permanent Regulation S Global
Security, as the case may be, and increase the principal amount of the
Restricted Global Security by such specified principal amount.
(iv) NON-GLOBAL RESTRICTED SECURITY TO GLOBAL SECURITY. If the
Holder of a Restricted Security (other than a Global Security) wishes at any
time to transfer all or any portion of such Security to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the Restricted
Global Security, the Temporary Regulation S Global Security or the Permanent
Regulation S Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this clause (iv) and clause (vii)
below. Upon receipt by the Trustee, as Security Registrar, of (A) such Security
and written instructions given by or on behalf of such Holder as provided in
Section 210 directing the Trustee to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in the Restricted Global
Security, the Temporary Regulation S Global Security or the Permanent Regulation
S Global Security, as the case may be, in a specified principal amount equal to
the principal amount of the Restricted Security (or portion thereof) to be so
transferred, and (B) an appropriately completed certificate substantially in the
form set forth on EXHIBIT K hereto, if the specified amount is to be credited
with a beneficial interest in the Restricted Global Security, or EXHIBIT L
hereto, if the specified account is to be credited with a beneficial interest in
the Temporary Regulation S Global Security or the Permanent Regulation S Global
Security, signed by or on behalf of such Holder, then the Trustee, as Security
Registrar, shall, subject to clause (vii) below, cancel such Restricted Security
(and issue a new Security in respect of any untransferred portion thereof as
provided in Section 210) and increase the principal amount of the Restricted
Global Security, Temporary Regulation S Global Security or Permanent Regulation
S Global Security, as the case may be, by the specified principal amount.
(v) NON-GLOBAL PERMANENT REGULATION S SECURITY TO RESTRICTED
GLOBAL SECURITY OR PERMANENT REGULATION S GLOBAL SECURITY. If the Holder of a
Permanent Regulation S Security (other than a Global Security) (a "Non-Global
Permanent Regulation S Security") wishes at any time to transfer all or any
portion of such Security to a Person who wishes to take
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delivery thereof in the form of a beneficial interest in the Restricted Global
Security or the Permanent Regulation S Global Security, as the case may be, such
transfer may be effected only in accordance with this clause (v) and subject to
the Applicable Procedures. Upon receipt by the Trustee, as Security Registrar,
of (A) such Security and instructions given by or on behalf of such Holder as
provided in Section 210 directing the Trustee to credit or cause to be credited
to a specified Agent Member's account a beneficial interest in the Restricted
Global Security or the Permanent Regulation S Global Security, as the case may
be, in a principal amount equal to the principal amount of the Security (or
portion thereof) to be so transferred, (B) (i) with respect to a transfer which
is to be delivered in the form of a beneficial interest in the Restricted Global
Security, a certificate in substantially the form set forth in EXHIBIT M-1,
signed by or on behalf of such Holder, and (ii) with respect to a transfer which
is to be delivered in the form of a beneficial interest in the Permanent
Regulation S Global Security, a certificate in substantially the form set forth
in EXHIBIT M-2, signed by or on behalf of such Holder, then the Trustee, as
Security Registrar, shall, subject to clause (vii) below, cancel such Security
(and issue a new Security in respect of any untransferred portion thereof) as
provided in Section 210 and increase the principal amount of the Restricted
Global Security, or the Permanent Regulation S Global Security, as the case may
be, by the specified principal amount.
(vi) OTHER EXCHANGE. Securities that are not Global Securities
may be exchanged (on registration of transfer or otherwise) for Securities that
are not Global Securities or for beneficial interests in a Global Security (if
any is then outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (i) through (v) above
(including the certification requirements intended to insure that transfers or
beneficial interests in a Global Security comply with Rule 144A, Regulation S,
or another exemption from the Securities Act) and any Applicable Procedures, as
may be from time to time adopted by the Company and the Trustee.
(vii) INTERESTS IN TEMPORARY REGULATION S GLOBAL SECURITY TO
BE HELD THROUGH EUROCLEAR OR CEDEL. Until the later of the expiration of the
Restricted Period and the provision of the Owner Securities Certification and
the Depository Securities Certification, beneficial interests in any Temporary
Regulation S Global Security may be held only in or through accounts maintained
at the Depository by Euroclear or CEDEL (or by Agent Members Acting for the
account thereof).
(e) PRIVATE PLACEMENT LEGEND. Upon the registration of transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Security Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Security Registrar shall
deliver only Securities that bear the Private Placement Legend unless (i) the
circumstance contemplated by paragraph (a)(i)(x) of this Section 211 exists or
(ii) there is delivered to the Security Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
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(f) GENERAL. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 210 or this
Section 211 in accordance with its customary procedures. The Company shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any reasonable time upon the giving of reasonable
written notice to the Security Registrar.
ARTICLE THREE
DEFEASANCE AND COVENANT DEFEASANCE
Section 301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either Section 302 or Section 303
be applied to all of the Outstanding Securities (the "Defeased Securities"),
upon compliance with the conditions set forth below in this Article Three.
Section 302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 301 of the option
applicable to this Section 302, each of the Company, the Guarantors, and any
other obligor on the Securities shall be deemed to have been discharged from its
obligations with respect to the Defeased Securities on the date the conditions
set forth below are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company, the Guarantors and any other obligor of
the Securities shall be deemed to have paid and discharged the entire
indebtedness represented by the Defeased Securities, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 305 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company and upon written request, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of Defeased
Securities to receive, solely from the trust fund described in Section 304 and
as more fully set forth in such Section, payments in respect of the principal
of, premium, if any, and interest and Liquidated Damages on such Securities when
such payments are due, (b) the Company's obligations with respect to such
Defeased Securities under Sections 203, 204, 205, 902 and 903, (c) the rights,
powers, trusts, duties, indemnities and immunities of the Trustee hereunder, and
(d) this Article Three. Subject to compliance with this Article Three, the
Company may exercise its option under this Section 302 notwithstanding the prior
exercise of its option under Section 303 with respect to the Securities.
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Section 303. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 301 of the option
applicable to this Section 303, each of the Company, the Guarantors and any
other obligor on the Securities shall be released from its obligations under any
covenant or provision contained in Sections 905 through 916, inclusive, with
respect to the Defeased Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the Defeased
Securities shall thereafter be deemed to be not "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants and provisions,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Company, the Guarantors and any other obligor of the
Securities may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or Article, whether
directly or indirectly, by reason of any reference elsewhere herein or in such
Defeased Securities to any such Section or Article or by reason of any reference
in any such Section or Article to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default, under Section 401(c), (d) or (f) but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby.
Section 304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 302 or Section 303 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) United States dollars in
an amount, (b) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (c) a combination thereof, in such amounts as will be sufficient, as
reflected in the written report of a nationally recognized firm of independent
public accountants or a nationally recognized investment banking firm delivered
to the Trustee, to pay and discharge (and which shall be applied by the Trustee
to pay and discharge) the principal of, premium, if any, and interest and
Liquidated Damages on, the Defeased Securities on the Stated Maturity (or on any
date after July 15, 2001 (such date being referred to as the "Defeasance
Redemption Date"), if prior to electing either defeasance or covenant
defeasance, the Company has delivered to the Trustee an irrevocable notice to
redeem all of the outstanding Securities on the Defeasance Redemption Date) of
such principal or installment of interest; PROVIDED that the Trustee (or such
qualifying trustee) shall have been irrevocably instructed to apply such United
States dollars or the proceeds of such U.S. Government Obligations to said
payments with respect to the Securities. For this purpose, "U.S. Government
Obligations" means securities that are (i) direct obligations of the United
States of America for the timely payment of which its full faith and
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credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt, PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
(2) In the case of an election under Section 302, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States to the effect that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that the Holders of the Outstanding Securities
will not recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(3) In the case of an election under Section 303, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States to the effect that the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as subsections 401(g) and (h)
are concerned, at any time during the period ending on the 91st day after the
date of deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest with respect to any securities of the
Company or any Guarantor.
(6) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture or a
breach or violation of any provision of any agreement to which the Company or
any Guarantor is a party or by which it is bound.
(7) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that after the 91st day
following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
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(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the Securities or any Guarantee over the other
creditors of the Company or any Guarantor or with the intent of defeating,
hindering, delaying or defrauding creditors of the Company, any Guarantor or
others.
(9) No event or condition shall exist that would prevent the
Company from making payments of the principal of, premium, if any, and interest
on the Securities on the date of such deposit or at any time ending on the 91st
day after the date of such deposit.
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each to the effect that all
conditions precedent provided for relating to either the defeasance under
Section 302 or the covenant defeasance under Section 303 (as the case may be)
have been complied with as contemplated by this Section 304.
Opinions of Counsel required to be delivered under this Section may
have qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required, which
certificates shall be limited to matters of fact, including that various
financial covenants have been complied with.
Section 305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 903, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 304 in respect of the
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 304 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Defeased Securities.
Anything in this Article Three to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 304 which, in the opinion of a nationally recognized firm of
independent public accountants or nationally recognized investment banking firm
expressed in a written report delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect defeasance
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or covenant defeasance. In the event of an error in any calculation resulting in
a withdrawal hereunder, the Company shall deposit an amount equal to the amount
erroneously withdrawn as promptly as practicable after becoming aware of such
error.
Section 306. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 302 or 303, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 302
or 303, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such United States dollars or U.S. Government Obligations
in accordance with Section 302 or 303, as the case may be; PROVIDED, HOWEVER,
that (a) if the Company makes any payment to the Trustee or Paying Agent of
principal, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee or Paying Agent shall promptly pay
any such amount to the Holders of the Securities and the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the United States dollars and U.S. Government Obligations held by
the Trustee or Paying Agent and (b) the Trustee or Paying Agent shall return all
such United States dollars and U.S. Government Obligations to the Company
promptly after receiving a Company Request therefor at any time, if the Trustee
or Paying Agent receives written notice from the Company that such reinstatement
of the Company's obligations has occurred and continues to be in effect at such
time.
ARTICLE FOUR
REMEDIES
Section 401. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on, or
Liquidated Damages with respect to, any Security when it becomes due and
payable, and such default shall continue for a period of 30 days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Security when and as the same shall become due and
payable at its Maturity (upon acceleration, optional or mandatory redemption,
required repurchase or otherwise);
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(c) (i) there shall be a default in the performance, or beach, of
any covenant or agreement of the Company or any Guarantor under this Indenture
(other than a default in the performance, or breach, of a covenant or agreement
which is specifically dealt with in Section 401(a) or (b) or in clauses (ii) or
(iii) of this Section 401(c)) and such default or breach shall continue for a
period of 30 days after written notice has been given, by certified mail, (x) to
the Company by the Trustee or (y) to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities;
(ii) there shall be a default in the performance or breach of the provisions of
Article Seven; or (iii) the Company shall have failed to make or consummate a
Change of Control Offer in accordance with the provisions of Section 913;
(d) one or more defaults shall have occurred under any agreements,
indentures or instruments under which the Company, any Guarantor or any
Subsidiary then has outstanding Indebtedness in excess of $25,000,000 in the
aggregate and, if not already matured at its final maturity in accordance with
its terms, such Indebtedness shall have been accelerated;
(e) any Guarantee shall for any reason cease to be, or be asserted
in writing by any Guarantor or the Company not to be, in full force and effect,
enforceable in accordance with its terms, except to the extent contemplated by
this Indenture and such Guarantee;
(f) one or more final judgments, orders or decrees for the payment
of money in excess of $15,000,000, either individually or in the aggregate,
shall be entered against the Company or any Subsidiary or any of their
respective properties and shall not be discharged and either (i) enforcement
proceedings shall have been commenced upon such judgment, order or decree or
(ii) there shall have been a period of 60 consecutive days during which a stay
of enforcement of such judgment or order, by reason of an appeal or otherwise,
shall not be in effect;
(g) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company, any
Guarantor, or any Material Subsidiary in an involuntary case or proceeding under
any applicable Bankruptcy Law or (ii) a decree or order adjudging the Company,
any Guarantor or any Material Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company, any Guarantor or any Material Subsidiary under any applicable federal
or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company, any Guarantor or any
Material Subsidiary or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and any such decree or order for
relief shall continue to be in effect, or any such other decree or order shall
be unstayed and in effect, for a period of 60 consecutive days; or
(h) (i) the Company, any Guarantor or any Material Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy Law or
any other case or proceeding to be adjudicated bankrupt or insolvent, (ii) the
Company, any Guarantor or any Material Subsidiary consents to the entry of a
decree or order, for relief in respect of the
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Company, any Guarantor or such Material Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, (iii) the Company, any
Guarantor or any Material Subsidiary files a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, (iv)
the Company, any Guarantor or any Material Subsidiary (x) consents the filing of
such petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company, any Guarantor or such Material Subsidiary or of any substantial part of
its property, (y) makes an assignment for the benefit of creditors or (z) admits
in writing its inability to pay its debts generally as they become due or (v)
the Company, any Guarantor or any Material Subsidiary takes any corporate action
in furtherance of any such actions in this paragraph (h).
Section 402. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Sections 401(g) or (h) with respect to the Company) occurs and is continuing,
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities may, and the Trustee upon the request of the Holders
of not less than 25% in aggregate principal amount of the Outstanding Securities
shall, declare all the Securities to be due and payable immediately in an amount
equal to the principal amount of the Securities, together with accrued and
unpaid interest, if any, to the date the Securities shall have become due and
payable, by a notice in writing to the Company (and to the Trustee, if given by
Holders), and upon any such declaration such amount shall become immediately due
and payable. If an Event of Default specified in Sections 401(g) or (h) occurs
with respect to the Company and is continuing, then all the Securities shall
IPSO FACTO become and be immediately due and payable, in an amount equal to the
principal amount of the Securities, together with accrued and unpaid interest,
if any, to the date the Securities become due and payable, without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been made and
before judgment or decree for payment of the money due has been obtained by the
Trustee as provided hereinafter in this Article, the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities, by written
notice of the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 507,
(ii) all overdue interest on the Securities,
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(iii) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Securities, and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities;
and
(b) all Events of Default, other than the non-payment of principal
of the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 413.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 403. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company and the Guarantors covenant that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and which default continues for a
period of 30 days, or
(b) default is made in the payment of the principal, premium, if
any, on any Security at the Stated Maturity (upon acceleration, optional or
mandatory redemption, required repurchase or otherwise) thereof,
the Company and the Guarantors will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities the whole amount then due and
payable on such Securities for principal and premium, if any, and interest, with
interest upon the overdue principal and premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate borne by the Securities.
If the Company or any Guarantor, as the case may be, fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Company or any
Guarantor or any other obligor upon the Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any Guarantor or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or any Guarantee by such appropriate private or
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, including, seeking recourse against or any Guarantor
pursuant to the terms of its Guarantee, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein or therein, or to
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enforce any other proper remedy, including, without limitation, seeking recourse
against any Guarantor pursuant to the terms of its Guarantee, or to enforce any
other proper remedy, subject however to Section 412.
The rights and remedies under this Section 403 are in addition to
the other rights and remedies under this Article Four.
Section 404. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Company or any other obligor
upon the Securities, including any Guarantor, or the property of the Company or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company or the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Securities and
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements add advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 507.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, composition or other similar
arrangement affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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Section 405. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 507, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 406. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender hereof
if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
507;
SECOND: To the payment in full of the amounts then due and unpaid
upon the Securities for principal, premium, if any, and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind according to the amounts due and
payable in such Securities for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto as a court of competent jurisdiction shall direct, or to the Company,
provided that all sums due and owing to the Holders and the Trustee have been
paid in full as required by this Indenture.
Section 407. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
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(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered, and if requested have
provided, to the Trustee an indemnity satisfactory to the Trustee in its sole
discretion against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer (and if requested, provision) of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or the Guarantee to affect, disturb or prejudice the rights of
any other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner provided in this Indenture or the Guarantee and for the equal and ratable
benefit to all the Holders.
Section 408. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right on the terms stated herein, which is absolute
and unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 206) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 409. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holders has instituted any proceeding to
enforce any right or remedy under this Indenture or any Guarantee and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, (a) the Company, the
Guarantors and any other obligor under the Securities, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder, and (b) thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
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Section 410. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 205, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 411. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 412. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, PROVIDED
that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture (including, without limitation, Section 407) or any
Guarantee or expose the Trustee to personal liability; and
(b) subject to the provisions of Section 315 of the Trust Indenture
Act, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 413. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past Default hereunder and its consequences, except a
Default
(a) in the payment of the principal of, premium, if any, or interest
on any Security, or
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(b) in respect of a covenant or provision hereof which under Article
Eight cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 414. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
Section 415. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company, the Guarantors and any other obligor under the
Securities covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim to take the
benefit or advantage of, any stay or extension law or any usury or other similar
law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company, the Guarantors or any other obligor under the
Securities from paying all or any portion of the principal of, premium, if any,
or interest on the Securities contemplated herein or in the Securities or which
may affect the covenants or the performance of this Indenture; and each of the
Company, the Guarantors and any other obligor under the Securities (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
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Section 416. REMEDIES SUBJECT TO APPLICABLE LAW.
All rights, remedies and powers provided by this Article may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE FIVE
THE TRUSTEE
Section 501. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to
the Trustee; and
(2) in the absence of bad faith or willful misconduct on its
part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 501;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
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(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction of the Holders of a majority in principal amount of
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power confirmed upon the Trustee under
this Indenture.
(d) No provision of Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 601.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
Section 502. NOTICE OF DEFAULTS.
Within 30 days after a Responsible Officer of the Trustee receives
notice of the occurrence of any Default, the Trustee shall transmit by mail to
all Holders or any other Persons entitled to receive reports pursuant to Trust
Indenture Act Section 313(c), as their names and addresses appear in the
Security Register, notice of such Default, unless such Default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a Default in the
payment of the principal of, premium, if any, or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
Section 503. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d):
(a) the Trustee may rely conclusively and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
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(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) wherever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to the
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) in the absence of bad faith on its
part, may rely conclusively, upon an Officers' Certificate and/or an Opinion of
Counsel;
(d) the Trustee may consult with counsel and any written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee in is
sole discretion against the costs, expenses and liabilities which might be
incurred therein or thereby in compliance with such request or direction;
(f) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the negligence or willful misconduct of the Trustee;
(g) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document; but the Trustee in its discretion may make such further inquiry or
investigation in accordance with any of the provisions of this Indenture into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine such
relevant books, records and premises of the Company as may be reasonable,
personally or by agent or attorney;
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(i) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights and powers; and
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(j) the Trustee shall not be charged with knowledge of any Default
or Event of Default unless either (i) a Responsible Officer shall have actual
knowledge thereof or (ii) the Trustee shall have received notice thereof in
accordance with Section 106 hereof from the Company of any Holder of Notes.
Section 504. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITIONS OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 505. TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS;
ETC.
The Trustee, any Paying Agent, Security Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Trust Indenture Act Sections 310 and 311, may otherwise deal with the Company
and receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
Section 506. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law.
Section 507. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which, to the extent lawful, shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Company covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence, bad faith or
willful misconduct. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 401(g) or Section
401(h), the expenses (including the reasonable compensation and the expenses and
disbursements of its counsel) and the
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compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law. The Company also covenants to indemnify the Trustee and each
predecessor Trustee, and their respective officers, agents and employees for,
and to hold them harmless against, any claim, loss, liability, tax, assessment
or other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without negligence, bad faith or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including enforcement of this Section 507 and also including
any liability which the Trustee may incur as a result of failure to withhold,
pay or report any tax, assessment or other governmental charge, and the costs
and expenses of defending itself against or investigating any claim of liability
in the premises. The obligations of the Company under this Section to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute an additional obligation hereunder and shall survive
the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee and each predecessor Trustee. As security for the performance of
the obligations of the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of Holders of
particular Securities.
Section 508. CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b) of
the Trust Indenture Act.
Section 509. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Section 310(a)(1) and which
shall have a combined capital and surplus of at least $100,000,000, and have a
Corporate Trust Office in The City of New York to the extent there is such an
institution eligible and willing to serve. If the Trustee does not have an
office in The City of New York, the Trustee shall appoint an agent in The City
of New York reasonably acceptable to the Company to conduct any activities which
the Trustee is required under this Indenture to conduct in The City of New York.
The Trustee may not rescind any such agency without the consent of the Company,
which consent may not be unreasonably withheld, unless the Trustee appoints a
satisfactory replacement or has a Corporate Trust Office in The City of New
York. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
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Section 510. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 511.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice thereof to the Company. Upon
receiving such notice of resignation, the Company shall use its best efforts to
promptly appoint a successor Trustee by Board Resolution or written instrument
executed by authority of the Board of Directors of the Company, a copy of which
shall be delivered to the resigning Trustee and a copy to the successor Trustee.
If an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may, or any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper, appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Trust Indenture Act Section 310(b) after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 509
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 414, any Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor Trustee.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution or written instrument executed by authority of
the Board of Directors of the Company, shall use its best efforts to promptly
appoint a successor Trustee and shall comply with the applicable requirements of
Section 511. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, the Company or a court of
competent jurisdiction has not appointed a successor Trustee, a successor
Trustee shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities delivered to the Company and the retiring
Trustee, and the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders of the Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security who has
been a bona fide Holder for at least six months may, subject to Section 414, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 511. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee under this Indenture;
but, nevertheless, on the written request of the Company or the successor
Trustee, upon payment of its charges then unpaid, such retiring Trustee shall
pay over to the successor Trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
Trustee all such rights, powers, duties and obligations.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such Trustee or such successor Trustee to secure any
amounts then due such Trustee pursuant to the provisions of Section 507.
No successor Trustee with respect to the Securities shall accept
appointment as provided in this Section 511 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under the
provisions of Trust Indenture Act Section 310(a) and this
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Article Five and shall have a combined capital and surplus of at least
$100,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 509 in The City of New York.
Upon acceptance of appointment by any successor Trustee as provided
in this Section 511, the Company shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
510. If the Company fails to give such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
Section 512. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, provided such corporation shall be eligible under
Trust Indenture Act Section 310(a) and this Article Five and shall have a
combined capital and surplus of at least $100,000,000.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate shall have the full
force which it is anywhere in the Securities or in this Indenture provided that
the certificate of the Trustee shall have; PROVIDED that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, amalgamation, conversion or consolidation.
Section 513. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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ARTICLE SIX
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 601. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content to that in subsection (a) hereof as of a date not
more than 15 days prior to the time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 602. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act Section 312.
Section 603. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the issuance of Securities, the Trustee shall transmit by
mail to all Holders, as their names and addresses appear in the Security
Register, as provided in Trust Indenture Act Section 313(c), a brief report
dated as of such May 15 in accordance with and with respect to the matters
required by Trust Indenture Act Section 313(a).
(b) The Trustee shall promptly transmit to the Company a copy of any
report it transmits to Holders pursuant to this Section 603.
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Section 604. REPORTS BY COMPANY AND THE GUARANTORS.
The Company and the Guarantors, as the case may be, shall:
(a) file with the Trustee, in accordance with Section 916 hereof,
and in any event within 30 days after the Company or any Guarantor, as the case
may be, is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company or any Guarantor is required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company or any Guarantor, as the case may be, is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall (i) deliver to the Trustee annual audited financial
statements of the Company and its Subsidiaries, prepared on a consolidated basis
in conformity with GAAP, within 120 days after the end of each fiscal year of
the Company, and (ii) file with the Trustee and the Commission, in accordance
with, and so long as not prohibited by, the rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company or any Guarantor, as the case may be, with the conditions and covenants
of this Indenture as is required from time to time by such rules and regulations
(including such rules and regulations, if any, referred to in Trust Indenture
Act Section 314(a)); and
(c) transmit by mail to all Holders or any other Persons entitled to
receive a report pursuant to Trust Indenture Act Section 313(c), within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company, or any
Guarantor, as the case may be, pursuant to Section 916 hereunder and subsections
(a) and (b) of this Section as is required and not prohibited by rules and
regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 701. COMPANY, GUARANTORS MAY MERGE, CONSOLIDATE, ETC., ONLY
ON CERTAIN TERMS.
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(a) The Company shall not, in a single transaction or series of
related transactions, consolidate with or merge with or into any other Person or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or permit any of its Subsidiaries to enter into any such
transaction or transactions if such transaction or transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiaries on a Consolidated basis to any other Person or
group of affiliated Persons, unless at the time and after giving effect thereto:
(i) either (a) the Company shall be the continuing
corporation, or (b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company and its Subsidiaries on a Consolidated basis (the
"Surviving Entity") shall be a corporation, partnership, limited
liability company or business trust duly organized and validly
existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall, in either case,
expressly assume, by a supplemental indenture hereto, executed and
delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture, and this Indenture shall
remain in full force and effect;
(ii) immediately before and immediately after giving effect to
such transaction on a PRO FORMA basis, no Default or Event of
Default shall have occurred and be continuing;
(iii) immediately before and immediately after giving effect to
such transaction on a PRO FORMA basis (on the assumption that the
transaction occurred on the first day of the four-quarter period
immediately prior to the consummation of such transaction with the
appropriate adjustments with respect to the transaction being
included in such PRO FORMA calculation), the Company (or the
Surviving Entity if the Company is not the continuing obligor under
this Indenture) could incur $1.00 of additional Indebtedness under
the provisions of Section 908 (other than Permitted Indebtedness);
(iv) each Guarantor, unless it is the other party of the
transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person's
obligations under this Indenture and the Securities;
(v) if any of the property or assets of the Company or any of
its Subsidiaries would thereupon become subject to any Lien, the
provisions of Sec tion 911 are complied with; and
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(vi) the Company or the Surviving Entity shall have delivered,
or caused to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and
an Opinion of Counsel, each to the effect that such consolidation,
merger, transfer, sale, assignment, lease or other transaction and
the supplemental indenture in respect thereto comply with the
provisions described in this Section 701(a) and that all conditions
precedent herein provided for in this Section 701(a) relating to
such transaction have been complied with.
(b) Each Guarantor shall not, and the Company will not permit a
Guarantor to, in a single transaction or a series of related transactions, merge
or consolidate with or into any other corporation (other than the Company or any
other Guarantor) or other entity, or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of it properties and assets on a
Consolidated basis to any entity (other than the Company or any other
Guarantor), unless at the time and after giving effect thereto:
(i) either (a) such Guarantor shall be the continuing
corporation or (b) the entity (if other than such Guarantor) formed
by such consolidation or into which such Guarantor is merged or the
Person which acquires by sale, assignment, conveyance, transfer,
lease or disposition the properties and assets of such Guarantor
shall be a corporation, partnership, limited liability company or
business trust duly organized and validly existing under the laws of
the United States of America, any state thereof or the District of
Columbia and shall, in either case, expressly assume, by a
supplemental indenture hereto, executed and delivered to the
Trustee, in form and substance reasonably satisfactory to the
Trustee, all the obligations of such Guarantor under the Securities
and this Indenture;
(ii) immediately before and immediately after giving effect to
such transaction on a PRO FORMA basis, no Default or Event of
Default shall have occurred and be continuing; and
(iii) such Guarantor shall have delivered to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect
that such consolidation, merger, sale, assignment, conveyance,
transfer, lease or disposition and such supplemental indenture in
respect thereto comply with this Indenture and thereafter all
obligations of the predecessor shall terminate.
(c) Notwithstanding anything in this Article Seven to the contrary,
any Guarantee by a Subsidiary of the Securities may be released in accordance
with the provisions of Section 1203.
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Section 702. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets on a Consolidated basis of the Company or any Guarantor in
accordance with Section 701 with respect to which the Company or such Guarantor
is not the continuing corporation, the successor Person formed by such
consolidation or into which the Company or such Guarantor, as the case may be,
is merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or such Guarantor, as the
case may be, under this Indenture and/or any Guarantee, as the case may be, with
the same effect as if such successor had been named as the Company or such
Guarantor, as the case may be, herein and/or in such Guarantee, as the case may
be. When a successor assumes all the obligations of its predecessor under this
Indenture, the Securities or such Guarantee, as the case may be, the predecessor
shall be released from those obligations; PROVIDED that, in the case of a
transfer by lease, the predecessor shall not be released from the payment of
principal and interest on the Securities or such Guarantee, as the case may be.
Any successor to the Company described in the foregoing paragraph
may cause to be signed, and may issue either in its own name or in the name of
the Company, any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Securities
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution of this Indenture.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 801. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITHOUT CONSENT
OF HOLDERS.
Without the consent of any Holders, the Company, the Guarantors and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto or agreements or other instruments with respect
to any Guarantee, in form and substance reasonably satisfactory to the Trustee,
for any of the following purposes:
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(a) to evidence the succession of another Person to the Company or
any Guarantor, and the assumption by any such successor of the covenants of the
Company or any Guarantor herein and in the Securities and in any Guarantee;
(b) to add to the covenants of the Company, or the Guarantors, for
the benefit of the Holders, or to surrender any right or power conferred upon
the Company, or the Guarantors, as applicable, in this Indenture, the Securities
or any Guarantee;
(c) to cure any ambiguity or to correct or supplement any provision
in this Indenture, the Securities or any Guarantee which may be defective or
inconsistent with any other provision in this Indenture, the Securities or any
Guarantee;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act, as contemplated by Section 805 or otherwise;
(e) to add a Guarantor of the Indenture Obligations;
(f) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security,
pursuant to the requirements of Section 911 or otherwise, for the payment and
performance of the Indenture Obligations, in any property or assets, including
any which are required to be mortgaged, pledge or hypothecated, or in which a
security interest is required to be granted, to the Trustee pursuant to this
Indenture or otherwise; and
(h) to clarify or make any other provisions with respect to matters
or questions arising under this Indenture, the Securities or any Guarantee;
PROVIDED that, in each case, such clarification or provision thus made shall not
adversely affect the interests of the Holders.
Section 802. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITH CONSENT OF
HOLDERS.
Except as permitted by Section 801, with the consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Company, each Guarantor, if
any, and the Trustee, the Company and each Guarantor (if a party thereto) and
the Trustee may (i) enter into an indenture or indentures supplemental hereto or
agreements or other instruments with respect to any Guarantee, in form and
substance reasonably satisfactory to the Trustee, for the purpose of adding any
provisions to or amending, modifying or changing in any manner or eliminating
any of the provisions of this Indenture, the Securities or any Guarantee
(including, but not limited to, for the purpose of modifying in any manner the
rights of the Holders under this Indenture, the Securities or any Guarantee) or
(ii) waive compliance with any provision in this Indenture, the Securities or
any
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Guarantee (other than waivers of past Defaults covered by Section 413 and
waivers of covenants which are covered by Section 919); PROVIDED, HOWEVER, that
no such supplemental indenture, agreement or instrument shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security or waive a default in the payment of
the principal or interest on any Security or reduce the principal amount thereof
or the rate of interest thereon or any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any Security
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated Maturity
thereof;
(b) amend, change or modify the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 913;
(c) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain Defaults
hereunder and their consequences provided for in this Indenture;
(d) modify any of the provisions of this Section or Sections 413 or
919, except to increase the percentage of Outstanding Securities required for
such actions or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Security
affected thereby; or
(e) except as otherwise permitted under Article Seven, consent to
the assignment or transfer by the Company or any Guarantor of any of its rights
and obligations under this Indenture or any Guarantee.
Upon the written request of the Company and each Guarantor,
accompanied by a copy of a Board Resolution authorizing the execution of any
such supplemental indenture or Guarantee, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall join with
the Company and each Guarantor in the execution of such supplemental indenture
or Guarantee.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture or
agreement or instrument relating to any Guarantee, but it shall be sufficient if
such Act shall approve the substance thereof.
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Section 803. EXECUTION OF SUPPLEMENTAL INDENTURES AND AGREEMENTS.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 603 hereof) shall be fully protected in relying upon,
in addition to the documents required by Section 103, an Opinion of Counsel and
an Officers' Certificate to the effect that the execution of such supplemental
indenture, agreement or instrument is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture, agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, any Guarantee or otherwise.
Section 804. EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 805. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 806. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Eight may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities modified so as to conform to any such supplemental indenture, in
the opinion of the Trustee and the Board of Directors, may be prepared and
executed by the Company and each Guarantor and authenticated and delivered by
the Trustee in exchange for Outstanding Securities.
Section 807. RECORD DATE.
If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
but shall not be obligated to, fix a record date for the purpose of determining
the Holders entitled to consent to any supplemental indenture, agreement or
instrument or any waiver, and shall promptly notify the Trustee of any such
record date. If a record date is fixed those Persons who were Holders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such supplemental indenture, agreement or instrument or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. The
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record date shall be a date no more than 30 days prior to the first solicitation
of Holders generally in connection therewith and no later than the date such
solicitation is completed. No such consent shall be valid or effective for more
than six months after such record date. Subject to applicable law, until any
supplemental indenture, agreement, instrument or waiver becomes effective, or a
consent to it by a Holder of a Security shall cease to be valid and effective as
set forth in the preceding sentence, such consent is a continuing consent by the
Holder and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
ARTICLE NINE
COVENANTS
Section 901. PAYMENT OF PRINCIPAL, PREMIUM, INTEREST AND LIQUIDATED
DAMAGES.
The Company will duly and punctually pay the principal of, premium,
if any, and interest and Liquidated Damages on the Securities in accordance with
the terms of the Securities and this Indenture.
Section 902. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office of the Trustee at 140 Broadway, 12th Floor,
New York, New York 10005 shall be such office or agency of the Company, unless
the Company shall designate and maintain some other office or agency for one or
more of such purposes. The Company will give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
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Section 903. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
The Company will, on or before each due date of the principal of,
premium, if any, or interest on, any Securities, deposit with a Paying Agent
(which shall not be the Company) a sum in same day funds sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company or any
Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal, premium, if any, or interest;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent;
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Company Order direct any Paying Agent to pay to the Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent in trust
for the payment of the principal of, premium, if any, or interest on any
Security and remaining unclaimed for two years after such principal and premium,
if any, or interest has become due and payable shall promptly be paid to the
Company upon Company Request; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such payment to the Company, may at the expense of the
Company cause to be published once, in THE NEW YORK
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TIMES and THE WALL STREET JOURNAL (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance on such money then remaining will promptly be repaid to the
Company.
Section 904. CORPORATE EXISTENCE.
Subject to Article Seven, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and related rights and franchises (charter and statutory) of the
Company and each Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right or franchise or the corporate existence of
any such Subsidiary if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof would not reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder; and PROVIDED,
FURTHER, HOWEVER, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary or any of its assets in compliance with the terms of
this Indenture.
Section 905. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
on or before the date the same shall become due and payable, (a) all material
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary shown to be due on any return of the Company or any Subsidiary
or otherwise assessed or upon the income, profits or property of the Company or
any Subsidiary and (b) all material lawful claims for labor, materials and
supplies, which, if unpaid, would by law become a Lien upon the property of the
Company or any Subsidiary, except for any Lien permitted to be incurred under
Section 911; PROVIDED, HOWEVER, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with GAAP consistently
applied.
Section 906. MAINTENANCE OF PROPERTIES.
The Company will cause all material properties owned by the Company
or any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be consistent with sound business practice and reasonably
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 906 shall prevent the Company from
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discontinuing the maintenance of any such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of business of the
Company and its Subsidiary and not reasonably expected to have a material
adverse effect on the ability of the Company to perform its obligations
hereunder.
Section 907. INSURANCE.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature reasonably self-insured or insured
with insurers, believed by the Company to be responsible, against loss or damage
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in the same general
geographic areas in which the Company and its Subsidiaries operate, except where
the failure to do so would not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings, business affairs or
prospects of the Company and its Subsidiaries, taken as a whole.
Section 908. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any of its Subsidiaries
to, create, issue, assume, guarantee, or otherwise in any manner become directly
or indirectly liable for or with respect to or otherwise incur (collectively,
"incur") any Indebtedness (including any Acquired Indebtedness but excluding any
Permitted Indebtedness); PROVIDED, HOWEVER, that the Company and any Subsidiary
that is a Guarantor may incur Indebtedness if the Consolidated Fixed Charge
Coverage Ratio for the Company for the four full fiscal quarters immediately
preceding the incurrence of such Indebtedness taken as one period (and after
giving PRO FORMA effect to (i) the incurrence of such Indebtedness and (if
applicable) the application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, at the beginning of such four-quarter
period; (ii) the incurrence, repayment or retirement of any other Indebtedness
by the Company and its Subsidiaries since the first day of such four-quarter
period as if such Indebtedness was incurred, repaid or retired at the beginning
of such four-quarter period (except that, in making such computation, the amount
of Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such four-quarter period);
(iii) in the case of Acquired Indebtedness, the related acquisition (as if such
acquisition had been consummated on the first day of such four-quarter period);
and (iv) any acquisition or disposition by the Company and its Subsidiaries of
any company or any business or any assets out of the ordinary course of
business, whether by merger, stock purchase or sale, or asset purchase or sale,
or any related repayment of Indebtedness, in each case since the first day of
such four-quarter period, as if such acquisition or disposition had been
consummated on the first day of such four-quarter period) is equal to or greater
than 2.0:1.0.
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Section 909. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Subsidiary to,
directly or indirectly:
(i) declare or pay any dividend on, or make any distribution
to holders of, the Company's Capital Stock (other than dividends or
distributions payable in shares of the Company's Qualified Capital
Stock or in options, warrants or other rights to acquire such
Qualified Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any Capital Stock of the Company or
any Capital Stock of any Affiliate of the Company (other than
Capital Stock of any Subsidiary) or options, warrants or other
rights to acquire such Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any
scheduled principal payment, any sinking fund payment or maturity,
any Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Subsidiary to any Person (other than (x) with
respect to any Capital Stock held by the Company or any of its
Wholly Owned Subsidiaries or (y) with respect to Capital Stock held
by any other Person made on a pro rata basis consistent with the
ownership interests in such Capital Stock to the owners of such
Capital Stock);
(v) incur, create or assume any guarantee of Indebtedness of
any Affiliate of the Company (other than a Wholly Owned Subsidiary
of the Company); or
(vi) make any Investment in any Person (other than any
Permitted Investments);
(any of the foregoing payments described in clauses (i) through (vi), other than
any such action that is a Permitted Payment, collectively, "Restricted
Payments") unless at the time of and after giving effect to the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, as determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution), (1) no Default or Event of
Default shall have occurred and be continuing; (2) immediately before and
immediately after giving effect to such transaction on a PRO FORMA basis, the
Company could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under the provisions of Section 908; and (3) the aggregate amount
of all such Restricted Payments declared or made after the date of this
Indenture does not exceed the sum of:
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(A) $30,000,000;
(B) 50% of the aggregate cumulative Consolidated Net Income of the
Company accrued on a cumulative basis during the period beginning on the first
day of the Company's fiscal quarter commencing prior to the date of this
Indenture and ending on the last day of the Company's last fiscal quarter ending
prior to the date of the Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
(C) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company from the issuance or sale (other than to any of its
Subsidiaries) of its Qualified Capital Stock or any option, warrants or rights
to purchase such Qualified Capital Stock of the Company (except, in each case,
to the extent such proceeds are used to purchase, redeem or otherwise retire
Capital Stock or Subordinated Indebtedness as set forth in clauses (b)(ii),
(b)(iii) and (b)(iv) of this Section);
(D) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company (other than from any of its Subsidiaries) upon the
exercise of any options or warrants to purchase Qualified Capital Stock of the
Company; and
(E) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company from debt securities or Redeemable Capital Stock that
have been converted into or exchanged for Qualified Capital Stock of the Company
to the extent such debt securities or Redeemable Capital Stock are originally
sold for cash plus the aggregate Net Cash Proceeds received by the Company at
the time of such conversion or exchange.
(b) Notwithstanding the foregoing, and in the case of clauses (ii),
(iii) and (iv) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(clauses (i) through (v) being referred to as a "Permitted Payment"):
(i) the payment of any dividend or distribution within 60
days after the date of declaration thereof, if at such date of
declaration such payment would be permitted by the provisions of
paragraph (a) of this Section and such payment shall be deemed to
have been paid on such date of declaration for purposes of the
calculation required by paragraph (a) of this Section;
(ii) the repurchase, redemption or other acquisition or
retirement of any shares of Capital Stock of the Company in exchange
for (including any such exchange pursuant to the exercise of a
conversion right or privilege in connection therewith cash is paid
in lieu of the issuance of fractional shares or scrip), or out of
the Net Cash Proceeds of, a substantially concurrent issue and sale
for cash (other than to a Subsidiary) of other Qualified Capital
Stock of the Company; PROVIDED that the Net Cash Proceeds from the
issuance of such shares of Qualified Capital Stock are excluded from
clause (3)(C) of paragraph (a) of this Section;
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(iii) any repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the net proceeds of, a
substantially concurrent issuance and sale for cash (other than to
any Subsidiary of the Company) of any Qualified Capital Stock of the
Company, PROVIDED that the Net Cash Proceeds from the issuance of
such Qualified Capital Stock are excluded from clause 3(C) of
paragraph (a) of this Section;
(iv) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any
Subordinated Indebtedness (other than Redeemable Capital Stock) (a
"refinancing") through the issuance of new Subordinated Indebtedness
of the Company; PROVIDED that any such new Subordinated Indebtedness
(1) shall be in a principal amount that does not exceed the
principal amount so refinanced (or, if such old Subordinated
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration or acceleration
thereof, then such lesser amount as of the date of determination),
plus the lesser of (I) the stated amount of any premium or other
payment required to be paid in connection with such a refinancing
pursuant to the terms of the Subordinated Indebtedness being
refinanced or (II) the amount of premium or other payment actually
paid at such time to refinance the Subordinated Indebtedness, plus,
in either case, the amount of expenses of the Company incurred in
connection with such refinancing; (2) has an Average Life to Stated
Maturity greater than the remaining Average Life to Stated Maturity
of the Securities; (3) has a Stated Maturity for its final scheduled
principal payment later than the Stated Maturity for the final
scheduled principal payment of the Securities; and (4) is expressly
subordinated in right of payment to the Securities at least to the
same extent as the Indebtedness to be refinanced; and
(v) the repurchase of the Senior Subordinated Notes pursuant
to the provisions of paragraph (c) of the covenant entitled
"Limitation on Sale of Assets" in the indenture governing the Senior
Subordinated Notes with Excess Proceeds but only to the extent that
the Company has already complied with the provisions of paragraph
(c) of Section 912 of this Indenture.
Section 910. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary)
unless (i) such transaction or series of related transactions is in writing on
terms that are no less favorable to the Company or such Subsidiary, as the case
may be, than would be available in a comparable transaction in arm's-length
dealings with an unrelated third party and (ii) with respect to any transaction
or series of related transactions involving aggregate payments
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in excess of $5,000,000, the Company delivers an Officers' Certificate to the
Trustee certifying that such transaction or series of related transactions
complies with clause (i) above and such transaction or series of related
transactions has been approved by a majority of the Disinterested Directors of
the Board of Directors; PROVIDED that any transaction or series of related
transactions otherwise permitted under this paragraph (other than any
transaction or series of related transactions with respect to the making of any
Permitted Investment pursuant to clause (viii) of the definition of "Permitted
Investment" or any Restricted Payment permitted pursuant to Section 909)
pursuant to which the Company or any Subsidiary of the Company shall receive or
render value exceeding $25,000,000 shall not be permitted unless, prior to the
consummation of any such transaction or series of related transactions, the
Company shall have received an opinion, from an independent nationally
recognized investment banking firm or firm experienced in the appraisal or
similar review of similar types of transactions, that such transaction is fair
to the Company from a financial point of view; PROVIDED, FURTHER, that this
Section 910 shall not apply to (A) any transaction with an officer or member of
the Board of Directors of the Company entered into in the ordinary course of
business (including, without limitation, the Company's 1994 Stock Option Plan
and other compensation or employee benefit arrangements with any officer or
member of the Board of Directors of the Company), (B) transactions or agreements
in existence on the date of the Indenture (and extensions or amendments thereof
on terms which are not materially less favorable to the Company than the terms
of any such transaction or agreement as in existence on the date of this
Indenture), (C) directors' fees, (D) any reasonable employment agreement
approved by the Board of Directors of the Company and entered into in the
ordinary course of business of the Company or any extensions thereof on
substantially equivalent terms, (E) loans to employees not exceeding $1,500,000
in the aggregate outstanding at any time, (F) any employee benefit plan
available to employees of the Company generally, and (G) sales by the Company of
its products in the ordinary course of business on arm's-length terms.
(b) The Company will cause Playtex Investment Corp. not to amend,
modify or in any way alter the terms of the Agreement, dated as of November 5,
1991, between Playtex Investment Corp. and Playtex Apparel Partners, L.P. in a
manner adverse to the Company or any Subsidiary.
Section 911. LIMITATION ON LIENS.
(a) The Company will not, and will not permit any Subsidiary to,
create, incur, affirm or suffer to exist any Lien of any kind (other than
Permitted Liens) upon any property or assets (including any intercompany notes)
of the Company or any Subsidiary owned on the date of this Indenture or acquired
after the date of this Indenture, or any income or profits therefrom, unless the
Securities are secured equally and ratably with (or prior to in the case of
Subordinated Indebtedness) the obligation or liability secured by such Lien.
(b) Notwithstanding the foregoing, any security interest granted by
the Company or any Subsidiary to secure the Securities created pursuant to
paragraph (a) above shall provide by its terms that such security interest shall
be automatically and unconditionally released and discharged upon the release by
the holders of the obligation or liability of the
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Company or any Subsidiary described in paragraph (a) above of their security
interest (including any deemed release upon payment in full of all obligations
under such Indebtedness), at a time when (A) no other obligation or liability of
the Company or any Subsidiary has been secured by such property or assets of the
Company or any such Subsidiary, or (B) the holders of all such other obligation
or liability which is secured by such property or assets of the Company or any
such Subsidiary also release their security interest in such property or assets
(including any deemed release upon payment in full of all liabilities and
obligations).
Section 912. LIMITATION ON SALE OF ASSETS.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) at
least 85% of the proceeds from such Asset Sale are received in cash; PROVIDED,
however, that the amount of (A) any Senior Indebtedness (as shown on the
Company's or such Subsidiaries' most recent balance sheet or in the notes
thereto) of the Company or any such Subsidiary that are assumed by the
transferee of any asset in connection with any Asset Sale and (B) any deferred
payment obligations received by the Company or any such Subsidiary as proceeds
of an Asset Sale that are concurrently with the Asset Sale converted into cash
without recourse to the Company or any of its Subsidiaries, shall be deemed to
be cash for purposes of this provision and (ii) the Company or such Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the shares or assets sold (as determined by the Board of
Directors of the Company and evidenced by a Board Resolution). Notwithstanding
the foregoing, clause (i) of the preceding sentence shall not apply to any Asset
Sale or portions thereof involving Excluded Assets or the making of any
Permitted Investment pursuant to clause (vii) of the definition of "Permitted
Investment" or a Restricted Payment permitted pursuant to Section 909.
(b) If all or a portion of the Net Cash Proceeds of any Asset Sale
are not applied to prepay or repay permanently any secured Senior Indebtedness
then outstanding as provided by the terms thereof, or if no such secured Senior
Indebtedness is then outstanding, then the Company may within 12 months of the
Asset Sale, invest the Net Cash Proceeds in properties and assets that (as
determined by the Board of Directors) replace the properties and assets that
were the subject of the Asset Sale or in properties and assets that will be used
in the businesses of the Company or its Subsidiaries existing on the date of
this Indenture or in the businesses reasonably related thereto, which for
purposes of this Indenture shall include any consumer products business. The
amount of such Net Cash Proceeds neither used to permanently repay or prepay
secured Senior Indebtedness nor used or invested as set forth in this paragraph
constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals $25,000,000
or more, the Company shall apply the Excess Proceeds to the repayment of the
Securities and any Senior Indebtedness required to be repurchased under the
instrument governing such Senior Indebtedness as follows: (i) the Company shall
make an offer to purchase (an "Offer") from all Holders in accordance with the
procedures set forth in this Indenture in the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out of
an amount
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(the "Note Amount") equal to the product of such Excess Proceeds multiplied by a
fraction, the numerator of which is the outstanding principal amount of the
Securities, and the denominator of which is the sum of the outstanding principal
amount of the Securities and such Senior Indebtedness (subject to proration in
the event such amount is less than the aggregate Offered Price (as defined
herein) of all Securities tendered) and (ii) to the extent required by such
Senior Indebtedness to permanently reduce the principal amount of such Senior
Indebtedness, the Company shall make an offer to purchase or otherwise
repurchase or redeem Senior Indebtedness (a "Pari Passu Offer") in an amount
(the "Pari Passu Debt Amount") equal to the excess of the Excess Proceeds over
the Note Amount; PROVIDED that in no event shall the Pari Passu Debt Amount
exceed the principal amount of such Senior Indebtedness plus the amount of any
premium required to be paid to repurchase such Senior Indebtedness. The offer
price shall be payable in cash in an amount equal to 100% of the principal
amount of the Securities plus accrued and unpaid interest and Liquidated
Damages, if any, to the date (the "Purchase Date") such offer is consummated
(the "Offered Price"), in accordance with the procedures set forth in this
Indenture. To the extent that the aggregate Offered Price of the Securities
tendered pursuant to the Offer is less than the Note Amount relating thereto or
the aggregate amount of Senior Indebtedness that is purchased is less than the
Pari Passu Debt Amount (the amount of such shortfall, if any, constituting a
"Deficiency"), the Company shall use such Deficiency in the business of the
Company and its Subsidiaries. Upon completion of the purchase of all Securities
tendered pursuant to an Offer and repurchase of the Senior Indebtedness pursuant
to a Pari Passu Offer, the amount of Excess Proceeds, if any, shall be reset at
zero.
(d) Whenever the aggregate amount of Excess Proceeds received by the
Company exceeds $25,000,000, such Excess Proceeds shall, prior to the purchase
of Securities or any Senior Indebtedness described in paragraph (c) above, be
set aside by the Company in a separate account pending (i) deposit with the
depository or a Paying Agent of the amount required to purchase the Securities
or Senior Indebtedness tendered in an Offer or a Pari Passu Offer and (ii)
delivery by the Company of the Offered Price to the holders of the Securities or
Senior Indebtedness tendered in an Offer or a Pari Passu Offer. Such Excess
Proceeds may be invested in Temporary Cash Investments; PROVIDED that the
maturity date of any such investment made after the amount of Excess Proceeds
exceeds $25,000,000 shall not be later than the Purchase Date. The Company shall
be entitled to any interest or dividends accrued, earned or paid on such
Temporary Cash Investments; PROVIDED that the Company shall not be entitled to
such interest and shall not withdraw such interest from the separate account, if
an Event of Default has occurred and is continuing.
(e) If the Company becomes obligated to make an Offer pursuant to
paragraph (c) above, the Securities shall be purchased by the Company, at the
option of the Holder thereof, in whole or in part in integral multiples of
$1,000, on a date that is not earlier than 30 days and not later than 60 days
from the date the notice is given to Holders, or such later date as may be
necessary for the Company to comply with the requirements under the Exchange
Act, subject to proration in the event the Note Amount is less than the
aggregate Offered Price of all Securities tendered.
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(f) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with an Offer.
(g) The Company will not, and will not permit any Subsidiary to,
create or permit to exist or become effective any restriction (other than
restrictions existing under (i) Indebtedness as in effect on the date of this
Indenture as such Indebtedness may be refinanced from time to time or (ii) any
Senior Indebtedness existing on the date of this Indenture or thereafter, in
each case, PROVIDED that such restrictions are no less favorable to the Holders
than those existing on the date of this Indenture) that would expressly impair
the ability of the Company to make an Offer to purchase the Securities or, if
such Offer is made, to pay for the Securities tendered for purchase.
(h) Within 30 days after the date on which the amount of Excess
Proceeds equals or exceeds $25,000,000, the Company shall send by first-class
mail, postage prepaid, to the Trustee and to each Holder of the Securities, at
such Holder's address appearing in the Security Register, a notice stating or
including:
(i) that the Holder has the right to require the Company to
repurchase, subject to proration, part or all of such Holder's
Securities at the Offered Price;
(ii) the Purchase Date;
(iii) the instructions a Holder must follow in order to have
its Securities purchased in accordance with paragraph (c) of this
Section; and
(iv) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the
Company, the most recent subsequently filed Quarterly Report on Form
10-Q, as applicable, and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Sales otherwise described in the
offering materials (or corresponding successor reports)(or in the
event the Company is not required to prepare any of the foregoing
Forms, the comparable information required pursuant to Section 916),
(ii) a description of material developments in the Company's
business subsequent to the date of the latest of such Reports, (iii)
if material, appropriate PRO FORMA financial information, and (iv)
such other information, if any, concerning the business of the
Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed investment
decision regarding the Offer;
(v) the Offered Price;
(vi) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 902;
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(vii) that Securities must be surrendered at least three
Business Days prior the Purchase Date to the Paying Agent or to an
office or agency referred to in Section 902 to collect payment;
(viii)that any Securities not tendered will continue to accrue
interest and that unless the Company defaults in the payment of the
purchase price, any Security accepted for payment pursuant to the
Offer shall cease to accrue interest on and after the Purchase Date;
and
(ix) the procedures for withdrawing a tender.
(i) Holders electing to have Securities purchased hereunder will be
required to surrender such Securities at the address specified in the notice at
least three Business Days prior to the Purchase Date. Holders will be entitled
to withdraw their election to have their Securities purchased pursuant to this
Section 912 if the Company receives, not later than three Business Days prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth (1) the name of the Holder, (2) the certificate number of the Security in
respect of which such notice of withdrawal is being submitted, (3) the principal
amount of the Security (which shall be $1,000 or an integral multiple thereof)
delivered for purchase by the Holder as to which his election is to be
withdrawn, (4) a statement that such Holder is withdrawing such Holder's
election to have such principal amount of such Security purchased, and (5) the
principal amount, if any, of such Security (which shall be $1,000 or an integral
multiple thereof) that remains subject to the original notice of the Offer and
that has been or will be delivered for purchase by the Company.
(j) The Company shall (i) not later than the Purchase Date, accept
for payment Securities or portions thereof tendered pursuant to the Offer, (ii)
not later than 11:00 a.m. (New York time) on the Purchase Date, deposit with the
Trustee or with a Paying Agent an amount of money in same day funds (or New York
Clearing House funds if such deposit is made prior to the Purchase Date)
sufficient to pay the aggregate Offered Price of all the Securities or portions
thereof which are to be purchased on that date and (iii) not later than 11:00
a.m. (New York time) on the Purchase Date, deliver to the Paying Agent an
Officers' Certificate stating the Securities or portions thereof accepted for
payment by the Company.
The Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Offered Price; PROVIDED, HOWEVER, that, (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee in respect to an Offer exceeds the aggregate Offered Price of the
Securities or portions thereof to be purchased, then the Trustee shall hold such
excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Purchase Date the Trustee
shall return any such excess to the Company together with interest or dividends,
if any, thereon.
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(k) Securities to be purchased shall, on the Purchase Date, become
due and payable at the Offered Price and from and after such date (unless the
Company shall default in the payment of the Offered Price) such Securities shall
cease to bear interest. The Offered Price shall be paid to such Holder promptly
following the later of the Purchase Date and the time of delivery of such
Security to the relevant Paying Agent at the office of such Paying Agent by the
Holder thereof in the manner required. Upon surrender of any such Security for
purchase in accordance with the foregoing provisions, such Security shall be
paid by the Company at the Offered Price; PROVIDED, HOWEVER, that installments
of interest whose Stated Maturity is on or prior to the Purchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 206; PROVIDED, FURTHER, that Securities
to be purchased are subject to proration in the event the Excess Proceeds are
less than the aggregate Offered Price of all Securities tendered for purchase,
with such adjustments as may be appropriate by the Trustee so that only
Securities in denominations of $1,000 or integral multiples thereof shall be
purchased. If any Security tendered for purchase in accordance with the terms of
this Section shall not be so paid upon surrender thereof by deposit of funds
with the Trustee or a Paying Agent in accordance with paragraph (j) above, the
principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Purchase Date at the rate borne by such Security. Any Security
that is to be purchased only in part shall be surrendered to a Paying Agent in
accordance with the terms of this Section at the office of such Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
one or more new Securities of any authorized denomination as requested by such
Holder in an aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
purchased.
Section 913. PURCHASE OF SECURITIES UPON A CHANGE OF CONTROL.
(a) If a Change of Control shall occur at any time, then each Holder
shall have the right to require that the Company purchase such Holder's
Securities, pursuant to an offer described in subsection (b) of this Section (a
"Change of Control Offer"), in whole or in part in integral multiples of $1,000,
at a purchase price (the "Change of Control Purchase Price") in cash in an
amount equal to 101% of the principal amount of such Securities, plus accrued
and unpaid interest and Liquidated Damages, if any, to the date of purchase (the
"Change of Control Purchase Date"), in accordance with the procedures set forth
in paragraphs (b), (c), (d) and (e) of this Section.
(b) Within 30 days following any Change of Control, the Company
shall notify the Trustee thereof and give written notice (a "Change of Control
Purchase Notice") of such Change of Control to each Holder by first-class mail,
postage prepaid, to the Trustee and to each Holder, at his address appearing in
the Security Register stating or including:
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(i) that a Change of Control has occurred, the date of such
event, and that such Holder has the right to require the Company to
repurchase such Holder's Securities at the Change of Control
Purchase Price;
(ii) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information with
respect to PRO FORMA historical income, cash flow and capitalization
after giving effect to such Change of Control, if any);
(iii) that the Change of Control Offer is being made pursuant
to Section 913(a) and that all Securities properly tendered pursuant
to the Change of Control Offer will be accepted for payment at the
Change of Control Offer Purchase Price;
(iv) the Change of Control Purchase Date which shall be a
Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed or such later date as may be necessary
for the Company to comply with the requirements under the Exchange
Act;
(v) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the
Company, the most recent subsequently filed Quarterly Report on Form
10-Q, as applicable, and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly Report (or in the event
the Company is not required to prepare any of the foregoing Forms,
the comparable information required to be prepared by the Company
pursuant to Section 916), (ii) a description of material
developments in the Company's business subsequent to the date of the
latest of such reports and (iii) such other information, if any,
concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will enable such Holders to make
an informed investment decision regarding the Change of Control
Offer;
(vi) the Change of Control Purchase Price;
(vii) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 902;
(viii)that Securities must be surrendered at least three
Business Days prior to the Change of Control Purchase Date to the
Paying Agent at the office of the Paying Agent or to an office or
agency referred to in Section 902 to collect payment;
(ix) that the Change of Control Purchase Price for any
Security which has been properly tendered and not withdrawn will be
paid promptly following the Change of Control Purchase Date;
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(x) the procedures for withdrawing a tender of Securities
and Change of Control Purchase Notice;
(xi) that any Security not tendered will continue to accrue
interest; and
(xii) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Security accepted for payment
pursuant to the Change of Control Offer shall cease to accrue
interest on and after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of Securities,
each Holder of a Security in respect of which such proper tender was made shall
(unless the tender of such Security is properly withdrawn) thereafter be
entitled to receive solely the Change of Control Purchase Price with respect to
such Security. Upon surrender of any such Security for purchase in accordance
with the foregoing provisions, such Security shall be paid by the Company at the
Change of Control Purchase Price; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Change of Control Purchase
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 206. If any Security
tendered for purchase in accordance with the provisions of this Section shall
not be so paid upon surrender thereof by deposit of funds with the Paying Agent
in accordance with paragraph (d) below, the principal thereof (and premium, if
any, thereon) shall, until paid, bear interest from the Change of Control
Purchase Date at the rate borne by such Security. Holders electing to have
Securities purchased will be required to surrender such Securities to the Paying
Agent at the address specified in the notice at least three Business Days prior
to the Change of Control Purchase Date. Any Security that is to be purchased
only in part shall be surrendered to a Paying Agent in accordance with the
provisions of this Section at the office of such Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge, one or more new Securities
of any authorized denomination as requested by such Holder in an aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the Security so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) not later than 11:00 a.m. (New
York time) on the Change of Control Purchase Date, deposit with the Paying Agent
an amount of cash sufficient to pay the aggregate Change of Control Purchase
Price of all the Securities or portions thereof which are to be purchased as of
the Change of Control Purchase Date and (iii) not later than 11:00 a.m. (New
York time) on the Change of Control Purchase Date, deliver to the Paying Agent
an Officers' Certificate stating the Securities or portions thereof accepted for
payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the
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Change of Control Purchase Price of the Securities purchased from each such
Holder. Any Securities not so accepted shall be promptly mailed or delivered by
the Paying Agent at the Company's expense to the Holder thereof. The Company
will publicly announce the results of the Change of Control Offer on the Change
of Control Purchase Date. For purposes of this Section 913, the Company shall
choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice
may be withdrawn before or after delivery by the Holder to the Paying Agent at
the office of the Paying Agent of the Security to which such Change of Control
Purchase Notice relates, by means of a written notice of withdrawal delivered by
the Holder to the Paying Agent at the office of the Paying Agent or to the
office or agency referred to in Section 902 to which the related Change of
Control Purchase Notice was delivered not later than three Business Days prior
to the Change of Control Purchase Date specifying, as applicable:
1. the name of the Holder;
2. the certificate number of the Security in respect of
which such notice of withdrawal is being submitted;
3. the principal amount of the Security (which shall be
$1,000 or an integral multiple thereof) delivered for purchase by
the Holder as to which such notice of withdrawal is being submitted;
4. a statement that such Holder is withdrawing such
Holder's election to have such principal amount of such Security
purchased; and
5. the principal amount, if any, of such Security (which shall
be $1,000 or an integral multiple thereof) that remains subject to
the original Change of Control Purchase Notice and that has been or
will be delivered for purchase by the Company.
(f) As provided in the Securities, the Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change of Control Purchase Price; PROVIDED, HOWEVER, that, (x) to the extent
that the aggregate amount of cash deposited by the Company pursuant to clause
(ii) of paragraph (d) above exceeds the aggregate Change of Control Purchase
Price of the Securities or portions thereof to be purchased, then the Trustee
shall hold such excess for the Company and (y) unless otherwise directed by the
Company in writing, promptly after the Business Day following the Change of
Control Purchase Date, the Trustee shall return any such excess to the Company
together with interest or dividends, if any, thereon.
(g) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with a Change of Control Offer.
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(h) Notwithstanding the occurrence of a Change of Control, the
Company shall not be obligated to repurchase the Securities pursuant to a Change
of Control Offer, or otherwise comply with this Section 913, if the Company has
elected to redeem all of the Securities in accordance with Article Ten.
Section 914. LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF
SUBSIDIARIES.
The Company will not permit (a) any Subsidiary to issue any Capital
Stock (other than to the Company or any Wholly Owned Subsidiary that is a
Guarantor) or (b) any Person (other than the Company or a Wholly Owned
Subsidiary that is a Guarantor) to acquire any Capital Stock of any Subsidiary
from the Company or any Wholly Owned Subsidiary, except upon the sale of all of
the outstanding Capital Stock of such Subsidiary owned by the Company.
Section 915. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make any other distribution on its Capital Stock to the
Company or any other Subsidiary, (b) pay any Indebtedness owned to the Company
or any Subsidiary, (c) make any Investment in the Company or (d) transfer any of
its properties or assets to the Company or any Subsidiary, except (i) any
encumbrance or restriction pursuant to the Credit Facilities as in effect on the
date of this Indenture or any other agreement in effect on the date of this
Indenture, (ii) any encumbrance or restriction, with respect to a Subsidiary
that is not a Subsidiary of the Company on the date of this Indenture, in
existence at the time such Person becomes a Subsidiary of the Company and not
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Company or any Subsidiary, (iv)
any encumbrance or restriction contained in a working capital facility permitted
to be incurred pursuant to paragraph (xi) of the definition of "Permitted
Indebtedness" and (v) any encumbrance or restriction existing under any
agreement that extends, renews, refinances or replaces the agreements containing
the encumbrances or restrictions in the foregoing clauses (i) and (ii), PROVIDED
that the terms and conditions of any such encumbrances or restrictions are not
materially less favorable to the Holders than those under or pursuant to the
agreement evidencing the Indebtedness so extended, renewed, refinanced or
replaced.
Section 916. PROVISION OF FINANCIAL STATEMENTS.
Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, the Company will, to the extent permitted under the Exchange
Act, file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Sections 13(a) or 15(d) if the Company were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been required
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so to file such documents if the Company were so subject. The Company will also
in any event (x) within 15 days of each Required Filing Date (i) transmit by
mail to all Holders, as their names and addresses appear in the Security
Register, without cost to such Holders and (ii) file with the Trustee, copies of
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act if the Company were subject to such Sections and
(y) if filing such documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective holder of Securities at the Company's cost.
Section 917. ADDITIONAL SUBSIDIARY GUARANTORS.
If the Company or any of its Subsidiaries shall after the date
hereof (i) acquire or create another Subsidiary (other than a Foreign
Subsidiary) or (ii) make any Investment in any Subsidiary that is not a
Guarantor (other than an Investment permitted by Section 909), then the Company
shall cause such Subsidiary to (A) execute and deliver to the Trustee a
Guarantee in the form of EXHIBIT C hereto pursuant to which such Subsidiary
shall unconditionally guarantee all of the Company's obligations under the
Securities and this Indenture on the terms set forth in the Guarantee and (B)
deliver to the Trustee an Opinion of Counsel in accordance with Section 103
hereof.
Section 918. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company and each Guarantor will deliver to the Trustee, on
or before a date not more than 45 days after the end of each fiscal quarter and
not more than 90 days after the end of each fiscal year of the Company or such
Guarantor, as the case may be, ending after the date hereof, a written statement
signed by two executive officers of the Company or such Guarantor, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company or such Guarantor, stating whether
or not, after a review of the activities of the Company or such Guarantor during
such year or such quarter and of the Company's or such Guarantor's performance
under this Indenture, to the best knowledge, based on such review, of the
signers thereof, the Company or such Guarantor has fulfilled all its obligations
and is in compliance with all conditions and covenants under this Indenture
throughout such year or quarter, as the case may be, and, if there has been a
Default, specifying each Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed Default, the Company
shall deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission followed by hard copy an Officers' Certificate
specifying such Default, Event of Default, notice or other action, the status
thereof and what action the Company is taking or proposes to take with respect
thereto, within five Business Days of its occurrence.
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Section 919. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 905 through 912 and Section 914
through 917 if, before or after the time for such compliance, the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding waive such compliance in such instance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain full force and effect.
ARTICLE TEN
REDEMPTION OF SECURITIES
Section 1001. RIGHT OF REDEMPTION.
(a) The Securities shall not be redeemable at the Company's option
prior to July 15, 2001. Thereafter, the Securities may be redeemed, at the
election of the Company, in whole or in part, subject to the conditions and at
the Redemption Prices specified in the form of Security, together with accrued
and unpaid interest, if any, to the Redemption Date (subject to the right of
Holders of record on relevant Regular Record Dates and Special Record Dates to
receive interest due on relevant Interest Payment Dates).
(b) Notwithstanding the foregoing, at any time prior to July 15,
2000, the Company at its option, may redeem up to 35% of the aggregate principal
amount of the Securities Outstanding on the date of this Indenture, with the net
proceeds from the sale by the Company of Qualified Capital Stock in one or more
offerings after the date of this Indenture, within 60 days of receipt of such
proceeds, at a Redemption Price equal to 108 7/8% of the principal amount,
together with accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption Date (subject to the right of Holders of record on relevant Regular
Record Dates and Special Record Dates to receive interest due on relevant
Interest Payment Dates).
(c) Notwithstanding the foregoing, at any time prior to July 15,
2001, the Company, at its option, may redeem the Securities, in whole or in
part, at any time within 90 days after a Change of Control, upon not less than
30 nor more than 60 days' notice, in amounts of $1,000 or integral multiples
thereof, at a redemption price equal to the sum of (i) the principal amount
thereof plus (ii) accrued and unpaid interest and Liquidated Damages, if any, to
the Redemption Date (subject to the right of Holders of record on relevant
Regular Record Dates and Special Record Dates to receive interest due on
relevant Interest Payment Dates) plus (iii) the Applicable Premium.
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Section 1002. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
Section 1003. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to
Section 1001 shall be evidenced by a Company Order and an Officers' Certificate.
In case of any redemption at the election of the Company, the Company shall, not
less than 30 nor more than 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
Section 1004. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee (or such shorter period as the
Trustee may agree upon), from the Outstanding Securities not previously called
for redemption, by lot or such other method as the Trustee shall deem fair and
reasonable, and the amounts to be redeemed may be equal to $1,000 or any
integral multiple thereof.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 1005. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
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(c) if less than all Outstanding Securities are to be redeemed, the
identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date upon
surrender of such Security, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof to be redeemed, and that
(unless the Company shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name and at the expense of the Company. If the Company
elects to give notice of redemption, it shall provide the Trustee with a
certificate stating that such notice has been given in compliance with the
requirements of this Section 1005.
Such notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
Section 1006. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent an amount of money in same day funds
sufficient to pay the Redemption Price of, and, except if the Redemption Date
shall be an Interest Payment Date, accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date. The Trustee or the
Paying Agent shall hold in trust for, and return to, the Company promptly after
the Business Day following the Redemption Date any interest or dividends, if
any, earned on amounts deposited with the Trustee or the Paying Agent remaining
after the payment of the aggregate Redemption Price for all securities to be
redeemed.
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Section 1007. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall not have deposited funds in accordance with Section 1006 in
respect of the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price together with accrued interest to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Regular Record Dates according to the terms and the provisions of
Section 206.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, by deposit or segregation of funds in
accordance with Section 1006, the principal and premium, if any, shall, until
paid, bear interest from the Redemption Date at the rate borne by such Security.
Section 1008. SECURITIES REDEEMED OR PURCHASED IN PART.
Any Security which is to be redeemed or purchased only in part shall
be surrendered to the Paying Agent at the office or agency maintained for such
purpose pursuant to Section 902 (with, if the Company, the Security Registrar or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Security Registrar or the Trustee, as
the case may be, duly executed by the Holder thereof or such Holder's attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to, and in exchange
for, the unredeemed portion of the principal of the Security so surrendered that
is not redeemed or purchased.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 1101. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of the Securities
herein expressly provided for) and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(a) either
(1) all the Securities theretofore authenticated and delivered
(other than (i) lost, stolen or destroyed Securities which have been
replaced or paid as provided in Section 205 and (ii) Securities for
whose payment United States dollars have theretofore been deposited
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 903) have been
delivered to the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and either the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust an
amount sufficient to pay and discharge the entire indebtedness on
the Securities not theretofore delivered to the Trustee for
cancellation, including principal of, premium, if any, and accrued
interest on such Securities at such Maturity, Stated Maturity or
Redemption Date;
(b) the Company or any Guarantor has paid all other sums payable
thereunder by the Company and any Guarantor; and
(c) the Company and such Guarantor have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each to the effect that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with and that such satisfaction
and discharge will not result in a breach or violation of, or constitute a
default under, this Indenture or a breach or violation of any agreement to which
the Company or any Guarantor is a party or by which either is bound.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 507 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of Subsection (a) of this Section, the obligations of the Trustee under
Section 1102 and the last paragraph of Section 903 shall survive.
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Section 1102. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 903, all
United States dollars deposited with the Trustee pursuant to Section 1101 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Persons entitled thereto, of
the principal of, premium, if any, and interest on the Securities for whose
payment such United States dollars have been deposited with the Trustee.
ARTICLE TWELVE
GUARANTEE OF SECURITIES
Section 1201. GUARANTEES.
Subject to the provisions of this Article Twelve, each Guarantor
jointly and severally unconditionally guarantees, on an unsecured senior basis,
to each Holder of a Security authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities, or the obligations of the
Company to the Holders or the Trustee hereunder or under the Securities that (a)
the principal of, premium, if any, and any accrued and unpaid interest and
Liquidated Damages on the Securities shall be duly and punctually paid in full
when due, whether at maturity, by acceleration or otherwise, and interest on
overdue principal of, premium, if any, and (to the extent permitted by law)
interest on the Securities and that all other obligations of the Company to the
Holders or the Trustee hereunder or under the Securities (including fees,
expenses or other) shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; (b) in case of any extension of
time of payment or renewal of any Securities or any of such other obligations,
the same shall be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise; and (c) any and all cost and expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred by the
Trustee or its agents or any Holder of Securities in enforcing any rights under
any Guarantee shall be promptly paid in full when due. Failing payment when due
of any amount so guaranteed or failing performance of any other Indenture
Obligation of the Company to the Holders, for whatever reason, each Guarantor
shall be obligated to pay, or to perform or to cause the performance of, the
same immediately. Each Guarantee shall be a guarantee of payment and not a
guarantee of collection. An Event of Default under this Indenture or the
Securities shall constitute an event of default under each Guarantee, and shall
entitle the Holders of Securities to accelerate the Indenture Obligations of the
Guarantors in the same manner and to the same extent as the Indenture
Obligations of the Company. Each Guarantor's Guarantee shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or
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defense of a guarantor. By executing a Guarantee, each Guarantor shall be deemed
to waive diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company and such
Guarantor, protest, notice and all demands whatsoever and covenant that its
Guarantee shall not be discharged except by complete performance of all
Indenture Obligations, except as specified in Section 1203. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or such
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to either the Company or such Guarantor, any amount paid by
any such entity to the Trustee or such Holder, such Guarantor's Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
By executing a Guarantee, each Guarantor shall be deemed to agree that it shall
not be entitled to any right of subrogation in relation to the Holders in
respect of any Indenture Obligations until payment in full of all Indenture
Obligations and further that, as between the Guarantors, on the one hand, and
the Holders of Securities and the Trustee, on the other hand, (x) the maturity
of the Indenture Obligations may be accelerated as provided in Article Four
hereof for the purposes of its Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Indenture
Obligations, and (y) in the event of any acceleration of such Indenture
Obligations as provided in Article Four hereof, such Indenture Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Guarantor for the purpose of its Guarantee. The Indenture Obligations of each
Guarantor shall rank PARI PASSU in right of payment with all Indebtedness of
such Guarantor that is not, by its terms, expressly subordinated in right of
payment to the Indenture Obligations of such Guarantor.
Section 1202. LIMITATION OF THE GUARANTORS' LIABILITY.
Each Guarantor, by executing a Guarantee, and, by its acceptance
hereof, each beneficiary hereof, shall be deemed to confirm that it is the
intention and agreement of all such parties that such Guarantor's Guarantee not
constitute a fraudulent transfer, conveyance or obligation for purposes of any
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar Federal or state law (including, without limitation,
the Debtor and Creditor Law of the State of New York). To effectuate the
foregoing intention, each such Person hereby irrevocably agrees that the
Indenture Obligations of the Guarantors under this Article Twelve shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor, result in the Indenture
Obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer, conveyance or obligation.
Section 1203. RELEASE OF THE GUARANTORS.
In the event of a sale or other disposition of all, or substantially
all, of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the capital stock of any
Guarantor, such Guarantor (in the event of a sale or others disposition, by way
of such a merger, consolidation or otherwise, of all of the capital stock of
such Guarantor) or the corporation acquiring the property (in the event of a
sale or other disposition of
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all, or substantially all, of the assets of such Guarantor) will be released and
relieved of any obligations under its Guarantee. The Trustee shall deliver an
appropriate instrument evidencing such release upon receipt of a request of the
Company accompanied by an Officers' Certificate and Opinion of Counsel
certifying as to the compliance with this Section 1203. Any Guarantor not
released from its obligations under its Guarantee shall remain liable for the
full amount of principal of, premium, if any, and accrued and unpaid interest on
the Securities and for the other obligations of such Guarantor under this
Indenture as provided in this Article Twelve.
Section 1204. EXECUTION AND DELIVERY OF GUARANTEES.
To evidence its Guarantee set forth in this Article Twelve, each
Guarantor shall execute and deliver to the Trustee a Guarantee in the form of
EXHIBIT C hereto pursuant to which such Subsidiary shall become a Guarantor
under this Article Twelve and shall guarantee the obligations of the Company as
provided in this Article Twelve. Concurrently with the execution and delivery of
such Guarantee, the Company shall deliver to the Trustee an Opinion of Counsel
reasonably satisfactory to the Trustee substantially to the effect that such
Guarantee and supplemental indenture have been duly authorized, executed and
delivered by such Guarantor and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or fraudulent transfer and other
laws relating to creditors' rights generally and to general principles of
equity, whether considered in a proceeding at law or in equity, the Guarantee of
such Guarantor contained herein and in its Guarantee (subject to the limitations
set forth in Section 1202) is a legal, valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms.
Each Guarantee shall remain in full force and effect and apply to
all of the Securities notwithstanding any failure to endorse on each Security a
notation of such Guarantee. The delivery of any Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of each Guarantor.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
PLAYTEX PRODUCTS, INC.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Executive Vice President and
Chief Financial Officer
PLAYTEX BEAUTY CARE, INC.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Executive Vice President
PLAYTEX INVESTMENT CORP.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Executive Vice President
PLAYTEX INTERNATIONAL CORP.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Executive Vice President
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PLAYTEX SALES & SERVICES, INC.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Vice President
PLAYTEX MANUFACTURING, INC.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Vice President
SMILE-TOTE, INC.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Executive Vice President
SUN PHARMACEUTICALS CORP.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Executive Vice President
TH MARKETING CORP.
By: /s/ Michael F. Goss
------------------------------
Name: Michael F. Goss
Title: Executive Vice President
100
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MARINE MIDLAND BANK,
as Trustee
By: /s/ Frank Godino
------------------------------
Name: Frank Godino
Title: Authorized Signatory
101
<PAGE>
EXHIBIT A
(Form of Face of Initial Security)
[If a restricted security, then insert -- THE NOTE (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER
OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) INSIDE THE
UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PURCHASER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND,
IN THE CASE OF CLAUSE (b), (c) OR (d), BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY, OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE EVIDENCED HEREBY
OR ANY NOTE ISSUED IN EXCHANGE FOR OR IN SUBSTITUTION HEREOF OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
Each Temporary Regulation S Global Security shall bear the following
legend on the face thereof:
THIS SECURITY IS A TEMPORARY REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE REFERRED TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN
SECTION 211 OF THE INDENTURE INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
SECURITY MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (AS
DEFINED IN THE INDENTURE), AND NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS
A-1
<PAGE>
TEMPORARY REGULATION S GLOBAL SECURITY MAY BE MADE FOR AN INTEREST IN A
RESTRICTED GLOBAL SECURITY OR IN A PERMANENT REGULATION S GLOBAL SECURITY UNTIL
AFTER THE LATER OF THE DATE OF THE EXPIRATION OF THE RESTRICTED PERIOD AND THE
DATE ON WHICH THE OWNER SECURITIES CERTIFICATION AND THE DEPOSITORY SECURITIES
CERTIFICATION RELATING TO SUCH INTEREST HAVE BEEN PROVIDED IN ACCORDANCE WITH
THE TERMS OF THE INDENTURE, TO THE EFFECT THAT THE BENEFICIAL OWNER OR OWNERS OF
SUCH INTEREST ARE NOT U.S. PERSONS.
Each Permanent Regulation S Security shall bear the following legend
on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, OR DELIVERED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY U.S. PERSON, UNLESS THE SECURITIES ARE REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.
A-2
<PAGE>
PLAYTEX PRODUCTS, INC.
-----------------
8 7/8% SENIOR NOTES due 2004, Series A
No. $150,000,000
------------
PLAYTEX PRODUCTS, INC., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ________
or registered assigns, the principal sum of One Hundred Fifty Million United
States dollars on July 15, 2004, at the office or agency of the Company referred
to below, and to pay interest thereon from July 21, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 15 and July 15 commencing January 15, 1998 at the rate
of 8 7/8% per annum, in United States dollars, until the principal hereof is
paid or duly provided for.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be January 1 or July 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so paid, or duly provided for, and interest on such defaulted interest at
the interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder in whose name such Security is registered as
of such Regular Record Date, and may be paid on the Special Payment Date to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee (and for which notice shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date) or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest and
Liquidated Damages on this Security will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of interest may be made at the option of the Company by check mailed to
the address of the Person entitled thereto as such address shall appear on the
Security Register. Interest shall be accrued on the basis of a 360-day year of
twelve 30-day months.
A-3
<PAGE>
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by the manual or facsimile signature of its authorized officers.
Dated: PLAYTEX PRODUCTS, INC.
--------
By:
------------------------------
A-4
<PAGE>
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 7/8% Senior Notes due 2004 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $150,000,000, which may be issued
under and are subject to the terms of an indenture (herein called the
"Indenture") dated as of July 21, 1997, among the Company, the Guarantors named
therein and Marine Midland Bank, as trustee (together with any successor Trustee
under the Indenture, the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee and the Holders, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on this Security and (b) certain covenants and related
Defaults and Events of Default, in each case upon compliance with certain
conditions set forth therein.
The Indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, PARI PASSU in right of payment to all
Senior Indebtedness, and senior in right of payment to all Subordinated
Indebtedness, whether Outstanding on the date of the Indenture or thereafter,
and this Security is issued subject to such provisions.
The Securities are not redeemable by the Company prior to July 15,
2001. Thereafter, the Securities are subject to redemption, in whole or in part,
at the option of the Company upon not less than 30 nor more than 60 days' prior
notice to the Holders by first-class mail, at the election of the Company, in
amounts of $1,000 or integral multiples of $1,000 at the following redemption
prices (expressed as a percentage of the principal amount) if redeemed during
the 12-month period beginning July 15 of the years indicated below:
Redemption
Year Price
---- ----------
2001.............................. 104.438%
2002.............................. 102.219%
2003.............................. 100.000%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest and Liquidated Damages, if any, to the Redemption
Date (subject to the right of Holders of record on relevant Regular Record Dates
or Special Record Dates to receive interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2000,
the Company, at its option, may redeem up to 35% of the aggregate principal
amount of the Securities Outstanding on the date of the Indenture in amounts of
$1,000 or integral multiples of $1,000, with the net proceeds from the sale by
the Company of Qualified Capital Stock in one or more offerings, within 60 days
of receipt of such proceeds, on not less than 30 nor more than 60 days'
A-5
<PAGE>
prior notice to the Holders, at a redemption price equal to 108 7/8% of the
principal amount, together, in each case, with accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date (subject to the right of
Holders of record on relevant Record Dates or Special Record Dates to receive
interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2001,
the Company, at its option, may redeem the Securities, in whole or in part, at
any time within 90 days after a Change of Control upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities to be redeemed in
amounts of $1,000 or an integral multiple thereof, at a redemption price equal
to the sum of (i) the principal amount thereof plus (ii) accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date (subject to the
right of Holders of record on relevant Record Dates or Special Record Dates to
receive interest due on an Interest Payment Date) plus (iii) the Applicable
Premium.
If less than all of the Securities are to be redeemed, such portion
of the Securities shall be redeemed pro rata, by lot or by any other method the
Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Company to purchase all or a portion of such Holder's
Securities in amounts of $1,000 or integral multiples of $1,000, at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase.
Under certain circumstances, in the event the Net Cash Proceeds that
are received by the Company from any Asset Sale, and that are not applied to
repay permanently any secured Senior Indebtedness then outstanding or invested
in properties or assets used in the businesses of the Company, equal or exceed
$25 million, the Company will be required to apply such proceeds to the
repayment of the Securities and certain Indebtedness ranking PARI PASSU with the
Securities.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities of record as of the close of business on the
relevant Regular Record Date or Special Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the
A-6
<PAGE>
Indenture. Notwithstanding the foregoing, in the case of an Event of Default
from certain events of bankruptcy or insolvency with respect to the Company, all
outstanding Securities will become due and payable without further action or
notice.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture, the Securities and
the Guarantees at any time with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
not less than a majority in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture, the
Securities and the Guarantees and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, the Guarantors or any other obligor under the Securities (in the event
any Guarantor or such other obligor is obligated to make payments in respect of
the Securities), which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the times, place, and rate,
and in the coin or currency, herein prescribed.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless (a) such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (c) the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Securities a direction inconsistent with such request
and (d) the Trustee shall have failed to institute such proceeding within 60
days; PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of (and
premium, if any) or any interest on this Security on or after the respective due
dates expressed herein.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or
A-7
<PAGE>
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and none of
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition (other than pursuant to a lease) of all or
substantially all of the properties and assets of the Company or any Guarantor
in accordance with the Indenture, subject to the terms and conditions of the
Indenture, the successor Person to such transaction shall become the obligor on
this Security, and the Company and each such Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Security and
the Indenture.
This Security is entitled to the benefits of any Guarantee of any
Guarantor made for the benefit of the Holders in accordance with the provisions
of the Indenture. Upon the terms and subject to the conditions set forth in the
Indenture, such Guarantors will unconditionally guarantee that the principal of,
premium, if any, and interest on the Securities will be duly and punctually paid
in full when due, whether at maturity, by acceleration or otherwise, and
interest on overdue principal, premium, if any, and (to the extent permitted by
law) interest on any interest, if any, on the Securities and that all other
Indenture Obligations of the Company to the Holders or the Trustee under the
Securities or the Indenture (including fees, expenses or other Indenture
Obligations) will be promptly paid in full.
Pursuant to the Registration Rights Agreement between the Company
and the Initial Purchaser, the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for the Company's 8 7/8% Senior Notes due 2004,
Series B (the "Exchange Securities"), which have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects to the Initial Securities. The Holders of the Initial
Securities shall be entitled to receive Liquidated Damages in the event such
exchange offer is not consummated and upon
A-8
<PAGE>
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
[If a Temporary Regulation S Global Security, then insert -- This
Temporary Regulation S Global Security is one of a duly authorized issue of
Securities of the Company designated as its 8 7/8% Senior Notes due 2004 (the
"Securities"), issued under an Indenture, dated as of July 21, 1997 (herein
called the "Indenture"), between the Company, the Guarantors named therein and
Marine Midland Bank, as trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture). The Securities are limited
in aggregate principal amount to $150,000,000. Reference is hereby made to the
Indenture and all indentures supplemental thereto for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
Until this Temporary Regulation S Global Security is exchanged for a
Permanent Regulation S Global Security, the Holder hereof shall not be entitled
to receive payments of interest hereon; until so exchanged in full, this
Temporary Regulation S Global Security shall in all other respects to be
entitled to the same benefits as other Securities under the Indenture.
This Temporary Regulation S Global Security is exchangeable in whole
or in part for one or more Permanent Regulation S Global Securities or
Restricted Global Securities only (i) on or after the expiration of the
Restricted Period and (ii) upon presentation of certificates (accompanied by an
opinion of counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange for this Temporary Regulation S Global Security for one or more
Permanent Regulation S Global Securities or Restricted Global Securities, the
Trustee shall cancel this Temporary Regulation S Global Security.
This Temporary Regulation S Global Security shall not become valid
or obligatory until the certificate or authentication hereon shall have been
duly manually signed by the Trustee in accordance with the Indenture. This
Temporary Regulation S Global Security shall be governed by and construed in
accordance with the laws of the State of New York.]
A-9
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK, as Trustee
By:
----------------------------
Authorized Signatory
A-10
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
- ------------------------------------------------------------------------------
(Insert assignee's social security or federal tax I.D. no.)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print. or type assignee's name, address and zip code)
and irrevocably appoint
------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
- ------------------------------------------------------------------------------
Date:
---------------
Your Signature:
-----------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
A-11
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 912 or Section 913 of the Indenture
check the appropriate box:
o Section 912 o Section 913
If you want to have only part of the Security purchased by the
Company pursuant to Section 912 or Section 913 of the Indenture, state the
amount (in integral multiples of $1,000) you elect to have purchased:
$
-----------------
Date:
--------------
Your Signature:
-----------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
A-12
<PAGE>
EXHIBIT B
(Form of Face of Exchange Security)
PLAYTEX PRODUCTS, INC.
-----------------
8 7/8% SENIOR NOTES due 2004, Series B
No. $150,000,000
------------
PLAYTEX PRODUCTS, INC., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ________
or registered assigns, the principal sum of One Hundred Fifty Million United
States dollars on July 15, 2004, at the office or agency of the Company referred
to below, and to pay interest thereon from July 21, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 15 and July 15 commencing January 15, 1998 at the rate
of 8 7/8% per annum, in United States dollars, until the principal hereof is
paid or duly provided for.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be January 1 or July 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so paid, or duly provided for, and interest on such defaulted interest at
the interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder in whose name such Security is registered as
of such Regular Record Date, and may be paid on the Special Payment Date to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date to be fixed by the
Trustee (and for which notice shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date) or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest and
Liquidated Damages on this Security will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of interest may be made at the option of the Company by check mailed to
the
B-1
<PAGE>
address of the Person entitled thereto as such address shall appear on the
Security Register. Interest shall be accrued on the basis of a 360-day year of
twelve 30-day months.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed by the manual or facsimile signature of its authorized officers.
Dated: PLAYTEX PRODUCTS, INC.
-----------
By:
--------------------------------
B-2
<PAGE>
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 7/8% Senior Notes due 2004 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $150,000,000, which may be issued
under and are subject to the terms of an indenture (herein called the
"Indenture") dated as of July 21, 1997, among the Company, the Guarantors named
therein and Marine Midland Bank, as trustee (together with any successor Trustee
under the Indenture, the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee and the Holders, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness on this Security and (b) certain covenants and related
Defaults and Events of Default, in each case upon compliance with certain
conditions set forth therein.
The Indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, PARI PASSU in right of payment to all
Senior Indebtedness, and senior in right of payment to all Subordinated
Indebtedness, whether Outstanding on the date of the Indenture or thereafter,
and this Security is issued subject to such provisions.
The Securities are not redeemable by the Company prior to July 15,
2001. Thereafter, the Securities are subject to redemption, in whole or in part,
at the option of the Company upon not less than 30 nor more than 60 days' prior
notice to the Holders by first-class mail, at the election of the Company, in
amounts of $1,000 or integral multiples of $1,000 at the following redemption
prices (expressed as a percentage of the principal amount) if redeemed during
the 12-month period beginning July 15 of the years indicated below:
Redemption
Year Price
---- ----------
2001.............................. 104.438%
2002.............................. 102.219%
2003.............................. 100.000%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest and Liquidated Damages, if any, to the Redemption
Date (subject to the right of Holders of record on relevant Regular Record Dates
or Special Record Dates to receive interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2000,
the Company, at its option, may redeem up to 35% of the aggregate principal
amount of the Securities Outstanding on the date of the Indenture, in amounts of
$1,000 or integral multiples of $1,000, with the net proceeds from the sale by
the Company of Qualified Capital Stock in one or more offerings, within 60 days
of receipt of such proceeds, on not less than 30 nor more than 60 days'
B-3
<PAGE>
prior notice to the Holders, at a redemption price equal to 108 7/8% of the
principal amount, together, in each case, with accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date (subject to the right of
Holders of record on relevant Record Dates or Special Record Dates to receive
interest due on an Interest Payment Date).
Notwithstanding the foregoing, at any time prior to July 15, 2001,
the Company, at its option, may redeem the Securities, in whole or in part, at
any time within 90 days after a Change of Control upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities to be redeemed in
amounts of $1,000 or an integral multiple thereof, at a redemption price equal
to the sum of (i) the principal amount thereof plus (ii) accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date (subject to the
right of Holders of record on relevant Record Dates or Special Record Dates to
receive interest due on an Interest Payment Date) plus (iii) the Applicable
Premium.
If less than all of the Securities are to be redeemed, such portion
of the Securities shall be redeemed pro rata, by lot or by any other method the
Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Company to purchase all or a portion of such Holder's
Securities in amounts of $1,000 or integral multiples of $1,000, at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase.
Under certain circumstances, in the event the Net Cash Proceeds that
are received by the Company from any Asset Sale, and that are not applied to
repay permanently any secured Senior Indebtedness then outstanding or invested
in properties or assets used in the businesses of the Company, equal or exceed
$25 million, the Company will be required to apply such proceeds to the
repayment of the Securities and certain Indebtedness ranking PARI PASSU with the
Securities.
In the case of any redemption of Securities, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities of record as of the close of business on the
relevant Regular Record Date or Special Record Date referred to on the face
hereof. Securities (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the
B-4
<PAGE>
Indenture. Notwithstanding the foregoing, in the case of an Event of Default
from certain events of bankruptcy or insolvency with respect to the Company, all
outstanding Securities will become due and payable without further action or
notice.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture, the Securities and
the Guarantees at any time with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
not less than a majority in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture, the
Securities and the Guarantees and certain past Defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, the Guarantors or any other obligor under the Securities (in the event
any Guarantor or such other obligor is obligated to make payments in respect of
the Securities), which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the times, place, and rate,
and in the coin or currency, herein prescribed.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless (a) such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default, (b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (c) the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding Securities a direction inconsistent with such request
and (d) the Trustee shall have failed to institute such proceeding within 60
days; PROVIDED, HOWEVER, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of (and
premium, if any) or any interest on this Security on or after the respective due
dates expressed herein.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or
B-5
<PAGE>
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and none of
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer or disposition (other than pursuant to a lease) of all or
substantially all of the properties and assets of the Company or any Guarantor
in accordance with the Indenture, subject to the terms and conditions of the
Indenture, the successor Person to such transaction shall become the obligor on
this Security, and the Company and each such Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Security and
the Indenture.
This Security is entitled to the benefits of any Guarantee of any
Guarantor made for the benefit of the Holders in accordance with the provisions
of the Indenture. Upon the terms and subject to the conditions set forth in the
Indenture, such Guarantors will unconditionally guarantee that the principal of,
premium, if any, and interest on the Securities will be duly and punctually paid
in full when due, whether at maturity, by acceleration or otherwise, and
interest on overdue principal, premium, if any, and (to the extent permitted by
law) interest on any interest, if any, on the Securities and that all other
Indenture Obligations of the Company to the Holders or the Trustee under the
Securities or the Indenture (including fees, expenses or other Indenture
Obligations) will be promptly paid in full.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
B-6
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
MARINE MIDLAND BANK, as Trustee
By:
-----------------------------
Authorized Signatory
B-7
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
- ------------------------------------------------------------------------------
(Insert assignee's social security or federal tax I.D. no.)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Print. or type assignee's name, address and zip code)
and irrevocably appoint
------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
- ------------------------------------------------------------------------------
Date:
----------------
Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
B-8
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 912 or Section 913 of the Indenture
check the appropriate box:
o Section 912 o Section 913
If you want to have only part of the Security purchased by the
Company pursuant to Section 912 or Section 913 of the Indenture, state the
amount (in integral multiples of $1,000) you elect to have purchased:
$
-----------------
Date:
--------------------
Your Signature:
---------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.
B-9
<PAGE>
EXHIBIT C
GUARANTEE
The undersigned Guarantor (which term includes any successor or
assign), pursuant to the terms of that certain Indenture (the "Indenture"),
dated as of July 21, 1997, among Playtex Products, Inc., a Delaware corporation
(the "Company"), the Guarantors named therein and Marine Midland Bank, as
trustee (the "Trustee"), hereby, jointly and severally, unconditionally
guarantees, on an unsecured senior basis, to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of the Indenture,
the Securities or the obligations of the Company to the Holders or the Trustee
under the Indenture or under the Securities, that (a) the principal of, premium,
if any, and any accrued and unpaid interest and Liquidated Damages on the
Securities shall be duly and punctually paid in full when due, whether at
maturity, by acceleration or otherwise, and interest on overdue principal of,
premium, if any, and (to the extent permitted by law) interest on the Securities
and that all other obligations of the Company to the Holders or the Trustee
under the Indenture or under the Securities (including fees, expenses or other)
shall be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; (b) in case of any extension of time of payment or renewal
of any Securities or any of such other obligations, the same shall be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration or otherwise; and (c)
any and all costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by the Trustee or its agents or any
Holder of Securities in enforcing any rights under any Guarantee shall be
promptly paid in full when due.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in Article Twelve of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Guarantee.
THE TERMS OF ARTICLE TWELVE OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE. In the case of any discrepancy between this writing and Article
Twelve of the Indenture, Article Twelve of the Indenture shall control.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon the Guarantor and its successors and assigns
until full, final and indefeasible payment of all of the Indenture Obligations
(subject to Section 1204 of the Indenture) and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders of Securities and, in the
event of any transfer or assignment of rights by any Holder of Securities or the
Trustee, the rights and privileges herein conferred upon the party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a guarantee of payment and
not a guarantee of collection.
Notwithstanding the foregoing, this Guarantee shall be automatically
released and discharged upon a sale or other disposition of all, or
substantially all, of the assets of any
C-1
<PAGE>
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor, which sale, exchange
or transfer is made in compliance with applicable provisions of the Indenture.
The Guarantor and, by its acceptance hereof, each beneficiary
hereof, hereby confirms that it is the intention and agreement of all such
parties that this Guarantee not constitute a fraudulent transfer, conveyance or
obligation for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law
(including, without limitation, the Debtor and Creditor Law of the State of New
York). To effectuate the foregoing intention each such Person hereby irrevocably
agrees that the Indenture Obligations of the Guarantor under Article Twelve of
the Indenture shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Guarantor, result
in the Indenture Obligations of such Guarantor under its Guarantee not
constituting a fraudulent transfer, conveyance, or obligation.
Capitalized terms used herein but not defined herein shall have the
meanings given to them in the Indenture.
[Guarantor]
By:
--------------------------
Name:
Title:
C-2
<PAGE>
EXHIBIT E
FORM OF CERTIFICATION TO BE GIVEN BY HOLDERS OF
A BENEFICIAL INTEREST IN A TEMPORARY
REGULATION S GLOBAL SECURITY
TO EUROCLEAR OR CEDEL
OWNER SECURITIES CERTIFICATION
PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture") among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This is to certify that, as of the date hereof, $_____ of the
above-captioned Senior Notes (the "Senior Notes") are beneficially owned by
non-U.S. person(s). As used in this paragraph, the term "U.S. Person" has the
meaning given to it by Regulation S under the Securities Act of 1933, as
amended.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the Senior
Notes held by you for our account in accordance with your operating procedures
if any applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this certification
applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceedings.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchaser.
Dated: ,
------------ ----
By:
--------------------------------------------
As, or as agent for, the beneficial owner(s)
of the Senior Notes to which this
certificate relates.
E-1
<PAGE>
EXHIBIT F
FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR
CEDEL
DEPOSITORY SECURITIES CERTIFICATION
PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
CUSIP No.
----------
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This is to certify that, with respect to U.S. $________ principal
amount of the above-captioned Senior Notes (the "Senior Notes"), except as set
forth below, we have received in writing by tested telex or by electronic
transmission, from member organizations appearing in our records as persons
being entitled to a portion of the principal amount of the Senior Notes (our
"Member Organizations"), certifications with respect to such portion,
substantially to the effect set forth in the Indenture.1
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the Temporary Regulation S Global Security (as defined in the
Indenture) excepted in such certifications and (ii) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange or, if relevant,
exercise of any rights or collection of any interest are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in
- --------
1 Unless Morgan Guaranty Trust Company of New York, London Branch is
otherwise informed by the Agent, the long form certificate set out
in the Operating Procedures will be deemed to meet the requirements
of this sentence.
F-1
<PAGE>
such proceedings. This certificate and the statements contained herein are made
for your benefit and the benefit of the Issuer and the Initial Purchaser.
Dated: ,
------------ ----
Yours faithfully,
[MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as operator of the Euroclear System]
or
[CEDEL BANK, SOCIETE ANONYME]
By:
-------------------------------------
F-2
<PAGE>
EXHIBIT G
FORM OF CERTIFICATION TO BE GIVEN BY
TRANSFEREE OF A BENEFICIAL INTEREST IN A
TEMPORARY REGULATION S GLOBAL SECURITY
TRANSFEREE SECURITIES CERTIFICATION
PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
CUSIP No.
---------
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
For purposes of acquiring a beneficial interest in the Temporary
Regulation S Global Security, the undersigned certifies that it is not a U.S.
Person as defined by Regulation S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the Senior
Notes held by you in which we intend to acquire a beneficial interest in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification if may be
assumed that this certification applies as of such date.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
Dated: ,
------------ ----
By:
-------------------------------------
As, or as agent for, the beneficial
owner(s) of the Senior Notes to which
this certificate relates.
G-1
<PAGE>
EXHIBIT H
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF RESTRICTED GLOBAL SECURITY
TO TEMPORARY REGULATION S GLOBAL SECURITY
(Exchanges or transfers pursuant to
Section 211(d)(ii) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
(THE "SENIOR NOTES")
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S. $__________ aggregate principal amount
of Senior Notes which are held in the form of the Restricted Global Security
representing Senior Notes held by QIBs (CUSIP No. __________) or in the form of
the Restricted Global Security representing Senior Notes held by Institutional
Accredited Investors (CUSIP No. __________) with the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Senior Notes to a Person who will
take delivery thereof in the form of an equal aggregate principal amount of
Senior Notes evidenced by the Temporary Regulation S Global Security (CUSIP No.
__________) to be held with the Depository in the name of [Euroclear] [Cedel
Bank, societe anonyme].
In connection with such request and in respect of such Senior Notes,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Senior Notes and
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and accordingly the Transferor does
hereby certify that:
(1) the offer of the Senior Notes was not made to a person in the
United States;
H-1
<PAGE>
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was outside the United
States;]*
[(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the Transferor nor
any person acting on our behalf knows that the transaction was
pre-arranged with a buyer in the United States;]*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the Depository in
the name of [Euroclear] [Cedel Bank, societe anonyme].
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
(Insert Name of Transferor)
By:
--------------------------------
Name:
Title:
Dated
cc: Playtex Products, Inc.
- --------
* Insert one of these two provisions, which come from the definition of
"offshore transactions" in Regulation S.
H-2
<PAGE>
EXHIBIT I
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF RESTRICTED GLOBAL SECURITY
TO PERMANENT REGULATION S GLOBAL SECURITY
(Exchanges or transfers pursuant to
Section 211(d)(ii) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
(THE "SENIOR NOTES")
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S. $__________ aggregate principal amount
of Senior Notes which are held in the form of the Restricted Global Security
representing Senior Notes held by QIBs (CUSIP No. __________) or in the form of
the Restricted Global Security representing Senior Notes held by Institutional
Accredited Investors (CUSIP No. __________) with the Depository in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest in the Senior Notes to a Person who will
take delivery thereof in the from of an equal aggregate principal amount of
Senior Notes evidenced by the Permanent Regulation S Global Security (CUSIP No.
__________).
In connection with such request, and in respect of such Senior
Notes, the Transferor does hereby certify that such transfer has been effected
in accordance with the transfer restrictions set forth in the Senior Notes, and
(1) with respect to transfers made in reliance on Regulation S under
the Securities Act of 1933, as amended (the "Securities Act"), the
Transferor does hereby certify that:
(A) the offer of the Senior Notes was not made to a person
in the United States;
I-1
<PAGE>
[(B) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee was
outside the United States;]*
[(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on our behalf knows that the
transaction was pre-arranged with a buyer in the United States;]*
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(2) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Senior Notes
are being transferred in a transaction permitted by Rule 144 under the
Securities Act.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchaser.
[Insert Name of Transferor]
By:
----------------------------
Name:
Title:
Dated:
cc: Playtex Products, Inc.
- --------
* Insert one of these two provisions, which come from the definition
of "offshore transactions" in Regulation S.
I-2
<PAGE>
EXHIBIT J
FORM OF CERTIFICATION FOR TRANSFER OR
EXCHANGE OF TEMPORARY REGULATION S GLOBAL SECURITY
OR PERMANENT REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
(Exchanges or transfers pursuant to
Section 211(d)(iii) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
(THE "SENIOR NOTES")
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to U.S. $__________ principal amount of Senior
Notes which are evidenced by an aggregate [Temporary Regulation S Global
Security (CUSIP No. __________)] [Permanent Regulation S Global Security (CUSIP
No. __________)] and held with the Depository through [Euroclear] [Cedel]
(Common Code _____) in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in Senior Notes to a person that will take delivery thereof in the form
of an equal aggregate principal amount of Senior Notes evidenced by a Restricted
Global Security representing Senior Notes held by QIBs of the same series and of
like tenor as the Senior Notes (CUSIP No. __________) or in the form of the
Restricted Global Security representing Senior Notes held by Institutional
Accredited Investors (CUSIP No. __________).
In connection with such request and in respect of such Senior Notes,
the Transferor does hereby certify that such transfer is being effected (i)
pursuant to and in accordance with Rule 144A under the Securities Act and,
accordingly, the Transferor does hereby further certify that the Senior Notes
are being transferred to a Person that the Transferor reasonably believes is
purchasing the Senior Notes for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in
J-1
<PAGE>
each case in a transaction meeting the requirements of Rule 144A and (ii) in
accordance with any applicable securities laws of any state of the United States
or any other jurisdiction.
This certification and the statements contained herein are made for
your benefit and the benefit of the Issuer and the Initial Purchaser.
[Insert Name of Transferor]
By:
----------------------------
Name:
Title:
Dated:
cc: Playtex Products, Inc.
J-2
<PAGE>
EXHIBIT K
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers and exchanges pursuant to
Section 211(d)(iv) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
(THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Restricted
Securities held in definitive form (CUSIP No. __________) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A or another exemption
under the United States Securities Act of 1933, as amended (the "Securities
Act") and accordingly the Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to Rule 144A:
(A) the Securities are being transferred to a person that the
Transferor reasonably believes is purchasing the Securities for its
own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion;
(B) such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A; and
K-1
<PAGE>
(C) the Securities have been transferred in a transaction
meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States; or
(2) if the transfer has been effected pursuant to another
exemption under the Act:
(A) the Securities were transferred to a person that the
Transferor reasonably believes is an Institutional Accredited
Investor; and
(B) the Securities have been transferred pursuant to an
exemption from the Securities Act and made in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceeding.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchaser.
Dated:
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
cc: Playtex Products, Inc.
K-2
<PAGE>
EXHIBIT L
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL RESTRICTED SECURITY TO
PERMANENT REGULATION S GLOBAL SECURITY
OR TEMPORARY REGULATION S GLOBAL SECURITY
(Transfers and exchanges pursuant to
Section 211(d)(iv) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
(THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Restricted
Securities held in definitive form (CUSIP No. __________) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 904 under the Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
(A) the offer of the Securities was not made to a person in the
United States;
(B) either:
(i) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee was
outside the United States; or
L-1
<PAGE>
(ii) the transaction was executed in, on or through facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(C) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S, as applicable;
(D) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(E) if such transfer is to occur during the Restricted Period, upon
completion of the transaction, the beneficial interest being transferred
as described above will be held with the Depository through [Euroclear]
[CEDEL].
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
Dated
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
cc: Playtex Products, Inc.
L-2
<PAGE>
EXHIBIT M-1
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL PERMANENT REGULATION S
SECURITY TO RESTRICTED GLOBAL SECURITY
(Transfers and exchanges pursuant to
Section 211(d)(v) of the Indenture)
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: PLAYTEX PRODUCTS, INC.
8 7/8% Senior Notes due 2004
(THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $__________ principal amount of Restricted
Securities held in definitive form (CUSIP No. __________) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended, and accordingly the Transferor does
hereby further certify that the Securities are being transferred to a Person
that the Transferor reasonably believes is purchasing the Securities for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States.
We understand that this certificate is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding.
M-1 - 1
<PAGE>
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and the Initial Purchaser.
Dated
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
cc: Playtex Products, Inc.
M-1 - 2
<PAGE>
EXHIBIT M-2
FORM OF CERTIFICATION FOR TRANSFER
OR EXCHANGE OF NON-GLOBAL
PERMANENT REGULATION S SECURITY
TO PERMANENT REGULATION S GLOBAL SECURITY
(Transfers and exchanges pursuant to
Section 211(d)(v) of the Indenture)
Marine Midland Bank
40 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: Playtex Products, Inc.
8 7/8% Senior Notes due 2004
(THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 21, 1997
(the "Indenture"), among Playtex Products, Inc., as Issuer, the Guarantors named
therein and Marine Midland Bank, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
This letter relates to $______ principal amount of Restricted
Securities held in definitive form (CUSIP No. _____) by [insert name of
transferor] (the "Transferor"). The Transferor has requested an exchange or
transfer of such Securities.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that (i) such Securities are owned by the
Transferor and are being exchanged without transfer or (ii) such transfer has
been effected pursuant to and in accordance with (a) Rule 904 under the
Securities Act of 1933, as amended (the "Securities Act"), or (b) Rule 144 under
the Securities Act, and accordingly the Transferor does hereby further certify
that:
(1) if the transfer has been effected pursuant to Rule 903 or Rule
904:
(A) the offer of the Securities was not made to a person in
the United States;
(B) either:
M-2 - 1
<PAGE>
(i) at the time the buy order was originated, the
transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed that the
transferee was outside the United States, or
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in the
United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 904(b) of Regulation S, as
applicable;
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Act; and
(E) if such transfer is to occur during the Restricted Period,
upon completion of the transaction, the beneficial interest being
transferred as described above will be held with the Depository
through [Euroclear] [CEDEL]; or
(2) If the transfer has been effected pursuant to Rule 144:
(A) more than one year has elapsed since the date of the
closing of the initial placement of the Securities pursuant to the
Purchase Agreement dated July 14, 1997 among Donaldson, Lufkin &
Jenrette Securities Corporation (the "Initial Purchaser"), the
Guarantors and Playtex Products, Inc.; and
(B) the Securities have been transferred in a transaction
permitted by Rule 144 and made in accordance with any applicable
securities law of any state of the United States.
M-2 - 2
<PAGE>
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and
the benefit of the Issuer and the Initial Purchaser.
Dated: ,
---------------- ----
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
cc: Playtex Products, Inc.
M-2 - 3
<PAGE>
EXHIBIT N
Transferee Letter of Representation
--------------, -----
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration--Playtex Products
Re: Playtex Products, Inc.
8 7/8% SENIOR NOTES DUE 2004
Ladies and Gentlemen:
In connection with our proposed purchase of 8 7/8% Senior Notes due
2004 (the "Senior Notes") of Playtex Products, Inc. (the "Company"), we hereby
confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act"), (an "Institutional Accredited
Investor"), or an entity in which all of the equity owners are
Institutional Accredited Investors;
(ii) any purchase of Senior Notes by us will be for our own
account or for the account of one or more other Institutional
Accredited Investors as to which we exercise sole investment
discretion;
(iii) in the event that we purchase any Senior Notes, we will
acquire such Senior Notes having a minimum purchase price of at
least $100,000 for our own account and for each separate account for
which we are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and
risks of purchasing the Senior Notes and we and any accounts for
which we are acting are able to bear the economic risks of our or
their investment; and
(v) we are not acquiring the Senior Notes with a view to any
distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction; provided that the
disposition of our property and the property of any
N-1
<PAGE>
accounts for which we are acting as fiduciary shall remain at all
times within our control.
We understand that the Senior Notes have not been registered under
the Securities Act, and we agree, on our own behalf and on behalf of each
account for which we acquire any Senior Notes, that such Senior Notes may be
offered, resold, pledged or otherwise transferred only (i) to a person who we
reasonably believe to be a qualified institutional buyer (as defined in Rule
144A under the Securities Act) in a transaction meeting the requirements of Rule
144A, in a transaction meeting the requirements of Rule 144 under the Securities
Act, outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904 under the Securities Act, or in accordance with another
exemption from the registration requirements of the Securities Act (and, unless
such transfer occurs in a transaction meeting the requirements of Rule 144A,
based upon an opinion of counsel if the Company so requests), (ii) to the
Company or (iii) pursuant to an effective registration statement under the
Securities Act, and, in each case, in accordance with any applicable securities
laws of any State of the United States or any other applicable jurisdiction. We
understand that the registrar will not be required to accept for registration of
transfer any Senior Notes, except upon presentation of evidence satisfactory to
the Company that the foregoing restrictions on transfer have been complied with.
We further understand that the Senior Notes purchased by us will bear a legend
reflecting the substance of this paragraph. We further agree to provide to any
person acquiring any of the Senior Notes from a notice advising such person that
resales of the Senior Notes are restricted as stated herein.
N-2
<PAGE>
We acknowledge that you, the Company and others will rely upon our
confirmation, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein cease to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
-------------------------------
Date:
Upon transfer the Senior Notes would be registered in the name of
the new beneficiary owner as follows:
Name:
-----------------------------
Address:
--------------------------
Taxpayer ID Number:
---------------
N-3
<PAGE>
EXHIBIT O
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
O-1
Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 21, 1997
by and among
Playtex Products, Inc.
Playtex Sales & Services, Inc.
Playtex Manufacturing, Inc.
Playtex Beauty Care, Inc.
Playtex International Corp.
Playtex Investment Corp.
T H Marketing Corp.
Smile Tote, Inc.
Sun Pharmaceuticals Corp.
and
Donaldson, Lufkin & Jenrette
Securities Corporation
------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS......................................................2
SECTION 2. HOLDERS..........................................................4
SECTION 3. REGISTERED EXCHANGE OFFER........................................4
SECTION 4. SHELF REGISTRATION...............................................5
(a) Shelf Registration...............................................5
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement.................................6
SECTION 5. LIQUIDATED DAMAGES...............................................7
SECTION 6. REGISTRATION PROCEDURES..........................................8
(a) Exchange Offer Registration Statement............................8
(b) Shelf Registration Statement....................................10
(c) General Provisions..............................................10
(d) Restrictions on Holders.........................................17
SECTION 7. REGISTRATION EXPENSES...........................................17
SECTION 8. INDEMNIFICATION.................................................18
SECTION 9. RULE 144A.......................................................21
SECTION 10. UNDERWRITTEN REGISTRATIONS.....................................21
SECTION 11. SELECTION OF UNDERWRITERS......................................21
SECTION 12. MISCELLANEOUS..................................................22
(a) Remedies........................................................22
(b) No Inconsistent Agreements......................................22
(c) Adjustments Affecting the Notes.................................22
(d) Amendments and Waivers..........................................22
(e) Notices.........................................................22
(f) Successors and Assigns..........................................23
(g) Counterparts....................................................23
(h) Headings........................................................24
(i) Governing Law...................................................24
(j) Severability....................................................24
(k) Entire Agreement................................................24
<PAGE>
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of July 21, 1997, by and among Playtex Products, Inc., a
Delaware corporation (the "COMPANY") Playtex Sales & Services, Inc., a Delaware
corporation, Playtex Manufacturing, Inc., a Delaware corporation, Playtex Beauty
Care, Inc., a Delaware corporation, Playtex International Corp., a Delaware
corporation, Playtex Investment Corp., a Delaware corporation, T H Marketing
Corp., a Delaware corporation, Smile Tote, Inc., a California corporation, Sun
Pharmaceuticals Corp., a Delaware corporation (each a "Guarantor" and
collectively, the "Guarantors") and Donaldson, Lufkin & Jenrette Securities
Corporation (the "INITIAL PURCHASER"), who has agreed to purchase the Company's
87/8% Senior Notes due 2004 (the "SENIOR NOTES") subject to the terms and
conditions set forth in the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
July 14, 1997 (the "PURCHASE AGREEMENT"), by and among the Company, the
Guarantors and the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Senior Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchaser set forth in Section
9 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
ACT: The Securities Act of 1933, as amended.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
BROKER-DEALER TRANSFER RESTRICTED SECURITIES: Registered Senior
Notes that are acquired by a Broker-Dealer in the Exchange Offer in exchange for
Senior Notes that such Broker-Dealer acquired for its own account as a result of
market making activities or other trading activities (other than Senior Notes
acquired directly from the Company or any of its affiliates).
CERTIFICATED SECURITIES: As defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
<PAGE>
CONSUMMATE: An Exchange offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Registered Senior Notes to be issued in the Exchange Offer, (b)
the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Registered Senior Notes in the same
aggregate principal amount as the aggregate principal amount of Senior Notes
validly tendered by Holders thereof pursuant to the Exchange Offer.
DAMAGES PAYMENT DATE: With respect to the Senior Notes, each
Interest Payment Date.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The registration by the Company under the Act of the
Registered Senior Notes pursuant to the Exchange Offer Registration Statement
pursuant to which the Company shall offer the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities for Registered Senior Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer
Restricted Securities validly tendered in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser
proposes to sell the Senior Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act, and to certain institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3), (5)
and (7) of Regulation D under the Act.
GLOBAL NOTEHOLDER: As defined in the Indenture.
HOLDERS: As defined in Section 2 hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated the Closing Date, among the Company,
the Guarantors and Marine Midland Bank, as trustee (the "TRUSTEE"), pursuant to
which the Notes are to be issued, as such Indenture is amended or supplemented
from time to time in accordance with the terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
2
<PAGE>
NOTES: The Senior Notes and the Registered Senior Notes.
PERSON: An individual, partnership, limited liability company,
corporation, trust, unincorporated organization, or a government or agency or
political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECORD HOLDER: With respect to any Damages Payment Date, each Person
who is a Holder of Notes on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
and the Guarantors relating to (a) an offering of Registered Senior Notes
pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) which is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
RESTRICTED BROKER-DEALER: Any Broker-Dealer which holds
Broker-Dealer Transfer Restricted Securities.
REGISTERED SENIOR NOTES: Identical notes to the Senior Notes (except
that the Registered Senior Notes will not bear legends restricting the transfer
thereof) to be issued pursuant to the Indenture (i) in the Exchange Offer or
(ii) upon the request of any Holder of Senior Notes covered by a Shelf
Registration Statement, in exchange for such Senior Notes.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Senior Note, until the earliest
to occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer for a Registered Senior Note which may be resold to the public by the
Holder thereof without complying with the prospectus delivery requirements of
the Act, (b) the date on which such Senior Note has been sold or otherwise
disposed of in accordance with a Shelf Registration Statement, (c) the date on
which such Senior Note is disposed of by a Broker-Dealer as contemplated by the
Exchange
3
<PAGE>
Offer Registration Statement (including delivery of the Prospectus contained
therein) or (d) the date on which such Senior Note is distributed to the public
pursuant to Rule 144 under the Act.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
SECTION 2. HOLDERS
A person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
law or Commission policy (after the procedures set forth in Section 6(a)(i)
below have been complied with), the Company and the Guarantors shall (i) cause
to be filed with the Commission as soon as possible after the Closing Date, but
in no event later than 30 days after the Closing Date, the Exchange Offer
Registration Statement, (ii) use their reasonable best efforts to cause such
Exchange Offer Registration Statement to become effective at the earliest
possible time, but in no event later than 120 days after the Closing Date, (iii)
in connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause such
Exchange Offer Registration Statement to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification of the
Registered Senior Notes to be made under the Blue Sky laws of such jurisdictions
as are necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence the
Exchange Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Registered Senior Notes to be offered in exchange for the
Senior Notes that are Transfer Restricted Securities and to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use their reasonable best
efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no event shall
such period be less than 20 Business Days. The Company and the Guarantors shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Notes shall be included in the
Exchange Offer Registration Statement. The Company and the Guarantors shall use
their reasonable best efforts to consummate the Exchange Offer on or prior to 30
Business Days after the Exchange Offer Registration Statement has become
effective.
4
<PAGE>
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that (i) any Restricted Broker-Dealer who holds Senior Notes
that are Transfer Restricted Securities and that were acquired for the account
of such Broker-Dealer as a result of market-making activities or other trading
activities may exchange such Senior Notes (other than Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company)
pursuant to the Exchange Offer and (ii) such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of each Registered Senior Note received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" section shall not be required to name any such Broker-Dealer or
disclose the amount of Notes held by any such Broker-Dealer, except to the
extent required by law or by the Commission as a result of a change in law or
the Commission's policy after the date of this Agreement.
The Company and the Guarantors shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers, and
to ensure that such Registration Statement conforms with the requirements of
this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period equal to the shorter of
(A) 180 days plus any period during which the Prospectus may not be used from
the date on which the Exchange Offer is Consummated and (B) the date on which
all Transfer Restricted Securities acquired in the Exchange Offer by Restricted
Broker-Dealers have been sold to the public by such Restricted Broker-Dealers.
The Company and the Guarantors shall provide sufficient copies of
the latest version of such Prospectus to such Restricted Broker-Dealers promptly
upon request, and in no event later than one day after such request, at any time
during such 180-day period in order to facilitate such sales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company is not required to file
an Exchange Offer Registration Statement with respect to the Registered Senior
Notes because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a)(i) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 20 Business Days following the Consummation of
the Exchange Offer that (A) such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer or (B) such Holder may not
resell the Registered Senior
5
<PAGE>
Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Senior Notes acquired directly from the
Company or one of its affiliates, then the Company and the Guarantors shall (x)
cause to be filed on or prior to 30 days after the date on which the Company
determines that it is not required to file the Exchange Offer Registration
Statement pursuant to clause (i) above or 30 days after the date on which the
Company receives the notice specified in clause (ii) above, a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT"), relating to all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b) hereof,
and shall (y) use their respective best efforts to cause such Shelf Registration
Statement to become effective on or prior to 120 days after the date on which
the Company becomes obligated to file such Shelf Registration Statement;
provided that if the Company has not consummated the Exchange Offer within 150
days of the Closing Date, then the Company will file the Shelf Registration
Statement with the Commission on or prior to the 181st day after the Closing
Date. If, after the Company has filed an Exchange Offer Registration Statement
which satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer shall not be permitted under applicable law or Commission policy,
then the filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above. Such an event shall have no effect
on the requirements of clause (y) above. The Company and the Guarantors shall
use their reasonable best efforts to keep the Shelf Registration Statement
discussed in this Section 4(a) continuously effective, supplemented and amended
as required by and subject to the provisions of Sections 6(b) and (c) hereof to
the extent necessary to ensure that it is available for sales of Transfer
Restricted Securities by the Holders thereof entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years (as extended
pursuant to Section 6(d)) following the Closing Date or such shorter period that
will terminate when all the Transfer Restricted Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or are eligible for sale under Rule 144(k) under the Act or there are
no Transfer Restricted Securities that remain outstanding; PROVIDED HOWEVER
that, if the Company or the Guarantors are engaged in a material acquisition or
disposition, or if a majority of the disinterested members of the Board of
Directors determines in the exercise of its good faith judgment that compliance
with the disclosure obligations necessary to keep such Registration Statement
effective would have an adverse effect on the Company or the Guarantors, the
Company or the Guarantors may suspend offers and sales under the Shelf
Registration Statement for up to 30 days in each year during which the Shelf
Registration Statement is required to be effective.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of
6
<PAGE>
a request therefor, such information specified in item 507 of Regulation S-K
under the Act and any other applicable rules, regulations or policies of the
Commission for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have used its best efforts
to provide all such information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) the Company or the Guarantors fail to file any Registration
Statement required by this Agreement with the Commission on or prior to the date
specified for such filing in this Agreement, (ii) any such Registration
Statement has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in this Agreement, (iii) the Company or
the Guarantors fail to Consummate the Exchange Offer within 30 Business Days
after the Exchange Offer Registration Statement is first declared effective by
the Commission (iv) subject to the provisions of Section 6(c)(i) below, any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective for a period of one
business day without being succeeded immediately by a post-effective amendment
to such Registration Statement that cures such failure and that is itself
declared effective on the date it is filed with the Commission or (v) subject to
the provisions of Section 6(c)(i) below, at any time when a prospectus is
required by the Act to be delivered in connection with sales of the Transfer
Restricted Securities, the Company shall conclude, or the Holders of a majority
in principal amount of the affected Transfer Restricted Securities shall
reasonably conclude, based on the advice of their counsel, and shall give notice
to the Company and the Guarantors, that either (A) any event shall have occurred
or fact exist as a result of which it is necessary to amend or supplement the
prospectus in order that it will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading, or (B) it shall be necessary to amend or supplement such
Registration Statement or a Prospectus in order to comply with the requirements
of the Act or the rules of the Commission thereunder, and in the case of clause
(A) or (B), such Registration Statement is not appropriately amended by an
effective post-effective amendment, or the Prospectus is not amended or
supplemented, in a manner reasonably satisfactory to a majority in principal
amount of the Holders of Transfer Restricted Securities so as to be declared
effective or made usable within one Business Day after the Company shall so
conclude or shall receive the above-mentioned notice from Holders of Transfer
Restricted Securities (each such event referred to in clauses (i) through (v), a
"REGISTRATION DEFAULT"), then the Company agrees to pay liquidated damages to
each Holder of Transfer Restricted Securities with respect to the first 90-day
period immediately following the occurrence of such Registration Default, in an
amount equal to $.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted
7
<PAGE>
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.50
per week per $1,000 principal amount of Transfer Restricted Securities.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement, in each case that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) and (v) above, or (5) once
the Transfer Restricted Securities are eligible for resale under Rule 144(k)
under the Act or no Transfer Restricted Securities remain outstanding, the
liquidated damages payable with respect to the Transfer Restricted Securities as
a result of such clause (i), (ii), (iii) (iv) or (v), as applicable, shall
cease.
All accrued liquidated damages shall be paid to the Holder of the
Global Note by wire transfer of immediately available funds or by federal funds
check and to Holders of Certificated Securities by mailing checks to their
registered addresses on each Damages Payment Date. All obligations of the
Company and the Guarantors set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all applicable
provisions of Section 6(c) below, shall use their respective best efforts to
effect such exchange and to permit the sale of Broker-Dealer Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If, following the date hereof there has been published a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, such that in the reasonable opinion of counsel to the
Company there is a substantial question as to whether the Exchange Offer
is permitted by applicable federal law, the Company and the Guarantors
hereby agree to seek a no-action letter or other favorable decision from
the Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Senior Notes. The Company and the Guarantors
hereby agree to use reasonable efforts to obtain the issuance of such a
decision to the Commission staff level including without limitation taking
all such other actions as are requested by the Commission or otherwise
reasonably required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic conferences
with the Commission, (B) delivering to the Commission staff an analysis
prepared by counsel to
8
<PAGE>
the Company setting forth the legal bases, if any, upon which such counsel
has concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written representation
to the Company and the Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Registered Senior Notes to be issued in the Exchange Offer and (C) it is
acquiring the Registered Senior Notes in its ordinary course of business.
Each Holder hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) may not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in MORGAN STANLEY AND CO., INC,
(available June 5, 1991) and EXXON CAPITAL HOLDINGS CORPORATION (available
May 13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i) above)
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K
if the resales are of Registered Senior Notes obtained by such Holder in
exchange for Senior Notes acquired by such Holder directly from the
Company or an affiliate thereof.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall provide a
supplemental letter to the Commission (A) stating that the Company and the
Guarantors are registering the Exchange Offer in reliance on the position
of the Commission enunciated in EXXON CAPITAL HOLDINGS CORPORATION
(available May 13, 1988), MORGAN STANLEY AND CO., INC. (available June 5,
1991) and, if applicable, any no-action obtained pursuant to clause (i)
above, (B) including a representation that neither the Company nor any
Guarantor has entered into any arrangement or understanding with any
Person to distribute the Registered Senior Notes to be received in the
Exchange Offer and that, to the best of the Company's and each Guarantor's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Registered Senior Notes in its ordinary course of business
and has no arrangement or understanding with any Person to participate in
the distribution of the Registered Senior Notes received in the Exchange
Offer and (C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to
clause (i) above.
9
<PAGE>
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their respective best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the Company
pursuant to Section 4(b) hereof), and pursuant thereto the Company and the
Guarantors will prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof.
(c) GENERAL PROVISIONS. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without limitation,
any Exchange Offer Registration Statement and the related Prospectus, to the
extent that the same are required to be available to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers), the
Company and the Guarantors shall:
(i) use their respective best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the Guarantors
shall give notice promptly to the underwriter(s), if any, and Selling
Holders of the occurrence of such event and file promptly an appropriate
amendment to such Registration Statement, (1) in the case of clause (A),
correcting any such misstatement or omission, and (2) in the case of
clauses (A) and (B), use their reasonable best efforts to cause such
amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon
as practicable thereafter.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply with Rules
424, 430A and 462, as applicable, under the Act in a timely manner; and
comply with the provisions of the Act with respect to the disposition of
all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus.
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(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to make
the statements therein not misleading, or that require the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company and the Guarantors shall use their respective best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish to the Initial Purchaser, each selling Holder
named in any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing with
the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which documents
will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at
least five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to and
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which a majority in principal amount of the
selling Holders of the Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s) in connection with such sale,
if any, shall reasonably object within five Business Days after the
receipt thereof. A selling Holder or underwriter, if any, shall be deemed
to have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission or fails to comply
with the applicable requirements of the Act;
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(v) upon the request of the Selling Holders and/or the
underwriters upon reasonable notice, prior to the filing of any document
that is to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling Holders and to
the underwriter(s) in connection with such sale, if any, make the
Company's and the Guarantors' representatives available at reasonable
times and with reasonable notice for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) in connection with any Shelf Registration Statement, make
available at reasonable times for inspection by the selling Holders, any
managing underwriter participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such
selling Holders or any of such underwriter(s), following the written
request therefor, all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantors and cause the
Company's and the Guarantors' officers, directors and employees to supply
all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement or
any post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include in
any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment;
(viii)upon the request of any selling Holder or underwriter in
connection with such sale, furnish to each such selling Holder and each
such underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, excluding all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; and the Company and the
Guarantors hereby consent to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each of the
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selling Holders and each of the underwriter(s), if any, in connection with
the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting
agreement in customary form) and make such representations and warranties
and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement, and
in such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an Underwritten Registration,
the Company and the Guarantors shall:
(A) furnish (or in the case of paragraphs (2) and (3), use its
best efforts to furnish) to each selling Holder and each
underwriter, if any, upon the effectiveness of the Shelf
Registration Statement and to each Restricted Broker-Dealer upon
Consummation of the Exchange Offer:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed on behalf
of the Company and each Guarantor by (x) the Chief Executive
Officer or any Vice President and (y) a principal financial or
accounting officer of the Company and such Guarantor,
confirming, as of the date thereof, the matters set forth in
paragraphs (a) through (c) of Section 9 of the Purchase
Agreement and such other similar matters as the Holders,
underwriter(s) and/or Restricted Broker Dealers may reasonably
request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel of the
Company and the Guarantors covering matters similar to those
set forth in paragraph (e) of Section 9 of the Purchase
Agreement and such other matter as the Holders, underwriters
and/or Restricted Broker Dealers may reasonably request, and
in any event including a statement to the effect that such
counsel has participated in conferences with officers and
other representatives of the Company and the Guarantors,
representatives of the independent public accountants for the
Company and the Guarantors and have considered the matters
required to be stated therein and the statements contained
therein, although such counsel has not independently verified
the accuracy, completeness or fairness of such statements; and
that such counsel advises that, on the basis of the foregoing
(relying as to materiality to a large extent upon facts
provided to such counsel by officers and other
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representatives of the Company and the Guarantors and without
independent check or verification), no facts came to such
counsel's attention that caused such counsel to believe that
the applicable Registration Statement, at the time such
Registration Statement or any post-effective amendment thereto
became effective and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the
opinion dated the date of Consummation of the Exchange Offer,
as of the date of Consummation, contained an untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy, completeness
or fairness of the financial statements, notes and schedules
and other financial data included in any Registration
Statement contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort letters
to underwriters in connection with primary underwritten offerings,
and affirming the matters set forth in the comfort letters delivered
pursuant to Section 9 of the Purchase Agreement, without exception,
other than those included in the original comfort letter;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, in connection with any sale or
resale pursuant to any Shelf Registration Statement the
indemnification provisions and procedures of Section 8 hereof with
respect to all parties to be indemnified pursuant to said Section;
and
(C) deliver such other documents and certificates as may be
reasonably requested by the selling Holders, the underwriter(s), if
any, and Restricted Broker Dealers, if any, to evidence compliance
with the clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company and the Guarantors pursuant to this clause (x).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties of
the Company and the Guarantors contemplated
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in (A)(1) above cease to be true and correct, the Company and the
Guarantors shall so advise the underwriter(s), if any, the selling
Holders and each Restricted Broker-Dealer promptly and if requested
by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s),
if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriter(s), if any, may reasonably request
and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdiction of the Transfer
Restricted Securities covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that neither the Company nor any
Guarantor shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xii) issue, upon the request of any Holder of Senior Notes
covered by any Shelf Registration Statement contemplated by this
Agreement, Registered Senior Notes having an aggregate principal
amount equal to the aggregate principal amount of Senior Notes
surrendered to the Company by such Holder in exchange therefor or
being sold by such Holder; such Registered Senior Notes to be
registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the
Senior Notes held by such Holder shall be surrendered to the Company
for cancellation;
(xiii)in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being
Transfer Restricted Securities, if such securities are required to
be represented by certificates, cooperate with the selling Holders
and the underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and
to cause such Transfer Restricted Securities to be registered in
such denominations and such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior
to such sale of Transfer Restricted Securities;
(xiv) use their respective reasonable best efforts to cause
the disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xi) above;
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<PAGE>
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide
the Trustee under the Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for
deposit with the Depository Trust Company;
(xvii)cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified
independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD;
(xviii) otherwise use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and
make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(xix) use their reasonable best efforts to cause the Indenture
to be qualified under the TIA not later than the effective date of
the first Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the Holders of
Notes to effect such changes, if any, to the Indenture as may be
required for such Indenture to be so qualified in accordance with
the terms of the TIA; and execute and use their best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xx) provide promptly to each Holder upon request a copy of
each document filed with the Commission pursuant to the requirements
of Section 13 or Section 15(d) of the Exchange Act prior to the
effective date of the Registration Statement.
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(d) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (the "Advice"). If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of either such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 6(c)(i)
or Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statements shall have received the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof
or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors'
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by any Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter") and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Registered Senior Notes to be issued in the Exchange Offer and printing
of Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company and the Guarantors and the
reasonable fees and expenses for one counsel for all the Holders of Transfer
Restricted Securities (but not of separate or individual counsel for any such
Holder) in accordance with Section 7(b) below; (v) all fees and disbursements of
independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by or
incident to such performance); and (vi) all fees and reasonable out-of-pocket
disbursements of the Trustee and the Exchange Agent including all fees and
disbursements of counsel for the Trustee and the Exchange Agent.
The Company will, in any event, bear its and the Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
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(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the Guarantors
will reimburse the Purchasers and the Holders of Transfer Restricted Securities
being tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this clause (ii)
being hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "INDEMNIFIED HOLDER"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Holder to the extent
set forth below) (collectively "LOSSES") directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such Losses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders expressly for use
therein.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company or the Guarantors, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company
and the Guarantors in writing (PROVIDED, that the failure to give such notice
shall not relieve the Company or the Guarantors of their obligations pursuant to
this Agreement). In case any such action or proceeding shall be brought or
asserted against any of the Indemnified Holders and such Indemnified Holder
shall notify the Company of the commencement thereof, the Company shall be
entitled to participate therein and, to the extent it shall wish, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified
Holder. Such Indemnified Holder shall have the right to employ its own counsel
in
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any such action and the fees and expenses of such counsel shall be paid, as
incurred, by such Indemnified Holder, unless (i) the Company has failed promptly
to assume the defense and employ counsel reasonably satisfactory to such
Indemnified Holder, (ii) the Company has authorized the employment of counsel
for the Indemnified Holder at the expense of the Company, or (iii) the named
parties to any such action or proceeding (including any impleaded parties)
include such Indemnified Holder and the Company and such Indemnified Holder
shall have been advised by counsel that it has reasonably concluded that a
conflict of interest may exist between the Company and such Indemnified Holder
in the conduct of the defense of such action or proceeding. In the case of each
of clause (i), (ii), or (iii) above, the Company shall pay, as incurred, the
fees and expenses of such counsel, regardless of whether it is ultimately
determined that an Indemnified Holder is not entitled to indemnification
hereunder. Notwithstanding anything to the contrary in this Section 8, the
Company and the Guarantors shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for such Indemnified Holders, which firm shall be designated by a majority in
principal amount of the Holders. The Company and the Guarantors shall be liable
for any settlement of any such action or proceeding effected with the Company's
prior written consent, which consent shall not be withheld unreasonably, and the
Company and the Guarantors agree to indemnify and hold harmless each Indemnified
Holder from and against any loss, claim, damage, liability or expense by reason
of any settlement of any action effected with the written consent of the
Company. Neither the Company nor any Guarantor shall, without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability
arising out of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Guarantors,
and their respective directors, officers, and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the respective officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement or Prospectus. In case any action or proceeding shall be brought
against the Company, any Guarantor or its directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder
of Transfer Restricted Securities, such Holder shall have the rights and duties
given the Company and the Guarantors, and the Company, such Guarantor, such
directors or officers or such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph. In no event shall any
Holder be liable or responsible for any amount in excess of the
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amount by which the total received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i)
the amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders on the other hand,
from their sale of Transfer Restricted Securities or if such allocation is not
permitted by applicable law, the relative fault of the Company and the
Guarantors, on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantors,
on the one hand, and of the Indemnified Holder, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or such Guarantor
or by the Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 8(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Holder or its related Indemnified Holders shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the total received by such Holder with respect to the sale of its
Transfer Restricted Securities pursuant to a Registration Statement exceeds the
sum of (A) the amount paid by such Holder for such Transfer Restricted
Securities PLUS (B) the amount of any damages which such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged
20
<PAGE>
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Senior Notes held by each of
the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding and during any
period in which the Company or such Guarantor is not subject to Section 13 or
15(d) of the Securities Exchange Act, to make available upon request of any
Holder of Transfer Restricted Securities, to any Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchase of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required under the terms
of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
For any Underwritten Offering, the investment banker or investment
bankers and manager or managers for any Underwritten Offering that will
administer such offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering PROVIDED HOWEVER, that any such investment bankers and managers
other than Donaldson, Lufkin & Jenrette Securities Corporation must be
reasonably satisfactory to the Company. Such investment bankers and managers are
referred to herein as the "underwriters."
SECTION 12. MISCELLANEOUS
(a) REMEDIES. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company and the
Guarantors agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by them of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
21
<PAGE>
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor any
Guarantor will, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Except for the Registration Rights Agreement among the Company, HWH Capital
Partners, L.P., HWH Valentine Partners, L.P. and HWH Surplus Valentine Partners,
L.P., dated as of March 17, 1995, neither the Company nor any Guarantor has
previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's and the Guarantors' securities
under any agreement in effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. Neither the Company nor any
Guarantor will take any action, or voluntarily permit any change to occur, with
respect to the Notes that would materially and adversely affect the ability of
the Holders to Consummate any Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be given
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities subject to such Exchange Offer. The Company will promptly
furnish to the Trustee under the Indenture a copy of any amendment or supplement
to this Agreement.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
22
<PAGE>
(ii) if to the Company or the Guarantors:
c/o Playtex Products, Inc.
300 Nyala Farms Road
Westport, CT 06880
Telecopier No.: (203) 341-4260
Attention: Michael F. Goss
With a copy to:
Paul, Weiss, Rifkind, Wharton &
Garrison
1285 Avenue of the Americas, 24th Floor
New York, NY 10019-6064
Telecopier No.: (212) 757-3990
Attention: Mitchell S. Fishman, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; PROVIDED,
HOWEVER, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities directly from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
23
<PAGE>
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
24
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PLAYTEX PRODUCTS, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President and
Chief Financial Officer
PLAYTEX SALES & SERVICES, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Vice President
PLAYTEX MANUFACTURING, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Vice President
PLAYTEX BEAUTY CARE, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
PLAYTEX INTERNATIONAL CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
PLAYTEX INVESTMENT CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
25
<PAGE>
T H MARKETING CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
SMILE TOTE, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
SUN PHARMACEUTICALS CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ William Wilson
---------------------------
Name: William Wilson
Title: Vice President
26
Exhibit 10.1
PLAYTEX PRODUCTS, INC., AS ISSUER
AND
PLAYTEX SALES & SERVICES, INC.,
PLAYTEX MANUFACTURING, INC.,
PLAYTEX BEAUTY CARE, INC.,
SUN PHARMACEUTICALS CORP.,
PLAYTEX INTERNATIONAL CORP.,
PLAYTEX INVESTMENT CORP.,
T H MARKETING CORP.,
SMILE-TOTE, INC., AS GUARANTORS
$150,000,000
87/8% SENIOR NOTES DUE 2004
PURCHASE AGREEMENT
JULY 14, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
<PAGE>
$150,000,000
87/8% SENIOR NOTES DUE 2004
OF PLAYTEX PRODUCTS, INC.
PURCHASE AGREEMENT
July 14, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Playtex Products, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to Donaldson, Lufkin & Jenrette Securities
Corporation (the "INITIAL PURCHASER") an aggregate of $150,000,000 in principal
amount of its 87/8% Senior Notes due 2004 (the "SENIOR NOTES"), subject to the
terms and conditions set forth herein. The Senior Notes are to be issued
pursuant to the provisions of an indenture (the "INDENTURE"), to be dated as of
the Closing Date (as defined below), among the Company, the Guarantors (as
defined below) and Marine Midland Bank, as trustee (the "TRUSTEE"). The Senior
Notes and the Registered Senior Notes (as defined below) issuable in exchange
therefor are collectively referred to herein as the "NOTES." The Notes will be
guaranteed (the "SUBSIDIARY GUARANTEES") by each of the entities listed on
SCHEDULE I hereto (each, a "GUARANTOR" and collectively the "GUARANTORS").
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
1. OFFERING MEMORANDUM. The Senior Notes will be offered and sold to
the Initial Purchaser pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
Company and the Guarantors have prepared a preliminary offering memorandum,
dated July 2, 1997 (the "PRELIMINARY OFFERING MEMORANDUM") and a final offering
memorandum, dated July 14, 1997 (the "OFFERING MEMORANDUM"), relating to the
Senior Notes and the Subsidiary Guarantees.
<PAGE>
Upon original issuance thereof, and until such time as the same is
no longer required pursuant to the Indenture, the Senior Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
FOREIGN PURCHASER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF
CLAUSE (b), (c) OR (d), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY, OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENTS UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
NOTE EVIDENCED HEREBY OR ANY NOTE ISSUED IN EXCHANGE FOR OR IN
SUBSTITUTION HEREOF OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company, an aggregate principal amount of $150,000,000 of
Senior Notes at a purchase price equal to 97.5% of the principal amount thereof
(the "PURCHASE PRICE").
2
<PAGE>
3. TERMS OF OFFERING. The Initial Purchaser has advised the Company
that the Initial Purchaser will make offers (the "EXEMPT RESALES") of the Senior
Notes purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom the Initial Purchaser
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBS"), (ii) a limited number of institutional "accredited
investors," as defined in Rule 501(a) (1), (2), (3) or (7) under the Act, that
make certain representations and agreements to the Company (each, an "ACCREDITED
INSTITUTION"), and (iii) to persons permitted to purchase the Senior Notes in
offshore transactions in reliance upon Regulation S under the Act (each, a
"REGULATION S PURCHASER") (such persons specified in clauses (i), (ii) and (iii)
being referred to herein as the "ELIGIBLE PURCHASERS"). The Initial Purchaser
will offer the Senior Notes to Eligible Purchasers in accordance with the terms
set forth in the Offering Memorandum initially at a price equal to 100% of the
principal amount thereof. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Senior Notes will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in substantially
the form of EXHIBIT A hereto, for so long as such Senior Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Guarantors will agree to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein, (i) a registration
statement under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating
to the Company's 87/8% Senior Notes due 2004 (the "REGISTERED SENIOR NOTES"), to
be offered in exchange for the Senior Notes (such offer to exchange being
referred to as the "EXCHANGE OFFER") and the Subsidiary Guarantees thereof and
(ii) a shelf registration statement pursuant to Rule 415 under the Act (the
"SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, the "REGISTRATION STATEMENTS") relating to the resale by
certain holders of the Senior Notes and to use its best efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer.
Concurrently with the consummation of the Offering, the Company will
repay all indebtedness outstanding under the 1995 Credit Agreement with the
proceeds of the sale of the Senior Notes and borrowings under new credit
facilities (the "DLJ CREDIT FACILITIES"). This Agreement, the Indenture, the
Notes, the Subsidiary Guarantees, the Registration Rights Agreement and the DLJ
Credit Facilities are hereinafter sometimes referred to collectively as the
"OPERATIVE DOCUMENTS."
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the
Senior Notes shall be made at the offices of Kaye, Scholer, Fierman, Hays &
Handler, LLP at 425 Park Avenue, New York, New York 10022, or such other
location as may be mutually acceptable. Such delivery and payment shall be made
at 9:00 a.m. New York City time, on July 21, 1997 or at such other time as shall
be agreed upon by the Initial Purchaser and the Company. The time and date of
such delivery and the payment are herein called the "CLOSING DATE."
3
<PAGE>
(b) One or more of the Senior Notes in definitive global form,
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"), having an aggregate principal amount corresponding to the aggregate
principal amount of the Senior Notes (collectively, the "GLOBAL NOTE"), shall be
delivered by the Company to the Initial Purchaser (or as the Initial Purchaser
directs) in each case with any transfer taxes thereon duly paid by the Company
against payment by the Initial Purchaser of the Purchase Price thereof by wire
transfer in same day funds to the order of the Company. The Global Note shall be
made available to the Initial Purchaser for inspection not later than 9:30 a.m.,
New York City time, on the business day immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. Each of the Company
and the Guarantors hereby agrees with the Initial Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested
by the Initial Purchaser, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Senior Notes for offering or sale in any
jurisdiction designated by the Initial Purchaser pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading. The Company shall use its
best efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of any Senior Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending the
qualification or exemption of any Senior Notes under any state securities or
Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchaser and those persons
identified by the Initial Purchaser to the Company as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchaser may reasonably request. Subject
to the Initial Purchaser's compliance with its representations and warranties
and agreements set forth in Section 7 hereof, the Company consents to the use of
the Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments and supplements thereto required pursuant hereto, by the Initial
Purchaser in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchaser an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchaser and in connection with
market-making activities of the Initial Purchaser for so long as any Senior
Notes are outstanding, (i) not to make any amendment or supplement to the
Offering Memorandum of which the Initial Purchaser shall not previously have
been advised or to which the Initial Purchaser shall reasonably object after
being so advised and (ii) to prepare promptly upon the Initial Purchaser's
reasonable request, any amendment or supplement
4
<PAGE>
to the Offering Memorandum which may be necessary or advisable in connection
with such Exempt Resales or such market-making activities.
(d) If, during the period referred to in Section 5(c) above,
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Initial Purchaser, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchaser, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchaser and such other persons as the Initial Purchaser may designate such
number of copies thereof as the Initial Purchaser may reasonably request.
(e) Prior to the sale of all Senior Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchaser and
counsel to the Initial Purchaser in connection with the registration or
qualification of the Senior Notes for offer and sale to the Initial Purchaser
and pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchaser may request and to continue such
qualification in effect so long as required for Exempt Resales and to file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification; PROVIDED, HOWEVER, that neither
the Company nor any Guarantor shall be required in connection therewith to
register or qualify as a foreign corporation in any jurisdiction in which it is
not now so qualified or to take any action that would subject it to general
consent to service of process or taxation other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any jurisdiction in which it is not now so
subject.
(f) So long as the Notes are outstanding, to furnish to the
Initial Purchaser as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its security
holders or furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company or any of the
Guarantors is listed and such other publicly available information concerning
the Company and/or its subsidiaries as the Initial Purchaser may reasonably
request.
(g) So long as any of the Senior Notes remain outstanding and
during any period in which the Company and the Guarantors are not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), to make available to any holder of Senior Notes in connection
with any sale thereof and any prospective purchaser of such Senior Notes from
such holder, the information ("RULE 144A INFORMATION") required by Rule
144A(d)(4) under the Act.
(h) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all reasonable expenses incident to the performance of the obligations of
the Company and the Guarantors under this
5
<PAGE>
Agreement, including: (i) the fees, disbursements and expenses of counsel to the
Company and the Guarantors and accountants of the Company and the Guarantors in
connection with the sale and delivery of the Senior Notes to the Initial
Purchaser and pursuant to Exempt Resales, and all other fees or expenses in
connection with the preparation, printing, filing and distribution of the
Preliminary Offering Memorandum, the Offering Memorandum and all amendments and
supplements to any of the foregoing (including financial statements) specified
in Section 5(b) and 5(c) prior to or during the period specified in Section
5(c), including the mailing and delivering of copies thereof to the Initial
Purchaser and persons designated by it in the quantities specified herein, (ii)
all costs and expenses related to the transfer and delivery of the Senior Notes
to the Initial Purchaser and pursuant to Exempt Resales, including any transfer
or other taxes payable thereon, (iii) all costs of printing or producing this
Agreement, the other Operative Documents and any other agreements or documents
in connection with the offering, purchase, sale or delivery of the Senior Notes,
(iv) all expenses in connection with the registration or qualification of the
Senior Notes and the Subsidiary Guarantees for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Initial Purchaser in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Senior Notes and the Subsidiary Guarantees, (vi) all expenses and listing
fees in connection with the application for quotation of the Senior Notes in the
National Association of Securities Dealers, Inc. ("NASD") Automated Quotation
System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the
Trustee's counsel in connection with the Indenture, the Notes and the Subsidiary
Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (ix) any fees charged by rating agencies for the
rating of the Notes, (x) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights Agreement, and
(xi) and all other costs and expenses incident to the performance of the
obligations of the Company and the Guarantors hereunder for which provision is
not otherwise made in this Section.
(i) To use its best efforts to effect the inclusion of the
Senior Notes in PORTAL and to maintain the listing of the Senior Notes on PORTAL
for so long as the Senior Notes are outstanding.
(j) To obtain the approval of DTC for "book-entry" transfer of
the Notes, and to comply with all of its agreements set forth in the
representation letters of the Company and the Guarantors to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
(k) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any debt securities of the Company or
any Guarantor or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company or any Guarantor substantially similar to
the Notes and the Subsidiary Guarantees (other than (i) the Notes and the
Subsidiary Guarantees and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Initial Purchaser.
6
<PAGE>
(l) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Senior Notes to the Initial Purchaser
or pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Senior Notes under the Act.
(m) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes.
(n) To cause the Exchange Offer to be made in the appropriate
form to permit Registered Senior Notes and guarantees thereof by the Guarantors
registered pursuant to the Act to be offered in exchange for the Senior Notes
and the Subsidiary Guarantees and to comply with all applicable federal and
state securities laws in connection with the Exchange Offer.
(o) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(p) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Senior Notes and the Subsidiary Guarantees.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
GUARANTORS. As of the date hereof, each of the Company and the Guarantors
represents and warrants to, and agrees with, the Initial Purchaser that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not, contain any
untrue state ment of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchaser furnished to the Company in
writing by the Initial Purchaser expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Preliminary Offering
Memorandum and the Offering Memorandum and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
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material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(c) All outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights.
(d) The entities listed on SCHEDULE II hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock of each of the Company's subsidiaries (except Playtex Marketing
Corporation in which the Company owns 50% of the outstanding shares of capital
stock) have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly or indirectly through one
or more subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (each, a "LIEN") (other than under
the DLJ Credit Facilities).
(e) The Company and each of the Guarantors have all requisite
corporate power to execute and deliver this Agreement and to perform their
respective obligations thereunder. This Agreement has been duly authorized,
executed and delivered by the Company and each of the Guarantors.
(f) The Company and each of the Guarantors have all requisite
corporate power to execute and deliver the Indenture and to perform their
respective obligations thereunder. The Indenture has been duly authorized by the
Company and each of the Guarantors and, on the Closing Date, will have been
validly executed and delivered by the Company and each of the Guarantors. When
the Indenture has been duly executed and delivered by the Company and each of
the Guarantors and the Trustee, the Indenture will be a valid and binding
agreement of the Company and each Guarantor, enforceable against the Company and
each Guarantor in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended (the
"TIA" or"TRUST INDENTURE ACT"), and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(g) The Company has all requisite corporate power to execute,
issue and deliver the Senior Notes. The Senior Notes have been duly authorized
and, on the Closing Date, will have been validly executed and delivered by the
Company. When the Senior Notes have been issued, executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Initial Purchaser in accordance with the terms of this Agreement, the Senior
Notes will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the Senior
Notes will conform as to legal matters to the description thereof contained in
the Offering Memorandum.
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(h) On the Closing Date, the Registered Senior Notes will have
been duly authorized by the Company. When the Registered Senior Notes are
issued, executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Registered Senior Notes will be entitled to the
benefits of the Indenture and will be the valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) Each of the Guarantors has all requisite corporate power
to execute and deliver the Subsidiary Guarantee to be endorsed on the Senior
Notes by each Guarantor and to perform its respective obligations thereunder.
The Subsidiary Guarantee to be endorsed on the Senior Notes by each Guarantor
has been duly authorized by such Guarantor and, on the Closing Date, will have
been duly executed and delivered by each such Guarantor. When the Senior Notes
have been issued, executed and authenticated in accordance with the Indenture
and delivered to and paid for by the Initial Purchaser in accordance with the
terms of this Agreement, the Subsidiary Guarantee of each Guarantor endorsed
thereon will be entitled to the benefits of the Indenture and will be the valid
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the Subsidiary Guarantees to be endorsed on the Senior Notes will
conform as to legal matters to the description thereof contained in the Offering
Memorandum.
(j) The Subsidiary Guarantee to be endorsed on the Registered
Senior Notes by each Guarantor has been duly authorized by such Guarantor and,
when issued, will have been duly executed and delivered by each such Guarantor.
When the Registered Senior Notes have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Subsidiary Guarantee of each Guarantor endorsed thereon will be entitled to the
benefits of the Indenture and will be the valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. When the Registered Senior Notes
are issued, authenticated and delivered, the Subsidiary Guarantees to be
endorsed on the Registered Senior Notes will conform as to legal matters to the
description thereof in the Offering Memorandum.
(k) The Company and each of the Guarantors have all requisite
corporate power to execute and deliver the Registration Rights Agreement and to
perform their respective obligations thereunder. The Registration Rights
Agreement has been duly authorized by the Company and each of the Guarantors
and, on the Closing Date, will have been duly executed and delivered by the
Company and each of the Guarantors. When the Registration Rights Agreement has
been duly executed and delivered, the Registration Rights Agreement will be a
valid and binding agreement of the Company and each of the Guarantors,
enforceable against the Company and each Guarantor in accordance with its terms
except as (i) the enforceability thereof may be limited by
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<PAGE>
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. On the Closing Date,
the Registration Rights Agreement will conform as to legal matters to the
description thereof in the Offering Memorandum.
(l) The Company and each of the guarantors under the DLJ
Credit Facilities have all requisite corporate power to execute and deliver the
DLJ Credit Facilities and to perform their respective obligations thereunder.
The DLJ Credit Facilities have been duly authorized by the Company and each of
the guarantors thereunder and, on the Closing Date, will have been duly executed
and delivered by the Company and each such guarantor. When the DLJ Credit
Facilities has been duly executed and delivered, the DLJ Credit Facilities will
be valid and binding agreements of the Company and each of the guarantors
thereunder, enforceable against the Company and each such guarantor in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On the
Closing Date, the DLJ Credit Facilities will conform as to legal matters to the
description thereof in the Offering Memorandum.
(m) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws. Except to the extent that the
transactions contemplated hereby may violate the provisions of Section 10.2 of
the 1995 Credit Agreement, neither the Company nor any of its subsidiaries is in
default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property is
bound, except as disclosed in the Offering Memorandum and except for such
defaults that would not have a Material Adverse Effect.
(n) The execution, delivery and performance of this Agreement
and the other Operative Documents by the Company and each of the Guarantors,
compliance by the Company and each of the Guarantors with all provisions hereof
and thereof and the consummation of the transactions contemplated hereby and
thereby will not (i) require any consent, approval, authorization or other order
of, or qualification with, any court or governmental body or agency (except such
as may be required under the securities or Blue Sky laws of the various states),
(ii) conflict with or constitute a breach of any of the terms or provisions of,
or a default under, (x) the charter or by-laws of the Company or any of its
subsidiaries or (y) any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or their respective
property is bound, except in the case of clause (y) as disclosed in the Offering
Memorandum and for such conflicts, breaches, violations or defaults that would
not have a Material Adverse Effect, (iii) violate or conflict with any material
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or their respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a material Lien under, any
material agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound, or (v) result in the termination or revocation of
any material Authorization (as
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defined below) of the Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization.
(o) There are no material legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or to which
any of their respective property is subject, and to the best knowledge of the
Company and its subsidiaries, no such proceedings are threatened, which
reasonably might be expected to result, singly or in the aggregate, in a
Material Adverse Effect.
(p) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS") or any
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a Material Adverse
Effect.
(q) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which, singly or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.
(r) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(s) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the execution, delivery and performance of any of
the Operative Documents, the issuance of the Senior Notes or the Subsidiary
Guarantees, or suspends the sale of the Senior Notes or the Subsidiary
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<PAGE>
Guarantees in any jurisdiction referred to in Section 5(e); and no injunction,
restraining order or other order or relief of any nature by a federal or state
court or other tribunal of competent jurisdiction has been issued with respect
to the Company or any of its subsidiaries which would prevent or suspend the
issuance or sale of the Senior Notes or the Subsidiary Guarantees in any
jurisdiction referred to in Section 5(e).
(t) No labor dispute exists with the Company's employees or
with employees of the subsidiaries or, to the knowledge of the Company, is
imminent that could reasonably be expected to have a Material Adverse Effect;
and none of the Company or any subsidiary is aware of any existing or imminent
labor disturbance by the employees of its principal suppliers, manufacturers or
contractors which might be expected to result in a Material Adverse Effect.
(u) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the Company
and its subsidiaries, in each case free and clear of all Liens and defects,
except such as are described in the Offering Memorandum or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries, in each case except as described in the Offering
Memorandum.
(v) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names ("INTELLECTUAL PROPERTY") currently
employed by them in connection with the business now operated by them except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has received
any notice of infringement of or conflict with asserted rights of others with
respect to any of such Intellectual Property which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(w) Except as disclosed in the Offering Memorandum, all United
States federal income tax returns of the Company and the subsidiaries required
by law to be filed have been filed, and all taxes shown by such returns or
otherwise assessed which are due and payable have been paid, except tax
assessments, if any, as are being contested in good faith and as to which
adequate reserves have been provided. Except as disclosed in the Offering
Memorandum, all other franchise and income tax returns of the Company and the
subsidiaries required to be filed pursuant to applicable foreign, state or local
law have been filed, except insofar as the failure to file such returns would
not have a Material Adverse Effect, and all taxes shown on such returns or
otherwise assessed which are due and payable have been paid, except for such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. To the best of the
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<PAGE>
Company's knowledge, the charges, accruals and reserves on the books of the
Company and its subsidiaries in respect of any income and corporate franchise
tax liability for any years not finally determined are adequate to meet any
assessments or re-assessments for additional income or corporate franchise tax
for any years not finally determined, except as disclosed in the Offering
Memorandum and except to the extent of any inadequacy that would not have a
Material Adverse Effect.
(x) Except as set forth in the following sentence, the Company
and each of its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged, including, but not
limited to, insurance coverage with certain limits in excess of the self-insured
retention of $1.0 million per occurrence/$4.0 million in the aggregate, on toxic
shock syndrome claims occurring on or after December 1, 1995; and neither the
Company nor any of its subsidiaries (i) has received notice from any insurer or
agent of such insurer that substantial capital improvements or other material
expenditures will have to be made in order to continue such insurance or (ii)
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers at a cost that would not have a Material Adverse
Effect. For toxic shock syndrome claims filed from October 1, 1985 until
November 30, 1995, the Company is self-insured and bears the costs of defending
those claims, including settlements and trials.
(y) Except as disclosed in (or incorporated by reference in)
the Offering Memorandum, no relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which would be required by the Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 filed with the
Commission.
(z) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(aa) The accountants, KPMG Peat Marwick LLP, that have
certified the financial statements and supporting schedules included in the
Preliminary Offering Memorandum and the Offering Memorandum are independent
public accountants with respect to the Company and the Guarantors, as required
by the Act and the Exchange Act. The historical consolidated financial
statements and the related notes set forth in the Preliminary Offering
Memorandum and the Offering Memorandum comply as to form in all material
respects with the requirements applicable to registration statements on Form S-1
under the Act (except that such financial statements omit certain schedules that
would be required in such a registration statement).
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(bb) The historical consolidated financial statements,
together with related notes forming part of the Offering Memorandum (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply; such
statements and related notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Offering Memorandum (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(cc) The PRO FORMA financial data included in the Preliminary
Offering Memorandum and the Offering Memorandum have been prepared on a basis
consistent with the historical financial statements of the Company and its
subsidiaries and give effect to assumptions used in the preparation thereof on a
reasonable basis and in good faith and present fairly the data set forth giving
effect to the proposed transactions contemplated by the Preliminary Offering
Memorandum and the Offering Memorandum.
(dd) All indebtedness of the Company and the Guarantors that
will be repaid with the proceeds of the issuance and sale of the Senior Notes
and borrowings under the DLJ Credit Facilities was incurred, and the
indebtedness represented by the Senior Notes and borrowings under the DLJ Credit
Facilities is being incurred, for proper purposes and in good faith and each of
the Company and the Guarantors was, at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and sale of
the Senior Notes and borrowings under the DLJ Credit Facilities, and will be on
the Closing Date (after giving effect to the application of the proceeds from
the issuance of the Senior Notes and borrowings under the DLJ Credit Facilities)
solvent, and had at the time of the incurrence of such indebtedness that will be
repaid with the proceeds of the issuance and sale of the Senior Notes and
borrowings under the DLJ Credit Facilities and will have on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Senior Notes and borrowings under the DLJ Credit Facilities) sufficient capital
for carrying on their respective business and were, at the time of the
incurrence of such indebtedness that will be repaid with the proceeds of the
issuance and sale of the Senior Notes and borrowings under the DLJ Credit
Facilities, and will be on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Senior Notes and borrowings
under the DLJ Credit Facilities) able to pay their respective debts as they
mature.
(ee) The Company is not and, after giving effect to the
offering and sale of the Senior Notes and the application of the net proceeds
thereof as described in the Offering Memorandum, will not be, an "investment
company," as such term is defined in the Investment Company Act of 1940, as
amended.
(ff) There are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such person the
right to require the Company or such Guarantor to file a registration statement
under the Act with respect to any securities of the
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Company or such Guarantor or to require the Company or such Guarantor to include
such securities with the Notes and Subsidiary Guarantees registered pursuant to
any Registration Statement.
(gg) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of the
Senior Notes to violate Regulation G (12 C.F.R. Part 207), Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the Federal Reserve System.
(hh) No "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the Company's or
any Guarantor's retaining any rating assigned to the Company, any Guarantor or
any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering (a) the downgrading, suspension
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company or any Guarantor or any securities of
the Company or any Guarantor.
(ii) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii) there has
not been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(jj) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Act.
(kk) When the Senior Notes and the Subsidiary Guarantees are
issued and delivered pursuant to this Agreement, neither the Senior Notes nor
the Subsidiary Guarantees will be of the same class (within the meaning of Rule
144A under the Act) as any security of the Company or the Guarantors that is
listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
(ll) No form of general solicitation or general advertising
(as defined in Regulation D under the Act) was used by the Company, the
Guarantors or any of their respective representatives (other than the Initial
Purchaser, as to whom the Company and the Guarantors make no representation) in
connection with the offer and sale of the Senior Notes contemplated hereby,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose
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attendees have been invited by any general solicitation or general advertising.
No securities of the same class as the Senior Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
(mm) Prior to the effectiveness of any Registration Statement,
the Indenture is not required to be qualified under the TIA.
(nn) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other than
the Initial Purchaser, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("REGULATION S") with respect
to the Senior Notes or the Subsidiary Guarantees.
(oo) The sale of the Senior Notes pursuant to Regulation S is
not part of a plan or scheme to evade the registration provisions of the Act.
(pp) The Company, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the Initial
Purchaser, as to whom the Company and the Guarantors make no representation)
have complied with and will comply with the offering restrictions requirements
of Regulation S in connection with the offering of the Senior Notes outside the
United States and, in connection therewith, the Offering Memorandum will contain
the disclosure required by Rule 902(h).
(qq) No registration under the Act of the Senior Notes or the
Subsidiary Guarantees is required for the sale of the Senior Notes and the
Subsidiary Guarantees to the Initial Purchaser as contemplated hereby or for the
Exempt Resales assuming the accuracy of the Initial Purchaser's representations
and warranties and agreements set forth in Section 7 hereof.
(rr) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(ss) Inter Stretch Ltd. and Playtex Foreign Sales Corporation
are not significant subsidiaries within the meaning of Regulation S-X 1.02(w)
promulgated under the Act.
(tt) Each certificate signed by any officer of the Company or
any Guarantor and delivered to the Initial Purchaser or counsel for the Initial
Purchaser shall be deemed to be a representation and warranty by the Company or
such Guarantor to the Initial Purchaser as to the matters covered thereby.
The Company acknowledges that the Initial Purchaser and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 9 hereof, counsel to the Company and the Guarantors and counsel to the
Initial Purchaser will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
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7. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Initial
Purchaser represents and warrants to, and agrees with, the Company and the
Guarantors:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Senior Notes.
(b) Such Initial Purchaser (A) is not acquiring the Senior
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Senior Notes in a transaction that would violate
the Act or the securities laws of any state of the United States or any other
applicable jurisdiction and (B) will be reoffering and reselling the Senior
Notes only to (x) QIBs in reliance on the exemption from the registration
requirements of the Act provided by Rule 144A, (y) a limited number of
Accredited Institutions that execute and deliver a letter containing certain
representations and agreements in the form attached as ANNEX A to the Offering
Memorandum and (z) non-U.S. persons it reasonably believes are outside the
United States to whom offers and sales of the Senior Notes may be made in
reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Senior Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Senior
Notes only from, and will offer to sell the Senior Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that (i) it will offer to sell
the Senior Notes only to, and will solicit offers to buy the Senior Notes only
from (A) Eligible Purchasers that the Initial Purchaser reasonably believes are
QIBs, (B) Accredited Institutions who make the representations contained in, and
execute and return to the Initial Purchaser, a certificate in the form of ANNEX
A attached to the Offering Memorandum and (C) Regulation S Purchasers, in each
case, that agree that the Senior Notes will not have been registered under the
Act and may be offered, resold, pledged or otherwise transferred only (x)(I) to
a person who the seller reasonably believes is a QIB in a transaction meeting
the requirements of Rule 144A under the Act, (II) in a transaction meeting the
requirements of Rule 144 under the Act, (III) to a non-U.S. person in a
transaction meeting the requirements of Rule 904 under the Act or (IV) in
accordance with another exemption from the registration requirements of the Act
(and based upon an opinion of counsel if the Company so requests), (y) to the
Company, or (z) pursuant to an effective registration statement under the Act
and, in each case, in accordance with any applicable securities laws of any
state of the United States or any other applicable jurisdiction and (ii) the
holder will, and each subsequent holder is required to, notify any purchaser
from it of the note evidenced thereby of the resale restrictions set forth in
(i) above.
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(e) None of such Initial Purchaser nor any of its affiliates
or any person acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Senior Notes or the Subsidiary Guarantees.
(f) The Senior Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(g) The sale of the Senior Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has offered the
Senior Notes and will offer and sell the Senior Notes (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the later of the
commencement of the offering of the Senior Notes pursuant hereto and the Closing
Date, only in accordance with Rule 903 of Regulation S or another exemption from
the registration requirements of the Act. Such Initial Purchaser agrees that,
during such 40-day restricted period, it will not cause any advertisement with
respect to the Senior Notes (including any "tombstone" advertisement) to be
published in any newspaper or periodical or posted in any public place and will
not issue any circular relating to the Senior Notes, except such advertisements
as permitted by and include the statement required by Regulation S.
(i) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Senior Notes sold pursuant hereto in
reliance on Regulation S (i) as part of its distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the offering of
the Senior Notes pursuant hereto and the Closing Date, to a U.S. person (as
defined in Rule 902 of the Act) or for the account or benefit of a U.S. person
(other than a distributor (as defied in Rule 902 of the Act)).
(j) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Senior Notes by it to any distributor, dealer or
person receiving a selling concession, fee or other remuneration during the
40-day restricted period referred to in Rule 903(c)(3) under the Act, it will
send to such distributor, dealer or person receiving a selling concession, fee
or other renumeration a confirmation or notice to substantially the following
effect:
"The Senior Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered and sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of your
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the Offering and the Closing Date,
except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to Accredited Institutions in
transactions that are exempt from the registration requirements of
the Securities Act), and in connection with any subsequent sale by
you of the Senior Notes covered hereby in reliance on Regulation S
during the period referred to above to any
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distributor, dealer or person receiving a selling concession, fee or
other remuneration, you must deliver a notice to substantially the
foregoing effect. Terms used above have the meanings assigned to
them in Regulation S."
(k) Such Initial Purchaser further represents and agrees that
(i) it has not offered or sold and will not offer or sell any Senior Notes to
persons in the United Kingdom prior to the expiration of the period of six
months from the issue date of the Senior Notes, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Senior Notes in, from or otherwise
involving the United Kingdom and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issuance of the Senior Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
(l) Such Initial Purchaser agrees that it will not offer, sell
or deliver any of the Senior Notes in any jurisdiction outside the United States
except under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Senior Notes in such
jurisdictions. Such Initial Purchaser understands that no action has been taken
to permit a public offering in any jurisdiction outside the United States where
action would be required for such purpose.
(m) Such Initial Purchaser is not acquiring the Senior Notes
with the assets of any "employee benefit plan" described in Section 3(3) of
ERISA or any "plan" described in Section 4975(e) of the Internal Revenue Code of
1986, as amended (the "Code"), other than an employee benefit plan or plan that
is exempt from the coverage of ERISA and the provisions of Section 4975 of the
Code.
The Initial Purchaser acknowledges that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchaser will rely upon the accuracy and
truth of the foregoing representations and the Initial Purchaser hereby consents
to such reliance.
8. INDEMNIFICATION.
(a) The Company and each Guarantor agree, jointly and
severally, to indemnify and hold harmless the Initial Purchaser, its directors,
its officers and each person, if any, who controls such Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating
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or defending any matter, including any action, that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Offering Memorandum (or any amendment or supplement thereto), the Preliminary
Offering Memorandum or any Rule 144A Information provided by the Company or any
Guarantor to any holder or prospective purchaser of Senior Notes pursuant to
Section 5(h) or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Initial Purchaser furnished in writing to the Company by such Initial Purchaser.
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Company and the Guarantors, and their respective directors and
officers and each person, if any, who controls (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act) the Company or the Guarantors, to
the same extent as the foregoing indemnity from the Company and the Guarantors
to the Initial Purchaser but only with reference to information relating to the
Initial Purchaser furnished in writing to the Company by the Initial Purchaser
expressly for use in the Preliminary Offering Memorandum or the Offering
Memorandum.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchaser shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchaser). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Donaldson, Lufkin & Jenrette Securities
Corporation, in the case of the parties indemnified pursuant to Section 8(a),
and
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by the Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchaser on the
other hand from the offering of the Senior Notes or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchaser, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchaser, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Senior Notes (before deducting expenses) received by the
Company, and the total discounts and commissions received by the Initial
Purchaser bear to the total price to investors of the Senior Notes, in each case
as set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Company and the Guarantors, on the one hand, and the
Initial Purchaser, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors, on the one hand, or the
Initial Purchaser, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Guarantors, and the Initial Purchaser
agree that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by
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an indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. Notwithstanding the provisions of
this Section 8, the Initial Purchaser shall not be required to contribute any
amount in excess of the amount by which the total price of the Senior Notes
purchased by it were sold to investors in Exempt Resales exceeds the amount of
any damages which the Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of
the Initial Purchaser to purchase the Senior Notes under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and
the Guarantors contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook for the rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
by any such rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower rating
to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the capital stock or
in the long-term debt of the Company or any
22
<PAGE>
of its subsidiaries and (iii) neither the Company nor any of its subsidiaries
shall have incurred any liability or obligation, direct or contingent, the
effect of which, in any such case described in clause 9(c)(i), 9(c)(ii) or
9(c)(iii), in your judgment, is material and adverse and, in your judgment,
makes it impracticable to market the Senior Notes on the terms and in the manner
contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the Chief Executive Officer and the Chief
Financial Officer of the Company, confirming the matters set forth in paragraphs
(a), (b) and (c) of this Section 9.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchaser), dated the Closing
Date, of Paul, Weiss, Rifkind, Wharton & Garrison, counsel for the Company and
the Guarantors, to the effect that:
(i) each of the Company and its subsidiaries (except for
Playtex Limited, Inter Stretch Ltd., Playtex Foreign Sales
Corporation and Smile-Tote, Inc. as to which such counsel need
not opine) has been duly incorporated, is validly existing as
a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the
Offering Memorandum and to own, lease and operate its
properties;
(ii) the (i) Company and each of the Guarantors (except
for Smile-Tote, Inc. as to which such counsel need not opine)
have all requisite corporate power to execute and deliver this
Agreement, the Indenture and the Registration Rights
Agreement, and to perform their respective obligations
thereunder, (ii) each of the Guarantors has all requisite
corporate power to execute and deliver the Subsidiary
Guarantees to be endorsed on the Senior Notes by each
Guarantor and to perform its respective obligations
thereunder, (iii) Company and each of the guarantors under the
DLJ Credit Facilities have all requisite corporate power to
execute and deliver the DLJ Credit Facilities and to perform
their respective obligations thereunder, and (iv) the Company
has all requisite corporate power to execute, issue and
deliver the Senior Notes;
(iii) the Senior Notes have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Initial Purchaser in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable
remedies may be limited by
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equitable principles of general applicability (whether
asserted in an action at law or in equity);
(iv) the Subsidiary Guarantees have been duly authorized
(such counsel need not opine as to authorization by
Smile-Tote, Inc.) and, when the Senior Notes are executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial
Purchaser in accordance with the terms of this Agreement, the
Subsidiary Guarantees endorsed thereon will be entitled to the
benefits of the Indenture and will be valid and binding
obligations of the Guarantors, enforceable in accordance with
their terms except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors'
rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability (whether asserted in an
action at law or in equity);
(v) the Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor (such counsel need
not opine as to authorization and execution by Smile-Tote,
Inc.) and is a valid and binding agreement of the Company and
each Guarantor, enforceable against the Company and each
Guarantor in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability (whether asserted in an action at law or in
equity);
(vi) this Agreement has been duly authorized, executed
and delivered by the Company and the Guarantors (such counsel
need not opine as to authorization and execution by
Smile-Tote, Inc.);
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors (such counsel need not opine as to authorization
and execution by Smile-Tote, Inc.) and is a valid and binding
agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its
terms, except as (x) the enforceability thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability (whether asserted in an action at law
or in equity);
(viii)The DLJ Credit Facilities have been duly
authorized, executed and delivered by the Company and the
guarantors thereunder and are valid
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and binding agreements of the Company and each such guarantor,
enforceable against the Company and each such guarantor in
accordance with its terms, except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited by
equitable principles of general applicability (whether
asserted in an action at law or in equity);
(ix) the Registered Senior Notes have been duly
authorized;
(x) the statements (i) under the captions "Risk
Factors--Restrictive Covenants," "Management's Discussion and
Analysis of Financial Condition and Results of
Operations--Financial Condition and Liquidity," "Description
of Certain Indebtedness" and "Description of the Senior
Notes", (ii) in the first paragraph and last sentence of the
second paragraph under the caption "Risk Factors--Possible
Inability to Repurchase the Senior Notes Upon Change of
Control" and (iii) in the first, second and sixth paragraphs
under the caption "Plan of Distribution" in the Offering
Memorandum, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to
therein, fairly present in all material respects such legal
matters, documents and proceedings;
(xi) the execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and
each of the Guarantors, compliance by the Company and each of
the Guarantors with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and
thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any
court or governmental body or agency of the United States or
the State of New York or under the Delaware General
Corporation Law (the "DELAWARE LAW") (except such as may be
required under the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the charter or
by-laws of the Company or any of its subsidiaries, or (iii)
violate or conflict with any material applicable law or any
rule, regulation, judgment, order or decree of any court or
any governmental body or agency of the United States, the
State of New York or under the Delaware law;
(xii) the Company is not and, after giving effect to the
offering and sale of the Senior Notes and the application of
the net proceeds thereof as described in the Offering
Memorandum, will not be, an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
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(xiii)the Indenture complies as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which
is qualified thereunder. It is not necessary in connection
with the offer, sale and delivery of the Senior Notes to the
Initial Purchaser in the manner contemplated by this Agreement
or in connection with the Exempt Resales to qualify the
Indenture under the TIA;
(xiv) no registration under the Act of the Senior Notes
is required for the sale of the Senior Notes to the Initial
Purchaser as contemplated by this Agreement or for the Exempt
Resales assuming that (i) each Initial Purchaser is a QIB, an
Accredited Institution or a Regulation S Purchaser, (ii) the
accuracy of, and compliance with, the Initial Purchaser's
representations and agreements contained in Section 7 of this
Agreement, (iii) the accuracy of the representations of the
Company and the Guarantors set forth in Sections 6(nn), (oo)
and (pp), and the compliance by the Company and the Guarantors
with their agreement contained in Section 5(h), of this
Agreement and (iv) with respect to Accredited Institutions,
the accuracy of the representations made by each such
Accredited Institution as set forth in the letter of
representation executed by such Accredited Institution in the
form of ANNEX A to the Offering Memorandum; and
(xv) no facts have come to such counsel's attention that
cause such counsel to believe that, as of the date of the
Offering Memorandum or as of the Closing Date, the Offering
Memorandum, as amended or supplemented, if applicable (except
for the financial statements (including the notes thereto) and
other financial data included therein, as to which such
counsel need not express any belief) contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
The opinion of Paul, Weiss, Rifkind, Wharton & Garrison described in
Section 9(e) above shall be rendered to you at the request of the Company and
the Guarantors and shall so state therein. In giving such opinion with respect
to the matters covered by Section 9(e)(xv), Paul, Weiss, Rifkind, Wharton &
Garrison may state that their opinion and belief are based upon their
participation in the preparation of the Offering Memorandum and any amendments
or supplements thereto and review and discussion of the contents thereof, but
such counsel has not independently verified the accuracy, completeness or
fairness of such statements except as specified, and such counsel may rely as to
materiality to a large extent upon facts provided to such counsel by officers
and other representatives of the Company and the Guarantors.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchaser), dated the Closing
Date, of Paul E. Yestrumskas, Esq., General Counsel for the Company and the
Guarantors, to the effect that:
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(i) each of the Company and its subsidiaries (except for
Playtex Limited, Inter Stretch Ltd. and Playtex Foreign Sales
Corporation as to which such counsel need not opine) is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
Material Adverse Effect;
(ii) all of the outstanding shares of capital stock of
each of the Company's subsidiaries (except Playtex Marketing
Corporation in which the Company owns 50% of the outstanding
shares of capital stock) have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by
the Company and are, to the best of such counsel's knowledge,
free and clear of any Lien (other than under the DLJ Credit
Facilities);
(iii) the statements under the captions "Patents and
Trademarks," "Risk Factors--TSS Litigation,"
"Business--Trademarks and Patents" and "Business--Legal
Proceedings" in the Offering Memorandum, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present
in all material respects such
legal matters, documents and proceedings;
(iv) neither the Company nor any of its subsidiaries is
in violation of its respective charter or by-laws and, to the
best of such counsel's knowledge, neither the Company nor any
of its subsidiaries is in default in the performance of any
material obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company
or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is
bound;
(v) the execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and
each of the Guarantors, compliance by the Company and each of
the Guarantors with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and
thereby will not (i) conflict with or constitute a breach of
any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, to which the Company or
any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or their respective property is bound,
except as disclosed in the Offering Memorandum and for such
conflicts, breaches, violations or defaults that would not
have a Material Adverse Effect, (ii) result in the imposition
or creation of (or the obligation to create or impose) a
material Lien under, any material agreement or instrument to
which the Company or any of its subsidiaries is a party or by
27
<PAGE>
which the Company or any of its subsidiaries or their
respective property is bound (except for Liens under and
pursuant to the DLJ Credit Facilities), or (iii) result in the
termination or revocation of any material Authorization (as
defined below) of the Company or any of its subsidiaries or
result in any other impairment of the rights of the holder of
any such Authorization;
(vi) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is or could be a party or
to which any of their respective property is or could be
subject, which might result, singly or in the aggregate, in a
Material Adverse Effect except as disclosed in the Offering
Memorandum;
(vii) neither the Company nor any of its subsidiaries
has violated any Environmental Law or any provisions of ERISA,
or the rules and regulations promulgated thereunder, except
for such violations which, singly or in the aggregate, are
disclosed in the Offering Memorandum or would not have a
Material Adverse Effect;
(viii)each of the Company and its subsidiaries has such
permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "Authorization")
of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including
without limitation, under any applicable Environmental Laws,
as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except
where the failure to have any such Authorization or to make
any such filing or notice would not, singly or in the
aggregate, have a Material Adverse Effect. To the best of such
counsel's knowledge, each such Authorization is valid and in
full force and effect and each of the Company and its
subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with
respect thereto; except where such failure to be valid and in
full force and effect or to be in compliance on the occurrence
of any such event would not, singly or in the aggregate, have
a Material Adverse Effect;
(ix) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures),
trademarks, service marks and trade names ("INTELLECTUAL
PROPERTY") referred to in the Offering Memorandum as being
currently employed by them in connection with the business now
operated by them except where the failure to own or possess or
otherwise be able to acquire such intellectual property would
not, singly or in the aggregate, have a Material Adverse
Effect; and, to the best of such counsel's knowledge, neither
the Company nor any of its
28
<PAGE>
subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of
such Intellectual Property which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect; and
(x) to the best of such counsel's knowledge, there are
no contracts, agreements or understandings between the Company
or any Guarantor and any person granting such person the right
to require the Company or such Guarantor to include any
securities with the Notes and Subsidiary Guarantees to be
registered pursuant to any Registration Statement.
The opinion of Paul E. Yestrumskas, Esq. described in Section 9(f)
above shall be rendered to you at the request of the Company and the Guarantors
and shall so state therein. In giving such opinion, such counsel may rely upon
the opinions of Paul, Weiss, Rifkind, Wharton & Garrison, Miller Thomson, and
Rosenfeld, Meyer & Susman, LLP, and upon certificates of officers of the Company
and the Guarantors.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchaser), dated the Closing
Date, of Miller Thomson, counsel for Playtex Limited as to matters of Canadian
law, to the effect that:
(i) Playtex Limited has been continued and is existing
under the laws of the Province of Nova Scotia and has not been
dissolved and has the corporate power and authority to carry
on its business as described in the Offering Memorandum and to
own, lease and operate its properties; and
(ii) Playtex Limited is duly qualified as an
extra-provincial corporation authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
Material Adverse Effect.
The opinion of Miller Thomson described in Section 9(g) above shall
be rendered to you at the request of Playtex Limited and shall so state therein.
Miller Thomson may state, insofar as such opinions involve factual matters, they
have relied, to the extent they deem proper, upon certificates of officers of
Playtex Limited and certificates of public officials.
(h) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchaser), dated the Closing
Date, of Rosenfeld, Meyer & Susman, LLP, counsel for Smile-Tote, Inc. as to
matters of California law, to the effect that:
(i) Smile-Tote, Inc. ("Smile-Tote") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority to
29
<PAGE>
carry on its business as described in the Offering Memorandum
and to own, lease and operate its properties;
(ii) Smile-Tote (i) has all requisite corporate power to
execute and deliver this Agreement, the Indenture and the
Registration Rights Agreement, and to perform its obligations
thereunder, (ii) has all requisite corporate power to execute
and deliver the Subsidiary Guarantee to be endorsed on the
Senior Notes by Smile-Tote and to perform its obligations
thereunder, and (iii) has all requisite corporate power to
execute and deliver the DLJ Credit Facilities to which it is a
party and to perform its obligations thereunder;
(iii) the Subsidiary Guarantee of Smile-Tote has been
duly authorized and executed by Smile-Tote;
(iv) the Indenture has been duly authorized and executed
by Smile-Tote;
(v) this Agreement has been duly authorized and executed
by Smile-Tote; and
(vi) the Registration Rights Agreement has been duly
authorized and executed by Smile-Tote.
The opinion of Rosenfeld, Meyer & Susman, LLP described in Section
9(h) above shall be rendered to you at the request of Smile-Tote, Inc. and shall
so state therein.
(i) The Initial Purchaser shall have received on the Closing
Date an opinion, dated the Closing Date, of Kaye, Scholer, Fierman, Hays &
Handler, LLP, counsel for the Initial Purchaser, as to the incorporation and
legal existence of the Company and the Guarantors, this Agreement, the Offering
Memorandum and such other related matters as the Initial Purchaser may require,
in form and substance reasonably satisfactory to the Initial Purchaser.
(j) The Initial Purchaser shall have received, at the time
this Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchaser from KPMG Peat Marwick LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to the Initial Purchaser
with respect to the financial statements and certain financial information
contained in the Offering Memorandum (except that it is understood that KPMG
Peat Marwick LLP has not been requested to perform a review in accordance with
Statement of Auditing Standards No. 71 of the quarterly financial statements and
information of the Company for the three months ended March 29, 1997 and March
30, 1996).
(k) The Senior Notes shall have been approved by the NASD for
trading and duly listed in PORTAL.
30
<PAGE>
(l) The Initial Purchaser shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered into by
the Company, the Guarantors and the Trustee.
(m) The Company and the Guarantors shall have executed the
Registration Rights Agreement and the Initial Purchaser shall have received an
original copy thereof, duly executed by the Company and the Guarantors.
(n) The Company shall have entered into the DLJ Credit
Facilities and satisfied all conditions to borrowing thereunder and the Initial
Purchaser shall have received original copies thereof, duly executed by the
Company and the guarantors thereunder.
(o) The Company shall have repaid all indebtedness outstanding
under the 1995 Credit Agreement or if funding shall not have occurred under the
DLJ Credit Facilities, the banks under the 1995 Credit Agreement shall have
consented to the incurrence of the indebtedness represented by the Senior Notes.
(p) The Company shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company at or prior to the
Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time prior to the Closing
Date by the Initial Purchaser by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in the Initial
Purchaser's judgment, is material and adverse and, in the Initial Purchaser's
judgment, makes it impracticable to market the Senior Notes on the terms and in
the manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
31
<PAGE>
11. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company or any Guarantor,
to 300 Nyala Farms Road, Westport, Connecticut 06880, telephone number (203)
341-4000, Attention: Chief Executive Officer, with a copy to Paul, Weiss,
Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York
10019, Attention: Mitchell S. Fishman, Esq. and (ii) if to the Initial
Purchaser, Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park Avenue,
New York, New York 10172, Attention: Syndicate Department, with a copy to Kaye,
Scholer, Fierman, Hays & Handler, LLP, 425 Park Avenue, New York, New York
10022, Attention: Emanuel S. Cherney, Esq., or in any case to such other address
as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the Guarantors
and the Initial Purchaser set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Senior Notes, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of the Initial Purchaser, the
officers or directors of the Initial Purchaser, any person controlling the
Initial Purchaser, the Company, any Guarantor, the officers or directors of the
Company or any Guarantor, or any person controlling the Company or any
Guarantor, (ii) acceptance of the Senior Notes and payment for them hereunder
and (iii) termination of this Agreement.
If for any reason the Senior Notes are not delivered by or on behalf
of the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10), the Company and each Guarantor, jointly
and severally, agree to reimburse the Initial Purchaser for all out-of-pocket
expenses (including the reasonable fees and disbursements of counsel) incurred
by them. Notwithstanding any termination of this Agreement, the Company shall be
liable for all expenses which it has agreed to pay pursuant to Section 5(i)
hereof. The Company and each Guarantor also agree, jointly and severally, to
reimburse the Initial Purchaser and its officers, directors and each person, if
any, who controls such Initial Purchaser within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act for any and all fees and expenses
(including without limitation the reasonable fees and expenses of counsel)
incurred by them in connection with enforcing their rights under this Agreement
(including without limitation its rights under this Section 11).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Guarantors,
the Initial Purchaser, the Initial Purchaser's directors and officers, any
controlling persons referred to herein, the directors of the Company and the
Guarantors and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Senior Notes from the Initial Purchaser
merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed entirely in such State, without reference to the rules covering the
conflicts of laws.
32
<PAGE>
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
33
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and the Initial Purchaser.
Very truly yours,
PLAYTEX PRODUCTS, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President and
Chief Finaincial Officer
PLAYTEX SALES & SERVICES, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Vice President
PLAYTEX MANUFACTURING, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Vice President
PLAYTEX BEAUTY CARE, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
SUN PHARMACEUTICALS CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
34
<PAGE>
PLAYTEX INTERNATIONAL CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
PLAYTEX INVESTMENT CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
T H MARKETING CORP.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
SMILE-TOTE, INC.
By: /s/ Michael F. Goss
--------------------------------
Name: Michael F. Goss
Title: Executive Vice President
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ William Wilson
-----------------------------
Name: William Wilson
35
<PAGE>
SCHEDULE I
Guarantors
Playtex Sales & Services, Inc., a Delaware corporation
Playtex Manufacturing, Inc., a Delaware corporation
Playtex Beauty Care, Inc., a Delaware corporation
Sun Pharmaceuticals Corp., a Delaware corporation
Playtex International Corp., a Delaware corporation
Playtex Investment Corp., a Delaware corporation
T H Marketing Corp., a Delaware corporation
Smile-Tote, Inc., a California corporation
36
<PAGE>
SCHEDULE II
Subsidiaries
Playtex Sales & Services, Inc., a Delaware corporation
Playtex Manufacturing, Inc., a Delaware corporation
Playtex Beauty Care, Inc., a Delaware corporation
Sun Pharmaceuticals Corp., a Delaware corporation
Playtex International Corp., a Delaware corporation
Playtex Investment Corp., a Delaware corporation
T H Marketing Corp., a Delaware corporation
Smile-Tote, Inc., a California corporation
Playtex Limited, a Canadian corporation
Inter Stretch Ltd., an Irish corporation
Playtex Foreign Sales Corporation, a Barbados corporation
37
<PAGE>
EXHIBIT A
Form of Registration Rights Agreement
38
Exhibit 10.2
EXECUTION COPY
------------------------------------------------------------------------------
$170,000,000
CREDIT AGREEMENT
among
PLAYTEX PRODUCTS, INC.,
as the Borrower
The Several Lenders
from Time to Time Parties Hereto,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent
and
WELLS FARGO BANK, N.A.,
as the Administrative Agent
Dated as of July 21, 1997
Arranged By
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
------------------------------------------------------------------------------
(Credit Agreement)
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.................................................. 2
1.1 Defined Terms................................................ 2
1.2 Other Definitional Provisions................................ 24
SECTION 2. AMOUNT AND TERMS OF WORKING CAPITAL REVOLVING
CREDIT COMMITMENTS.......................................... 24
2.1 Working Capital Revolving Credit Commitments................. 24
2.2 Procedure for Working Capital Revolving Credit Borrowing..... 25
2.3 Termination or Reduction of Working Capital Revolving Credit
Commitments.................................................. 26
2.4 Swing Line Commitment........................................ 26
SECTION 3. LETTERS OF CREDIT............................................ 29
3.1 L/C Commitment............................................... 29
3.2 Procedure for Issuance of Letters of Credit.................. 30
3.3 L/C Participations........................................... 30
3.4 Reimbursement Obligation of the Borrower..................... 31
3.5 Obligations Absolute......................................... 31
3.6 Letter of Credit Payments.................................... 32
3.7 Application.................................................. 32
SECTION 4. AMOUNT AND TERMS OF ACQUISITION REVOLVING
CREDIT COMMITMENTS.......................................... 32
4.1 Acquisition Revolving Credit Commitments..................... 32
4.2 Procedure for Acquisition Revolving Credit Borrowing......... 33
4.3 Termination or Reduction of Acquisition Revolving Credit
Commitments.................................................. 34
SECTION 5. TERM A LOANS................................................. 34
5.1 Term A Loans................................................. 34
5.2 Procedure for Term A Loan Borrowing.......................... 35
SECTION 6. GENERAL PROVISIONS........................................... 35
6.1 Fees......................................................... 35
6.2 Repayment of Loans; Evidence of Debt......................... 36
6.3 Optional and Mandatory Prepayment............................ 38
6.4 Conversion and Continuation Options.......................... 41
6.5 Maximum Number of Interest Periods........................... 42
(Credit Agreement)
i
<PAGE>
Page
6.6 Interest Rates and Payment Dates............................. 42
6.7 Computation of Interest and Fees............................. 43
6.8 Inability to Determine Interest Rate......................... 43
6.9 Pro Rata Treatment and Payments.............................. 44
6.10 Illegality................................................... 47
6.11 Requirements of Law.......................................... 47
6.12 Taxes........................................................ 49
6.13 Indemnity.................................................... 53
6.14 Replacement of Lender........................................ 53
SECTION 7. REPRESENTATIONS AND WARRANTIES............................... 54
7.1 Financial Condition.......................................... 54
7.2 No Change.................................................... 55
7.3 Corporate Existence; Compliance with Law..................... 55
7.4 Corporate Authorization; Enforceable Obligations............. 55
7.5 No Legal Bar................................................. 56
7.6 No Material Litigation....................................... 56
7.7 No Default................................................... 56
7.8 Ownership of Property; Liens................................. 57
7.9 Intellectual Property........................................ 57
7.10 No Burdensome Restrictions................................... 57
7.11 Taxes........................................................ 57
7.12 Federal Regulations.......................................... 57
7.13 ERISA........................................................ 58
7.14 Investment Company Act; Other Regulations.................... 58
7.15 Subsidiaries................................................. 58
7.16 Purpose of Loans............................................. 58
7.17 Environmental Matters........................................ 59
7.18 Senior Indebtedness.......................................... 60
7.19 Disclosure................................................... 61
7.20 Collateral Documents......................................... 61
SECTION 8. CONDITIONS PRECEDENT......................................... 62
8.1 Conditions to Effectiveness.................................. 62
8.2 Conditions to Each Extension of Credit....................... 67
SECTION 9. AFFIRMATIVE COVENANTS........................................ 68
9.1 Financial Statements......................................... 68
9.2 Certificates; Other Information.............................. 69
9.3 Payment of Obligations....................................... 70
9.4 Conduct of Business and Maintenance of Existence............. 70
9.5 Maintenance of Property; Insurance........................... 70
(Credit Agreement)
ii
<PAGE>
Page
9.6 Inspection of Property, Books and Records; Discussion........ 70
9.7 Notices...................................................... 71
9.8 Environmental Laws........................................... 72
SECTION 10. NEGATIVE COVENANTS........................................... 72
10.1 Financial Condition Covenants................................ 72
10.2 Limitation on Indebtedness................................... 74
10.3 Limitation on Liens.......................................... 76
10.4 Limitation on Guarantee Obligations.......................... 78
10.5 Limitation on Fundamental Changes............................ 79
10.6 Limitation on Sale of Assets................................. 79
10.7 Limitation on Dividends...................................... 80
10.8 Limitation on Capital Expenditures........................... 81
10.9 Limitation on Investments, Loans and Advances................ 81
10.10 Certain Provisions Relating to Other Debt Instruments........ 82
10.11 Limitation on Transactions with Affiliates................... 83
10.12 Limitation on Sales and Leasebacks........................... 84
10.13 Limitation on Changes in Fiscal Year......................... 84
10.14 Limitation on Negative Pledge Clauses........................ 84
10.15 Amendment of Articles of Incorporation....................... 84
SECTION 11. EVENTS OF DEFAULT............................................ 84
SECTION 12. THE AGENTS................................................... 87
12.1 Appointment.................................................. 87
12.2 Delegation of Duties......................................... 88
12.3 Exculpatory Provisions....................................... 88
12.4 Reliance by Agents........................................... 88
12.5 Notice of Default............................................ 89
12.6 Non-Reliance on Agents and Other Lenders..................... 89
12.7 Indemnification.............................................. 90
12.8 Agent in Its Individual Capacity............................. 90
12.9 Successor Agents............................................. 90
12.10 Intercreditor Agreement and Collateral Documents............. 91
12.11 Other Titles................................................. 92
12.12 Wells Fargo as Issuer of Letters of Credit................... 92
SECTION 13. MISCELLANEOUS................................................ 92
13.1 Amendments and Waivers....................................... 92
13.2 Notices...................................................... 93
13.3 No Waiver; Cumulative Remedies............................... 94
13.4 Survival of Representations and Warranties................... 94
(Credit Agreement)
iii
<PAGE>
13.5 Payment of Expenses and Taxes................................ 95
13.6 Successors and Assigns; Participations and Assignments....... 96
13.7 Adjustments; Set-off......................................... 98
13.8 Release of New Subsidiary Guarantees......................... 99
13.9 Modification of Schedules....................................100
13.10 Counterparts.................................................100
13.11 Severability.................................................100
13.12 Integration..................................................100
13.13 GOVERNING LAW................................................100
13.14 Submission To Jurisdiction; Waivers..........................100
13.15 Acknowledgments..............................................101
13.16 WAIVERS OF JURY TRIAL........................................101
13.17 Confidentiality..............................................101
(Credit Agreement)
iv
<PAGE>
SCHEDULES
1.1 Addresses for Notice, Commitments
3.1 Existing Letters of Credit
6.2 Term A Loan Amortization
7.1 Financial Condition
7.2 No Change
7.5 No Legal Bar
7.6 Material Litigation
7.9 Intellectual Property Claims
7.15 Subsidiaries
7.17 Environmental Matters
7.20 UCC filing jurisdictions
9.8 Environmental Laws
10.2(d) Existing Indebtedness
10.3(f) Existing Liens
10.4(a) Existing Guarantees
10.11 Existing Affiliate Transactions
EXHIBITS
A-1 Working Capital Revolving Credit Note
A-2 Acquisition Revolving Credit Note
A-3 Term A Loan Note
A-4 Swing Line Note
B-1 Borrower Security Agreement
B-2 Borrower Stock Pledge Agreement
B-3 Subsidiary Security Agreement
B-4 Subsidiary Stock Pledge Agreement
C Subsidiary Guarantee
D Borrowing Certificate
E-1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
E-2 Opinion of Cummings & Lockwood
E-3 Opinion of Paul E. Yestrumskas
E-4 Opinion of Amster, Rothstein & Ebenstein
E-5 Opinion of Rosenfeld, Meyer & Susman, LLP
F Assignment and Acceptance
G Swing Line Loan Participation Certificate
H Trademark Subsidiary Agreement
I Intercreditor Agreement
(Credit Agreement)
v
<PAGE>
CREDIT AGREEMENT, dated as of July 21, 1997, is among (a) PLAYTEX
PRODUCTS, INC., a Delaware corporation (the "BORROWER"), (b) the several banks
and other financial institutions from time to time parties to this Agreement
(the "LENDERS"), (c) DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent (in
such capacity, the "SYNDICATION AGENT") and (d) Wells Fargo Bank, N.A. ("WELLS
FARGO"), as agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT").
WHEREAS, the Borrower, the several lenders parties thereto and The
Chase Manhattan Bank, as agent, are parties to a Credit Agreement, dated as of
June 6, 1995 (as amended, supplemented or otherwise modified to the Closing Date
(this and other capitalized terms used in these recitals without definition
being used as defined in subsection 1.1), the "EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrower proposes to prepay all of its outstanding
indebtedness under the Existing Credit Agreement on the Closing Date and
terminate any commitments thereunder; and
WHEREAS, in order to finance (i) the prepayment of approximately
$391,900,000 in aggregate principal amount of existing indebtedness under the
Existing Credit Agreement and accrued and unpaid interest thereon, and (ii) the
payment of up to $10,000,000 in Transaction Costs, the Borrower proposes to
issue the Senior Notes under the Senior Note Indenture for aggregate gross
proceeds of not less than $150,000,000 and borrow Term Loans under the Term Loan
Agreement in an aggregate principal amount of $150,000,000, and the Lenders have
agreed, subject to the terms and conditions set forth herein, to make the Term A
Loans under this Agreement to the Borrower in the aggregate amount of
$55,000,000 and to make the initial Revolving Credit Loans under this Agreement
in the aggregate approximately amount of up to $46,900,000.
NOW THEREFORE, in consideration of the premises, the Borrower, the
Agents and the Lenders agree as follows:
(Credit Agreement)
<PAGE>
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, terms defined in the
preamble or recitals hereto are used as so defined and the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "PRIME RATE" shall mean the rate of interest per
annum publicly announced from time to time by Wells Fargo as its prime
rate in effect at its principal office in San Francisco (the Prime Rate
not being intended to be the lowest rate of interest charged by Wells
Fargo in connection with extensions of credit to debtors); "BASE CD RATE"
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD
Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; "THREE-MONTH SECONDARY CD RATE" shall mean, for any
day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board through the
public information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the week following
such day), or, if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New
York City negotiable certificate of deposit dealers of recognized standing
selected by it; and "FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. Any change in
the ABR due to a change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate, respectively.
"ABR LOANS": Loans the rate of interest applicable to which is based
upon the ABR.
(Credit Agreement)
2
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"ACQUISITION REVOLVING CREDIT COMMITMENT": as to any Lender, the
obligation of such Lender to make Acquisition Revolving Credit Loans to
the Borrower in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on Schedule
1.1 under the heading "Acquisition Revolving Credit Commitment", as such
amount may be reduced from time to time in accordance with the provisions
of this Agreement.
"ACQUISITION REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any
Lender at any time, the percentage which such Lender's Acquisition
Revolving Credit Commitment then constitutes of the aggregate Acquisition
Revolving Credit Commitments (or, at any time after the Acquisition
Revolving Credit Commitments shall have expired or been terminated, the
percentage which the aggregate principal amount of such Lender's
Acquisition Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Acquisition Revolving Credit Loans then
outstanding).
"ACQUISITION REVOLVING CREDIT COMMITMENT PERIOD": the period from
and including the Closing Date to but not including the Acquisition
Revolving Credit Termination Date or such earlier date on which the
Acquisition Revolving Credit Commitments terminate as provided herein.
"ACQUISITION REVOLVING CREDIT LOANS": as defined in subsection 4.1.
"ACQUISITION REVOLVING CREDIT NOTE": as defined in subsection
6.2(e).
"ACQUISITION REVOLVING CREDIT TERMINATION DATE": June 15, 2003.
"ACQUISITION SUBORDINATED INDEBTEDNESS": any unsecured Indebtedness
of the Borrower incurred to finance an acquisition permitted under
subsection 10.9(h): no part of the principal of which is required to be
paid (whether by way of mandatory sinking fund, mandatory redemption,
mandatory prepayment or otherwise) prior to December 31, 2003; the payment
of the principal of and interest on which and other obligations of the
Borrower in respect thereof are subordinated to the prior payment in full
of the principal of and interest (including post-petition interest) on the
Notes and all other obligations and liabilities of the Borrower to the
Agents and the Lenders hereunder on terms and conditions at least as
favorable to the Agents and the Lenders as the Senior Subordinated Notes;
and all the negative covenants and events of default of which are at least
as favorable to the Borrower and to the Agents and the Lenders as the
Senior Subordinated Notes or are otherwise reasonably acceptable to the
Agents and the Required Lenders.
"ADMINISTRATIVE AGENT": as defined in the introduction to this
Agreement and also means and includes any successor administrative agent
appointed pursuant to subsection 12.9.
(Credit Agreement)
3
<PAGE>
"AFFILIATE": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person or, in the case of any
Lender which is an investment fund, any other fund which is managed by the
same investment advisor or an Affiliate thereof; PROVIDED that a Person
shall not be deemed an Affiliate of another Person solely by reason of an
individual serving as an officer or director of such Person. For purposes
of this definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (b)
direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"AGENTS": the Administrative Agent and the Syndication Agent, and
for the purposes of Section 12 only, the Collateral Agent, as applicable.
"AGGREGATE OUTSTANDING WORKING CAPITAL REVOLVING EXTENSIONS OF
CREDIT": as to any Lender at any time, an amount equal to the sum of (a)
the aggregate principal amount of all Working Capital Revolving Credit
Loans made by such Lender then outstanding and (b) such Lender's Working
Capital Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding.
"AGREEMENT": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPAREL NOTES": the Junior Subordinated Notes dated December 28,
1988 issued by the Borrower in the approximate original aggregate
principal amount of $38,350,000, the outstanding principal amount of which
as of March 31, 1997, was approximately $78,400,000, and additional notes
in the form thereof issued in lieu of cash interest, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"APPLICABLE ABR MARGIN": as of any date of determination, a
percentage per annum equal to 0.0%.
"APPLICABLE COMMITMENT FEE PERCENTAGE": as at any date of
determination, a percentage per annum determined by the Funded Debt Ratio
set forth on the most recent Level Determination Certificate as shown
below; PROVIDED that until January 18, 1998, the Applicable Commitment Fee
Percentage shall be deemed to be 0.375% per annum:
(Credit Agreement)
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<PAGE>
Commitment
FUNDED DEBT RATIO FEE PERCENTAGE
Greater than or equal
to 4.5:1.0 0.375%
Less than 4.5:1.0 0.250%
"APPLICABLE EURODOLLAR MARGIN": as of any date of determination, a
percentage per annum determined by the Funded Debt Ratio set forth on the
most recent Level Determination Certificate as shown below; PROVIDED that
until January 18, 1998, the Applicable Eurodollar Margin shall be deemed
to be 1.25% per annum:
Eurodollar
FUNDED DEBT RATIO MARGIN
Greater than or equal
to 5.5:1.0 1.250%
Greater than or equal
to 4.5:1.0, less than 5.5:1.0 1.000%
Less than 4.5:1.0 0.750%
"APPLICATION": an application, in such form as the Issuing Bank may
specify from time to time, requesting the Issuing Bank to open a Letter of
Credit.
"ARRANGER": Donaldson, Lufkin & Jenrette Securities Corporation, as
the arranger of the credit facilities described herein.
"ASSIGNEE": as defined in subsection 13.6(c).
"AVAILABLE ACQUISITION REVOLVING CREDIT COMMITMENT": as to any
Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Lender's Acquisition Revolving Credit Commitment at such
time over (b) such Lender's outstanding Acquisition Revolving Credit
Loans.
"AVAILABLE WORKING CAPITAL REVOLVING CREDIT COMMITMENT": as to any
Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Lender's Working Capital Revolving Credit Commitment at
such time over (b) the sum of (i) such Lender's Aggregate Outstanding
Working Capital Revolving Extensions of Credit and (ii) an amount equal to
such Lender's Working Capital Revolving Credit Commitment Percentage of
the aggregate unpaid principal amount at such time of all Swing Line Loans
(PROVIDED that for
(Credit Agreement)
5
<PAGE>
purposes of calculating Available Working Capital Revolving Credit
Commitments pursuant to subsection 6.1(a) such amount referred to in
clause (ii) shall be zero).
"BANKRUPTCY CODE": Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BOARD": the Board of Governors of the Federal Reserve System (or
any successor thereto).
"BORROWER": as defined in the introduction to this Agreement.
"BORROWER SECURITY AGREEMENT": the Security Agreement to be executed
and delivered by the Borrower, substantially in the form of Exhibit B-1,
as the same may be amended, supplemented or otherwise modified from time
to time.
"BORROWER SECURITY DOCUMENTS": the collective reference to the
Borrower Security Agreement and the Borrower Stock Pledge Agreement.
"BORROWER STOCK PLEDGE AGREEMENT": the Pledge Agreement to be
executed and delivered by the Borrower, substantially in the form of
Exhibit B-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"BORROWING DATE": any Business Day specified in a notice pursuant to
subsection 2.2, 2.4, 4.2 or 5.2 as a date on which the Borrower requests
the Lenders to make Loans hereunder.
"BUSINESS": as defined in subsection 7.17(b).
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or San Francisco are authorized or
required by law to close.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"CASH EQUIVALENTS": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency or instrumentality thereof, (b)
certificates of deposit, time deposits, overnight bank deposits, bankers'
acceptances and repurchase agreements of any commercial bank which has
capital and surplus in excess of $500,000,000 having maturities of one
year or less from the date of acquisition, (c) commercial paper of an
issuer rated at least A-1 by Standard and Poor's
(Credit Agreement)
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<PAGE>
Ratings Group or P-1 by Moody's Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency if both of the
two named rating agencies cease publishing ratings of investments having
maturities of nine months or less from the date of acquisition, (d)
securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States or by any political subdivision or taxing
authority of any such state, commonwealth or territory, the securities of
which state, commonwealth, territory, political subdivision or taxing
authority (as the case may be) are rated at least A by Standard & Poor's
Ratings Group or A by Moody's Investors Services, Inc., (e) securities
with maturities of one year or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition, or (f)
shares of money market accounts or funds which invest only in the types of
securities described in (a) through (e) above.
"C/D ASSESSMENT RATE": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss. 327.3(d) (or any
successor provision) to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation's (or such successor's) insuring time
deposits at offices of such institution in the United States.
"C/D RESERVE PERCENTAGE": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
such Board) in respect of new non-personal time deposits in Dollars having
a maturity of 30 days or more.
"CHANGE OF CONTROL": (i) The failure at any time of the Permitted
Holders collectively to beneficially own and control, directly or
indirectly, 25% of the outstanding Capital Stock having ordinary voting
power in the election of directors of the Borrower, or (ii) any Person or
"group" (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended), other than any such group that includes
the Permitted Holders, (x) shall have acquired beneficial ownership of (A)
Capital Stock of the Borrower representing 33-1/3% or more of the
outstanding Capital Stock having ordinary voting power in the election of
directors of the Borrower and (B) more of such Capital Stock than is owned
by the Permitted Holders, or (y) shall obtain the power (whether or not
exercised) to elect a majority of the members of the Borrower's Board of
Directors.
(Credit Agreement)
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<PAGE>
"CLOSING DATE": the date on which the conditions precedent set forth
in subsection 8.1 shall be satisfied, PROVIDED that such date shall be no
later than August 31, 1997.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document.
"COLLATERAL AGENT": Wells Fargo acting in its capacity as collateral
agent under the applicable Security Documents on behalf of the Lenders and
the Persons party to the Intercreditor Agreement (other than the
Borrower).
"COMMERCIAL LETTER OF CREDIT": as defined in subsection 3.1(b)(i).
"COMMITMENTS": the collective reference to the Revolving Credit
Commitments, the Swing Line Commitment and the Term A Loan Commitments.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"CONSOLIDATED CAPITAL EXPENDITURES": of any Person for any period,
the amount of expenditures of such Person, determined on a consolidated
basis in accordance with GAAP, for such period in respect of the purchase
or other acquisition of fixed or capital assets (excluding (i) any such
asset acquired in connection with normal replacement and maintenance
programs properly charged to current operations, (ii) any such asset
purchased with the net cash proceeds of the sale or disposition of assets
within 12 months after such sale or disposition in accordance with
subsection 10.6(d), (iii) any such asset acquired in connection with a
business acquisition permitted by subsection 10.9(h) or (iv) any
expenditures from the proceeds of casualty insurance used to repair or
replace the assets affected by such casualty loss).
"CONSOLIDATED EBITDA": of any Person for any period, Consolidated
Net Income of such Person for such period PLUS, without duplication and to
the extent reflected as a charge in the statement of such Consolidated Net
Income, the sum of (a) total income and franchise tax expense, (b)
interest expense net of any payments or receipts under any Interest Rate
Agreements, amortization or writeoff of debt discount and debt issuance
costs and commissions and discounts and other fees and charges associated
with Indebtedness, (c) depreciation and amortization expense, (d) the
expenses associated with amortization of intangibles
(Credit Agreement)
8
<PAGE>
(including, but not limited to, goodwill) and organization costs, (e)
writeoff of goodwill and other non cash charges, (f) any extraordinary and
unusual losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income, losses on
the sales of assets outside the ordinary course of business) and (g) any
similar non-cash charges, MINUS any extraordinary and unusual gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income, gains on the sales of assets
outside of the ordinary course of business); PROVIDED, that for purposes
of subsection 10.1(b) and the definition of Funded Debt Ratio only, if a
business acquisition or investment permitted by subsection 10.9(h) occurs
during any period, Consolidated EBITDA of the Borrower for such period
shall include the pro forma Consolidated EBITDA for such period of the
business acquired or investment made after giving effect to management's
reasonable estimate of the performance of such business or investment as
if such business had been acquired or investment made as of the beginning
of such period.
"CONSOLIDATED FUNDED INDEBTEDNESS": of any Person, as of the date of
determination, all Indebtedness hereunder and under the Notes and all
other Indebtedness (other than under any Interest Rate Agreement and, in
the case of the Borrower, the Apparel Notes) of such Person and its
Subsidiaries which other Indebtedness by its terms matures more than one
year after the date of calculation, and any such Indebtedness maturing
within one year from such date which is renewable or extendable at the
option of the obligor to a date more than one year from such date
including, in any event, the Aggregate Outstanding Working Capital
Revolving Extensions of Credit of all Lenders, the outstanding Acquisition
Revolving Credit Loans of all Lenders and the outstanding Swing Line
Loans.
"CONSOLIDATED INTEREST EXPENSE": of any Person for any period, the
amount of interest expense payable in cash (excluding any amounts paid or
payable in additional securities of such Person) net of (i) any payments
or receipts under any Interest Rate Agreements of such Person and (ii) any
consolidated interest income of such Person, determined on a consolidated
basis in accordance with GAAP (but excluding the amortization of deferred
financing costs), for such period on the aggregate principal amount of its
Indebtedness.
"CONSOLIDATED NET INCOME": of any Person for any period, net income
of such Person, determined on a consolidated basis in accordance with
GAAP.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
(Credit Agreement)
9
<PAGE>
"DEFAULT": any of the events specified in Section 11, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"DLJ": as defined in the introduction to this Agreement.
"DOLLARS" and "$": dollars in lawful currency of the United States
of America.
"DOMESTIC SUBSIDIARY": a Subsidiary of the Borrower which is
incorporated in a state of the United States or in the District of
Columbia.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health
(as a result of exposure to Materials of Environmental Concern) or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such system.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the average of the respective rates notified to the Administrative
Agent by each of the Reference Lenders as the rate at which such Reference
Lender is offered Dollar deposits at or about 10:00 A.M., New York City
time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to the amount
of its Eurodollar Loans to be outstanding during such Interest Period.
(Credit Agreement)
10
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"EURODOLLAR LOANS": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
EURODOLLAR BASE RATE
1.00 - Eurocurrency Reserve Requirements
"EURODOLLAR TRANCHE": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"EVENT OF DEFAULT": any of the events specified in Section 11,
PROVIDED that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"EXCESS AMOUNT": as defined in subsection 6.3(h).
"EXISTING CREDIT AGREEMENT": as defined in the recitals to this
Agreement.
"EXISTING LENDERS": as defined in subsection 8.1(p).
"EXISTING LETTERS OF CREDIT": the Letters of Credit described on
Schedule 3.1 issued by the issuing bank under the Existing Credit
Agreement which shall for all purposes of the Loan Documents be deemed to
be Letters of Credit hereunder issued on the Closing Date.
"EXISTING LOAN DOCUMENTS": the "Loan Documents" under the Existing
Credit Agreement.
"EXISTING REVOLVING CREDIT LOANS": the revolving credit loans and
swing line loans outstanding under the Existing Credit Agreement on the
Closing Date.
"EXISTING TERM LOANS": the term loans outstanding under the Existing
Credit Agreement on the Closing Date.
"FACILITY MANAGER": Wells Fargo, in its capacity as facility manager
under the Term Loan Agreement.
(Credit Agreement)
11
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"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"FUNDED DEBT RATIO": with respect to any Test Period, the ratio of
(i) Consolidated Funded Indebtedness of the Borrower on the last day of
such Test Period MINUS (x) up to $30,000,000 in aggregate principal amount
of Working Capital Revolving Credit Loans which constitute seasonal
borrowings outstanding on the last day of such Test Period, as reduced by
the aggregate amount of Unrestricted Cash held by the Borrower on the last
day of such Test Period, MINUS (y) without duplication, the aggregate
amount of Unrestricted Cash held by the Borrower on the last day of such
Test Period to (ii) Consolidated EBITDA for such Test Period.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time or, in the case of
compliance with subsection 10.1, consistent with those utilized in
preparing the audited financial statements referred to in subsection 7.1.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "PRIMARY OBLIGATIONS") of any other third Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such
primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; PROVIDED,
HOWEVER, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and
(Credit Agreement)
12
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(b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for
which such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee Obligation shall
be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"GUARANTEE": the reference to the Subsidiaries Guarantee.
"GUARANTOR": any Person delivering a Guarantee or a supplement
thereto pursuant to this Agreement.
"HW&P": Haas Wheat & Partners Incorporated.
"INDEBTEDNESS": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities and accrued
expenses incurred in the ordinary course of business and payable in
accordance with customary practices), (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases, (d)
all obligations of such Person in respect of banker's acceptances issued
or created for the account of such Person and (e) all liabilities secured
by any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof (it
being understood that Indebtedness shall not include (i) any obligations
under any Interest Rate Agreement and (ii) any Guarantee Obligation). For
purposes of any calculation hereunder, the amount of any Indebtedness
outstanding at any time, except Indebtedness under clause (e) of this
definition, shall be deemed to be equal to the then outstanding principal
amount of such Indebtedness (including, with respect to Financing Leases,
the implied principal amount thereof calculated in accordance with GAAP)
and the amount of any Indebtedness outstanding at any time under clause
(e) of this definition shall be equal to the lesser of (i) the then
outstanding principal amount of, and all accrued and unpaid interest on,
the liability secured by the applicable property and (ii) the then fair
market value of such property.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": as defined in subsection 7.9.
(Credit Agreement)
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"INTERCREDITOR AGREEMENT": the intercreditor agreement dated as of
July 21, 1997, by and among the Borrower, the other Loan Parties, the
Collateral Agent, the Administrative Agent and the Facility Manager,
substantially in the form of Exhibit I annexed hereto, as such
Intercreditor Agreement may hereafter be amended, supplemented or modified
from time to time.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the first day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period and (c) as to
any Eurodollar Loan having an Interest Period longer than three months,
each day which is three months or a whole multiple thereof after the first
day of such Interest Period and the last day of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three, six or nine months (or, if
available, twelve months) thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three, six or nine months (or, if
available, twelve months) thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest
Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period for any Loans that would otherwise
extend beyond the date final payment is due on such Loans shall end
on such date of final payment;
(iii) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which
(Credit Agreement)
14
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there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day
of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"INTEREST RATE AGREEMENT": with respect to any Person, any interest
rate swap agreement, interest rate future, interest rate option, interest
rate cap or other interest rate hedge arrangement, to or under which such
Person is a party or a beneficiary.
"INVESTORS": HWH Capital Partners, L.P., HWH Valentine Partners,
L.P. and HWH Surplus Valentine Partners, L.P.
"ISSUING BANK": Wells Fargo, in its capacity as issuer of any Letter
of Credit.
"JHIRMACK BUSINESS": the assets and liabilities of the Borrower and
its Subsidiaries relating to Jhirmack hair care products, including the
Capital Stock of any Subsidiary, substantially all of the assets and
liabilities of which relate to Jhirmack hair care products.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to subsection
3.4(a).
"L/C PARTICIPANTS": the collective reference to all the Lenders
holding Working Capital Revolving Credit Commitments other than the
Issuing Bank.
"LETTERS OF CREDIT": as defined in subsection 3.1(a).
"LEVEL DETERMINATION CERTIFICATE": a certificate of the chief
financial officer of the Borrower in form and substance satisfactory to
the Agents delivered pursuant to subsection 9.2(c) setting forth in
reasonable detail the Funded Debt Ratio which is applicable as of the date
on which such certificate is delivered.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever which makes
any property or asset available for the payment or performance of any
liability in priority to the payment or performance of ordinary, unsecured
creditors (including, without
(Credit Agreement)
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limitation, any conditional sale or other title retention agreement and
any Financing Lease having substantially the same economic effect as any
of the foregoing).
"LOAN": any loan made by any Lender pursuant to this Agreement.
"LOAN DOCUMENTS": this Agreement, any Notes, the Applications, the
Letters of Credit, the Trademark Subsidiary Agreement, the Guarantee, the
Intercreditor Agreement and the Security Documents.
"LOAN PARTIES": the Borrower and each Subsidiary of the Borrower
which is a party to a Loan Document.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement, any Application or any of
the other Loan Documents or the rights or remedies of the Agents, the
Collateral Agent or the Lenders hereunder or thereunder.
"MATERIAL ASSET SALE": any sale, transfer or other disposition
(including any sale and leaseback of assets) by the Borrower or any of its
Subsidiaries of any property of the Borrower or any such Subsidiary
(including property subject to any Lien under any Security Document),
other than as permitted pursuant to subsection 10.6(a), (b), (c), (d),
(g), (h), (i) (to the extent in excess of $20,000,000 in the aggregate) or
(j).
"MATERIAL ENVIRONMENTAL AMOUNT": an amount payable by the Borrower
and/or its Subsidiaries in excess of $10,000,000 for remedial costs,
compliance costs, compensatory damages, punitive damages, fines, penalties
or any combination thereof.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS": (a) in connection with any Material Asset Sale,
the cash proceeds (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such
(Credit Agreement)
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Material Asset Sale net of all reasonable attorneys' fees, consulting
fees, accountants' fees, investment banking fees, brokerage commissions,
survey costs, title insurance premiums, recording and transfer tax
expense, required debt payments (other than pursuant hereto), amounts
required to be paid to any Person (other than the Borrower and its
Subsidiaries) owning a beneficial interest in the assets subject to such
Material Asset Sale, reasonable amounts to be provided by the Borrower or
any of its Subsidiaries, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Material Asset
Sale and retained by the Borrower or such Subsidiary, as the case may be
(provided, that, if any amount of such reserve shall be released or
reversed, the amount of such release or reversal shall be "Net Cash
Proceeds"), and other customary fees and expenses actually incurred and
satisfactorily documented in connection therewith and net of federal,
state, local and foreign taxes paid or payable as a result thereof and net
of purchase price adjustments reasonably expected to be payable in
connection therewith and (b) in connection with any issuance of any debt
securities or instruments or the incurrence of loans, the cash proceeds
(including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received)
received from such issuance, net of all reasonable investment banking
fees, legal fees, consulting fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses, actually
incurred and satisfactorily documented in connection therewith.
"NEW SUBSIDIARY": any wholly-owned Subsidiary of the Borrower formed
subsequent to May 1, 1995 which (a) is a Guarantor or has become a
Guarantor by means of a supplement to the Guarantee in form and substance
satisfactory to the Agents (unless, in each case, released from such
Guarantee pursuant to subsection 13.8), (b) all of the Capital Stock of
which is pledged to the Collateral Agent, as collateral security for the
Obligations (as defined in the Borrower Pledge Agreement), pursuant to the
Borrower Pledge Agreement or a supplement thereto in form and substance
satisfactory to the Agents and (c) if not in existence on the Closing
Date, has delivered to the Agents such legal opinions, secretary's
certificates, resolutions and other customary documents in connection with
the supplements referred to in (a) and (b) above as the Agents may
reasonably request.
"NON-EXCLUDED TAXES": as defined in subsection 6.12.
"NOTES": the collective reference to the Acquisition Revolving
Credit Notes, the Working Capital Revolving Credit Notes, the Swing Line
Note and the Term A Loan Notes.
"NOTIFYING LENDER": any Lender that gives written irrevocable notice
to the Administrative Agent, on or prior to the date on which such Lender
becomes a
(Credit Agreement)
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party to this Agreement, to the effect that it will not request that any
promissory note be issued to it pursuant to subsection 6.2(e), and any
direct or indirect Assignee of such Lender, in its capacity as such an
Assignee.
"OLD PLAYTEX PRODUCTS SUBORDINATED DEBT": the $105,000,000 in
aggregate principal amount of 15% Subordinated Notes issued by the
Borrower and originally due December 31, 2000, which was redeemed in full
on March 4, 1994.
"PAP": Playtex Apparel Partners, L.P.
"PAP DEBENTURE": the Debentures dated December 28, 1988 issued by
PAP in the original aggregate principal amount of $40,000,000, including
accrued interest thereon, as the same may be amended, supplemented or
otherwise modified from time to time.
"PARTICIPANT": as defined in subsection 13.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
"PERMITTED HOLDERS": each of HW&P and the Investors and any of their
respective Affiliates, and upon a distribution by an Investor of all or
any of the stock of the Borrower, the limited partners of such Investor.
"PERSON": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PROPERTIES": as defined in subsection 7.17(a).
"REFERENCE LENDERS": Wells Fargo and two other Lenders or lenders
under the Term Loan Agreement to be appointed with the consent of the
Agents and the Borrower.
"REFUNDED SWING LINE LOANS": as defined in subsection 2.4(c).
"REGISTER": as defined in subsection 13.6(d).
(Credit Agreement)
18
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"REGISTRATION RIGHTS AGREEMENT": the Registration Rights Agreement,
dated as of July 21, 1997, between the Borrower and the initial purchaser
of the Senior Notes for the benefit of the holders of the Senior Notes.
"REGULATION U": Regulation U of the Board as in effect from time to
time.
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower to
reimburse the Issuing Bank pursuant to subsection 3.4(a) for amounts drawn
under Letters of Credit.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the 30-day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss.
2615.
"REQUIRED LENDERS": at any time, Lenders holding at least 51% of the
sum of (a) the Working Capital Revolving Credit Commitments in effect at
such time (or, if the Working Capital Revolving Credit Commitments have
then terminated or are no longer in effect, the then outstanding principal
amount of the Working Capital Revolving Credit Loans and the then
outstanding participations, or potential participations, in the
outstanding Swing Line Loans (including, in the case of the Swing Line
Lender, its remaining direct interest therein) and in the outstanding L/C
Obligations (including, in the case of the Issuing Bank, its remaining
direct interest therein)) plus (b) the Acquisition Revolving Credit
Commitments in effect at such time (or, if the Acquisition Revolving
Credit Commitments have then terminated or are no longer in effect, the
then outstanding Acquisition Revolving Credit Loans) plus (c) the then
outstanding principal amount of the Term A Loans (or, prior to the Closing
Date, the Term A Loan Commitments).
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"RESPONSIBLE OFFICER": the chief executive officer or the president
of the Borrower or, with respect to financial matters, the chief financial
officer or the vice president-finance of the Borrower.
(Credit Agreement)
19
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"REVOLVING CREDIT COMMITMENTS": as to any Lender at any time, the
reference to such Lender's Acquisition Revolving Credit Commitment or
Working Capital Revolving Credit Commitment or both, as the case may be.
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Lender at any
time, the reference to such Lender's Acquisition Revolving Credit
Commitment Percentage or Working Capital Revolving Credit Commitment
Percentage, as the case may be.
"REVOLVING CREDIT LOANS": as to any Lender at any time, the
reference to such Lender's Acquisition Revolving Credit Loans or Working
Capital Revolving Credit Loans, as the case may be.
"SECURITIES ACT": the Securities Act of 1933, as amended from time
to time, and any successor statute.
"SECURITY DOCUMENTS": the collective reference to the Borrower
Security Agreement, the Stock Pledge Agreements, the Subsidiary Security
Agreements and all other security documents hereafter delivered to the
Collateral Agent granting a Lien on any asset or assets of any Person to
secure the obligations and liabilities of the Borrower hereunder and under
any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities.
"SENIOR NOTE INDENTURE": the Indenture dated as of July 21, 1997 by
and between the Borrower, as issuer, and Marine Midland Bank, as trustee,
as the same may be amended, supplemented or otherwise modified from time
to time, except as prohibited by the terms hereof.
"SENIOR NOTES": the 8 7/8% Senior Notes Due 2004 issued by the
Borrower in the aggregate original amount of $150,000,000 pursuant to the
Senior Note Indenture, together with such new senior notes issued by the
Borrower subsequent to the Closing Date in exchange for any or all of the
Senior Notes pursuant to the terms of the Registration Rights Agreement in
the aggregate principal amount equal to the aggregate principal amount of
the Senior Notes so exchanged, which new senior notes shall be registered
under the Securities Act.
"SENIOR SUBORDINATED INDENTURE": the Indenture dated as of February
2, 1994 between the Borrower, as issuer, and IBJ Schroder Bank & Trust
Company, as trustee, as the same has been and may be amended, supplemented
or otherwise modified from time to time, except as prohibited by the terms
hereof.
"SENIOR SUBORDINATED NOTES": the Senior Subordinated Notes of the
Borrower issued pursuant to the Senior Subordinated Indenture.
(Credit Agreement)
20
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"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"STANDBY LETTER OF CREDIT": as defined in paragraph 3.1(b)(i).
"STOCK PLEDGE AGREEMENTS": the collective reference to the Borrower
Stock Pledge Agreement and the Subsidiary Stock Pledge Agreements.
"STOCK PURCHASE AGREEMENT": the Stock Purchase Agreement, dated as
of March 17, 1995, among the Borrower and the Investors, as amended to the
Closing Date and as the same may be amended, supplemented or otherwise
modified from time to time.
"SUBSIDIARIES GUARANTEE": the Guarantee to be made by the Domestic
Subsidiaries listed as Subsidiary Guarantors on Schedule 7.15,
substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
"SUBSIDIARY": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"SUBSIDIARY SECURITY AGREEMENT": each Subsidiary Security Agreement
to be executed and delivered by each Domestic Subsidiary, in substantially
the form of Exhibit B-3, as the same may be amended, supplemented or
otherwise modified from time to time.
"SUBSIDIARY STOCK PLEDGE AGREEMENT": each Pledge Agreement to be
executed and delivered by each Domestic Subsidiary, substantially in the
form of Exhibit B-4, as the same may be amended, supplemented or otherwise
modified from time to time.
"SWING LINE COMMITMENT": the Swing Line Lender's obligation to make
Swing Line Loans pursuant to subsection 2.4.
"SWING LINE LENDER": Wells Fargo in its capacity as provider of the
Swing Line Loans.
(Credit Agreement)
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"SWING LINE LOAN PARTICIPATION CERTIFICATE": a certificate in
substantially the form of Exhibit G.
"SWING LINE LOANS": as defined in subsection 2.4(a).
"SWING LINE NOTE": as defined in subsection 2.4(b).
"SYNDICATION AGENT": as defined in the introduction to this
Agreement and also means and includes any successor syndication agent
appointed pursuant to subsection 12.9.
"TERM A LOAN": as defined in subsection 5.1.
"TERM A LOAN COMMITMENT": as to any Lender, the obligation of such
Lender to make a Term A Loan to the Borrower on the Closing Date in a
principal amount not to exceed the amount set forth opposite such Lender's
name on Schedule 1.1 under the heading "Term A Loan Commitment".
"TERM A LOAN MATURITY DATE": June 15, 2003.
"TERM A LOAN NOTE": as defined in subsection 6.2(e).
"TERM LOAN AGREEMENT": the Term Loan Agreement dated as of July 21,
1997, by and among the Borrower, the several lenders from time to time
parties thereto, DLJ Capital Funding, Inc., as Syndication Agent, and the
Facility Manager, as the same may be amended, supplemented or otherwise
modified from time to time, except as prohibited by the terms hereof.
"TERM LOANS": the senior secured term loans of the Borrower under
the Term Loan Agreement in the original principal amount of $150,000,000.
"TEST PERIOD": as defined in subsection 10.1(b).
"TRADEMARK SUBSIDIARY AGREEMENT": the Trademark Subsidiary
Agreement, dated the Closing Date, made by the Borrower and Playtex
Marketing Corporation in favor of the Collateral Agent, substantially in
the form of Exhibit H, as the same may be amended, supplemented or
otherwise modified from time to time.
"TRANSACTION COSTS": the fees, costs and expenses paid or payable by
any Loan Party pursuant hereto on the Closing Date and other fees, costs,
premiums and expenses paid or payable by any Loan Party in connection with
the Transactions.
(Credit Agreement)
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"TRANSACTIONS": the transactions contemplated under this Agreement
and the other Loan Documents on the Closing Date, the repayment of the
Borrower's indebtedness under the Existing Credit Agreement, the issuance
of the Senior Notes, the borrowing of the Term Loans and other
transactions related to any of the foregoing.
"TRANSFERABLE ASSETS": as defined in subsection 10.5.
"TRANSFEREE": as defined in subsection 13.6(f).
"TYPE": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"UNRESTRICTED CASH": Cash or Cash Equivalents of Borrower which are
not subject to any Lien or other charge or encumbrance of any kind
whatsoever other than in favor of Collateral Agent pursuant to the
Security Documents.
"WELLS FARGO": as defined in the introduction to this Agreement.
"WORKING CAPITAL REVOLVING CREDIT COMMITMENT": as to any Lender, the
obligation of such Lender to make Working Capital Revolving Credit Loans
to and/or issue or participate in Letters of Credit issued on behalf of
the Borrower hereunder and/or to participate in Swing Line Loans in an
aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule 1.1 under the
heading "Working Capital Revolving Credit Commitment", as such amount may
be reduced from time to time in accordance with the provisions of this
Agreement.
"WORKING CAPITAL REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any
Lender at any time, the percentage which such Lender's Working Capital
Revolving Credit Commitment then constitutes of the aggregate Working
Capital Revolving Credit Commitments (or, at any time after the Working
Capital Revolving Credit Commitments shall have expired or been
terminated, the percentage which the aggregate principal amount of such
Lender's Working Revolving Credit Loans then outstanding constitutes of
the aggregate principal amount of the Working Capital Revolving Credit
Loans then outstanding).
"WORKING CAPITAL REVOLVING CREDIT COMMITMENT PERIOD": the period
from and including the Closing Date to but not including the Working
Capital Revolving Credit Termination Date or such earlier date on which
the Working Capital Revolving Credit Commitments shall terminate as
provided herein.
(Credit Agreement)
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"WORKING CAPITAL REVOLVING CREDIT LOANS": as defined in subsection
2.1.
"WORKING CAPITAL REVOLVING CREDIT NOTE": as defined in subsection
6.2(e).
"WORKING CAPITAL REVOLVING CREDIT TERMINATION DATE": June 15, 2003.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Note or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified and references to Schedules to this Agreement are references
to such Schedules as amended, supplemented, or otherwise modified from time to
time in accordance with the terms hereof.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF WORKING CAPITAL REVOLVING
CREDIT COMMITMENTS
2.1 WORKING CAPITAL REVOLVING CREDIT COMMITMENTS. (a) Subject to the
terms and conditions hereof, each Lender having a Working Capital Revolving
Credit Commitment severally agrees to make revolving credit loans ("WORKING
CAPITAL REVOLVING CREDIT LOANS") to the Borrower from time to time during the
Working Capital Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Working
Capital Revolving Credit Commitment Percentage of the then outstanding L/C
Obligations and Swing Line Loans, does not exceed the amount of such Lender's
Working Capital Revolving Credit Commitment. During the Working Capital
Revolving Credit Commitment Period the Borrower may use the Working Capital
Revolving Credit Commitments by borrowing, prepaying the Working Capital
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b) The Working Capital Revolving Credit Loans may from time to time
be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
(Credit Agreement)
24
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determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.2 and 6.4, PROVIDED that no Working Capital
Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Working Capital Revolving Credit Termination Date.
(c) The proceeds of the Working Capital Revolving Credit Loans shall
be used by the Borrower (i) on the Closing Date, together with other funds
available to the Borrower, including, without limitation, the proceeds of the
Senior Notes, the Term A Loans and the Term Loans, to refinance in full the
Existing Term Loans and any Existing Revolving Credit Loans and to pay the
Transaction Costs in an aggregate amount not exceeding $10,000,000 and (ii)
thereafter to provide for the general corporate requirements of the Borrower and
its Subsidiaries including permitted acquisitions and investments.
2.2 PROCEDURE FOR WORKING CAPITAL REVOLVING CREDIT BORROWING. The
Borrower may borrow under the Working Capital Revolving Credit Commitments
during the Working Capital Revolving Credit Commitment Period on any Business
Day, PROVIDED that the Borrower shall give the Administrative Agent, except as
expressly set forth in subsection 6.8, irrevocable notice (which notice must be
received by the Administrative Agent prior to 1:00 P.M., New York City time, (a)
3 Business Days prior to the requested Borrowing Date, if all or any part of the
requested Working Capital Revolving Credit Loans are to be initially Eurodollar
Loans or (b) one Business Day prior to the requested Borrowing Date, otherwise),
specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Each borrowing
under the Working Capital Revolving Credit Commitments shall be in an amount
equal to (other than Refunded Swing Line Loans) $5,000,000 or a whole multiple
of $1,000,000 in excess thereof (or, if the then aggregate Available Working
Capital Revolving Credit Commitments are less than $5,000,000, such lesser
amount). Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender having a Working Capital Revolving
Credit Commitment thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
the Borrower at the office of the Administrative Agent specified in subsection
13.2 prior to 11:00 A.M., New York City time, on the Borrowing Date requested by
the Borrower in funds immediately available to the Administrative Agent,
PROVIDED that, if the Closing Date is a Borrowing Date, on such date each Lender
shall make such funds available to the Administrative Agent prior to 10:00 A.M.,
New York City time. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office 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.
(Credit Agreement)
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2.3 TERMINATION OR REDUCTION OF WORKING CAPITAL REVOLVING CREDIT
COMMITMENTS. The Borrower shall have the right, upon not less than five Business
Days' notice to the Administrative Agent, to terminate the Working Capital
Revolving Credit Commitments or, from time to time, to reduce the amount of the
Working Capital Revolving Credit Commitments. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple thereof and shall reduce
permanently the Working Capital Revolving Credit Commitments then in effect,
PROVIDED that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Working Capital Revolving
Credit Loans and Swing Line Loans made on the effective date thereof, the
aggregate principal amount of the Working Capital Revolving Credit Loans and
Swing Line Loans then outstanding, when added to the then outstanding L/C
Obligations, would exceed the Working Capital Revolving Credit Commitments then
in effect.
2.4 SWING LINE COMMITMENT. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees to make swing line loans (individually, a
"SWING LINE LOAN"; collectively, the "SWING LINE LOANS") to the Borrower from
time to time during the period from the Closing Date through the fifth Business
Day preceding the Working Capital Revolving Credit Termination Date in an
aggregate principal amount at any one time outstanding not to exceed
$10,000,000, PROVIDED that at no time may the sum of the Swing Line Loans, the
Working Capital Revolving Credit Loans and the outstanding L/C Obligations
exceed the Working Capital Revolving Credit Commitments. During the Working
Capital Revolving Credit Commitment Period, the Borrower may use the Swing Line
Commitment by borrowing, prepaying the Swing Line Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. All Swing
Line Loans shall be made as ABR Loans and shall not be entitled to be converted
into Eurodollar Loans. The Borrower shall give the Swing Line Lender irrevocable
notice (which notice must be received by the Swing Line Lender prior to 1:00
p.m., New York City time) on the requested Borrowing Date specifying the amount
of the requested Swing Line Loan which shall be in an aggregate minimum amount
of $100,000 or a whole multiple thereof (except with respect to deemed Swing
Line Loans under subsection 3.4). The proceeds of the Swing Line Loan will be
made available by the Swing Line Lender to the Borrower at the office of the
Swing Line Lender by 3:00 p.m. on the Borrowing Date by crediting the account of
the Borrower at such office with such proceeds, PROVIDED that, with respect to
deemed Swing Line Loans under subsection 3.4, the Swing Line Lender will
transmit the proceeds of such Swing Line Loans directly to the Issuing Bank. The
Borrower may at any time and from time to time, prepay the Swing Line Loans, in
whole or in part, without premium or penalty, by notifying the Swing Line Lender
prior to 1:00 p.m. on any Business Day of the date and amount of prepayment. If
any such notice is given, the amount specified in such notice shall be due and
payable by 3:00 p.m. on such date on the date specified therein. Partial
prepayments shall be in an aggregate principal amount of $100,000 or a whole
multiple thereof.
(Credit Agreement)
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(b) The Swing Line Loans shall be evidenced by a promissory note of
the Borrower substantially in the form of Exhibit A-4, with appropriate
insertions (the "SWING LINE NOTE"), payable to the order of the Swing Line
Lender and representing the obligation of the Borrower to pay the amount of the
Swing Line Commitment or, if less, the unpaid principal amount of the Swing Line
Loans, with interest thereon as prescribed in subsection 6.6. The Swing Line
Lender is hereby authorized to record the Borrowing Date, the amount of each
Swing Line Loan and the date and amount of each payment or prepayment of
principal thereof, on the schedule annexed to and constituting a part of the
Swing Line Note and any such recordation shall constitute PRIMA FACIE evidence
of the accuracy of the information so recorded, PROVIDED that the failure by the
Swing Line Lender to make any such recordation or any error in any such
recordation shall not affect any of the obligations of the Borrower under such
Swing Line Note or this Agreement. The Swing Line Note shall (i) be dated the
Closing Date, (ii) be stated to mature on the fifth Business Day preceding the
Working Capital Revolving Credit Termination Date and (iii) bear interest for
the period from the date thereof until paid in full on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate per
annum determined as provided in, and payable as specified in, subsection 6.6.
(c) The Swing Line Lender, at any time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swing Line Lender to act on its behalf) request each Lender including the Swing
Line Lender, to make a Working Capital Revolving Credit Loan in an amount equal
to such Lender's Working Capital Revolving Credit Commitment Percentage of the
amount of the Swing Line Loans outstanding on the date such notice is given (the
"REFUNDED SWING LINE LOANS"). Unless any of the events described in paragraph
(f) of Section 11 shall have occurred with respect to the Borrower (in which
event the procedures of paragraph (e) of this subsection 2.4 shall apply) each
Lender shall make the proceeds of its Working Capital Revolving Credit Loan
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent specified in Section 13.2 prior to
12:00 Noon (New York City time) in funds immediately available on the Business
Day next succeeding the date such notice is given. The proceeds of such Working
Capital Revolving Credit Loans shall be immediately applied to repay the
Refunded Swing Line Loans. Effective on the day such Working Capital Revolving
Credit Loans are made, the portion of the Swing Line Loans so paid shall no
longer be outstanding as Swing Line Loans, shall no longer be due under the
Swing Line Note and shall be due under the respective Working Capital Revolving
Credit Notes issued to the Lenders in accordance with their respective Working
Capital Revolving Credit Commitment Percentages. The Borrower authorizes the
Swing Line Lender to charge the Borrower's accounts with the Administrative
Agent (up to the amount available in each such account) in order to immediately
pay the amount of such Refunded Swing Line Loans to the extent amounts received
from the Working Capital Revolving Credit Lenders are not sufficient to repay in
full such Refunded Swing Line Loans. The Swing Line Lender agrees to notify the
Borrower after any such application made by such
(Credit Agreement)
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Swing Line Lender, provided that the failure to give such notice shall not
affect the validity of such application.
(d) Notwithstanding anything herein to the contrary, the Swing Line
Lender shall not be obligated to make any Swing Line Loans if the conditions set
forth in subsection 8.2 have not been satisfied.
(e) If prior to the making of a Working Capital Revolving Credit
Loan pursuant to paragraph (c) of subsection 2.4 one of the events described in
paragraph (f) of Section 11 shall have occurred and be continuing with respect
to the Borrower, each Lender will, on the date such Working Capital Revolving
Credit Loan was to have been made pursuant to the notice in subsection 2.4(c),
purchase an undivided participating interest in the Refunded Swing Line Loans in
an amount equal to (i) its Working Capital Revolving Credit Commitment
Percentage TIMES (ii) the aggregate principal amount of Swing Line Loans then
outstanding which were to have been repaid with such Working Capital Revolving
Credit Loans. Each Lender will immediately transfer to the Swing Line Lender, in
immediately available funds, the amount of its participation, and upon receipt
thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan
Participation Certificate dated the date of receipt of such funds and in such
amount.
(f) Whenever, at any time after any Lender has purchased a
participating interest in a Swing Line Loan, the Swing Line Lender receives any
payment on account thereof, the Swing Line Lender will distribute to such Lender
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded); PROVIDED, HOWEVER, that in
the event that such payment received by the Swing Line Lender is required to be
returned, such Lender will return to the Swing Line Lender any portion thereof
previously distributed by the Swing Line Lender to it.
(g) Each Lender's obligation to make the Loans referred to in
subsection 2.4(c) and to purchase participating interests pursuant to subsection
2.4(e) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender or the Borrower may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower; (iv) any breach of this Agreement or any other Loan Document by
the Borrower, any Subsidiary or any other Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing;
provided no Lender shall have any obligation to make the Loans referred to in
subsection 2.4(c) or to purchase participating interests pursuant to subsection
2.4(e) with respect to Swing Line Loans made at a time when (x) the conditions
in subsection 8.2 are not satisfied and (y) such Lender has notified the Swing
Line Lender that it will not make such Loans or purchase such participations
with
(Credit Agreement)
28
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respect to Swing Line Loans made after the date of such notice due to the
failure of such conditions to be satisfied.
SECTION 3. LETTERS OF CREDIT
3.1 L/C COMMITMENT. (a) Subject to the terms and conditions hereof,
the Issuing Bank, in reliance on the agreements of the other Lenders set forth
in subsection 3.3(a) agrees to issue letters of credit (together with the
Existing Letters of Credit, "LETTERS OF CREDIT") for the account of the Borrower
on any Business Day during the Working Capital Revolving Credit Commitment
Period in such form as may be approved from time to time by the Issuing Bank;
PROVIDED that the Issuing Bank shall not issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed $15,000,000
or (ii) the aggregate Available Working Capital Revolving Credit Commitments of
all Lenders would be less than zero.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars, be in a minimum amount of at
least $20,000 and shall be either (x) a standby letter of credit issued to
support obligations of the Borrower and its Subsidiaries, contingent or
otherwise, not prohibited hereunder (a "STANDBY LETTER OF CREDIT"), or (y)
a commercial letter of credit issued in respect of the purchase of good or
services by the Borrower and its Subsidiaries in the ordinary course of
business (a "COMMERCIAL LETTER OF CREDIT"); and
(ii) expire no later than the earlier of (x) 180 days after
its issuance (or, 365 days in the case of a Standby Letter of Credit) and
(y) the Working Capital Revolving Credit Termination Date; PROVIDED that
the immediately preceding clause (x) shall not prevent the Issuing Bank
from agreeing that a Standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each
unless the Issuing Bank elects not to extend for any such additional
period; PROVIDED FURTHER that the Issuing Bank shall deliver a written
notice to the Administrative Agent setting forth the last day on which the
Issuing Bank may give notice that it will not extend such Standby Letter
of Credit (the "NOTIFICATION DATE") at least ten Business Days prior to
such Notification Date; and PROVIDED FURTHER that the Issuing Bank shall
give notice that it will not extend such Standby Letter of Credit if has
knowledge that an Event of Default has occurred and is continuing on such
Notification Date, unless such Event of Default has been waived in
accordance with subsection 13.1.
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(Credit Agreement)
29
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(d) The Issuing Bank shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower may
from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may request. Upon receipt of any Application, the Issuing Bank will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Bank be required to issue any Letter
of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by the Issuing Bank and
the Borrower. The Issuing Bank shall furnish a copy of such Letter of Credit to
the Borrower promptly following the issuance thereof.
3.3 L/C PARTICIPATIONS. (a) The Issuing Bank irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing Bank
to issue Letters to Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing Bank, on
the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's Working
Capital Revolving Credit Commitment Percentage in the Issuing Bank's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Bank thereunder. Each L/C Participant unconditionally
and irrevocably agrees with the Issuing Bank that, if a draft is paid under any
Letter of Credit for which the Issuing Bank is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to the Issuing Bank upon demand at the Issuing Bank's address for
notices specified herein an amount equal to such L/C Participant's Working
Capital Revolving Credit Commitment Percentage of the amount of such draft, or
any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Bank pursuant to subsection 3.3(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such payment
is due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate (as defined in the definition of ABR in subsection 1.1)
during the period from and including the date such payment is required to the
date on which such payment is immediately available to
(Credit Agreement)
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the Issuing Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to subsection
3.3(a) is not in fact made available to the Issuing Bank by such L/C Participant
within 3 Business Days after the date such payment is due, the Issuing Bank
shall be entitled to recover from such L/C Participant, on demand, such amount
with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans hereunder. A certificate of the Issuing Bank submitted
to any L/C Participant with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.3(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
under the Intercreditor Agreement or otherwise), or any payment of interest on
account thereof, the Issuing Bank will distribute to such L/C Participant its
pro rata share thereof; PROVIDED, HOWEVER, that in the event that any such
payment received by the Issuing Bank shall be required to be returned by the
Issuing Bank, such L/C Participant shall return to the Issuing Bank the portion
thereof previously distributed by the Issuing Bank to it.
3.4 REIMBURSEMENT OBLIGATION OF THE BORROWER. (a) The Borrower
agrees to reimburse the Issuing Bank on each date on which the Issuing Bank
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Bank for the amount of (i) such draft
so paid and (ii) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Bank in connection with such payment. Each such payment shall be
made to the Issuing Bank at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds. Each
drawing honored by the Issuing Bank, to the extent of the availability under the
Swing Line Commitment, shall constitute a request to the Swing Line Lender to
make a Swing Line Loan for the amount of such drawing. Subject to the
satisfaction or waiver of the terms and conditions hereof, the Swing Line Lender
will make a Swing Line Loan in the amount of such drawing on the date thereof.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until payment
in full at the rate which would be payable on any outstanding ABR Loans which
were then overdue.
3.5 OBLIGATIONS ABSOLUTE. (a) The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Bank or any beneficiary of a
Letter of Credit.
(Credit Agreement)
31
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(b) The Borrower also agrees with the Issuing Bank that the Issuing
Bank shall not be responsible for, and the Borrower's Reimbursement Obligations
under subsection 3.4(a) shall not be affected by, among other things, (i) the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or (ii)
any dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred, or
(iii) any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee, or (iv) any inability or failure of the
Swing Line Lender to make a deemed Swing Line Loan pursuant to subsection
3.4(a).
(c) The Issuing Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by the Issuing Bank's gross negligence or willful
misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Bank to the Borrower.
3.6 LETTER OF CREDIT PAYMENTS. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Bank shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing Bank
to the Borrower in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are in conformity with such Letter of Credit.
3.7 APPLICATION. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. AMOUNT AND TERMS OF ACQUISITION REVOLVING
CREDIT COMMITMENTS
4.1 ACQUISITION REVOLVING CREDIT COMMITMENTS. (a) Subject to the
terms and conditions hereof, each Lender having an Acquisition Revolving Credit
Commitment severally agrees to make revolving credit loans ("ACQUISITION
REVOLVING CREDIT LOANS") to the Borrower from time to time during the
Acquisition Revolving Credit Commitment Period in an aggregate principal amount
at any one time
(Credit Agreement)
32
<PAGE>
outstanding which does not exceed the amount of such Lender's Acquisition
Revolving Credit Commitment. During the Acquisition Revolving Credit Commitment
Period the Borrower may use the Acquisition Revolving Credit Commitments by
borrowing, prepaying the Acquisition Revolving Credit Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Acquisition Revolving Credit 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 4.2 and 6.4, PROVIDED that no Acquisition Revolving
Credit Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Acquisition Revolving Credit Termination Date.
(c) The proceeds of the Acquisition Revolving Credit Loans shall be
used by the Borrower to finance permitted acquisitions and investments and to
provide for the general corporate requirements of the Borrower and its
Subsidiaries.
4.2 PROCEDURE FOR ACQUISITION REVOLVING CREDIT BORROWING. The
Borrower may borrow under the Acquisition Revolving Credit Commitments during
the Acquisition Revolving Credit Commitment Period on any Business Day, PROVIDED
that the Borrower shall give the Administrative Agent, except as expressly set
forth in subsection 6.8, irrevocable notice (which notice must be received by
the Administrative Agent prior to 1:00 P.M., New York City time, (a) 3 Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Acquisition Revolving Credit Loans are to be initially Eurodollar Loans or (b)
one Business Day prior to the requested Borrowing Date, otherwise), specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether
the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Acquisition
Revolving Credit Commitments shall be in an amount equal to $5,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the then aggregate
Available Acquisition Revolving Credit Commitments are less than $5,000,000,
such lesser amount). Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender having an Acquisition
Revolving Credit Commitment thereof. Each Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified in
subsection 13.2 prior to 11:00 A.M., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent, PROVIDED that, if the Closing Date is a Borrowing Date, on such date each
Lender shall make such funds available to the Administrative Agent prior to
10:00 A.M., New York City time. Such borrowing will then be made available to
the Borrower by the Administrative Agent crediting the account of the Borrower
on the books of such office with the aggregate of the amounts made available
(Credit Agreement)
33
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to the Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
4.3 TERMINATION OR REDUCTION OF ACQUISITION REVOLVING CREDIT
COMMITMENTS. (a) The Borrower shall have the right, upon not less than five
Business Days' notice to the Administrative Agent, to terminate the Acquisition
Revolving Credit Commitments or, from time to time, to reduce the amount of the
Acquisition Revolving Credit Commitments. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple thereof and shall reduce
permanently the Acquisition Revolving Credit Commitments then in effect,
PROVIDED that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Acquisition Revolving Credit
Loans made on the effective date thereof, the aggregate principal amount of the
Acquisition Revolving Credit Loans would exceed the Acquisition Revolving Credit
Commitments then in effect.
(b) The aggregate Acquisition Revolving Credit Commitments shall be
automatically and permanently reduced on the following dates in the amounts set
forth opposite such dates:
Date of Amount of Aggregate Reduction of
Reduction Acquisition Revolving Credit Commitments
- --------- ----------------------------------------
December 15, 2000 $5,000,000
June 15, 2001 5,000,000
December 15, 2001 7,000,000
June 15, 2002 7,000,000
December 15, 2002 8,000,000
June 15, 2003 8,000,000
SECTION 5. TERM A LOANS
5.1 TERM A LOANS. (a) Subject to the terms and conditions hereof,
each Lender having a Term A Loan Commitment severally agrees to make a tranche A
term loan (a "TERM A LOAN"; collectively, the "TERM A LOANS") to the Borrower on
the Closing Date in an amount not to exceed the amount of the Term A Loan
Commitment of such Lender.
(b) The Term A 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 5.2 and 6.4.
(Credit Agreement)
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(c) The proceeds of the Term A Loans shall be used on the Closing
Date, together with other funds available to the Borrower, including, without
limitation, the proceeds of the Senior Notes, the Term Loans and the Working
Capital Revolving Credit Loans, to refinance in full the Existing Term Loans and
the Existing Revolving Credit Loans and to pay the Transaction Costs in an
aggregate amount not exceeding $10,000,000.
5.2 PROCEDURE FOR TERM A LOAN BORROWING. 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) 3 Business Days
prior to the Closing Date, if all or any part of the Term A Loans are to be
initially Eurodollar Loans, or (b) one Business Day prior to the Closing Date,
otherwise) requesting that the Lenders make the Term A Loans on the Closing Date
and specifying (i) the amount to be borrowed, (ii) whether the Term A Loans are
to be initially Eurodollar Loans, ABR Loans or a combination thereof, and (iii)
if the Term A 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 A Loan
Commitment thereof. Not later than 10:00 A.M. on the Closing Date each Lender
shall make available to the Administrative Agent at its office specified in
subsection 13.2 the amount of such Lender's pro rata share of its Term A Loans
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.
SECTION 6. GENERAL PROVISIONS
6.1 FEES. (a)(i) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender having a Working Capital Revolving Credit
Commitment a commitment fee for the period from and including the Closing Date
to but not including the Working Capital Revolving Credit Commitment Termination
Date, in an amount equal to the average daily amount of the Available Working
Capital Revolving Credit Commitment of such Lender during the period for which
payment is made MULTIPLIED BY, the Applicable Commitment Fee Percentage then in
effect, such commitment fee to be payable quarterly in arrears on the first day
of each March, June, September and December and on the Working Capital Revolving
Credit Commitment Termination Date and (ii) the Borrower agrees to pay to the
Administrative Agent for the account of each Lender having an Acquisition
Revolving Credit Commitment a commitment fee for the period from and including
the Closing Date to but not including the Acquisition Revolving Credit
Commitment Termination Date, in an amount equal to the average daily amount of
the Available Acquisition Revolving Credit Commitment of such Lender during the
period for which payment is made MULTIPLIED BY the Applicable Commitment Fee
Percentage then in effect, such commitment fee to be payable
(Credit Agreement)
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quarterly in arrears on the first day of each March, June, September and
December and on the Acquisition Revolving Credit Commitment Termination Date.
Upon receipt of the Level Determination Certificate by the Agents pursuant to
subsection 9.2(c), the Applicable Commitment Fee Percentage shall automatically
be adjusted in accordance with the Funded Debt Ratio set forth in such Level
Determination Certificate, such adjustment to become effective on the next
succeeding Business Day after the receipt by the Agents of such Level
Determination Certificate; PROVIDED that if a Level Determination Certificate is
not delivered at the time required pursuant to subsection 9.2(c), the Applicable
Commitment Fee Percentage shall be 0.375% per annum from such time until
delivery of such Level Determination Certificate; PROVIDED FURTHER that if a
Level Determination Certificate erroneously indicates margin more favorable to
the Borrower than should be afforded by the actual calculation of the Funded
Debt Ratio, the Borrower shall promptly pay additional interest, commitment fees
and letter of credit fees to correct for such error.
(b) The Borrower agrees to pay to the Administrative Agent (i) for
the account of each L/C Participant and the Issuing Bank a letter of credit fee
on such Lender's Working Capital Revolving Credit Commitment Percentage of the
daily average undrawn amount of each outstanding Letter of Credit, computed at a
rate per annum equal to the Applicable Eurodollar Margin, payable quarterly in
arrears on the first day of each March, June, September and December and on the
Working Capital Revolving Credit Commitment Termination Date, (ii) for the
account of the Issuing Bank a letter of credit fronting fee on the daily average
undrawn amount of each outstanding Letter of Credit, computed at a rate per
annum of .25%, payable quarterly in arrears on the first day of each March,
June, September and December and on the Working Capital Revolving Credit
Commitment Termination Date and (iii) for the account of the Issuing Bank such
normal and customary costs and expenses as are incurred or charged by the
Issuing Bank in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit; PROVIDED that the issuance fee for each
Letter of Credit shall be at least $300.
(c) The Borrower agrees to pay to the Arranger and the Syndication
Agent such other fees in the amounts and at the times as have been separately
agreed upon among the Borrower, the Arranger and the Syndication Agent. After
receipt of such other fees from the Borrower, the Arranger and the Syndication
Agent, as the case may be, agree to pay to each Lender such portion of such
other fees in the amounts and at the times as have been separately agreed upon
in writing among the Arranger, the Syndication Agent and such Lender.
(d) The Borrower agrees to pay to the Administrative Agent for its
own account the annual administrative fee agreed upon by the Administrative
Agent, the Arranger and the Borrower.
6.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each
(Credit Agreement)
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Lender (i) the then unpaid principal amount of each Working Capital Revolving
Credit Loan of such Lender, on the Working Capital Revolving Credit Termination
Date (or such earlier date on which the Working Capital Revolving Credit Loans
become due and payable pursuant to Section 11), (ii) the then unpaid principal
amount of each Acquisition Revolving Credit Loan of such Lender, on the
Acquisition Revolving Credit Termination Date (or such earlier date on which the
Acquisition Revolving Credit Loans become due and payable pursuant to Section
11) and (iii) the principal amount of the Term A Loans of such Lender, in 16
quarterly installments, commencing September 15, 1999, each such installment in
an amount equal to such Lender's pro rata share of the respective amounts set
forth for the Term A Loans in Schedule 6.2 for such installment (or the then
unpaid principal amount of such Term A Loan, on the date that the Term A Loans
become due and payable pursuant to Section 11). The Borrower hereby further
agrees to pay interest on the unpaid principal amount of the Loans from time to
time outstanding from the date hereof until payment in full thereof at the rates
per annum, and on the dates, set forth in subsection 6.6.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain the Register pursuant to subsection 13.6(d), and a
subaccount therein for each Lender, in which shall be recorded (i) the amount of
each Working Capital Revolving Credit Loan, Acquisition Revolving Credit Loan
and Term A Loan made hereunder, the Type thereof and, in the case of Eurodollar
Loans, each Interest Period applicable thereto, (ii) each continuation thereof
and each conversion of all or a portion thereof to another Type, (iii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iv) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 6.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded: PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, as the case may be, or any error therein, shall not in any
manner affect the obligation of the Borrower to repay (with applicable interest)
the Loans made to such Borrower by such Lender in accordance with the terms of
this Agreement.
(e) The Borrower agrees that, upon request to the Administrative
Agent by any Lender (other than a Notifying Lender), the Borrower will execute
and deliver to such Lender (i) a promissory note of the Borrower evidencing the
Working Capital Revolving Credit Loans of such Lender, substantially in the form
of Exhibit A-1, with
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appropriate insertions as to date and principal amount (a "WORKING CAPITAL
REVOLVING CREDIT 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 Working Capital Revolving Credit Commitment of such Lender or, if less, the
aggregate unpaid principal amount of all Working Capital Revolving Credit Loans
of such Lender, with interest on the unpaid principal amount thereof from time
to time outstanding under such Working Capital Revolving Credit Note as set
forth in subsection 6.6, (ii) a promissory note of the Borrower evidencing the
Acquisition Revolving Credit Loans of such Lender, substantially in the form of
Exhibit A-2, with appropriate insertions as to date and principal amount (an
"ACQUISITION REVOLVING CREDIT 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 Acquisition Revolving Credit Commitment of such Lender or, if
less, the aggregate unpaid principal amount of all Acquisition Revolving Credit
Loans of such Lender, with interest on the unpaid principal amount thereof from
time to time outstanding under such Acquisition Revolving Credit Note as set
forth in subsection 6.6 and (iii) a promissory note of the Borrower evidencing
the Term A Loan of such Lender, substantially in the form of Exhibit A-3, with
appropriate insertions as to date and principal amount (a "TERM A 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 A Loan of
such Lender, with interest on the unpaid principal amount thereof from time to
time outstanding under such Term A Loan Note as set forth in subsection 6.6.
Each Lender is hereby authorized to record the date, Type and amount of each
Loan made by such Lender, each continuation thereof, each conversion of all or a
portion thereof to another Type, the date and amount of each payment or
repayment of principal thereof and, in the case of Eurodollar Loans, the length
of each Interest Period with respect thereto, on the schedule annexed to and
constituting a part of any Note requested by it to evidence such Loan, and any
such recordation shall constitute PRIMA FACIE evidence of the accuracy of the
information so recorded, PROVIDED that the failure by any Lender to make any
such recordation or any error in any such recordation shall not affect any of
the obligations of the Borrower.
6.3 OPTIONAL AND MANDATORY PREPAYMENT. (a) The Borrower may at any
time and from time to time prepay the Loans, in whole or in part, without
premium or penalty, upon at least three Business Days' in the case of Eurodollar
Loans, or one Business Day's in the case of ABR Loans, irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof and,
if of a combination thereof, the amount allocable to each. Upon receipt of any
such notice the Administrative Agent shall promptly notify each affected Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any amounts
payable pursuant to subsection 6.13 and, in the case of prepayments of the Term
A Loans only, accrued interest to such date on the amount prepaid. Partial
prepayments of the Term A Loans shall be applied to the remaining installments
of principal thereof in direct order of their scheduled maturities. Amounts
prepaid on account of the Term A Loans may not be reborrowed. Partial voluntary
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prepayments shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.
(b) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall incur any Indebtedness other than any Indebtedness permitted
pursuant to subsection 10.2 as in effect on the Closing Date, 100% of the Net
Cash Proceeds of any such incurrence of Indebtedness shall on the third Business
Day after receipt, be applied toward the prepayment of the Term A Loans and,
from and after December 15, 2000, the permanent reduction of the Acquisition
Revolving Credit Commitments as set forth in subsection 6.3(d).
(c) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Material Asset Sale, such
Net Cash Proceeds shall, on the third Business Day after receipt, be applied, on
a pro rata basis with the Term Loans under the Term Loan Agreement, toward the
prepayment of the Term A Loans and, from and after December 15, 2000, the
permanent reduction of the Acquisition Revolving Credit Commitments as set forth
in subsection 6.3(d). If the Borrower is required to apply any portion of any
Net Cash Proceeds to prepay any Indebtedness evidenced by the Senior
Subordinated Notes, the Senior Notes or the Term Loans (under the terms of the
Senior Subordinated Indenture, the Senior Note Indenture or the Term Loan
Agreement, respectively), then notwithstanding anything contained in this
Agreement to the contrary, the Borrower shall apply such Net Cash Proceeds, on a
pro rata basis with the Term Loans under the Term Loan Agreement, toward the
prepayment of the Term A Loans as provided in this subsection 6.3(c) so as to
eliminate any obligation to prepay such other Indebtedness.
(d) All mandatory prepayments of the Term A Loans and, from and
after December 15, 2000, the permanent reduction of the Acquisition Revolving
Credit Commitments shall be applied to the remaining installments of the Term A
Loans together with, from and after December 15, 2000, the remaining scheduled
reductions of the Acquisition Revolving Credit Commitments equally and within
each such installment and reduction date ratably according to the amounts
thereof. The application of prepayments referred to in the preceding sentence
shall be made first to ABR Loans and second to Eurodollar Loans. Mandatory
prepayments of the Term A Loans may not be reborrowed.
(e) If at any time the sum of the Working Capital Revolving Credit
Loans, Swing Line Loans and the L/C Obligations exceeds the Working Capital
Revolving Credit Commitments, the Borrower shall make a payment in the amount of
such excess which payment shall be applied FIRST, to payment of the Swing Line
Loans then outstanding, SECOND, to payment of the Working Capital Revolving
Credit Loans then outstanding, THIRD, to payment of any Reimbursement
Obligations then outstanding and LAST, to cash collateralize any outstanding
Letter of Credit, such amount to be held by the Collateral Agent in a collateral
account opened by the Collateral Agent under the Intercreditor Agreement.
Amounts held in such cash collateral account shall be applied
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by the Collateral Agent to the payment of drafts drawn under the Letters of
Credit, and the unused portion thereof after all Letters of Credit shall have
expired or been fully drawn upon, if any, shall be applied in accordance with
the Intercreditor Agreement. After all Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other obligations and liabilities under this Agreement shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower. The application of prepayments of Working Capital
Revolving Credit Loans referred to in the first sentence of this subsection
6.3(e) shall be made first to ABR Loans and second to Eurodollar Loans.
(f) If at any time the sum of the Acquisition Revolving Credit Loans
exceeds the Acquisition Revolving Credit Commitments (including, without
limitation, following a reduction in the Acquisition Revolving Credit
Commitments pursuant to subsection 4.3(b) or 6.3(b) or (c)), the Borrower shall
make a payment in the amount of such excess which payment shall be applied to
payment of the Acquisition Revolving Credit Loans then outstanding. The
application of prepayments of Acquisition Revolving Credit Loans referred to in
the preceding sentence shall be made first to ABR Loans and second to Eurodollar
Loans.
(g) On the date which is the earlier of (x) 30 days after the date
on which a "change of control" (as defined in any of the Senior Subordinated
Indenture, the Senior Note Indenture or the Term Loan Agreement) occurs and (y)
the date on which the Borrower shall have offered to repurchase or shall be
required to prepay, as the case may be, the Senior Subordinated Notes, the
Senior Notes or the Term Loans as a result of such change of control, the
Borrower shall (i) prepay in full the Term A Loans, (ii) terminate the Working
Capital Revolving Credit Commitments and Acquisition Revolving Credit
Commitments and prepay in full any Working Capital Revolving Credit Loans,
Acquisition Revolving Credit Loans and Swing Line Loans then outstanding, (iii)
repay any Reimbursement Obligations then outstanding and (iv) cash collateralize
any outstanding L/C Obligations on terms reasonably satisfactory to the
Collateral Agent.
(h) In the event the amount of any prepayment of Loans required to
be made under this subsection 6.3 (other than subsection 6.3(g)) shall exceed
the aggregate principal amount of such Loans which are ABR Loans (the amount of
any such excess being called the "EXCESS AMOUNT"), the Borrower shall have the
right, in lieu of making such prepayment in full, to prepay all such outstanding
ABR Loans when due and to deposit on the date of the required prepayment an
amount equal to the Excess Amount with the Collateral Agent in a cash collateral
account maintained by and in the sole dominion and control of the Collateral
Agent. Any amounts so deposited shall be held by the Collateral Agent as
collateral security for the Obligations (as defined in the Borrower Security
Agreement) and applied to the prepayment of the applicable Eurodollar Loans at
the end of the current Interest Periods applicable thereto. On any Business Day
on which (A) collected amounts remain on deposit in or to the credit of
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such cash collateral account after giving effect to the payments made on such
day pursuant to this subsection 6.3(h) and (B) the Borrower shall have delivered
to the Collateral Agent a written request or a telephonic request (which shall
be promptly confirmed in writing) that such remaining collected amounts be
invested in the Cash Equivalents specified in such request, the Collateral Agent
shall invest such remaining collected amounts in such Cash Equivalents on an
overnight basis; PROVIDED, HOWEVER, that the Collateral Agent shall have
continuous dominion and full control over any such investments (and over any
interest that accrues thereon) to the same extent that it has dominion and
control over such cash collateral account. Any such deposited amounts so
invested (together with any interest thereon) shall be deposited in such cash
collateral account not later then 11:30 a.m. on the next succeeding Business
Day.
6.4 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least one Business Day's prior irrevocable notice of
such election, PROVIDED that any such conversion may only be made on the last
day of an Interest Period with respect thereto. The Borrower may elect from time
to time to convert ABR Loans to Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election.
Any such notice of conversion to Eurodollar Loans shall specify the length of
the initial Interest Period or Interest Periods therefor. Upon receipt of any
such notice the Administrative Agent shall promptly notify each affected Lender
thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may be
converted as provided herein, PROVIDED that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined that such a
conversion is not appropriate and (ii) no Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the date of the final
payment of such class of Loans.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
PROVIDED that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the date of the final payment of
principal of such class of Loans and PROVIDED, FURTHER that if the Borrower
shall fail to give such notice or if such continuation is not permitted such
Loans shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period.
(c) Notwithstanding anything herein to the contrary, no Loan shall
be made as, or converted to, a Eurodollar Loan with an Interest Period longer
than one month prior to 30 days following the Closing Date or such earlier date
as the
(Credit Agreement)
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Administrative Agent shall notify the Borrower that Loans may be made as or
converted to Eurodollar Loans with Interest Periods longer than one month.
6.5 MAXIMUM NUMBER OF INTEREST PERIODS. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be made pursuant to such elections so that, after giving effect
thereto, the aggregate number of Interest Periods in effect shall not exceed
eight.
6.6 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the sum of the Eurodollar Rate determined for such day
plus the Applicable Eurodollar Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the sum of ABR plus the Applicable ABR Margin.
(c) If all or a portion of (i) the principal amount of any Loan or
any Reimbursement Obligation, (ii) any interest payable thereon or (iii) any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection plus 2% or (y) in the case of
overdue interest, commitment fee or other amount, the rate described in
subsection 6.6(b) plus 2%, in each case from the date of such non-payment until
such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to subsection 6.6(c) shall be
payable from time to time on demand.
(e) If any Reference Lender shall resign as such, such Reference
Lender shall thereupon cease to be a Reference Lender, and the Borrower and the
Administrative Agent (after consultation with the Lenders) shall, by notice to
the Lenders, designate another Lender as a Reference Lender so that there shall
at all times be at least two Reference Lenders.
(f) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If a
Reference Lender shall be unable or shall otherwise fail to supply such rates to
the Administrative Agent upon its request, the rate of interest shall be
determined on the basis of the quotations of the remaining Reference Lenders or
Reference Lender.
(g) Upon delivery of the Level Determination Certificate by the
Borrower to the Agents pursuant to subsection 9.2(c), the Applicable Eurodollar
Margin and the Applicable ABR Margin shall automatically be adjusted in
accordance with the
(Credit Agreement)
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Funded Debt Ratio in effect as determined by such Level Determination
Certificate, such adjustment to become effective on the next succeeding Business
Day after the receipt by the Agents of such Level Determination Certificate;
PROVIDED that if a Level Determination Certificate is not delivered at the time
required pursuant to subsection 9.2(c), the Applicable ABR Margin shall be 0.0%
per annum and the Applicable Eurodollar Margin shall be 1.250% per annum, from
such time until delivery of such Level Determination Certificate; PROVIDED
FURTHER that if a Level Determination Certificate erroneously indicates margin
more favorable to the Borrower than should be afforded by the actual calculation
of the Funded Debt Ratio, the Borrower shall promptly pay additional interest,
commitment fees and letter of credit fees to correct for such error.
6.7 COMPUTATION OF INTEREST AND FEES. (a) Whenever the ABR is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 6.6(a) or (b).
6.8 INABILITY TO DETERMINE INTEREST RATE. (a) If prior to the first
day of any Interest Period:
(i) the Administrative Agent shall have determined (which
determination, in the absence of manifest error, shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
(Credit Agreement)
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the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans (PROVIDED that prior to 1:00 p.m. on
the Business Day preceding the first day of such Interest Period the Borrower
may revoke its notice of borrowing, in which case no such Loans shall be made),
(y) any Loans that were to have been converted on the first day of such Interest
Period to Eurodollar Loans shall be converted to or continued as ABR Loans and
(z) any outstanding Eurodollar Loans that were to be continued as such for such
Interest Period, shall be converted on such first day to ABR Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert ABR Loans to Eurodollar Loans. The Administrative Agent agrees to
withdraw any such notice as soon as reasonably practicable after the
Administrative Agent is notified of a change in circumstances which makes such
notice inapplicable.
(b) If prior to the first day of any Interest Period of nine months
or more in length, the Administrative Agent shall have received notice from any
Lender that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lender (as
conclusively certified by such Lender) of making or maintaining its affected
Loans during such Interest Period, the Administrative Agent shall give telecopy
or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. If such notice is given, subject to the provisions
hereof in subsections 2.2 or 4.2 (as the case may be) and 6.4 allowing the
Borrower to select Interest Periods of a different length, (x) any Eurodollar
Loans requested to be made on the first day of such Interest Period shall be
made as ABR Loans (PROVIDED that prior to 1:00 pm. on the Business Day preceding
the first day of such Interest Period the Borrower may revoke its notice of
borrowing, in which case no such Loans shall be made), (y) any Loans that were
to have been converted on the first day of such Interest Period to Eurodollar
Loans for such Interest Period shall be converted to or continued as ABR Loans
and (z) any outstanding Eurodollar Loans that were to be continued as such for
such Interest Period shall be converted, on the first day of such Interest
Period, to ABR Loans. Until such notice has been withdrawn by such Lender (which
each Lender agrees to do when the circumstances that prompted the delivery of
such notice no longer exist), no further Eurodollar Loans having an Interest
Period of nine months or more shall be made or continued as such, nor shall the
Borrower have the right to convert ABR Loans to Eurodollar Loans having an
Interest Period of nine months or more.
6.9 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing of any Loans
by the Borrower from the Lenders hereunder (other than any Swing Line Loans),
and each payment by the Borrower on account of any Working Capital Revolving
Credit Loans or of any Acquisition Revolving Credit Loans or of any Term A Loans
or of any commitment fees hereunder and any reduction of the Working Capital
Revolving Credit Commitments or Acquisition Revolving Credit Commitments of the
Lenders shall be
(Credit Agreement)
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made pro rata according to the respective share of the Lenders in the relevant
Loan or Commitments, as the case may be.
(b) Whenever (i) any payment received by the Administrative Agent
under this Agreement or any Note or (ii) any other amounts received by the
Administrative Agent for or on behalf of the Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee pursuant to
the Intercreditor Agreement) is insufficient to pay in full all amounts then due
and payable to the Agents and the Lenders under this Agreement and under the
other Loan Documents, such payment shall be, subject to the provisions of the
Intercreditor Agreement, distributed by the Administrative Agent and applied by
the Administrative Agent and the Lenders in the following order: FIRST, to the
payment of fees and expenses due and payable to the Agents under and in
connection with this Agreement; SECOND, to the payment of all expenses due and
payable under subsection 13.5, ratably among the Agents and the Lenders in
accordance with the aggregate amount of such payments owed to the Agents and
each such Lender; THIRD, to the payment of fees due and payable under
subsections 6.1(a) and (c), ratably among the Lenders in accordance with the
amounts of such fees due each Lender and, in the case of the Issuing Lender, the
amount retained by the Issuing Lender for its own account pursuant to subsection
6.1(c)(ii); FOURTH, to the payment of interest then due and payable hereunder,
ratably in accordance with the aggregate amount of interest owed to each such
Lender; and FIFTH, to the payment of the principal amount of the Loans and the
L/C Obligations then due and payable and, in the case of proceeds of collateral
or payments under any guarantee, to the payment of any other obligations to any
Lender not covered in First through Fourth above ratably secured by such
collateral or ratably guaranteed under any such guarantee, ratably among the
Lenders in accordance with the aggregate principal amount and, in the case of
proceeds of Collateral or payments under any guarantee, the obligations secured
or guaranteed thereby owed to each such Lender.
(c) If any Lender (a "NON-FUNDING LENDER") has (i) failed to make a
Revolving Credit Loan required to be made by it hereunder, and the
Administrative Agent has determined that such Lender is not likely to make such
Revolving Credit Loan or (ii) given notice to the Administrative Agent with a
copy to the Borrower that it will not make, or that it has disaffirmed or
repudiated any obligation to make, any Revolving Credit Loans, in each case by
reason of the provisions of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 or otherwise, any payment made on account of the
principal of the Revolving Credit Loans outstanding shall be made as follows:
(x) in the case of any such payment made on any date when and
to the extent that, in the determination of the Administrative Agent, the
Borrower would be able, under the terms and conditions hereof, to reborrow
the amount of such payment under the Revolving Credit Commitments and to
satisfy any applicable conditions precedent set forth in Section 8.2 to
such reborrowing, such payment shall be made on account of the outstanding
Revolving Credit Loans
(Credit Agreement)
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held by the Lenders other than the Non-Funding Lender PRO RATA according
to the respective outstanding principal amounts of the Revolving Credit
Loans of such Lenders;
(y) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans PRO RATA according to the respective
Revolving Credit Commitment Percentages; and
(z) any payment made on account of interest on the Revolving
Credit Loans shall be made PRO RATA according to the respective amounts of
accrued and unpaid interest due and payable on the Revolving Credit Loans
with respect to which such payment is being made.
The Borrower agrees to give the Administrative Agent such assistance in making
any determination pursuant to this subsection as the Administrative Agent may
reasonably request. Any such determination by the Administrative Agent shall be
conclusive and binding on the Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Administrative Agent's office specified in
subsection 13.2, in Dollars and in immediately available funds. Any payment
received by the Administrative Agent after such time shall be deemed to have
been received on the next Business Day. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and interest thereon shall be
payable at the then applicable rate during such extension) unless the result of
such extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.
(e) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Revolving Credit or Term A Loan Commitment
Percentage, as applicable, of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing
(Credit Agreement)
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Date therefor, such Lender shall pay to the Administrative Agent, on demand,
such amount with interest thereon at a rate equal to the daily average Federal
Funds Effective Rate (as defined in the definition of ABR in subsection 1.1) for
the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this subsection 6.9 shall be
conclusive in the absence of manifest error. If such Lender's Revolving Credit
or Term A Loan Commitment Percentage, as applicable, of such borrowing is not
made available to the Administrative Agent by such Lender within three Business
Days of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrower.
6.10 ILLEGALITY. (a) Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (i) such Lender shall
promptly after becoming aware thereof notify the Administrative Agent and the
Borrower thereof, (ii) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans to
Eurodollar Loans shall forthwith be cancelled and (iii) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to subsection
6.13. If circumstances subsequently change so that it is no longer unlawful for
an affected Lender to make or maintain Eurodollar Loans as contemplated
hereunder, such Lender will, as soon as reasonably practicable after such Lender
becomes aware of such change in circumstances, notify the Borrower and the
Administrative Agent, and upon receipt of such notice, the obligations of such
Lender to make or continue Eurodollar Loans or to convert ABR Loans into
Eurodollar Loans shall be reinstated.
(b) Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of subsection 6.10(a) with respect to such Lender, it
will, if requested by the Borrower and to the extent permitted by law or by the
relevant Governmental Authority, endeavor in good faith to change the lending
office at which it books its Eurodollar Loans hereunder if such change would
make it lawful for such Lender to continue to make or maintain Eurodollar Loans
as contemplated hereunder, PROVIDED, HOWEVER, that such change can be made in
such a manner that such Lender, in its sole determination, suffers no increased
cost or economic, legal or regulatory disadvantage.
6.11 REQUIREMENTS OF LAW. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any
(Credit Agreement)
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Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 6.12, changes in taxes imposed on
the overall net income of such Lender or changes in franchise taxes
(including branch profit taxes and taxes computed under alternate methods,
at least one of which is computed on overall net income) applicable to
such Lender) (each tax to which this subsection 6.11(a)(i) applies being
referred to as a "COVERED TAX");
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, (A) such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of such
event, (B) such Lender shall promptly deliver to the Administrative Agent and
the Borrower a certificate describing in reasonable detail the change which has
occurred, the net amount of such increased cost to such Lender (to the extent
such cost has not been recovered through a corresponding increase in the
interest rate otherwise chargeable with respect to the Loans) to the date of
such certificate, and the method by which such amount has been calculated, and
(C) the Borrower shall pay to the Administrative Agent for the account of such
Lender, within thirty days after delivery of the certificate referred to in
clause (B) above, such amounts as will compensate such Lender for such increased
cost or reduced amount receivable. Each Lender shall allocate such additional
costs among its customers in good faith and on an equitable basis.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter
(Credit Agreement)
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of Credit to a level below that which such Lender or such corporation could have
achieved but for such change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
Notwithstanding any other provision of this subsection 6.11, no Lender shall
demand compensation for any increased cost or reduction referred to above if it
shall not at the time be the general policy or practice of such Lender to demand
such compensation in similar circumstances under comparable provisions of other
credit agreements, if any.
(c) A certificate as to any additional amounts payable pursuant to
this subsection 6.11 submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
6.12 TAXES. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(collectively, "TAXES"), now or hereafter imposed, levied, collected, withheld
or assessed by any Governmental Authority, excluding (i) Taxes on net income and
franchise Taxes (including without limitation branch profit Taxes, minimum Taxes
and Taxes computed under alternate methods, at least one of which is computed on
net income) imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such Tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement) and any withholding of tax under Section
3406 of the Code or (ii) any Taxes to the extent that they are in effect and
would apply as of the date any person becomes a Transferee, or as of the date
the Lender changes its applicable lending office, to the extent such Taxes
become applicable as a result of such change, other than a change in the
applicable lending office made pursuant to subsection 6.12(e) below. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, PROVIDED,
HOWEVER, that the Borrower shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United
(Credit Agreement)
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States of America or a state thereof if such Lender fails to comply with the
requirements of subsection 6.12(b) or 6.12(c), as the case may be. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt, to the extent such a receipt is received by the
Borrower, or other written proof of payment showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection 6.12(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is a "bank" under Section 881(c)(3)(A) of the
Code and that is not incorporated or organized under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent on or
before the date on which it becomes a Lender (A) two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by such Lender; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred after the date such Lender becomes a
party to this Agreement (in the event of any change in treaty, law or
regulation) and prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Administrative Agent. Such Lender
shall certify (x) in the case of a Form 1001 or 4224 or successor applicable
form, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (y) in
the case of a Form W-8 or W-9 or successor applicable form, that it is entitled
to an exemption from United States backup withholding tax.
(Credit Agreement)
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(c) Each Lender that is not a "bank" under Section 881(c)(3)(A) of
the Code and that is not incorporated or organized under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent on or
before the date on which it becomes a Lender, either (1) (x) a statement
under penalties of perjury that such Lender (A) is not a "bank" under
Section 881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has not been treated
as a bank for purposes of any tax, securities law or other filing or
submission made to any Governmental Authority, any application made to a
rating agency or qualification for any exemption from tax, securities law
or other legal requirements, (B) is not a 10-percent shareholder within
the meaning of Section 881(c)(3)(B) of the Code, (C) is not a controlled
foreign corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code, and (D) is not receiving
payments under this Agreement that are effectively connected with the
conduct of a trade or business within the United States and (y) an
Internal Revenue Service Form W-8 or successor applicable form, or (2) (x)
two duly completed copies of United States Internal Revenue Service Form
4224, or successor applicable form, and (y) Internal Revenue Service Form
W-8 or W-9 as the case may be, or successor applicable form;
(ii) deliver to the Borrower and the Administrative Agent
further copies of said forms, or any successor applicable forms or other
manner of certification on or before the date that any such form or
certification expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent forms and certifications
previously delivered by such Lender, and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may be reasonably requested by
the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred after the date such Lender becomes a
party to this Agreement (in the event of any change in treaty, law or
regulation) and prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Administrative Agent. Such Lender
shall certify in the case of a Form W-8 that it is entitled to an exemption from
United States backup withholding tax and in the case of any other form required
to be delivered pursuant to this subsection 6.12(c) that it is entitled to
receive payments under this Agreement without deduction of any United States
federal income withholding tax or is exempt from United States backup
withholding tax according to the requirements of such form.
(Credit Agreement)
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(d) Each Lender that is incorporated or organized under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent, on
or before the date on which it becomes a Lender, two duly completed copies
of Form W-9 or successor applicable form;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of said Form W-9 or any successor applicable form or other
manner of certification on or before the date that such Form W-9 expires
or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by such Lender; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
law or regulation) has occurred after the date such Lender becomes a party to
this Agreement (in the event of any change in law or regulation) and prior to
the date on which any such delivery would otherwise be required which renders
such form inapplicable or which would prevent such Lender from duly completing
and delivering such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Such Lender shall certify in the case of
such form that it is exempt from United States backup withholding tax according
to the requirements of such form.
(e) Any Lender claiming additional amounts pursuant to subsection
6.11(a)(i) or 6.12 shall use its reasonable efforts (consistent with internal
policy and applicable legal and regulatory restrictions) to take such action, as
requested by the Borrower in writing, including, without limitation, changing
its applicable lending office to another existing office of such Lender, if the
taking of such action would avoid the need for or reduce the amount of any such
additional amounts and would not, in the judgment of such Lender, be otherwise
materially adverse to such Lender.
(f) If the Borrower determines in good faith that a reasonable basis
exists for contesting a Covered Tax or Non-Excluded Tax, the relevant Lender or
the Administrative Agent, as applicable, shall cooperate with the Borrower in
challenging such Covered Tax or Non-Excluded Tax at the Borrower's expense if
requested by the Borrower (it being understood and agreed that neither the
Administrative Agent nor any Lender shall have any obligation to contest, or any
responsibility for contesting, any Covered Tax or Non-Excluded Tax). If any
Lender or the Administrative Agent, as applicable, receives a refund (whether by
way of a direct payment or by offset) of any Covered Tax or Non-Excluded Tax for
which a payment has been made pursuant to subsections 6.11(a)(i) or 6.12 or
claims any credit or other tax benefit as a result of the payment of such
Covered Tax or Non-Excluded Tax by the Borrower, which refund or
(Credit Agreement)
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credit in the good faith judgment of such Lender or the Administrative Agent, as
the case may be, is allocable to such payment made under subsections 6.11(a)(i)
or 6.12, the amount of such refund or credit (together with any interest
received thereon) shall be paid to the Borrower to the extent payment has been
made in full by the Borrower pursuant to subsections 6.11(a)(i) or 6.12.
(g) Each Person that shall become a Lender or a Participant pursuant
to subsection 13.6 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms and statements required pursuant to this
subsection 6.12, provided that in the case of a Participant such Participant
shall furnish all such required forms and statements to the Lender from which
the related participation shall have been purchased.
6.13 INDEMNITY. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Eurodollar Margin or Applicable
ABR Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
6.14 REPLACEMENT OF LENDER. If the Borrower becomes obligated to pay
additional amounts described in subsections 6.10, 6.11 or 6.12 as a result of
any condition described in such subsections and payment of such amount is
demanded by any Lender, then the Borrower may, on ten Business Days' prior
written notice to the Administrative Agent and such Lender, cause such Lender to
(and such Lender shall) assign pursuant to subsection 13.6(c) all of its rights
and obligations under this Agreement to a Lender or other entity selected by the
Borrower for a purchase price equal to the outstanding principal amount of such
Lender's Loans and all accrued interest and fees and losses and expenses of the
types referred to in subsection 6.13 and all other amounts due to such Lender
hereunder, PROVIDED that in no event shall the assigning Lender be required to
(Credit Agreement)
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pay or surrender to such purchasing Lender or other entity any of the fees
received by such assigning Lender pursuant to this Agreement; PROVIDED, FURTHER,
that such assigning Lender shall continue to be entitled to the benefits of
subsection 13.5 hereof.
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans and issue or participate in the Letters of Credit, the
Borrower hereby represents and warrants to the Agents and each Lender that:
7.1 FINANCIAL CONDITION. (a) The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 28, 1996 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by KPMG Peat Marwick LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at March 29, 1997 and June 28, 1997 and the related unaudited consolidated
statements of income and of cash flows for the three-month period ended on each
such date, in each case certified by a Responsible Officer, copies of which have
heretofore been furnished to the Agents, present fairly in all material respects
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such dates, and the consolidated results of their operations
and their consolidated cash flows for the three-month periods then ended
(subject to changes resulting from audit and normal year-end adjustments).
(b) The unaudited PRO FORMA consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of March 29, 1997 after giving
effect to the borrowing of Loans under this Agreement on the Closing Date, the
issuance of the Senior Notes, the borrowing of the Term Loans and other
Transactions to be consummated on or prior to the Closing Date, certified by a
Responsible Officer, copies of which have heretofore been furnished to the
Agents, presents fairly in all material respects on a PRO FORMA basis the
estimated financial position of the Borrower and its consolidated Subsidiaries
as at such date, after giving effect to such events as if such events had
occurred on such date.
(c) All such financial statements referred to in subsection 7.1(a),
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants or Responsible Officer, as the case may
be, and as disclosed therein).
(d) Except as set forth on Schedule 7.1, neither the Borrower nor
any of its consolidated Subsidiaries had, at June 28, 1997, any Guarantee
Obligation, contingent
(Credit Agreement)
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liability or liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto and which would be reasonably
likely to have a Material Adverse Effect. Except as set forth on Schedule 7.1,
during the period from December 28, 1996 to and including the Closing Date there
has been no sale, transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person other than a New Subsidiary) material in
relation to the consolidated financial condition of the Borrower and its
consolidated Subsidiaries at December 28, 1996.
7.2 NO CHANGE. Except as set forth on Schedule 7.2, since December
28, 1996 (a) there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect and (b) no dividends or
other distributions have been declared, paid or made upon the Capital Stock of
the Borrower nor has any of the Capital Stock of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any of its
Subsidiaries.
7.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Borrower
and its Subsidiaries (other than Inter Stretch Ltd.) (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the failure to be
so qualified and in good standing would not be reasonably likely to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.4 CORPORATE AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Borrower
and each of its Subsidiaries has the corporate power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which it is a
party. The Borrower has the corporate power and authority, and the legal right,
to borrow hereunder and has taken all necessary corporate action to authorize
the borrowings on the terms and conditions of this Agreement and any Notes. The
Borrower and each of its Subsidiaries has taken all necessary corporate action
to authorize the execution, delivery and performance of the Loan Documents to
which it is a party. 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 hereunder or in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which the Borrower or any of its Subsidiaries is a party or the
consummation of the Transactions other than (i) any filings required in order to
perfect
(Credit Agreement)
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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. This Agreement has been duly executed and
delivered on behalf of the Borrower. Each Loan Document to which the Borrower or
any of its Subsidiaries is a party has been duly executed and delivered on
behalf of each such Loan Party. This Agreement and each other Loan Document to
which it is a party constitutes a legal, valid and binding obligation of the
Borrower enforceable against the Borrower 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. Each Loan Document to which any
of the Subsidiaries is a party constitutes a legal, valid and binding obligation
of such Subsidiary enforceable against it 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.
7.5 NO LEGAL BAR. Except as set forth on Schedule 7.5, the
execution, delivery and performance of the Loan Documents to which the Borrower
or any of its Subsidiaries is a party, the borrowings hereunder and the use of
the proceeds thereof and the consummation of the Transactions will not violate
any Requirement of Law or Contractual Obligation of 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).
7.6 NO MATERIAL LITIGATION. Except as set forth on Schedule 7.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to any of the
Loan Documents, the Senior Note Indenture, the Term Loan Agreement or the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
7.7 NO DEFAULT. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
(Credit Agreement)
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7.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold or subleasehold interest in, all its other property (other than
Intellectual Property), and none of such property is subject to any Lien except
as permitted by subsection 10.3.
7.9 INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "INTELLECTUAL
PROPERTY"). Except as set forth on Schedule 7.9, no claim has been asserted and
is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Borrower know of any valid basis for any such claim
which, in either case, could reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule 7.9, the use of such Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
7.10 NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
7.11 TAXES. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all material tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all material taxes shown to be
due and payable on said returns or on any assessments made against it or any of
its property and all other material taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority that if not filed or paid,
as the case may be, could reasonably be expected to have a Material Adverse
Effect (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower
or its Subsidiaries, as the case may be); no tax Lien has been filed that could
reasonably be expected to have a Material Adverse Effect, and, to the knowledge
of the Borrower, no claim is being asserted, with respect to any such tax, fee
or other charge.
7.12 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used (i) for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U if such use
would result in a violation of Regulation U, (ii) in any manner which would
violate the provisions of Regulation G, T, U or X of the Board or (iii) to
finance the acquisition of any "margin stock" in connection with a tender offer
for such stock which has not been approved by the board of directors of the
issuer of such stock. If requested by any Lender or the Administrative
(Credit Agreement)
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Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in said Regulation U.
7.13 ERISA. No "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred with respect to
any Plan that remains outstanding in any respect and that could reasonably be
expected to have a Material Adverse Effect. No Reportable Event has occurred,
each Plan has complied in all respects with the applicable provisions of ERISA
and the Code and no termination of a Single Employer Plan has occurred except
where such Reportable Event, noncompliance or termination could not reasonably
be expected to have a Material Adverse Effect. No Lien in favor of the PBGC or a
Plan has arisen that remains outstanding in any respect. The present value of
all accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits, except where any
such excess could not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, neither the Borrower nor any
Commonly Controlled Entity would become subject to any liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made, and no such
Multiemployer Plan is in Reorganization or is Insolvent, except in each instance
where such withdrawal, liability, Reorganization or Insolvency could not
reasonably be expected to have a Material Adverse Effect.
7.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. The Borrower is not subject to regulation under any Federal or
State statute or regulation which limits its ability to incur Indebtedness.
7.15 SUBSIDIARIES. All of the Subsidiaries of the Borrower at the
date hereof are set forth on Schedule 7.15. All Subsidiaries of the Borrower
which have guaranteed the Senior Notes or the Senior Subordinated Notes are
parties to the Guarantee.
7.16 PURPOSE OF LOANS. (a) The proceeds of the Term A Loans shall be
used on the Closing Date, together with other funds available to the Borrower,
including, without limitation, the proceeds of the Senior Notes, the Term Loans
and the Revolving Credit Loans, to refinance in full the Existing Revolving
Credit Loans and Existing Term Loans and to pay the Transaction Costs in an
aggregate amount not exceeding $10,000,000.
(Credit Agreement)
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(b) The proceeds of the Working Capital Revolving Credit Loans shall
be used by the Borrower (i) on the Closing Date, together with other funds
available to the Borrower, including, without limitation, the proceeds of the
Senior Notes, the Term A Loans and the Term Loans, to refinance in full the
Existing Revolving Credit Loans and Existing Term Loans and to pay the
Transaction Costs in an aggregate amount not exceeding $10,000,000 and (ii)
thereafter to provide for the general corporate requirements of the Borrower and
its Subsidiaries including permitted acquisitions and investments.
(c) The proceeds of the Acquisition Revolving Credit Loans shall be
used by the Borrower to finance permitted acquisitions and investments and to
provide for the general corporate requirements of the Borrower and its
Subsidiaries.
7.17 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 7.17:
(a) To the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower or any of its
Subsidiaries (the "PROPERTIES") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii)
could reasonably be expected to give rise to liability under, any
applicable Environmental Law except in either case insofar as such
violation or liability, or any aggregation thereof, is not reasonably
likely to result in the payment of a Material Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance, and have in the last 5
years been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any applicable Environmental Law with respect
to the Properties or the business operated by the Borrower or any of its
Subsidiaries (the "BUSINESS") except in either case with respect to any
instances of non-compliance or violation which individually or in the
aggregate would not be reasonably likely to result in the payment of a
Material Environmental Amount.
(c) Neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened except insofar as such
notice or threatened notice, or any aggregation thereof, does not involve
a matter or matters that is or are reasonably likely to result in the
payment of a Material Environmental Amount.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation
(Credit Agreement)
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of, or in a manner or to a location which could reasonably be expected to
give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or
disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability under,
any applicable Environmental Law except insofar as any such violation or
liability referred to in this subsection, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
(e) No judicial or governmental or administrative action is pending
or, to the knowledge of the Borrower, threatened, under any Environmental
Law to which the Borrower or any Subsidiary is or, to the knowledge of the
Borrower, will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business except insofar as such proceeding,
action, decree, order or other requirement, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
(f) To the best knowledge of the Borrower, there has been no release
of Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, violation of or in amounts or in a manner that could
reasonably give rise to liability to the Borrower or its Subsidiaries
under applicable Environmental Laws except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
7.18 SENIOR INDEBTEDNESS. The obligations of the Borrower under this
Agreement and the Loan Documents constitute "Senior Indebtedness" and
"Designated Senior Indebtedness", as such terms are defined in the Senior
Subordinated Indenture; and the obligations of the Borrower under the Apparel
Notes are subordinated in right of payment to all amounts payable by the
Borrower under this Agreement and the Loan Documents and under any refinancing
of such amounts (unless such refinancing is not entitled to be "Senior Debt" as
such term is defined in the Indenture relating to the Old Playtex Products
Subordinated Debt). This Agreement constitutes a "Credit Agreement" as defined
in the Senior Subordinated Indenture, including without limitation for purposes
of clauses (i) and (ii) of the definition of "Permitted Indebtedness" and the
definitions of "Senior Indebtedness" and "Designated Senior Indebtedness"; and
the security granted by the Borrower's Subsidiaries to the Collateral Agent for
the benefit of the Lenders under the Security Documents constitutes either
security permitted to be granted by Subsidiaries for purposes of clause
(c)(y)(1)(B) of Section 1013 of the Senior Subordinated Indenture or a
refinancing of permitted Liens pursuant to clauses (ii) and
(Credit Agreement)
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(xiii) of the definition of "Permitted Indebtedness" under the Senior
Subordinated Indenture, and the Guarantee executed by the Borrower's
Subsidiaries constitutes either guarantees permitted to be granted by
Subsidiaries for purposes of clause (c)(y)(2)(iv) of Section 1013 of the Senior
Subordinated Indenture or a refinancing of permitted guarantees pursuant to
clauses (ii) and (xiii) of the definition of "Permitted Indebtedness" under the
Senior Subordinated Indenture. This Agreement constitutes a "Credit Agreement"
as defined in the Senior Note Indenture, including without limitation for
purposes of clauses (i) and (ii) of the definition of "Permitted Indebtedness"
and clause (i) of the definition of "Permitted Liens" and the Guarantee and the
Liens granted by the Borrower's Subsidiaries in favor of the Collateral Agent
for the benefit of the Lenders constitute permitted guarantees and Liens under
clause (ii) of the definition of "Permitted Indebtedness" under the Senior Note
Indenture.
7.19 DISCLOSURE. No statement or information (other than projections
and PRO FORMA financial information) contained in this Agreement, any other Loan
Document, the Offering Memorandum relating to the Senior Notes or any other
document, certificate or written statement furnished to the Agents or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or any other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Offering Memorandum, as of
the Closing Date) any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
materially misleading. The projections and PRO FORMA financial information
contained in the materials referenced above were prepared in good faith, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth thereto by a material amount. As of the Closing
Date, there is no fact known to any Loan Party and not previously disclosed to
the Agents and the Lenders in writing prior to the date hereof (other than
general economic conditions, which conditions are commonly known and affect
businesses generally) which has, or which could reasonably be expected to have,
in the reasonable judgment of such Loan Party, a Material Adverse Effect.
7.20 COLLATERAL DOCUMENTS. Each of the Security Documents is
effective to create in favor of the Collateral Agent for the ratable benefit of
the Lenders and the lenders under the Term Loan Agreement, a legal, valid and
enforceable security interest in the Collateral described therein and when (i)
UCC financing statements have been filed in the offices listed on Schedule 7.20,
(ii) the Borrower Security Agreement and the Subsidiary Security Agreement have
been filed with the United States Patent and Trademark Office, (iii) the
Collateral Agent has possession of all Pledged Stock (as defined in the Pledge
Agreements) and (iv) the Existing Credit Agreement, the other Existing Loan
Documents and all filings made in connection therewith have been duly
terminated, such security interests will (except with respect to Inventory
located outside of the United States) constitute perfected liens on, and
security interests in, all right, title
(Credit Agreement)
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and interest of the Loan Party party thereto in the Collateral described
therein, subject only to Liens permitted to exist pursuant to this Agreement.
SECTION 8. CONDITIONS PRECEDENT
8.1 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
and the agreement of each Lender to make the initial Loans requested to be made
by it is subject to the satisfaction, immediately prior to or substantially
concurrently with the making of such Loan on the Closing Date, of the following
conditions precedent:
(a) LOAN DOCUMENTS AND RELATED DOCUMENTS. The Syndication Agent
shall have received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each Lender,
(ii) the Senior Note Indenture, executed and delivered by a duly
authorized officer of the Borrower, (iii) the Term Loan Agreement,
executed by a duly authorized officer of the Borrower, (iv) the Guarantee,
executed and delivered by a duly authorized officer of each Domestic
Subsidiary, (v) the Subsidiary Security Agreements executed and delivered
by a duly authorized officer of each Domestic Subsidiary, (vi) the
Subsidiary Stock Pledge Agreements executed by a duly authorized officer
of each Domestic Subsidiary, together with an Acknowledgment and Consent
thereto executed by a duly authorized officer of the Issuer (as defined
therein), (vii) the Borrower Security Agreement, executed by a duly
authorized officer of the Borrower, (viii) the Borrower Stock Pledge
Agreement, executed by a duly authorized officer of the Borrower, together
with an Acknowledgment and Consent thereto executed by a duly authorized
officer of Playtex Beauty Care, Inc., Playtex Investment Corp., Playtex
International Corp., Playtex Manufacturing, Inc., Playtex Sales &
Services, Inc., Smile Tote, Inc., Sun Pharmaceuticals Corp. and TH
Marketing Corp., (ix) the Trademark Subsidiary Agreement, executed and
delivered by a duly authorized officer of each party thereto, (x) the
Intercreditor Agreement, executed and delivered by a duly authorized
officer of each party thereto, and (xi) for each Lender requesting the
same pursuant to subsection 6.2(e), its Notes executed by a duly
authorized officer of the Borrower.
(b) EXISTING RELATED AGREEMENTS. The Syndication Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Borrower, of the Trademark Licenses (as defined
in the Borrower Security Agreement), the Apparel Notes and such other
documents or instruments as may be reasonably requested by any Agent,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which the Borrower, or its
Subsidiaries may be a party.
(c) BORROWING CERTIFICATE. The Syndication Agent shall have received
a certificate of the Borrower, dated the Closing Date, substantially in
the form of Exhibit D, with appropriate insertions and attachments,
satisfactory in form and
(Credit Agreement)
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substance to the Syndication Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Borrower.
(d) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. The Syndication Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Syndication Agent, of the Board of Directors of each
Loan Party authorizing (i) the execution, delivery and performance of the
Loan Documents to which it is a party, (ii) in the case of the Borrower,
the borrowings contemplated hereunder and (iii) the granting by it of the
Liens created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of such Loan Party as
of the Closing Date, which certificate shall be in form and substance
reasonably satisfactory to the Syndication Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(e) INCUMBENCY CERTIFICATES. The Syndication Agent shall have
received a certificate of each Loan Party, dated the Closing Date, as to
the incumbency and signature of the officers of such Loan Party executing
any Loan Document on the Closing Date, satisfactory in form and substance
to the Syndication Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of such Loan Party.
(f) CORPORATE DOCUMENTS. The Syndication Agent shall have received
true and complete copies of the certificate of incorporation and by-laws
of each Loan Party, certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary of such
Loan Party.
(g) CONSENTS, AUTHORIZATIONS AND FILINGS. The Syndication Agent
shall have received a certificate of a Responsible Officer of the Borrower
(i) attaching copies of all consents, authorizations and filings referred
to in subsection 7.4, and (ii) stating that such consents, authorizations
and filings are in full force and effect, and each such consent,
authorization and filing shall be in form and substance reasonably
satisfactory to the Syndication Agent.
(h) FEES AND EXPENSES. The Agents, the Arranger and the Lenders
shall have received the fees and expenses required to be received by it on
the Closing Date referred to in subsection 6.1.
(i) LEGAL OPINIONS. The Syndication Agent shall have received,
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Paul, Weiss, Rifkind,
Wharton & Garrison, counsel to the Borrower and the other Loan
Parties, substantially in the form of Exhibit E-1 and the executed
legal opinions of Paul, Weiss, Rifkind, Wharton & Garrison, with
respect to each of (1) the
(Credit Agreement)
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Senior Notes and the Senior Note Indenture and (2) the Term Loans
and the Term Loan Agreement, together with a reliance letter
authorizing the Administrative Agent, the Syndication Agent and the
Lenders to rely on such opinions as though addressed to them;
(ii) the executed legal opinion of Cummings and Lockwood,
L.P., special local counsel to the Borrower, substantially in the
form of Exhibit E-2;
(iii) the executed legal opinion of Paul E. Yestrumskas,
General Counsel of the Borrower, substantially in the form of
Exhibit E-3;
(iv) the executed legal opinion of Amster, Rothstein &
Ebenstein, special counsel to the Borrower with respect to
intellectual property matters, substantially in the form of Exhibit
E-4; and
(v) the executed legal opinion of Rosenfeld, Meyer & Susman,
LLP, special local counsel to Smile Tote, Inc., substantially in the
form of Exhibit E-5.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Syndication Agent may
reasonably require.
(j) PLEDGED STOCK; STOCK POWERS. The Syndication Agent shall have
received stock certificates for each share of Capital Stock pledged
pursuant to the Borrower Pledge Agreement and pursuant to the Subsidiary
Stock Pledge Agreements, together with a blank undated stock power for
each such certificate signed by the pledgor of such certificate.
(k) ACTIONS TO PERFECT LIENS. The Syndication Agent shall have
received (i) UCC-1 Financing Statements in form and substance satisfactory
to the Syndication Agent and the Arranger for each jurisdiction listed on
Schedule III to the Borrower Security Agreement and Schedule III to the
Subsidiary Security Agreement and all other agreements, documents and
instruments that may be necessary or desirable in order to create in favor
of the Collateral Agent, for the benefit of the Lenders, a valid and
perfected first priority security interest in the Collateral, and (ii)
UCC-3 Termination Statements in respect of each UCC-I Financing Statement
filed with respect to collateral securing the Existing Credit Agreement or
any guaranty obligations in connection therewith and any other agreements,
documents and instruments that may be necessary to terminate the security
interest granted to the agent under the Existing Credit Agreement
(including, without limitation, any termination statements to be filed
with the U.S.
Patent and Trademark Office).
(Credit Agreement)
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(l) LIEN SEARCHES. The Syndication Agent shall have received the
results of a recent search by a Person satisfactory to the Syndication
Agent of Uniform Commercial Code filings which may have been filed with
respect to personal property of the Borrower and its material domestic
Subsidiaries, and the results of such search shall be satisfactory to the
Syndication Agent.
(m) INSURANCE. The Syndication Agent shall have received evidence in
form and substance satisfactory to it that all of the requirements of
subsection 9.5 shall have been satisfied.
(n) ISSUANCE OF SENIOR NOTES AND THE BORROWING OF TERM LOANS. (1) On
or prior to the Closing Date, (a) the Borrower and the other parties
thereto shall have executed and delivered the Senior Notes and the Senior
Note Indenture, in each case all of the terms and conditions (including
without limitation with respect to interest rates, amortization, maturity,
representations and warranties, covenants, remedies and events of default)
of which, and all of the exhibits of which, shall be in form and substance
satisfactory to the Syndication Agent and the Arranger, (b) all conditions
precedent to the issuance of the Senior Notes shall have been satisfied
or, with the consent of the Syndication Agent and the Arranger, waived,
(c) the Senior Notes shall have been issued under the Senior Note
Indenture in an aggregate principal amount of $150,000,000 and (d) the
Borrower shall have received gross proceeds from the issuance thereof in
an aggregate amount equal to $150,000,000. The Borrower shall have
delivered to the Syndication Agent a fully executed or conformed copy of
the Senior Note Indenture (including all exhibits and schedules thereto)
and a specimen copy of the Senior Notes.
(2) On or prior to the Closing Date, (a) the Borrower and the other
parties thereto shall have executed and delivered the Term Loan Agreement,
the promissory notes evidencing the Term Loans and the Intercreditor
Agreement, in each case all of the terms and conditions (including without
limitation with respect to interest rates, amortization, maturity,
representations and warranties, covenants, remedies and events of default)
of which, and all of the exhibits of which, shall be in form and substance
satisfactory to the Syndication Agent and the Arranger, (b) all conditions
precedent to the borrowing of the Term Loans shall have been satisfied or,
with the consent of the Syndication Agent and the Arranger, waived and (c)
the Borrower shall have received gross proceeds from the borrowing of the
Term Loans under the Term Loan Agreement in an aggregate amount equal to
$150,000,000. The Borrower shall have delivered to the Syndication Agent a
fully executed or conformed copy of the Term Loan Agreement (including all
exhibits and schedules thereto), copies of the promissory notes evidencing
the Term Loans and the Intercreditor Agreement.
(o) TRANSACTION COSTS. The Transaction Costs shall not exceed
$10,000,000.
(Credit Agreement)
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(p) REFINANCING OF EXISTING LOANS. The Syndication Agent shall have
received evidence satisfactory to it that (i) all Existing Revolving
Credit Loans and Existing Term Loans will be refinanced in full as
contemplated by subsection 7.16, (ii) if applicable, the agent under the
Existing Credit Agreement will receive from the Borrower for the account
of the lenders under the Existing Credit Agreement (the "Existing
Lenders") (w) all accrued and unpaid interest under the Existing Credit
Agreement, (x) any costs payable to any Existing Lender pursuant to the
Existing Credit Agreement as a result of the refinancing of such Existing
Lender's Existing Term Loans or Existing Revolving Credit Loans, (y) all
accrued and unpaid fees (including letter of credit commissions and
commitment fees) owing under the Existing Credit Agreement and (z) any
other amounts owing to any Existing Lender under the Existing Credit
Agreement notified in writing to the Borrower by the existing agent or any
Existing Lender and (iii) the commitments to lend under the Existing
Credit Agreement will be terminated. The Borrower shall have delivered to
the Syndication Agent all termination statements, satisfactions and
releases as to any financing statements which shall release all liens
securing any and all indebtedness under the Existing Credit Agreement and
other releases relating to any guarantees executed in connection
therewith. The Borrower shall have furnished to the Syndication Agent
copies of all Existing Letters of Credit and all amendments to such
Existing Letters of Credit. The Borrower shall have paid to the Existing
Lenders with respect to such Existing Letters of Credit all fees and other
amounts owing with respect thereto but excluding the Closing Date.
(q) FINANCIAL STATEMENTS.
(a) The Syndication Agent shall have received from the
Borrower (i) audited financial statements of the Borrower and its
consolidated Subsidiaries for fiscal years 1994, 1995 and 1996,
consisting of consolidated balance sheets and the related
consolidated statements of income and cash flows for such fiscal
years, and (ii) unaudited financial statements of the Borrower and
its consolidated Subsidiaries as at March 29, 1997 and June 28,
1997, each consisting of a consolidated balance sheet and the
related consolidated statements of income and cash flows for the
three-month period ending on such date, all in reasonable detail and
certified by a Responsible Officer of the Borrower that they fairly
present in material respects the consolidated financial condition of
the Borrower and its consolidated Subsidiaries as at the dates
indicated and the consolidated results of their operations and their
cash flows for the periods indicated, subject to changes resulting
from audit and normal year-end adjustments.
(b) The Syndication Agent shall have received the PRO FORMA
balance sheet of the Borrower and its Subsidiaries referred to in
subsection 7.1(b), which shall be in form and substance satisfactory
to the Syndication Agent.
(Credit Agreement)
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(r) NO MATERIAL ADVERSE CHANGE. Since December 28, 1996, or the date
of the audited financial statements most recently filed with the
Securities and Exchange Commission or other appropriate government agency,
no Material Adverse Effect shall have occurred.
(s) LITIGATION. There shall exist no pending or threatened material
litigation, proceedings or investigations which (x) would contest the
consummation of any of the Transactions or (y) could reasonably be
expected to have a Material Adverse Effect.
(t) TRANSACTIONS. The Syndication Agent and the Arranger shall be
reasonably satisfied that the aggregate sources of proceeds are sufficient
to consummate the Transactions.
(u) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the Syndication
Agent and the Arranger, and the Syndication Agent and the Arranger shall
have received such other documents in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall reasonably
request.
8.2 CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Borrower and each other Loan Party in or pursuant
to the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date, other than
representations and warranties that relate solely to an earlier date which
shall be true and correct in all material respects as of such earlier
date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) LETTER OF CREDIT APPLICATION. With respect to the issuance of
any Letter of Credit (other than the deemed issuance of the Existing
Letters of Credit on the Closing Date), the Issuing Bank shall have
received an Application, completed to its reasonable satisfaction and duly
executed by a Responsible Officer.
(Credit Agreement)
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Each borrowing by and each Letter of Credit issued on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such Loan or issuance that the conditions contained in this
subsection 8.2 have been satisfied.
SECTION 9. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitments remain
in effect, any Letter of Credit remains outstanding and unpaid or any other
amount is owing to any Lender or the Agents hereunder, the Borrower shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
9.1 FINANCIAL STATEMENTS. Furnish to the Agents:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by KPMG Peat Marwick
or other independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Lenders; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the corresponding figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein) and except that the quarterly financial statements
provided pursuant to subsection 9.1(b) shall only be required to include
footnotes to the extent such footnotes would be required to be included on Form
10-Q filed with the Securities and Exchange Commission.
(Credit Agreement)
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9.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Agents:
(a) concurrently with the delivery of the financial statements
referred to in subsection 9.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 9.l(a) and (b), a certificate of a Responsible
Officer stating that, to the best of such Officer's knowledge, the
Borrower during such period has observed or performed all of its covenants
and other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents, to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(c) not later than 45 days following the end of each fiscal quarter
of the Borrower, the Borrower shall deliver (i) a Level Determination
Certificate for such fiscal quarter and (ii) a certificate of a
Responsible Officer describing in reasonable detail any asset sales made
pursuant to subsections 10.6(d), (e), (f) and (i) during such fiscal
quarter and the derivation and intended application of the Net Cash
Proceeds thereof;
(d) not later than 40 days after the end of each fiscal year of the
Borrower, a copy of the projections by the Borrower of the operating
budget and cash flow budget of the Borrower and its Subsidiaries for the
succeeding fiscal year prepared on a quarterly basis, such projections to
be accompanied by a certificate of a Responsible Officer to the effect
that such projections have been prepared in good faith on the basis of
reasonable assumptions and that such Officer has no reason to believe they
are incorrect or misleading in any material respect;
(e) within five days after the same are sent, (i) copies of all
financial statements and reports which the Borrower sends to its
stockholders, and (ii) within five days after the same are filed, copies
of all financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(f) promptly, such additional financial and other information as the
Agents or any Lender may from time to time reasonably request; PROVIDED
that any such information specifically requested by any Lender shall be
delivered to such Lender directly by the Borrower.
(Credit Agreement)
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9.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
9.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except (a) if (i) in the
reasonable business judgment of the Borrower or such Subsidiary, as the case may
be, it is in its best economic interest not to preserve and maintain such
rights, privileges or franchises, and (ii) such failure to preserve and maintain
such rights, privileges or franchises would not, in the aggregate, be reasonably
likely to have a Material Adverse Effect and (b) as otherwise permitted pursuant
to subsection 10.5, comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect; and, with
respect to the Borrower on a consolidated basis, continue to engage in the
consumer products and related or incidental consumer services business and in
extensions of the Borrower's existing business and product lines.
9.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property useful and
necessary in its business in good working order and condition (normal wear and
tear excepted), except to the extent that the failure to do so with respect to
any such property would not individually or in the aggregate be reasonably
likely to have a Material Adverse Effect; maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general geographic area by companies engaged in the same or
a similar business (or, in lieu of or supplemental to such insurance, adopt such
other plan or method of protection, whether by the establishment of an insurance
fund or reserve to be held and applied to make good losses from casualties or
liabilities, or otherwise, and consistent with sound business practice, as may
be determined by the Board of Directors of the Borrower); and furnish to the
Agents and each Lender, upon written request, full information as to the
insurance carried.
9.6 INSPECTION OF PROPERTY, BOOKS AND RECORDS; DISCUSSION. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Agent or Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time on any Business Day and as often as may reasonably be
desired and to discuss the business, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and employees of
the
(Credit Agreement)
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Borrower and its Subsidiaries and with its independent certified public
accountants; PROVIDED that such Agent or Lender shall notify the Borrower prior
to any contact with such accountants and shall give the Borrower the opportunity
to participate in such discussions.
9.7 NOTICES. Promptly give notice to the Agents of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of
its Subsidiaries in which the amount involved is $5,000,000 or more and
not covered by insurance or which would be reasonably likely to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contributor to a Plan, the
creation of any Lien (within the meaning of Section 4068 with respect to a
Plan) in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer Plan or
Multiemployer Plan;
(e) any development or event which would be reasonably likely to
have a Material Adverse Effect; and
(f) no later than two Business Days prior to the making thereof, any
offer by the Borrower to purchase or any repayment of, as the case may be,
any Senior Subordinated Notes, Senior Notes or Term Loans pursuant to the
Senior Subordinated Indenture, Senior Note Indenture or Term Loan
Agreement, respectively, in connection with the occurrence of a "change of
control" (as defined in the Senior Subordinated Indenture, Senior Note
Indenture or Term Loan Agreement, respectively).
(Credit Agreement)
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Each notice pursuant to this subsection 9.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
The Administrative Agent shall deliver to Lenders any and all
financial statements, certificates, notices, other information and documents
provided by the Borrower pursuant to the provisions of subsections 9.1, 9.2 and
9.7 promptly upon its receipt thereof. Notwithstanding anything to the contrary
stated in this Agreement, upon the occurrence and during the continuance of an
Event of Default, any financial statements, certificates, notices, other
information or documents required to be delivered to the Agents by the Borrower
pursuant to the provisions of subsections 9.1, 9.2 and 9.7 shall be delivered
directly by the Borrower to the Agents and each Lender within the time period
required thereunder.
9.8 ENVIRONMENTAL LAWS. (a) Except as set forth on Schedule 9.8,
comply with, and use its reasonable best efforts to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in an material respects with and maintain, and use its
reasonable best efforts to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws except to the extent that failure to do so could not be
reasonably expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
SECTION 10. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitments remain
in effect, or any Letter of Credit remains outstanding and unpaid or any other
amount is owing to any Lender or the Agents hereunder, the Borrower shall not
and (except with respect to subsection 10.1) shall not permit any of its
Subsidiaries to, directly or indirectly:
10.1 FINANCIAL CONDITION COVENANTS.
(a) INTEREST COVERAGE. Permit for any period of four consecutive
fiscal quarters ending on or about any "Test Date" set forth below the
ratio (the "INTEREST COVERAGE RATIO") of (i) Consolidated EBITDA of the
Borrower LESS Consolidated Capital Expenditures of the Borrower for such
period to
(Credit Agreement)
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(ii) Consolidated Interest Expense of the Borrower for such period to be
less than the ratio set forth opposite such period below:
TEST DATE INTEREST COVERAGE RATIO
September 30, 1997 1.55 to 1.00
December 31, 1997 1.55 to 1.00
March 31, 1998 1.55 to 1.00
June 30, 1998 1.55 to 1.00
September 30, 1998 1.60 to 1.00
December 31, 1998 1.65 to 1.00
March 31, 1999 1.70 to 1.00
June 30, 1999 1.80 to 1.00
September 30, 1999 1.80 to 1.00
December 31, 1999 1.85 to 1.00
March 31, 2000 1.90 to 1.00
June 30, 2000 1.95 to 1.00
September 30, 2000 2.00 to 1.00
December 31, 2000 2.00 to 1.00
March 31, 2001 2.00 to 1.00
June 30, 2001 2.05 to 1.00
September 30, 2001 2.10 to 1.00
December 31, 2001 2.15 to 1.00
March 31, 2002 2.20 to 1.00
June 30, 2002 2.25 to 1.00
September 30, 2002 2.30 to 1.00
December 31, 2002 2.35 to 1.00
March 31, 2003 2.35 to 1.00
June 30, 2003 2.40 to 1.00
(b) FUNDED DEBT RATIO. Permit for any period of four consecutive
fiscal quarters ending on or about any "Test Date" set forth below (a
"TEST PERIOD") the Funded Debt Ratio to be greater than the ratio set
forth opposite such period below:
(Credit Agreement)
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TEST DATE FUNDED DEBT RATIO
September 30, 1997 6.55 to 1.00
December 31, 1997 6.50 to 1.00
March 31, 1998 6.50 to 1.00
June 30, 1998 6.40 to 1.00
September 30, 1998 6.20 to 1.00
December 31, 1998 5.80 to 1.00
March 31, 1999 5.60 to 1.00
June 30, 1999 5.40 to 1.00
September 30, 1999 5.30 to 1.00
December 31, 1999 5.20 to 1.00
March 31, 2000 5.00 to 1.00
June 30, 2000 4.90 to 1.00
September 30, 2000 4.75 to 1.00
December 31, 2000 4.65 to 1.00
March 31, 2001 4.65 to 1.00
June 30, 2001 4.50 to 1.00
September 30, 2001 4.40 to 1.00
December 31, 2001 4.30 to 1.00
March 31, 2002 4.15 to 1.00
June 30, 2002 4.05 to 1.00
September 30, 2002 4.00 to 1.00
December 31, 2002 4.00 to 1.00
March 31, 2003 4.00 to 1.00
June 30, 2003 4.00 to 1.00
10.2 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Loan Parties under this Agreement and the
other Loan Documents;
(b) Indebtedness of (i) the Borrower to any Subsidiary and (ii) of
any Subsidiary, which is a party to a Subsidiary Guarantee and the Capital
Stock of which is pledged to the Collateral Agent, to the Borrower or to
any other Subsidiary;
(Credit Agreement)
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(c) Indebtedness of the Borrower and any of its Subsidiaries
incurred to finance the acquisition of fixed or capital assets or
additions thereto (whether pursuant to a loan, a Financing Lease or
otherwise) in an aggregate principal amount not exceeding as to the
Borrower and its Subsidiaries $25,000,000 at any time outstanding;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 10.2(d) and any renewals, extensions, refundings or refinancings
of such Indebtedness, PROVIDED the interest rate or amount thereof is not
increased and the maturity of any installment of principal thereof is not
shortened;
(e) (x) Acquisition Subordinated Indebtedness of the Borrower
incurred to finance a business acquisition permitted by subsection 10.9(h)
and (y) Indebtedness assumed (provided such Indebtedness was not created
in contemplation of such acquisition) in connection with a business
acquisition or investment permitted by subsection 10.9(h), PROVIDED that,
after giving effect to such acquisition or investment and the incurrence
of such Indebtedness, (i) no Default or Event of Default shall have
occurred and be continuing and (ii) the Borrower shall be in compliance
with subsections 10.1(a) and (b) on a pro forma basis assuming that (A)
such Indebtedness had been incurred on the first day of the period of four
fiscal quarters ending on the last day of the most recently ended Test
Period and (B) Consolidated EBITDA of the Borrower for the period of four
fiscal quarters ending on the last day of such Test Period included
Consolidated EBITDA of the business to be acquired;
(f) Indebtedness of the Borrower not to exceed $25,000,000 in the
aggregate incurred in connection with sale and leaseback transactions,
PROVIDED the first $20,000,000 of Net Cash Proceeds from such sale and
leaseback transactions are applied as Material Asset Sale proceeds in
accordance with subsection 6.3;
(g) additional Indebtedness of the Borrower (not otherwise permitted
hereunder) not exceeding $25,000,000 in aggregate principal amount at any
one time outstanding;
(h) Indebtedness with respect to any surety bonds required in the
ordinary course of business of the Borrower and its Subsidiaries, provided
that such Indebtedness shall not at any time exceed $250,000 in the
aggregate;
(i) Apparel Notes;
(j) Indebtedness of the Borrower in respect of the Senior
Subordinated Indenture and the Senior Subordinated Notes;
(Credit Agreement)
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(k) Indebtedness of the Borrower in respect of the Senior Notes
and the Senior Note Indenture; and
(l) Indebtedness of the Borrower in respect of the Term Loan Notes
and the Term Loan Agreement.
10.3 LIMITATION ON LIENS. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens, assessments and other government charges for taxes not
yet due or which are being contested in good faith by appropriate
proceedings, PROVIDED that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the case
may be, in conformity with GAAP;
(b) suppliers', carriers', warehousemen's, mechanics',
materialmen's, repairmen's, landlords' or other like Liens arising in the
ordinary course of business which are not overdue for a period of more
than 60 days or which are being contested in good faith by appropriate
proceedings;
(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits in connection with workers' compensation, unemployment insurance
and other social security legislation and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) leases, subleases, easements, rights-of-way, encroachments and
other survey defects, restrictions and other similar encumbrances incurred
in the ordinary course of business which are not substantial in amount and
which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
10.3(f), securing Indebtedness permitted by subsection 10.2(d) and
replacement Liens securing any Indebtedness refinanced as permitted by
subsection 10.2(d) and Liens securing Indebtedness permitted under
subsection 10.2(f), PROVIDED that no such Lien (or replacement Lien) is
spread to cover any additional property and that the amount of
Indebtedness secured thereby is not increased;
(Credit Agreement)
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(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
permitted by subsection 10.2(c) incurred to finance the acquisition of
fixed or capital assets, PROVIDED that (i) such Liens shall be created
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other
than the property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the original purchase price of such property at the time it was
acquired;
(h) Liens on Indebtedness permitted by subsection 10.2(e)(y) in
existence at the time such Indebtedness is assumed, PROVIDED such Liens
were not created in contemplation of such assumption and such Liens are
not expanded to cover any other property;
(i) Liens on property other than the Collateral (not otherwise
permitted hereunder) which secure obligations not exceeding (as to the
Borrower and all Subsidiaries) $25,000,000 in aggregate amount at any time
outstanding;
(j) Liens created pursuant to the Security Documents in favor of the
Collateral Agent for the benefit of the Lenders and/or the lenders under
the Term Loan Agreement securing the Borrower's obligations under this
Agreement, the Term Loan Agreement or under Interest Rate Agreements with
any such Lenders and/or lenders; PROVIDED that such Liens for the benefit
of the Term Loan Lenders shall at all times secure the Indebtedness under
this Agreement;
(k) attachment or judgment liens (other than any Liens described in
subsection 10.3(l)) individually or in the aggregate not in excess of
$2,000,000 (exclusive of (i) any amounts that are duly bonded to the
reasonable satisfaction of the Administrative Agent or (ii) any amount
adequately covered by insurance as to which the insurance company has not
disclaimed or disputed in writing its obligations for coverage);
(l) any Lien arising pursuant to any order of attachment, distraint
or other legal process in connection with court or arbitration proceedings
so long as the execution or other enforcement thereof is effectively
stayed, the claims secured thereby are being contested in good faith by
appropriate proceedings, adequate reserves have been established with
respect to such claims in accordance with GAAP and no Event of Default
would occur as a result thereof; and
(m) Liens arising under licensing agreements entered into by the
Borrower or any Subsidiary in the ordinary course of business for the use
of Intellectual Property or other intangible assets of the Borrower or
such Subsidiary, and settlements, permissions, consents to use, and other
similar agreements
(Credit Agreement)
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concerning Intellectual Property or judgments adjudicating rights in
Intellectual Property.
If the Borrower or any of its Subsidiaries shall create or assume
any Lien upon any of its properties or assets, whether now owned or hereafter
acquired, other than the Liens excepted by the provisions of clauses (a) through
(m) above, it shall make or cause to be made effective provision whereby the
obligations of the Borrower and the Subsidiaries under the Loan Documents will
be secured by such Lien equally and ratably with any and all other Indebtedness
secured thereby as long as any such Indebtedness shall be so secured; PROVIDED
that, notwithstanding the foregoing, this provision shall not be construed as a
consent by the Lenders to the creation or assumption of any such Lien not
permitted by the provisions of clauses (a) through (m) above.
10.4 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule 10.4(a) and any renewals, extensions or modifications thereof;
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $25,000,000 at any one time outstanding;
(c) the Guarantee Obligations under the Guarantee in favor of the
Collateral Agent for the benefit of the Lenders and/or the lenders under
the Term Loan Agreement;
(d) Guarantee Obligations in respect of Letters of Credit;
(e) Guarantee Obligations assumed (provided such Guarantee
Obligations were not created in contemplation of such acquisition) in
connection with a business acquisition permitted by subsection 10.9(h),
PROVIDED that, after giving effect to such acquisition and the incurrence
of such Guarantee Obligation, (i) no Default or Event of Default shall
have occurred and be continuing and (ii) the Borrower shall be in
compliance with subsections 10.1(a) and (b) on a pro forma basis assuming
that (x) such acquisition had occurred on the first day of the period of
four fiscal quarters ending on the last day of the most recently ended
Test Period and (y) Consolidated EBITDA of the Borrower for the period of
four fiscal quarters ending on the last day of such Test Period included
Consolidated EBITDA of the business to be acquired;
(f) subordinated Guarantee Obligations of the Senior Subordinated
Notes by the Subsidiaries which are also Guarantors under the Guarantee;
(Credit Agreement)
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(g) Guarantee Obligations of the Borrower in respect of obligations
of New Subsidiaries incurred in the ordinary course of business and not
prohibited hereunder; and
(h) Guarantee Obligations of the Senior Note Indenture by the
Subsidiaries which are also Guarantors under the Guarantee.
10.5 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except (a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (PROVIDED that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more wholly
owned Subsidiaries of the Borrower (PROVIDED that the wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving corporation), (b) any
Subsidiary may sell, lease, assign, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower or any
Subsidiary Guarantor and (c) the Borrower may transfer (i) Intellectual Property
created or acquired after the Closing Date, property, plant and equipment and
receivables (collectively, "TRANSFERABLE ASSETS") and (ii) sales, marketing,
manufacturing and administrative activities to any New Subsidiary.
10.6 LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale, abandonment or other disposition of obsolete or worn
out property in the ordinary course of business;
(b) the sale or other disposition of any property (other than
inventory or other tangible assets which the Borrower and its Subsidiaries
customarily replace periodically with substitute assets (including,
without limitation, vehicles) or obsolete or worn out property in the
ordinary course of business) in the ordinary course of business, PROVIDED
that the aggregate book value of all assets so sold or disposed of shall
not exceed $1,500,000 in any year;
(c) the sale or return of inventory or other tangible assets which
the Borrower and its Subsidiaries customarily replace periodically with
substitute assets (including, without limitation, vehicles) in the
ordinary course of business;
(d) in addition to the transactions permitted by the preceding para-
graphs (a) through (c), the sale or other disposition of assets in an
aggregate
(Credit Agreement)
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amount for cash proceeds not to exceed $65,000,000, provided the net cash
proceeds thereof are either (i) reinvested in the Borrower's business or
businesses reasonably related thereto within 12 months of the effective
date of such sale or disposition and/or (ii) used to prepay the Loans and
the Term Loans as provided in subsection 6.3(c) within 12 months of the
effective date of such sale or disposition;
(e) the sale or disposition of the Jhirmack Business in an
arms-length transaction for at least the fair market value thereof as
determined by the Borrower's Board of Directors;
(f) Material Asset Sales (in addition to those permitted by
subsections (e) above and (h) below) in amounts not to exceed $15,000,000
in any fiscal year and $40,000,000 in the aggregate;
(g) as permitted by subsection 10.5(b);
(h) transfers constituting advances, loans, extensions of credit,
capital contributions, purchases, investments and the like permitted by
subsection 10.9;
(i) sales or dispositions constituting sale leaseback transactions
aggregate amount not to exceed $25,000,000; and
(j) so long as immediately after giving effect thereto no Default or
Event of Default shall have occurred and be continuing, the transfer or
sale by the Borrower of Transferable Assets to any New Subsidiary;
; PROVIDED that the Borrower shall not sell, transfer or otherwise dispose of
any shares of any class of Capital Stock of Playtex Marketing Corporation or any
trademark license granted to it by Playtex Marketing Corporation. The Borrower
agrees to promptly notify the Agents and the Lenders of each sale or other
disposition by the Borrower or any such Subsidiary of any property permitted
pursuant to subsection 10.6(d), the net cash proceeds received in respect of
such sale or disposition and each reinvestment of such net cash proceeds
(together with a description of the asset in which such net cash proceeds are so
reinvested).
10.7 LIMITATION ON DIVIDENDS. Declare or pay any dividend (other
than dividends payable solely in common stock of the Borrower or, with respect
to any pay-in-kind preferred stock, in additional shares of such preferred
stock) on, or make any payment on account of, or set apart assets for a sinking
or other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of the Borrower
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower or any Subsidiary, except that the Borrower may (i) repurchase its
(Credit Agreement)
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Capital Stock owned by management employees or (ii) make payments to management
employees upon termination of employment in connection with the exercise of
stock options, stock appreciation rights or similar equity incentives or equity
based incentives pursuant to management incentive plans in an aggregate amount
for (i) and (ii) per year not to exceed $5,000,000.
10.8 LIMITATION ON CAPITAL EXPENDITURES. Make or commit to make any
Consolidated Capital Expenditure except for expenditures in the ordinary course
of business not exceeding $20,000,000 in the aggregate for the Borrower and its
Subsidiaries during any fiscal year; PROVIDED that any portion of such
$20,000,000 not expended in any fiscal year (up to a maximum of $10,000,000 for
such fiscal year) may be carried forward into the next succeeding fiscal year.
10.9 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) loans and advances to officers, directors and other employees of
the Borrower or its Subsidiaries for (i) commissions and travel and
entertainment expenses in the ordinary course of business and (ii) relocation
expenses and other similar expenses in an aggregate amount for the Borrower and
its Subsidiaries not to exceed $5,000,000 in the aggregate at any one time
outstanding;
(d) loans by the Borrower to its employees or employees of its
Subsidiaries in connection with management incentive plans in an amount not to
exceed $5,000,000 in the aggregate at any one time outstanding;
(e) investments by the Borrower and its Subsidiaries in existence on
the date hereof in non-Domestic Subsidiaries and other investments, loans and
advances in existence on the date hereof in an aggregate amount not exceeding
$1,000,000, and extensions, renewals, modifications or restatements thereof;
(f) if in the reasonable judgment of the Borrower or any of its
Subsidiaries, any customer is deemed to be in a reorganization or unable to make
a timely cash payment on indebtedness of such customer owing to it, each of the
Borrower and its Subsidiaries may invest in securities issued by such customer
or any affiliate thereof in lieu of cash payments; PROVIDED that the Borrower or
such Subsidiary, as the case may be, has paid no new consideration (other than
forgiveness of Indebtedness or other obligations) therefor;
(Credit Agreement)
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(g) (i) investments by the Borrower in its Subsidiaries which are
or, immediately after giving effect thereto, become parties to the Subsidiaries
Guarantee and the Capital Stock of which is pledged to the Collateral Agent to
secure the Borrower's obligations hereunder and under the other Loan Documents,
(ii) investments by Subsidiaries which are not parties to the Subsidiaries
Guarantee in other Subsidiaries, (iii) investments by the Borrower and its
Subsidiaries in non-Domestic Subsidiaries; PROVIDED that the aggregate amount of
such investments, together with (without duplication) the aggregate amount of
investments in non-Domestic Subsidiaries permitted under subparagraph 10.9(h)
below, shall not exceed $35,000,000 in the aggregate, and (iv) investments by
Subsidiaries which are parties to the Subsidiaries Guarantee in the Borrower and
in other Subsidiaries which are parties to the Subsidiaries Guarantee and the
Capital Stock of which is pledged to the Collateral Agent to secure the
Borrower's obligations hereunder and under the Loan Documents;
(h) so long as after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, acquisitions of, or investments
in, one or more businesses or lines of business, in an aggregate amount (which
amount shall include Indebtedness assumed as permitted by subsection 10.2(e)(y))
not to exceed $150,000,000 in the aggregate; PROVIDED that the aggregate amount
of such acquisitions and investments in non-Domestic Subsidiaries, together with
(without duplication) the aggregate amount of investments in non-Domestic
Subsidiaries permitted under subsection 10.9(g)(iii) above, shall not exceed
$35,000,000 in the aggregate; and PROVIDED, FURTHER, that if any such
acquisition or investment results in the creation or acquisition of a
Subsidiary, 100%, or in the case of a non-Domestic Subsidiary 65%, of the
Capital Stock of such Subsidiary owned directly or indirectly by the Borrower
shall be pledged to the Collateral Agent to secure the Borrower's obligations
hereunder and under the other Loan Documents, such Subsidiary (if a Domestic
Subsidiary) shall become a party to the Guarantee and shall execute and deliver
to the Agents a Subsidiary Security Agreement and the Subsidiary Stock Pledge
Agreement, together with such financing statements and other documents and
instruments as may be required by the Agents to create and perfect a Lien in the
Collateral under such Subsidiary Security Agreement and the Subsidiary Stock
Pledge Agreement;
(i) any redemption or repurchase by the Borrower of any of the
Senior Subordinated Notes or the Senior Notes in accordance with subsection
10.10(a); and
(j) other investments, loans or advances in an aggregate amount not
exceeding $10,000,000.
10.10 CERTAIN PROVISIONS RELATING TO OTHER DEBT INSTRUMENTS. (a)
Make any optional payment or optional prepayment on or redemption or purchase of
any Indebtedness (other than the Loans and the Reimbursement Obligations and the
Term Loans to the extent not prohibited under this Agreement) or pay any
interest on any Indebtedness in cash which may in accordance with the terms
thereof be paid by the issuance of additional Indebtedness or offer to do any of
the foregoing, except that
(Credit Agreement)
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(i) the Borrower may redeem or purchase any of the Senior Subordinated Notes or
the Senior Notes with 50% of the Net Cash Proceeds from any offering of Capital
Stock of the Borrower subsequent to the Closing Date (other than any such
offering to the extent the Net Cash Proceeds of which are used to make an
investment or acquisition permitted by subsection 10.9(h)), and (ii) the
Borrower may pay interest in cash on the Apparel Notes on each scheduled
interest payment date therefor so long as (x) no Default or Event of Default has
occurred and is continuing or would result therefrom, (y) the amount of such
payment is net of all interest accrued and unpaid on the PAP Debenture for the
same period as the Borrower's cash interest payment on the Apparel Notes and (z)
the net cash payment by the Borrower does not exceed $150,000 in any fiscal
year; (b) amend, modify or change, or consent or agree to any such amendment,
modification or change in any material respect to, any of the terms of any such
Indebtedness (other than the Indebtedness with respect to the Term Loan
Agreement), including, without limitation, the Senior Subordinated Note
Indenture and the Senior Note Indenture (other than any such amendment,
modification or change which would extend the maturity or reduce the amount of
any payment of principal thereof or which would reduce the rate or extend the
date for payment of interest thereon); or (c) amend, modify or change, or
consent or agree to any such amendment, modification or change in any material
respect to any of the provisions of the Term Loan Agreement that would have the
effect of (i) shortening the maturity of or requiring the earlier payment of any
principal of any Term Loan, (ii) changing the definition of "Required Lenders"
in the Term Loan Agreement, or (iii) changing any mandatory prepayments pursuant
to an "Asset Sale" (as such term is defined in the Term Loan Agreement) in a
manner that disproportionately disadvantages the Lenders relative to the lenders
under the Term Loan Agreement, without the prior written consent of the Required
Lenders under this Agreement. The Borrower hereby designates all of its
obligations under this Agreement and the other Loan Documents as "Designated
Senior Indebtedness" for purposes of the Senior Subordinated Note Indenture.
10.11 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate, except that the foregoing
restrictions shall not apply to (i) any transaction with an officer or member of
the Board of Directors of the Borrower entered into in the ordinary course of
business (including compensation and employee benefit arrangements), (ii)
transactions and agreements in existence on the date hereof and described on
Schedule 10.11, (iii) directors' fees, (iv) employment agreements and
arrangements (including, without limitation, benefits) approved by the Board of
Directors of the Borrower, (v) loans to employees not exceeding $5,000,000 in
the aggregate outstanding at any time, (vi) any employee benefit plan available
to employees of the Borrower generally, (vii) the payment of management,
consulting and other fees to HW&P, the Investors or their respective Affiliates
in
(Credit Agreement)
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accordance with the terms of the Stock Purchase Agreement or as otherwise
approved by a majority of the Disinterested Directors (as defined in the Stock
Purchase Agreement) and (viii) any other transaction or series of related
transactions which have been approved by a majority of the Disinterested
Directors (as defined in the Stock Purchase Agreement).
10.12 LIMITATION ON SALES AND LEASEBACKS. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary, except as permitted by
subsection 10.6(i).
10.13 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year
of the Borrower to end on a day other than the last Saturday in December of each
calendar year.
10.14 LIMITATION ON NEGATIVE PLEDGE CLAUSES. On or after the date
hereof, enter into with any Person any agreement, other than (a) this Agreement,
(b) the Senior Subordinated Indenture, the Senior Note Indenture and the Term
Loan Agreement and (c) any industrial revenue bonds, purchase money mortgages or
Financing Leases permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the assets financed thereby), which
prohibits or limits the ability of the Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
10.15 AMENDMENT OF ARTICLES OF INCORPORATION. Amend its Articles of
Incorporation, in any manner which could reasonably be expected to have a
Material Adverse Effect.
SECTION 11. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Loan, or any
other amount payable hereunder, within five days after any such interest
or other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement
(Credit Agreement)
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furnished by it at any time on or after the Closing Date under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made
or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 10, or in
Section 4 of the Borrower Security Agreement; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in Section
11(a) through (c)), and such default shall continue unremedied for a
period of 30 days from the earlier of (i) the date any Responsible Officer
obtains or should have obtained knowledge of such default and (ii) the
date the Borrower receives notice of such default from the Administrative
Agent or any Lender; or
(e) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Loans) or in the payment of any Guarantee Obligation, in either case in an
aggregate outstanding principal amount in excess of $5,000,000 beyond the
period of grace (not to exceed 60 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created, after giving effect to any consents or waivers
relating thereto; or (ii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable in an aggregate amount exceeding $5,000,000;
or
(f) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (w) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (x) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding
(Credit Agreement)
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or other action of a nature referred to in clause (i) above which (y)
results in the entry of an order for relief or any such adjudication or
appointment or (z) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) the Borrower or any of its Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise
on the assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, or
(v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $7,500,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i)(i) Any of the Security Documents shall cease, for any reason, to
be in full force and effect, or the Borrower or any other Loan Party which
is a party to any of the Security Documents shall so assert or (ii) the
Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
(Credit Agreement)
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(j) Any Guarantee shall for any reason, to be in full force and
effect (except as permitted under subsection 10.5(a) or 13.8 hereof) or
any Guarantor shall so assert; or
(k) Any of the subordination provisions in Article Twelve of the
Senior Subordinated Indenture shall cease, for any reason, to be in full
force and effect, or the Borrower or any other party to the Senior
Subordinated Indenture or any holder of the Senior Subordinated Notes
shall so assert; or
(l) a Change of Control shall have occurred;
then, and in any such event, (1) if such event is an Event of Default specified
in clause (i) or (ii) of Section 11(f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) shall immediately become due
and payable, and (2) if such event is any other Event of Default, either or both
of the following actions may be taken: (A) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (B) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable. With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to the preceding
sentence, the Borrower shall at such time deposit in the L/C Collateral Account
(as defined in the Intercreditor Agreement) opened by the Collateral Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in the L/C Account shall be applied by the Collateral
Agent in accordance with the terms of the Intercreditor Agreement.
Except as expressly provided above in this Section 11, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 12. THE AGENTS
12.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints Wells Fargo as the Administrative Agent of such Lender under this
Agreement
(Credit Agreement)
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and the other Loan Documents, and each Lender hereby irrevocably designates and
appoints DLJ as the Syndication Agent under this Agreement and the other Loan
Documents. Each Lender hereby confirms the appointment by the Administrative
Agent of Wells Fargo as the Collateral Agent under the Intercreditor Agreement.
Each Lender irrevocably authorizes each Agent to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to such
Agent by the terms of this Agreement and the other Loan Documents, together with
such other powers as are reasonably incidental thereto. As between the Lenders
and the Agents, notwithstanding any provision to the contrary elsewhere in this
Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein or in other Loan Documents, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent. The
provisions of this Section 12 are solely for the benefit of each Agent, and the
Lenders and the Borrower shall have no rights as a third party beneficiary of
any of the provisions thereof.
12.2 DELEGATION OF DUTIES. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
12.3 EXCULPATORY PROVISIONS. None of the Agents or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Agents, under or in connection with, this Agreement or
any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. No Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower.
12.4 RELIANCE BY AGENTS. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been
(Credit Agreement)
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signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the Agents.
Each Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent, which shall promptly
forward such notice to other Agents. Each Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents, in the case of
the Agent other than the Collateral Agent, in accordance with a request of the
Required Lenders (unless the consent of all Lenders is expressly required under
subsection 13.1) or, in the case of the Collateral Agent, in accordance with the
Intercreditor Agreement, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
12.5 NOTICE OF DEFAULT. No Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that any Agent receives such a
notice, such Agent shall give notice thereof to the Lenders and the other
Agents. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders (unless the consent of all Lenders is expressly required under
subsection 13.1); PROVIDED that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
12.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender expressly
acknowledges that none of the Agents or any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by such Agent to any Lender. Each
Lender represents to each Agent that it has, independently and without reliance
upon such Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action
(Credit Agreement)
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under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by any Agent hereunder, no Agent shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of any Agent or any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
12.7 INDEMNIFICATION. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) and their respective
Affiliates and their respective directors, officers, employees and agents,
ratably according to their respective pro rata shares of the aggregate Revolving
Credit Commitments and the aggregate outstanding Term A Loans in effect on the
date on which indemnification is sought (or, if indemnification is sought after
the date upon which the Commitments shall have terminated and the Loans shall
have been paid in full, ratably in accordance with their pro rata shares of the
aggregate Revolving Credit Commitments and the aggregate outstanding Term A
Loans immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Agent in any way relating to
or arising out of this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; PROVIDED that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's contractual breach, gross negligence
or willful misconduct. The agreements in this subsection 12.7 shall survive the
payment of the Loans and all other amounts payable hereunder.
12.8 AGENT IN ITS INDIVIDUAL CAPACITY. Any Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though such Agent were not an Agent hereunder and
under the other Loan Documents. With respect to its Loans made by it and with
respect to any Letter of Credit issued or participated in by it, if any, such
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include such Agent in its
individual capacity.
12.9 SUCCESSOR AGENTS. The Syndication Agent may resign at any time
upon ten Business Days' notice thereof to the Borrower and other Agents. The
Administrative Agent may resign as Administrative Agent upon 30 days' notice to
the
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other Agents and the Lenders. If the Administrative Agent or the Syndication
Agent shall resign as an Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall, unless an Event of
Default has occurred and is continuing, be approved by the Borrower, whereupon
such successor agent shall succeed to the rights, powers, and duties of the
Administrative Agent or the Syndication Agent, as the case may be, and the term
"Administrative Agent" or "Syndication Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's or Syndication Agent's rights, powers and duties as Administrative Agent
or Syndication Agent, as the case may be, shall be terminated, without any other
or further act or deed on the part of such former Administrative Agent or
Syndication Agent or any of the parties to this Agreement. After any retiring
Administrative Agent's or Syndication Agent's resignation, the provisions of
this Section 12 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent or Syndication Agent, as the
case may be, under this Agreement and the other Loan Documents. The terms of the
resignation of the Collateral Agent shall be as set forth in the Intercreditor
Agreement.
12.10 INTERCREDITOR AGREEMENT AND COLLATERAL DOCUMENTS.
(a) Each Lender hereby authorizes the Administrative Agent to enter
into the Intercreditor Agreement on behalf of and for the benefit of such
Lender, and agrees to be bound by the terms of the Intercreditor Agreement;
PROVIDED that the Administrative Agent shall not enter into or consent to any
amendment, modification, termination or waiver of any provision contained in the
Intercreditor Agreement without the prior consent of Required Lenders. Each
Lender hereby authorizes the Collateral Agent to enter into the Guarantee and
the Security Documents and to take all action contemplated by the Intercreditor
Agreement; PROVIDED that the Collateral Agent shall not enter into or consent to
any amendment, modification, termination or waiver of any provision contained in
the Guarantee or Security Document without the prior consent of Required
Lenders. Each Lender agrees that no Lender shall have any right individually to
seek or to enforce the Guarantee or to realize upon the security granted by any
Security Document, it being understood and agreed that such rights and remedies
may be exercised by the Collateral Agent for the benefit of Lenders and the
parties to the Intercreditor Agreement upon the terms of the Guarantee, the
Security Documents and the Intercreditor Agreement. Each Lender and Agent hereby
authorizes the Collateral Agent to release any Collateral as permitted or
required under this Agreement, the Security Documents and the Intercreditor
Agreement, and agrees that a certificate executed by the Collateral Agent
evidencing the release of such Collateral shall be conclusive evidence of such
release as to any third party.
(b) If there is any conflict between this Agreement and any other
Loan Document, except the Intercreditor Agreement, this Agreement and such other
Loan Document shall be interpreted and construed, if possible, so as to avoid or
minimize such conflict but, to the extent (and only to the extent) of such
conflict, this Agreement
(Credit Agreement)
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shall prevail and control. If there is any conflict between the Intercreditor
Agreement and any Loan Document, including this Agreement, the Intercreditor
Agreement and such Loan Document shall be interpreted and construed, if
possible, so as to avoid or minimize such conflict but, to the extent (and only
to the extent) of such conflict, the Intercreditor Agreement shall prevail and
control.
12.11 OTHER TITLES. None of the Lenders identified on the facing
page or signature pages of this Agreement as an "arranger" or other similar
title or capacity shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified as an "arranger" or other similar title or capacity shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or taking or not taking
action hereunder.
12.12 WELLS FARGO AS ISSUER OF LETTERS OF CREDIT. Each Lender
holding a Working Capital Revolving Credit Commitment hereby acknowledges that
the provisions of this Section 12 shall apply to Wells Fargo, in its capacity as
issuer of the Letters of Credit, in the same manner as such provisions are
expressly stated to apply to the Administrative Agent.
SECTION 13. MISCELLANEOUS
13.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified, except in accordance with the provisions of this subsection 13.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
PROVIDED HOWEVER, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any Loan or any installment thereof, or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Commitments, in each case without the consent of each Lender affected
thereby (provided that with the consent of Lenders holding 80% of the
outstanding Term A Loans the date of any scheduled installment of the Term A
Loans may be extended to a date not later than June 15, 2003), (ii) amend,
modify or waive any provision of this subsection 13.1 or the last proviso of
subsection 10.6 (with respect to sales, transfers, or other dispositions
referred
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to therein to a Person other than a Subsidiary) or reduce the percentage
specified in the definition of Required Lenders, or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents or release a material portion of the
Collateral (an increase in the amount of any Indebtedness of the Borrower
secured ratably by the Collateral shall not be deemed to be a release of
Collateral) or any Guarantee other than as provided for herein, in each case
without the written consent of all the Lenders, or (iii) amend, modify or waive
any provision of Section 12 without the written consent of the Agents and the
Collateral Agent or Section 3 without the consent of the Issuing Bank or
subsection 2.4 without the consent of the Swing Line Lender. Any such waiver and
any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the Lenders, the Agents and
the Collateral Agent. In the case of any waiver, the Borrower, the Lenders, the
Agents and the Collateral Agent shall be restored to their former positions and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any or other Default or Event of Default, or impair any
right consequent thereon. Each Lender agrees that, in the event of any
amendment, supplement or modification to or waiver of any of the terms of this
Agreement that would cause any Note that might be issued to it under subsection
6.2(e) after such amendment, supplement, modification or waiver to be different
from any Note held by it, such Lender will promptly endorse such Note held by it
to reflect such amendment, supplement, modification or waiver.
13.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or 3 days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Agents, the Issuing Bank and the Swing Line Lender, and as set forth in Schedule
1.1 in the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective pages hereto:
The Borrower: Playtex Products, Inc.
300 Nyala Farms Road
Westport, Connecticut 06880
Attention: Michael F. Goss
Telecopy: 203-341-4260
With a copy to: Haas Wheat & Partners Incorporated
300 Crescent Court
Suite 1700
Dallas, Texas 75201
Attention: Robert B. Haas
Douglas D. Wheat
Telecopy: 214-871-8317
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Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Mitchell S. Fishman
Telecopy: 212-757-3990
The Administrative Agent, Wells Fargo Bank, N.A.
the Issuing Bank and 420 Montgomery Street
the Swing Line 9th Floor
Lender: San Francisco, CA 94104
Attention: Judi Steele
Telecopy: 415-989-4319
With a copy to: Wells Fargo Bank, N.A.
1445 Ross Avenue
Suite 400
Dallas, TX 75202
Attention: Todd D. Robichaux
Telecopy: 214-777-4044
The Syndication Agent: DLJ Capital Funding, Inc.
2121 Avenue of the Stars
Los Angeles, CA 90067
Attention: Eric Swanson
Kevin Smith
Telecopy: (310) 282-6178
PROVIDED that any notice, request or demand to or upon the Agents or the Lenders
pursuant to subsection 2.2, 2.3, 4.2, 4.3, 5.2, 6.3, 6.4 or 6.8 shall not be
effective until received.
13.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
13.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
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13.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees, without
duplication of any amounts payable pursuant to subsection 6.1(c) or (d), (a) to
pay or reimburse the Arranger and the Syndication Agent for all of their
respective out-of-pocket costs and expenses (including all out-of-pocket costs
and expenses arising in connection with the syndication of the Loans and any due
diligence investigation performed by the Arranger or the Syndication Agent)
incurred in connection with the development, negotiation, preparation, execution
and delivery of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, whether or not any of the Transactions has
been consummated, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the fees and
disbursements of counsel to the Arranger and the Syndication Agent, and to pay
or reimburse each Agent and the Collateral Agent for any such fees, costs and
expenses related to periods subsequent to the Closing Date, (b) to pay or
reimburse the Agents, the Collateral Agent and the Arranger and, from and after
the occurrence of a Default or an Event of Default, each Lender, for all its
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable and documented fees and
disbursements of counsel to the Agents, the Collateral Agent, the Arranger and
each Lender, (c) to pay, indemnify, and hold each Lender, each Agent, the
Collateral Agent, the Arranger and their respective Affiliates and their
respective directors, officers, employees and agents and each other Person
controlling any of the foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act
of 1934, as amended, harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender, each Agent, the
Collateral Agent, the Arranger and their respective Affiliates and their
respective directors, trustees, officers, employees and agents and each other
Person controlling any of the foregoing within the meaning of either Section 15
of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended, harmless from and against any and all other
claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents, or the use of the
proceeds of the Loans and the Letters of Credit and any such other documents,
including without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or any of the Properties
(all the foregoing in this clause (d), collectively, the "INDEMNIFIED
LIABILITIES") (including all legal and other expenses incurred in connection
with investigation, defending or participating in any action or proceeding
relating to any indemnified
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liabilities (whether or not such Person is a party to any such action or
proceeding), PROVIDED that the Borrower shall have no obligation hereunder to
any Person with respect to indemnified liabilities arising from the contractual
breach, gross negligence or willful misconduct of such Person as determined by a
final judgment of a court of competent jurisdiction. The agreements in this
subsection shall survive repayment of the Loans and all other amounts payable
hereunder and, in the case of any Lender that may assign any interest in its
Commitments, Loans, Letters of Credit or participations in Letters of Credit
hereunder, shall (to the extent arising out of such time as it was a Lender)
survive the making of such assignment, notwithstanding that such assigning
Lender may cease to be a party hereto.
13.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agents and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks, financial
institutions, or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, PROVIDED that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 13.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 6.11, 6.12, 6.13 and 13.5 with respect
to its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender, PROVIDED that, in the case of subsection 6.12, such
Participant shall have complied with the requirements of said subsection and
PROVIDED, FURTHER, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred. Participants (other than an
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Affiliate of the Lender granting such participation) shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the scheduled final maturity date of any
portion of the principal amount of or the postponement of the date of payment of
interest on any Loan allocated to such Participant (it being understood that
changes in interim amortization amounts are not extensions of scheduled final
maturity dates), or the extension of the expiration date beyond the Working
Capital Revolving Credit Commitment Termination Date of any Letter of Credit
allocated to such Participant, or (ii) a reduction of the principal amount of or
the rate of interest payable on any Loan allocated to such Participant (other
than any waiver of any increase in the interest rate applicable to Loans
pursuant to subsection 6.6(c)).
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any Affiliate thereof or, with the consent of the Borrower and, in the
case of assignments by Lenders other than the Syndication Agent, the
Administrative Agent (which in each case shall not be unreasonably withheld), to
an additional bank or financial institution or other entity (an "ASSIGNEE") all
or any part of its rights and obligations (in minimum amounts equal to at least
$5,000,000 of the aggregate Commitments and outstanding Term A Loans in the case
of an Assignee that is not then a Lender or an Affiliate thereof unless such
assignment is of all of a Lender's interest hereunder) under this Agreement and
the other Loan Documents pursuant to an Assignment and Acceptance, substantially
in the form of Exhibit F, executed by such Assignee, such assigning Lender (and,
in the case of an Assignee that is not then a Lender or an Affiliate thereof, by
the Borrower and the Administrative Agent) and delivered to the Administrative
Agent for its acceptance and recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (i) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with Commitments as set
forth therein, and (ii) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto,
except that it shall (to the extent arising out of such time as it was a Lender)
remain entitled to the benefit of the indemnities and other rights stated to
survive the termination hereof).
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at its address referred to in subsection 13.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive and the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of
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the Loan recorded therein for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Administrative
Agent in accordance with the provisions of subsection 10.6(c)) together with
payment to the Administrative Agent of a registration and processing fee of
$3,500, the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower. No assignment shall be
effective unless it has been recorded in the Register as provided in this
subsection 13.6(e).
(f) Subject to the provisions of subsection 13.17, the Borrower
authorizes each Lender to disclose to any Participant or Assignee (each, a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the Borrower and its Affiliates which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law or any pledge or
assignment of any Loan or Note by a Lender that is an investment fund to its
trustee in support of its obligations to its trustee, without notice to or
consent of the Borrower or the Agents; PROVIDED HOWEVER that any assignment by
such trustee shall be subject to the provisions of subsection 13.6(c) hereof.
13.7 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of its Loans or any
Reimbursement Obligation owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 11(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans or
the Reimbursement Obligation owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
PROVIDED, HOWEVER, that if all or any
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portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, PROVIDED that the failure to give such notice shall not
affect the validity of such set-off and application.
(c) The Borrower, the Lenders and the Administrative Agent hereby
acknowledge and agree that the provisions of this subsection 13.7 are subject to
the provisions of the Intercreditor Agreement. To the extent that any Lender is
required pursuant to the provisions of the Intercreditor Agreement to turn over
to the Collateral Agent any payments otherwise subject to the provisions of this
subsection 13.7, such payments shall not be subject to the provisions of this
subsection 13.7.
13.8 RELEASE OF NEW SUBSIDIARY GUARANTEES. (a) If on the last day of
any fiscal period of the Borrower the financial statements of the Borrower
delivered pursuant to subsection 9.1 for such fiscal period show that the
Interest Coverage Ratio was greater than 3.00 to 1.00 for the period ending on
such last day, then upon written request of the Borrower the Collateral Agent
shall release each New Subsidiary requested to be released from the Guarantee,
PROVIDED that prior to or concurrently with such release, any guarantee by such
New Subsidiary of the Senior Subordinated Notes, the Senior Notes and the Term
Loan Agreement is released; and PROVIDED FURTHER that the foregoing provisions
shall be subject to the terms of the Intercreditor Agreement.
(b) If (i) in connection with the dissolution or liquidation of any
New Subsidiary permitted hereunder or (ii) with respect to any New Subsidiary
which does not have any assets other than DE MINIMIS assets, the Borrower
requests the Collateral Agent to release such New Subsidiary from the Guarantee,
the Collateral Agent shall so release such New Subsidiary PROVIDED that prior to
or concurrently with such release, any guarantee by such New Subsidiary of the
Senior Subordinated Notes, the Senior Notes and the Term Loans is released; and
PROVIDED FURTHER that the foregoing provisions shall be subject to the terms of
the Intercreditor Agreement.
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13.9 MODIFICATION OF SCHEDULES. The Borrower may, from time to time,
amend, supplement or otherwise modify any of the Schedules to this Agreement by
delivering a copy of such amended, supplemented or modified Schedule to the
Agents (which schedule the Administrative Agent shall deliver a copy to each
Lender) in accordance with the provisions of subsection 13.2 and such Schedule
as amended, supplemented or modified shall be deemed to replace and supersede
the existing Schedule unless objected to in writing by the Agents or the
Required Lenders within 10 days after receipt thereof by the Lenders.
13.10 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
13.11 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the removing provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.12 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agents or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or the other Loan
Documents.
13.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
13.14 SUBMISSION TO JURISDICTION; WAIVERS. (a) The Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the nonexclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of
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any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 13.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction.
(b) Each of the Borrower, the Administrative Agent and the Lenders
hereby irrevocably and unconditionally waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this subsection any special, exemplary, punitive or
consequential damages.
13.15 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes and the other Loan Documents;
(b) none of the Agents, the Collateral Agent or any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Agents, the Collateral Agent or any Lender, on
one hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
13.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.17 CONFIDENTIALITY. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
and each other Loan Document that is designated by the Borrower in writing
confidential; PROVIDED that nothing herein shall prevent any Lender from
disclosing any such
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information (a) to the Agents or any other Lender, (b) to any Transferee which
receives such information having been made aware of the confidential nature
thereof or to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors provided
that such contractual counterparties or their professional advisors agree to
handle the above-described confidential information in accordance with safe and
sound practices which are substantially the same as those followed by banking
institutions, (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors, (d) upon the request or demand of any
Governmental Authority having jurisdiction over such Lender (provided that
notice of such request or demand shall be furnished to the Borrower unless such
notice is legally prohibited or such Governmental Authority requests that such
notice not be furnished to the Borrower or such request is in connection with
normal oversight activities by such Governmental Authority), (e) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law (provided that notice of such order
or requirement shall be furnished to the Borrower unless such notice is legally
prohibited or such court or Governmental Authority requests that such notice or
requirement not be furnished to the Borrower), (f) which has been publicly
disclosed other than in breach of this Agreement, or (g) in connection with the
exercise of any remedy hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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/ Michael F. Goss
-----------------------------------
Title: Executive Vice President and
--------------------------------
Chief Financial Officer
(Credit Agreement)
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LENDERS:
WELLS FARGO BANK, N.A.,
individually and as Administrative Agent
By: /s/ Todd D. Robichaux
-----------------------------------
Title: Vice President
--------------------------------
(Credit Agreement)
S-2
<PAGE>
DLJ CAPITAL FUNDING, INC.,
individually and as the Syndication
Agent
By: /s/ Eric Swanson
-----------------------------------
Title: Managing Director
--------------------------------
(Credit Agreement)
S-3
Exhibit 10.3
EXECUTION COPY
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$150,000,000
TERM LOAN AGREEMENT
among
PLAYTEX PRODUCTS, INC.
as the Borrower
The Several Lenders
from Time to Time Parties Hereto,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent
and
WELLS FARGO BANK, N.A.,
as the Facility Manager
Dated as of July 21, 1997
Arranged By
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
------------------------------------------------------------------------------
(TERM LOAN AGREEMENT)
<PAGE>
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.................................................. 1
1.1 DEFINED TERMS................................................ 1
1.2 OTHER DEFINITIONAL PROVISIONS................................ 27
SECTION 2. LOANS........................................................ 27
2.1 LOANS........................................................ 27
2.2 PROCEDURE FOR BORROWING...................................... 28
SECTION 3. GENERAL PROVISIONS........................................... 28
3.1 FEES......................................................... 28
3.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT......................... 28
3.3 OPTIONAL AND MANDATORY PREPAYMENT............................ 30
3.4 CONVERSION AND CONTINUATION OPTIONS.......................... 32
3.5 MAXIMUM NUMBER OF INTEREST PERIODS........................... 32
3.6 INTEREST RATES AND PAYMENT DATES............................. 32
3.7 COMPUTATION OF INTEREST AND FEES............................. 33
3.8 INABILITY TO DETERMINE INTEREST RATE......................... 34
3.9 PRO RATA TREATMENT AND PAYMENTS.............................. 35
3.10 ILLEGALITY................................................... 36
3.11 REQUIREMENTS OF LAW.......................................... 36
3.12 TAXES........................................................ 38
3.13 INDEMNITY.................................................... 42
3.14 REPLACEMENT OF LENDER........................................ 42
SECTION 4. REPRESENTATIONS AND WARRANTIES................................. 43
4.1 FINANCIAL CONDITION.......................................... 43
4.2 NO CHANGE.................................................... 44
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW..................... 44
4.4 CORPORATE AUTHORIZATION; ENFORCEABLE OBLIGATIONS............. 44
4.5 NO LEGAL BAR................................................. 45
4.6 NO MATERIAL LITIGATION....................................... 45
4.7 NO DEFAULT................................................... 45
4.8 OWNERSHIP OF PROPERTY; LIENS................................. 45
4.9 INTELLECTUAL PROPERTY........................................ 46
4.10 NO BURDENSOME RESTRICTIONS................................... 46
4.11 TAXES........................................................ 46
4.12 FEDERAL REGULATIONS.......................................... 46
4.13 ERISA........................................................ 46
4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS.................... 47
4.15 SUBSIDIARIES................................................. 47
4.16 PURPOSE OF LOANS............................................. 47
4.17 ENVIRONMENTAL MATTERS........................................ 47
4.18 SENIOR INDEBTEDNESS.......................................... 49
4.19 DISCLOSURE................................................... 49
4.20 COLLATERAL DOCUMENTS......................................... 50
SECTION 5. CONDITIONS PRECEDENT......................................... 50
5.1 CONDITIONS TO EFFECTIVENESS.................................. 50
<PAGE>
SECTION 6. AFFIRMATIVE COVENANTS........................................ 56
6.1 FINANCIAL STATEMENTS......................................... 56
6.2 CERTIFICATES; OTHER INFORMATION.............................. 57
6.3 PAYMENT OF OBLIGATIONS....................................... 58
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE............. 58
6.5 MAINTENANCE OF PROPERTY; INSURANCE........................... 58
6.6 INSPECTION OF PROPERTY, BOOKS AND RECORDS; DISCUSSION........ 58
6.7 NOTICES...................................................... 59
6.8 ENVIRONMENTAL LAWS........................................... 60
SECTION 7. NEGATIVE COVENANTS........................................... 60
7.1 LIMITATION ON INDEBTEDNESS................................... 60
7.2 LIMITATION ON RESTRICTED PAYMENTS............................ 61
7.3 LIMITATION ON TRANSACTIONS WITH AFFILIATES................... 64
7.4 LIMITATION ON LIENS.......................................... 65
7.5 LIMITATION ON SALE OF ASSETS................................. 65
7.6 LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF
SUBSIDIARIES................................................ 66
7.7 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES...................................... 66
7.8 CONSOLIDATION, MERGER, SALE OF ASSETS........................ 67
7.9 CERTAIN PROVISIONS RELATING TO OTHER DEBT INSTRUMENTS........ 68
SECTION 8. EVENTS OF DEFAULT............................................ 69
SECTION 9. THE AGENTS................................................... 72
9.1 APPOINTMENT.................................................. 72
9.2 DELEGATION OF DUTIES......................................... 72
9.3 EXCULPATORY PROVISIONS....................................... 73
9.4 RELIANCE BY AGENTS........................................... 73
9.5 NOTICE OF DEFAULT............................................ 73
9.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS..................... 74
9.7 INDEMNIFICATION.............................................. 74
9.8 AGENT IN ITS INDIVIDUAL CAPACITY............................. 75
9.9 SUCCESSOR AGENTS............................................. 75
9.10 INTERCREDITOR AGREEMENT AND COLLATERAL DOCUMENTS............. 75
9.11 OTHER TITLES................................................. 76
SECTION 10. MISCELLANEOUS................................................ 76
10.1 AMENDMENTS AND WAIVERS....................................... 76
10.2 NOTICES...................................................... 77
10.3 NO WAIVER; CUMULATIVE REMEDIES............................... 79
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES................... 79
10.5 PAYMENT OF EXPENSES AND TAXES................................ 79
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS....... 80
10.7 ADJUSTMENTS; SET-OFF......................................... 83
10.8 RELEASE OF NEW SUBSIDIARY GUARANTEES......................... 83
10.9 MODIFICATION OF SCHEDULES.................................... 84
10.10 COUNTERPARTS................................................. 84
10.11 SEVERABILITY................................................. 84
10.12 INTEGRATION.................................................. 84
10.13 GOVERNING LAW................................................ 84
10.14 SUBMISSION TO JURISDICTION; WAIVERS.......................... 84
10.15 ACKNOWLEDGMENTS.............................................. 85
10.16 WAIVERS OF JURY TRIAL........................................ 86
10.17 CONFIDENTIALITY.............................................. 86
(TERM LOAN AGREEMENT)
<PAGE>
SCHEDULES
1.1 Addresses for Notice, Commitments
3.2 Term Loan Amortization
4.1 Financial Condition
4.2 No Change
4.5 No Legal Bar
4.6 Material Litigation
4.9 Intellectual Property Claims
4.15 Subsidiaries
4.17 Environmental Matters
4.20 UCC filing jurisdictions
6.8 Environmental Laws
7.1 Existing Indebtedness
EXHIBITS
A Note
B-1 Borrower Security Agreement
B-2 Borrower Stock Pledge Agreement
B-3 Subsidiary Security Agreement
B-4 Subsidiary Stock Pledge Agreement
C Subsidiary Guarantee
D Borrowing Certificate
E-1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
E-2 Opinion of Cummings & Lockwood
E-3 Opinion of Paul E. Yestrumskas
E-4 Opinion of Amster, Rothstein & Ebenstein
E-5 Opinion of Rosenfeld, Meyer & Susman, LLP
F Assignment and Acceptance
G Trademark Subsidiary Agreement
H Intercreditor Agreement
(TERM LOAN AGREEMENT)
<PAGE>
THIS TERM LOAN AGREEMENT, dated as of July 21, 1997, is among (a)
PLAYTEX PRODUCTS, INC., a Delaware corporation (the "BORROWER"), (b) the several
banks and other financial institutions from time to time parties to this
Agreement, (the "LENDERS"), (c) DLJ CAPITAL FUNDING, INC. ("DLJ"), as
syndication agent (the "SYNDICATION AGENT") and (d) WELLS FARGO BANK, N.A.
("WELLS FARGO"), as facility manager for the Lenders hereunder (in such
capacity, the "FACILITY MANAGER").
WHEREAS, the Borrower, the several lenders parties thereto on the
date hereof and The Chase Manhattan Bank, as agent, are parties to a Credit
Agreement, dated as of June 6, 1995 (as amended, supplemented or otherwise
modified to the Closing Date (this and other capitalized terms used in these
recitals without definition being used as defined in subsection 1.1), the
"EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrower proposes to prepay all of its outstanding
indebtedness under the Existing Credit Agreement on the Closing Date and
terminate any commitments thereunder; and
WHEREAS, in order to finance (i) the prepayment of approximately
$391,900,000 in aggregate principal amount of existing indebtedness under the
Existing Credit Agreement and accrued and unpaid interest thereon, and (ii) the
payment of up to $10,000,000 in Transaction Costs, the Borrower proposes to
issue the Senior Notes under the Senior Note Indenture for aggregate gross
proceeds of not less than $150,000,000 and borrow under the Credit Agreement
Term A Loans in an aggregate principal amount of $55,000,000 and Revolving
Credit Loans in an initial aggregate principal amount of $46,900,000, the
Lenders have agreed, subject to the terms and conditions set forth herein, to
make the Loans under this Agreement.
NOW THEREFORE, in consideration of the premises, the Borrower, the
Agents and the Lenders agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, terms defined in the
preamble or recitals hereto are used as so defined and the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "PRIME RATE" shall mean the rate of interest per
annum publicly announced from time to time by Wells Fargo as its prime
rate in effect at its principal office (the Prime Rate not being
(TERM LOAN AGREEMENT)
<PAGE>
intended to be the lowest rate of interest charged by Wells Fargo in
connection with extensions of credit to debtors); "BASE CD RATE" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D Assessment
Rate; "THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following
such day), or, if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Facility Manager from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Facility Manager from three
federal funds brokers of recognized standing selected by it. Any change in
the ABR due to a change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate, respectively.
"ABR LOANS": Loans the rate of interest applicable to which is
based upon the ABR.
"ACQUIRED INDEBTEDNESS": means Indebtedness of a Person (i) existing
at the time such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness
shall be deemed to be incurred on the date of the related acquisition of
assets from any Person or the date the acquired Person becomes a
Subsidiary.
"ACQUISITION REVOLVING CREDIT COMMITMENTS": the commitment of a
lender under the Credit Agreement to make Acquisition Revolving Credit
Loans to the Borrower as set forth in the Credit Agreement.
(TERM LOAN AGREEMENT)
<PAGE>
"ACQUISITION REVOLVING CREDIT LOANS": Acquisition Revolving Credit
Loans under the Credit Agreement.
"ADMINISTRATIVE AGENT": Wells Fargo, in its capacity as
administrative agent under the Credit Agreement, and its successors and
assigns.
"AFFILIATE": with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person or (ii) any other
Person that owns, directly or indirectly, 10% or more of such Person's
equity ownership or Voting Stock or any officer or director of any such
Person or other Person or with respect to any natural Person, any person
having a relationship with such Person by blood, marriage or adoption not
more remote than first cousin or, in the case of any Lender which is an
investment fund, any other fund which is managed by the same investment
advisor or an Affiliate thereof. For the purposes of this definition,
"control" when used with respect to any specified Person means the power
to direct the management and policies of such Person directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGENTS": the Facility Manager and the Syndication Agent, and for
the purposes of Section 9 only, the Collateral Agent.
"AGREEMENT": this Term Loan Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPAREL NOTES": the Junior Subordinated Notes dated December 28,
1988 issued by the Borrower in the approximate original aggregate
principal amount of $38,350,000, the outstanding principal amount of which
as of March 31, 1997 was approximately $78,400,000, and additional notes
in the form thereof issued in lieu of cash interest, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"APPLICABLE ABR MARGIN": as of any date of determination, a
percentage equal to 0.25%.
"APPLICABLE EURODOLLAR MARGIN": as of any date of determination, a
percentage per annum equal to 1.50%.
"ARRANGER": Donaldson, Lufkin & Jenrette Securities Corporation, as
arranger of the credit facilities described herein.
"ASSET SALE": any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and
(TERM LOAN AGREEMENT)
<PAGE>
leaseback transaction but not the grant of a pledge or security interest)
(collectively, a "transfer"), directly or indirectly, in one or a series
of related transactions, of (i) any Capital Stock of any Subsidiary; (ii)
all or substantially all of the properties and assets of any division or
line of business of the Borrower or any of its Subsidiaries; or (iii) any
other properties or assets (other than cash) of the Borrower or any
Subsidiary, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties and assets (A) that is governed by the provisions
described in subsection 7.8, (B) from any Wholly Owned Subsidiary to the
Borrower in accordance with the terms of this Agreement, (C) having a
market value of less than $1,000,000 (it being understood that if the
market value of the properties or assets being transferred exceeds
$1,000,000, the entire value and not just the portion in excess of
$1,000,000, shall be deemed to have been the subject of an Asset Sale),
(D) to any Wholly Owned Subsidiary which is a Guarantor, (E) which are
obsolete to the Borrower's and its Subsidiaries' businesses or (F) from
any Wholly Owned Subsidiary to any other Wholly Owned Subsidiary which is
a Guarantor.
"ASSIGNEE": as defined in subsection 10.6(c).
"AVERAGE LIFE": as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of such
Indebtedness multiplied by (b) the amount of each such principal payment
by (ii) the sum of all such principal payments.
"BOARD": the Board of Governors of the Federal Reserve System (or
any successor thereto).
"BOARD OF DIRECTORS": The board of directors of the Borrower or any
duly authorized committee of such board.
"BORROWER": as defined in the introduction to this Agreement.
"BORROWER SECURITY AGREEMENT": the Security Agreement to be executed
and delivered by the Borrower, substantially in the form of Exhibit B-1,
as the same may be amended, supplemented or otherwise modified from time
to time.
"BORROWER SECURITY DOCUMENTS": the collective reference to the
Borrower Security Agreement and the Borrower Stock Pledge Agreement.
"BORROWER STOCK PLEDGE AGREEMENT": the Pledge Agreement to be
executed and delivered by the Borrower, substantially in the form of
Exhibit B-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"BUSINESS": as defined in subsection 4.17(b).
(TERM LOAN AGREEMENT)
<PAGE>
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or San Francisco are authorized or
required by law to close.
"CANADIAN SUBSIDIARY": any Subsidiary organized under the laws of
Canada or any province thereof, a majority of the assets of which are
located in Canada.
"CAPITAL LEASE OBLIGATIONS": of any Person, any obligations of such
Person under any capital lease of real or personal property which, in
accordance with GAAP, has been recorded as a capitalized lease obligation.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"CASH EQUIVALENTS": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency or instrumentality thereof, (b)
certificates of deposit, time deposits, overnight bank deposits, bankers'
acceptances and repurchase agreements of any commercial bank which has
capital and surplus in excess of $500,000,000 having maturities of one
year or less from the date of acquisition, (c) commercial paper of an
issuer rated at least A-1 by Standard and Poor's Ratings Group or P-1 by
Moody's Investors Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments having maturities of nine
months or less from the date of acquisition, (d) securities with
maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States or by any political subdivision or taxing authority of any such
state, commonwealth or territory, the securities of which state,
commonwealth, territory, political subdivision or taxing authority (as the
case may be) are rated at least A by Standard & Poor's Ratings Group or A
by Moody's Investors Services, Inc., (e) securities with maturities of one
year or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition, or (f) shares of money
market accounts or funds which invest only in the types of securities
described in (a) through (e) above.
"C/D ASSESSMENT RATE": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss. 327.3(d) (or any
successor provision) to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation's (or such successor's) insuring time
deposits at offices of such institution in the United States.
(TERM LOAN AGREEMENT)
<PAGE>
"C/D RESERVE PERCENTAGE": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
such Board) in respect of new non-personal time deposits in Dollars having
a maturity of 30 days or more.
"CHANGE OF CONTROL": the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than Permitted Holders, is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have beneficial
ownership of all shares that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the Voting Stock of all
classes of Voting Stock of the Borrower; (ii) the Borrower consolidates
with or merges with or into any Person or conveys, transfers or leases all
or substantially all of its assets to any Person, or any corporation
consolidates with or merges with or into the Borrower, in any such event
pursuant to a transaction in which the outstanding Voting Stock of the
Borrower is changed into or exchanged for cash securities or other
property, other than any such transaction (1) where the outstanding Voting
Stock of the Borrower is not changed or exchanged at all (except to the
extent necessary to reflect a change in the jurisdiction of incorporation
of the Borrower) or (2) where (A) the outstanding Voting Stock of the
Borrower is changed into or exchanged for (x) Voting Stock of the
surviving corporation or the Borrower which is not Redeemable Capital
Stock or (y) cash, securities and other property (other than Capital Stock
of the surviving corporation) in an amount which could be paid by the
Borrower as a Restricted Payment pursuant to subsection 7.2 (and such
amount shall be treated as a Restricted Payment subject to the provisions
of subsection 7.2) and (B) no "person" or "group" other than Permitted
Holders owns immediately after such transaction, directly or indirectly,
more than 50% of the total outstanding Voting Stock of the surviving
corporation, or (iii) the Borrower is liquidated or dissolved or adopts a
plan of liquidation or dissolution other than in a transaction which
complies with the provisions of subsection 7.8
"CLOSING DATE": the date on which the conditions precedent set forth
in subsection 5.1 shall be satisfied, PROVIDED that such date shall be no
later than August 31, 1997.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document.
(TERM LOAN AGREEMENT)
<PAGE>
"COLLATERAL AGENT": Wells Fargo acting in its capacity as collateral
agent under the applicable Security Documents on behalf of the Lenders and
the Persons party to the Intercreditor Agreement (other than the
Borrower), and its successors and assigns.
"COMMITMENT": as to any Lender, the obligation of such Lender to
make a Loan to the Borrower on the Closing Date in a principal amount not
to exceed the amount set forth opposite such Lender's name on Schedule 1.1
under the heading "Loan Commitment".
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"CONSOLIDATED ASSETS": with respect to the Borrower, the total
assets shown on the balance sheet of the Borrower and its Consolidated
Subsidiaries, as determined on a Consolidated basis in accordance with
GAAP, as of the last day of the Borrower's latest full fiscal quarter.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO": for any period, as
applied to any Person, the ratio of (a) the sum of Consolidated Net
Income, Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated Non-Cash Charges deducted in computing Consolidated Net
Income (Loss) in each case, for such period, of such Person and its
Subsidiaries on a Consolidated basis, all determined in accordance with
GAAP to (b) the sum of Consolidated Interest Expense for such period and
cash dividends (other than any such non-cash dividends in the form of
Qualified Capital Stock which does not provide for the payment of cash
dividends prior to any Stated Maturity of the principal of the Notes) paid
on any Preferred Stock, and non-cash dividends paid on any Redeemable
Capital Stock, of such Person during such period; PROVIDED that (i) in
making such computation, the Consolidated Interest Expense attributable to
interest on any Indebtedness computed on a pro forma basis and (A) bearing
a floating interest rate shall be computed as if the rate in effect on the
date of computation had been the applicable rate for the entire period and
(B) which was not outstanding during the period for which the computation
is being made but which bears, at the option of such Person, a fixed or
floating rate of interest, shall be computed by applying, at the option of
such Person, either the fixed or floating rate and (ii) in making such
computation, the Consolidated Interest Expense of such Person attributable
to interest on any Indebtedness under a revolving credit facility computed
on a pro forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable period.
"CONSOLIDATED INCOME TAX EXPENSE": of any Person means, for any
period, the provision for federal, state, local and foreign income taxes
of such Person and its Consolidated subsidiaries for such period as are
determined in accordance with GAAP.
(TERM LOAN AGREEMENT)
<PAGE>
"CONSOLIDATED INTEREST EXPENSE": of any Person, without duplication,
for any period, as applied to any Person, the sum of (a) the interest
expense of such Person and its Consolidated subsidiaries for such period,
on a Consolidated basis, including, without limitation, (i) amortization
of debt discount, (ii) the net cost under interest rate contracts
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation and (iv) accrued interest, plus (b)(i) the
interest component of Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person during such period and (ii)
all capitalized interest of such Person and its Consolidated subsidiaries,
in each case as determined in accordance with GAAP.
"CONSOLIDATED NET INCOME": of any Person means, for any period, the
Consolidated net income (or loss) of such Person and its Consolidated
subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such Consolidated net
income (or loss), by excluding, without duplication, (i) all extraordinary
gains and losses, (ii) the portion of Consolidated net income (or loss) of
such Person and its Consolidated subsidiaries allocable to minority
interests in unconsolidated Persons to the extent that cash dividends or
distributions have not actually been received by such Person or one of its
Consolidated subsidiaries, (iii) net income (or loss) of any Person
combined with such Person or any of its subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of
combination, (iv) any gain or loss, net of taxes, realized upon the
termination of any employee pension benefit plan, (v) aggregate net gains
(less all fees and expenses relating thereto) in respect of dispositions
of assets other than in the ordinary course of business, (vi) the net
income of any subsidiary to the extent that the declaration of dividends
or similar distributions by that subsidiary of that income is not at the
time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulations applicable to that subsidiary or its
stockholders, (vii) all non-cash interest income arising from Indebtedness
owed to the Borrower or any of its Subsidiaries from Playtex Apparel
Partners, L.P. (net of any non-cash interest expense arising from
Indebtedness in existence on the date of this Agreement or any
refinancings thereof (or any pay-in-kind obligation issued pursuant to the
terms thereof) owed by the Borrower or any of its Subsidiaries to the
Playtex Apparel Partners, L.P. or its partners or their transferees),
(viii) any restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of income accrued at
any time following the date of this Agreement, (ix) any net gain from the
collection of proceeds of life insurance policies or (x) any gain arising
from the acquisition of any securities, or the extinguishment, under GAAP,
of any Indebtedness of such Person.
"CONSOLIDATED NON-CASH CHARGES": of any Person, for any period, the
aggregate depreciation, amortization and other non-cash charges of such
Person and its Consolidated Subsidiaries for such period, as determined in
accordance with GAAP (excluding any non-cash charge which requires an
accrual or reserve for cash charges for any future period).
(TERM LOAN AGREEMENT)
<PAGE>
"CONSOLIDATION": with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the
extent the accounts of such Person and each of its subsidiaries would
normally be consolidated with those of such Person, all in accordance with
GAAP. The term "Consolidated" shall have a similar meaning.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CREDIT AGREEMENT": the Credit Agreement dated as of July 21, 1997,
among the Borrower, the several banks and other financial institutions
from time to time parties thereto, DLJ Capital Funding, Inc., as
syndication agent, and Wells Fargo, as administrative agent, as amended,
renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified from time to time (including, without
limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplementations or other
modifications of the foregoing).
"CREDIT AGREEMENT AGENT": Wells Fargo, as administrative agent for
the lenders under the Credit Agreement, and its successors and assigns.
"DEFAULT": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"DLJ": as defined in the introduction to this Agreement.
"DISINTERESTED DIRECTOR": with respect to any transaction or series
of related transactions, a member of the Board of Directors who does not
have any material direct or indirect financial interest in or with respect
to such transaction or series of related transactions.
"DOLLARS" AND "$": dollars in lawful currency of the United States
of America.
"DOMESTIC SUBSIDIARY": a Subsidiary of the Borrower which is
incorporated in a state of the United States or in the District of
Columbia.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health
(as a result of exposure to Materials of Environmental Concern) or the
environment, as now or may at any time hereafter be in effect.
(TERM LOAN AGREEMENT)
<PAGE>
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such system.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the average of the respective rates notified to the Facility Manager by
each of the Reference Lenders as the rate at which such Reference Lender
is offered Dollar deposits at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to the amount
of its Eurodollar Loans to be outstanding during such Interest Period.
"EURODOLLAR LOANS": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
EURODOLLAR BASE RATE
1.00 -Eurocurrency Reserve Requirements
"EVENT OF DEFAULT": any of the events specified in Section 8,
PROVIDED that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"EXCESS AMOUNT": as defined in subsection 3.3(g).
"EXCHANGE ACT": the Securities Exchange Act of 1934, as amended.
"EXCLUDED ASSETS": the assets and other property held by the
Borrower (including shares of Capital Stock) relating to the Jhirmack
Business.
(TERM LOAN AGREEMENT)
<PAGE>
"EXISTING CREDIT AGREEMENT": as defined in the recitals to this
Agreement.
"EXISTING LENDERS": the lenders under the Existing Credit Agreement.
"EXISTING LOAN DOCUMENTS": the "Loan Documents" under the Existing
Credit Agreement.
"EXISTING REVOLVING CREDIT LOANS": the revolving credit loans and
swing line loans outstanding under the Existing Credit Agreement on the
Closing Date.
"EXISTING TERM LOANS": the term loans outstanding under the Existing
Credit Agreement on the Closing Date.
"FACILITY MANAGER": as defined in the introduction to this Agreement
and also means and includes any successor facility manager appointed
pursuant to subsection 9.9.
"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the United
States of America, consistently applied, which are in effect on the date
of this Agreement.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE": the reference to the Subsidiaries Guarantee.
"GUARANTEED DEBT": of any Person, without duplication, all
Indebtedness of any other Person referred to in the definition of
Indebtedness guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness,
(ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Indebtedness or to assure the holder of
such Indebtedness against loss, (iii) to supply funds to, or in any other
manner invest in, the debtor (including any agreement to pay for property
or services without requiring that such property be received or such
services be rendered), (iv) to maintain working capital or equity capital
of the debtor, or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or (v) otherwise to assure a creditor
against loss; PROVIDED that the term "guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary
course of business.
(TERM LOAN AGREEMENT)
<PAGE>
"GUARANTOR": any Person delivering a Guarantee or a supplement
thereto pursuant to this Agreement.
"INDEBTEDNESS": with respect to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and
other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent
or otherwise, of such Person in connection with any letters of credit
issued under letter of credit facilities, acceptance facilities or other
similar facilities and in connection with any agreement to purchase,
redeem, exchange, convert or otherwise acquire for value any Capital Stock
of such Person, or any warrants, rights or options to acquire such Capital
Stock, now or thereafter outstanding, (ii) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments, (iii)
all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person
(even if the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property), but excluding trade payables arising in the ordinary
course of business, (iv) all obligations under Interest Rate Agreements of
such Person, (v) all Capital Lease Obligations of such Person, (vi) all
Indebtedness referred to in clauses (i) through (v) above of other Persons
and all dividends of other Persons, the payment of which is secured by (or
for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien, upon or with respect
or property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (vii) all Guaranteed Debt of
such Person, (viii) all Redeemable Capital Stock valued at the greater of
its voluntary or involuntary maximum fixed repurchase price plus accrued
and unpaid dividends, and (ix) any amendment, supplement, modification,
deferral, renewal, extension, refunding or refinancing of any Indebtedness
of the types referred to in clauses (i) through (viii) above. For purposes
hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such
Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Agreement, and if such
price is based upon, or measured by, the fair market value of such
Redeemable Capital Stock, such fair market value to be determined in good
faith by the Board of Directors of such Person.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": as defined in subsection 4.9.
(TERM LOAN AGREEMENT)
<PAGE>
"INTERCREDITOR AGREEMENT": the intercreditor agreement dated as of
July 21, 1997, by and among the Borrower, the other Loan Parties, the
Collateral Agent, the Administrative Agent and the Facility Manager,
substantially in the form of Exhibit H annexed hereto, as such
Intercreditor Agreement may hereafter be amended, supplemented or modified
from time to time.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the first day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period and (c) as to
any Eurodollar Loan having an Interest Period longer than three months,
each day which is three months or a whole multiple thereof after the first
day of such Interest Period and the last day of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three, six or nine months (or, if
available, twelve months) thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three, six or nine months (or, if
available, twelve months) thereafter, as selected by the Borrower by
irrevocable notice to the Facility Manager not less than three
Business Days prior to the last day of the then current Interest
Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period for any Loans that would otherwise
extend beyond the date final payment is due on such Loans shall end
on such date of final payment;
(iii) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no
(TERM LOAN AGREEMENT)
<PAGE>
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a
calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"INTEREST RATE AGREEMENT": with respect to any Person, any interest
rate swap agreement, interest rate future, interest rate option, interest
rate cap or other interest rate hedge arrangement, to or under which such
Person is a party or a beneficiary.
"INVESTMENT": with respect to any Person, directly or indirectly,
any advance, loan (including guarantees), or other extension of credit or
capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account
or use of others), or any purchase, acquisition or ownership by such
Person of any Capital Stock, bonds, notes, debentures or other securities
issued or owned by, any other Person and all other items that are or would
be classified as investments on a balance sheet prepared in accordance
with GAAP.
"JHIRMACK BUSINESS": the assets and liabilities of the Borrower and
its Subsidiaries relating to Jhirmack hair care products, including the
Capital Stock of any Subsidiary, substantially all of the assets and
liabilities of which relate to Jhirmack hair care products.
"LENDER": as defined in the introduction to this Agreement.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever which makes
any property or asset available for the payment or performance of any
liability in priority to the payment or performance of ordinary, unsecured
creditors (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LOAN": as defined in subsection 2.1.
"LOAN DOCUMENTS": this Agreement, the Notes, the Trademark
Subsidiary Agreement, the Guarantee, the Intercreditor Agreement and the
Security Documents.
"LOAN MATURITY DATE": September 15, 2003.
"LOAN PARTIES": the Borrower and each Subsidiary of the Borrower
which is a party to a Loan Document.
(TERM LOAN AGREEMENT)
<PAGE>
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Agents, the Collateral Agent or
the Lenders hereunder or thereunder.
"MATERIAL ENVIRONMENTAL AMOUNT": an amount payable by the Borrower
and/or its Subsidiaries in excess of $10,000,000 for remedial costs,
compliance costs, compensatory damages, punitive damages, fines, penalties
or any combination thereof.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"MATERIAL SUBSIDIARY": each Subsidiary of the Borrower which (i) for
the most recent fiscal year of the Borrower accounted for more than 10% of
the Consolidated revenues of the Borrower and its Subsidiaries or (ii) at
the end of such fiscal year, was the owner (beneficial or otherwise) of
more than 10% of the Consolidated Assets of the Borrower and its
Subsidiaries, all as shown on the Borrower's Consolidated financial
statements for such fiscal year. In addition, Playtex Marketing
Corporation shall be deemed to be a "Material Subsidiary."
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS": (a) with respect to any Asset Sale by any
Person, the proceeds thereof in the form of cash or Cash Equivalents
including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for,
cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Borrower or any Subsidiary) net of
(i) brokerage commissions and other reasonable fees and expenses
(including fees and expenses of counsel and investment bankers) related to
such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of
such Asset Sale, (iv) amounts required to be paid to any Person (other
than the Borrower or any Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (v) appropriate amounts to be
provided by the Borrower or any Subsidiary, as the case may be, as a
reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Borrower or any Subsidiary, as the
case may be, after such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated
(TERM LOAN AGREEMENT)
<PAGE>
with such Asset Sale, all as reflected in an officers' certificate
delivered to the Facility Manager and (b) with respect to any issuance or
sale of Capital Stock or options, warrants or rights to purchase Capital
Stock, or debt securities or Capital Stock that have been converted into
or exchanged for Capital Stock, as referred to under subsection 7.2, the
proceeds of such issuance or sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations when
received in the form of, or stock of other assets when disposed of for,
cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Borrower or any Subsidiary), net of
attorney's fees, accountant's fees and brokerage, consultation,
underwriting and other fees and expenses actually incurred in connection
with such issuance or sale and net of taxes paid or payable as a result
thereof.
"NEW SUBSIDIARY": any Wholly-Owned Subsidiary of the Borrower formed
subsequent to May 1, 1995, which (a) is a Guarantor or has become a
Guarantor by means of a supplement to the Guarantee in form and substance
satisfactory to the Agents (unless, in each case, released from such
Guarantee pursuant to subsection 10.8), (b) all of the Capital Stock of
which is pledged to the Collateral Agent, as collateral security for the
Obligations (as defined in the Borrower Pledge Agreement), pursuant to the
Borrower Pledge Agreement or a supplement thereto in form and substance
satisfactory to the Agents and (c) if not in existence on the Closing
Date, has delivered to the Agents such legal opinions, secretary's
certificates, resolutions and other customary documents in connection with
the supplements referred to in (a) and (b) above as the Facility Manager
may reasonably request.
"NON-EXCLUDED TAXES": as defined in subsection 3.12.
"NOTE": as defined in subsection 3.2(e).
"NOTIFYING LENDER": any Lender that gives written irrevocable notice
to the Facility Manager, on or prior to the date on which such Lender
becomes a party to this Agreement, to the effect that it will not request
that any promissory note be issued to it pursuant to subsection 3.2(e),
and any direct or indirect Assignee of such Lender, in its capacity as
such an Assignee.
"OLD PLAYTEX PRODUCTS SUBORDINATED DEBT": the $105,000,000 in
aggregate principal amount of 15% Subordinated Notes issued by the
Borrower and originally due December 31, 2000, which was redeemed in full
on March 4, 1994.
"PARTICIPANT": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
(TERM LOAN AGREEMENT)
<PAGE>
"PERMITTED HOLDERS": each of (i) HWH Capital Partners, L.P., HWH
Valentine Partners, L.P., HWH Surplus Valentine Partners, L.P. (each a
"Partnership") or Haas Wheat & Partners Incorporated and any of their
respective Affiliates; (ii) any officer or other member of management
employed by the Borrower or any Subsidiary as of the date of this
Agreement; (iii) Robert B. Haas and Douglas D. Wheat; (iv) family members
or relatives of the persons described in clauses (ii) and (iii); (v) any
trusts created for the benefit of the persons described in clause (ii),
(iii) or (iv); (vi) in the event of incompetence or death of any of the
persons described in clauses (ii), (iii) or (iv), such person's estate,
executor, administrator, committee or other personal representatives or
beneficiaries; and (vii) upon a distribution by a Partnership of all or
any of the stock of the Borrower, the limited partners of such a
Partnership.
"PERMITTED INDEBTEDNESS": the following:
(i) Indebtedness of the Borrower under the Credit Agreement in an
aggregate principal amount at any one time outstanding not to exceed
$170,000,000, reduced by (A) any scheduled principal payments actually
made and (B) any amounts by which any revolving credit facility commitment
is permanently reduced and the revolving credit loans, to the extent
required, are indefeasibly and irrevocably paid in cash;
(ii) Guarantees by, and Liens on the property of, any Subsidiary
guaranteeing or securing the Borrower's Indebtedness under the Credit
Agreement;
(iii) Indebtedness of the Borrower under this Agreement and
Guarantees by, and Liens on the property of, any Subsidiary guaranteeing
or securing the Borrower's Indebtedness under this Agreement;
(iv) Indebtedness of the Borrower or any Subsidiary outstanding on
the date of this Agreement and listed on schedule 7.1 hereto;
(v) Indebtedness (a) of the Borrower owing to a Wholly Owned
Subsidiary which is a Guarantor or (b) of a Wholly Owned Subsidiary which
is a Guarantor owing to the Borrower or another Wholly Owned Subsidiary
which is a Guarantor; PROVIDED that any such Indebtedness is made pursuant
to an intercompany note and, in the case of Indebtedness of the Borrower
owing to a Subsidiary, is subordinated in right of payment from and after
such time as the Notes shall become due and payable (whether at Stated
Maturity, acceleration or otherwise) to the payment and performance of the
Borrower's obligations under the Notes; PROVIDED, FURTHER, that (x) any
disposition, pledge or transfer of any such Indebtedness to a Person
(other than the Borrower or a Wholly Owned Subsidiary which is a
Guarantor) shall be deemed to be an incurrence of such Indebtedness by the
obligor not permitted by this clause (v) and (y) any transaction pursuant
to which any Wholly Owned Subsidiary, which has Indebtedness owing to the
Borrower or any other Wholly Owned Subsidiary, ceases to be a Wholly
(TERM LOAN AGREEMENT)
<PAGE>
Owned Subsidiary shall be deemed to be the incurrence of Indebtedness by
the Borrower or such other Wholly Owned Subsidiary that is not permitted
by this clause (v);
(vi) obligations of the Borrower or any Subsidiary pursuant to
Interest Rate Agreements designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates in respect of
Indebtedness of the Borrower or any of its Subsidiaries, which obligations
do not exceed the aggregate principal amount of such Indebtedness;
(vii) trade and standby letters of credit issued for the account of
the Borrower or any Subsidiary of the Borrower in the ordinary course of
its business (excluding letters of credit described in clauses (viii) and
(ix) below);
(viii)letters of credit of up to $7,500,000 in the aggregate at any
time outstanding issued for the account of the Borrower or any Subsidiary
of the Borrower for any purpose other than in the ordinary course of
business;
(ix) letters of credit issued for the account of the Borrower in
support of the Borrower's self-insurance obligations and in support of
Indebtedness under industrial revenue bonds, to the extent that such
obligations or such Indebtedness are recorded on the balance sheet of the
Borrower;
(x) Capital Lease Obligations, industrial revenue bonds and Purchase
Money Obligations of the Borrower or any Subsidiary, not to exceed
$10,000,000 in the aggregate at any time outstanding;
(xi) Indebtedness of the Borrower or any Canadian Subsidiary
incurred to fund the working capital requirements necessary for the
Canadian operations of any Canadian Subsidiary in an amount not to exceed
$10,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness of the Borrower pursuant to the Senior Notes and
Indebtedness of any Subsidiary pursuant to a guarantee of the Senior Notes
provided that such Subsidiary is a Guarantor;
(xiii)Indebtedness of the Borrower pursuant to the Senior
Subordinated Notes and Indebtedness of any Subsidiary pursuant to a
subordinated guarantee of the Senior Subordinated Notes provided that such
Subsidiary is a Guarantor;
(xiv) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness described in paragraphs (ii), (iii), (iv), (xii) and (xiii)
of this definition of "Permitted Indebtedness," including any successive
refinancings so long as such refinancing does not increase the aggregate
principal amount of Indebtedness represented thereby plus the lesser of
(TERM LOAN AGREEMENT)
<PAGE>
(I) the stated amount of any premium or other payment required to be paid
in connection with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (II) the amount of premium or other
payment actually paid at such time to refinance the Indebtedness, plus, in
either case, the amount of expenses of the Borrower incurred in connection
with such refinancing and, in the case of Senior Indebtedness or
Subordinated Indebtedness, such refinancing does not reduce the Average
Life to Stated Maturity or the Stated Maturity of such Indebtedness; and
(xv) Indebtedness of the Borrower or any Subsidiary which is a
Guarantor in addition to that described in paragraphs (i) through (xiv) of
this definition of "Permitted Indebtedness" in an aggregate principal
amount outstanding at any given time not to exceed $50,000,000, which
amount, notwithstanding the provisions of paragraph (i) hereof, may be
incurred under the Credit Agreement.
"PERMITTED INVESTMENT": (i) Investments in the Borrower or in any
Wholly Owned Subsidiary which is a Guarantor or Investments by the
Borrower or any Subsidiary in a Person, if as a result of such Investment
(a) such Person becomes a Wholly Owned Subsidiary which is a Guarantor or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated
into, the Borrower or any Wholly Owned Subsidiary which is a Guarantor;
(ii) Investments in the Notes and the Guarantees; (iii) Indebtedness owing
to a Subsidiary described under clause (v) of the definition of "Permitted
Indebtedness"; (iv) Temporary Cash Investments; (v) Investments acquired
by the Borrower or any Subsidiary in connection with an Asset Sale
permitted under subsection 7.5 to the extent such Investments are non-cash
consideration as permitted under such subsection; (vi) Investments in
existence on the date of this Agreement, and (vii) in addition to the
Investments described in clauses (i) through (vi) of this definition of
"Permitted Investments," Investments in any Subsidiary, or in any joint
venture or other entity in an amount not to exceed $35,000,000 in the
aggregate since the date of this Agreement.
"PERMITTED LIENS": (i) Liens securing Indebtedness under this
Agreement, and Liens securing Indebtedness under the Credit Agreement
provided that such Liens also secure on a pari passu basis Indebtedness
under this Agreement, (ii) Liens for taxes, assessments or governmental
charges or claims that either (A) are not yet delinquent or (B) are being
contested in good faith by appropriate proceedings and as to which
appropriate reserves have been established or other provisions have been
made in accordance with GAAP; (iii) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other Liens imposed by law and arising in the ordinary
course of business and with respect to amounts that, to the extent
applicable, either (A) are not yet delinquent or (B) are being contested
in good faith by appropriate proceedings and as to which appropriate
reserves have been established or other provisions have been made in
accordance with GAAP; (iv) Liens on property of a Person existing at the
time such Person is merged into,
(TERM LOAN AGREEMENT)
<PAGE>
consolidated with or acquired by the Borrower or any Subsidiary of the
Borrower which is a Guarantor; PROVIDED that such Liens were not incurred
in contemplation of such merger or consolidation and do not extend to any
assets other than those of (A) the Person merged into or consolidated with
the Borrower or any Subsidiary which is a Guarantor or (B) those of an
unrelated third party; (v) Liens on property existing at the time of
acquisition thereof by the Borrower or any Subsidiary of the Borrower
which is a Guarantor; PROVIDED that such Liens were not incurred in
contemplation of such acquisition; (vi) Liens existing on the date of this
Agreement; (vii) replacement Liens securing any Indebtedness refinanced as
permitted in clause (xiv) of the definition of "Permitted Indebtedness;"
(viii) Liens arising under licensing agreements entered into by the
Borrower or any Subsidiary in the ordinary course of business for the use
of Intellectual Property or other intangible assets of the Borrower or
such Subsidiary, and settlements, permissions, consents to use, and other
similar agreements concerning Intellectual Property or judgments
adjudicating rights in Intellectual Property; (ix) Liens securing sale and
leaseback transactions, Capital Lease Obligations, industrial revenue
bonds and Purchase Money Obligations permitted to be incurred under clause
(x) of the definition of "Permitted Indebtedness;" (x) Liens securing any
Indebtedness of the Borrower or any Subsidiary which is a Guarantor
permitted to be incurred pursuant to clauses (vi) (to the extent permitted
under the Senior Note Indenture), (viii), (xi) and (xv) of the definition
of "Permitted Indebtedness;" (xi) Liens (other than any Lien imposed by
the Employer Retirement Income Security Act of 1974, as amended) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements; (xii) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, progress payments, government
contracts and other obligations of like nature (exclusive of obligations
for the payment of borrowed money), in each case, incurred in the ordinary
course of business; (xiii) attachment or judgment Liens not giving rise to
a Default or an Event of Default; and (xiv) leases, subleases, easements,
rights-of-way, encroachments and other survey defects, restrictions and
other similar charges or encumbrances not materially interfering with the
ordinary conduct of business of the Borrower or any of its Subsidiaries.
"PERSON": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
(TERM LOAN AGREEMENT)
<PAGE>
"PREFERRED STOCK": with respect to any Person, any Capital Stock of
any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class in such Person.
"PROPERTIES": as defined in subsection 4.17(a).
"PURCHASE MONEY OBLIGATIONS": any Indebtedness secured by a Lien on
assets related to the business of the Borrower or its Subsidiaries, and
any additions and accessions thereto, which are purchased by the Borrower
or any Subsidiary at any time after the Notes are issued; PROVIDED that
(i) the security agreement or conditional sales or other title retention
contract pursuant to which the Lien on such assets is created
(collectively a "Purchase Money Security Agreement") shall be entered into
within 90 days after the purchase or substantial completion of the
construction of such assets and shall at all times be confined solely to
the assets so purchased or acquired, any additions and accessions thereto
and any proceeds therefrom, (ii) at no time shall the aggregate principal
amount of the outstanding Indebtedness secured thereby be increased,
except in connection with the purchase of additions and accessions thereto
and except in respect of fees and other obligations in respect of such
Indebtedness and (iii)(A) the aggregate outstanding principal amount of
Indebtedness secured thereby (determined on a per asset basis in the case
of any additions and accessions) shall not at the time such Purchase Money
Security Agreement is entered into exceed 100% of the purchase price to
the Borrower or any Subsidiary of the assets subject thereto or (B) the
Indebtedness secured thereby shall be with recourse solely to the assets
so purchased or acquired, any additions and accessions thereto and any
proceeds therefrom.
"QUALIFIED CAPITAL STOCK": of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"REDEEMABLE CAPITAL STOCK": any Capital Stock that, either by its
terms or by the terms of any security into which it is convertible or
exchangeable or otherwise, is, or upon the happening of an event or
passage of time would be, required to be redeemed prior to any Stated
Maturity of the principal of the Notes or is redeemable at the option of
the holder thereof at any time prior to any such Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to
any such Stated Maturity at the option of the holder thereof.
"REFERENCE LENDERS": Wells Fargo and two other Lenders or lenders
under the Credit Agreement to be appointed with the consent of the
Facility Manager and the Borrower.
"REGISTER": as defined in subsection 10.6(d).
(TERM LOAN AGREEMENT)
<PAGE>
"REGISTRATION RIGHTS AGREEMENT": the Registration Rights Agreement,
dated as of July 21, 1997, between the Borrower and the initial purchaser
of the Senior Notes for the benefit of the holders of the Senior Notes.
"REGULATION U": Regulation U of the Board as in effect from time to
time.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the 30-day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss.
2615.
"REQUIRED LENDERS": at any time, Lenders holding at least 51% of the
then outstanding principal amount of the Loans (or, prior to the Closing
Date, the Commitments).
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"RESPONSIBLE OFFICER": the chief executive officer or the president
of the Borrower or, with respect to financial matters, the chief financial
officer or the vice president-finance of the Borrower.
"RESTRICTED PAYMENT": as defined in subsection 7.2.
"REVOLVING CREDIT LOANS": the revolving credit loans of the Borrower
under the Credit Agreement.
"SECURITIES ACT": the Securities Act of 1933, as amended from time
to time, and any successor statute.
"SECURITY DOCUMENTS": the collective reference to the Borrower
Security Agreement, the Stock Pledge Agreements, the Subsidiary Security
Agreements and all other security documents hereafter delivered to the
Collateral Agent granting a Lien on any asset or assets of any Person to
secure the obligations and liabilities of the Borrower hereunder and under
any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities.
"SENIOR INDEBTEDNESS": any Indebtedness which ranks PARI PASSU in
right of payment with, and which is not expressly by its terms
subordinated in right of payment
(TERM LOAN AGREEMENT)
<PAGE>
of principal, interest or premium, if any, to the Notes, whether or not
such Indebtedness is secured.
"SENIOR NOTE INDENTURE": the Indenture dated as of July 21, 1997
between the Borrower, as issuer, and Marine Midland Bank, as trustee, as
the same may be amended, supplemented or otherwise modified from time to
time, except as prohibited by the terms hereof.
"SENIOR NOTES": the 8 7/8% Senior Notes Due 2004 issued by the
Borrower in the aggregate original amount of $150,000,000 pursuant to the
Senior Note Indenture, together with such new senior notes issued by the
Borrower subsequent to the Closing Date in exchange for any or all of the
Senior Notes pursuant to the terms of the Registration Rights Agreement in
the aggregate principal amount equal to the aggregate principal amount of
the Senior Notes so exchanged, which new senior notes shall be registered
under the Securities Act.
"SENIOR SUBORDINATED INDENTURE": the Indenture dated as of February
2, 1994 between the Borrower, as Issuer, and IBJ Schroder Bank & Trust
Company, as Trustee, as the same has been and may be amended, supplemented
or otherwise modified from time to time, except as prohibited by the terms
hereof.
"SENIOR SUBORDINATED NOTES": the Senior Subordinated Notes of the
Borrower issued pursuant to the Senior Subordinated Indenture.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"STATED MATURITY": when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness
or such installment of interest, as the case may be, is due and payable.
"STOCK PLEDGE AGREEMENTS": the collective reference to the Borrower
Stock Pledge Agreement and the Subsidiary Stock Pledge Agreements.
"SUBORDINATED INDEBTEDNESS": Indebtedness of the Borrower
subordinated in right of payment to the Notes, including, without
limitation, the Senior Subordinated Notes.
"SUBSIDIARIES GUARANTEE": the Guarantee to be made by the
Subsidiaries listed as Subsidiary Guarantors on Schedule 4.15,
substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
(TERM LOAN AGREEMENT)
<PAGE>
"SUBSIDIARY": as to any Person, a majority of the equity ownership
or the Voting Stock of which is at the time owed, directly or indirectly,
by the Borrower or by one or more other Subsidiaries, or by the Borrower
and one or more other Subsidiaries; PROVIDED that, an Unrestricted
Subsidiary shall not be deemed a Subsidiary for purposes of this
Agreement.
"SUBSIDIARY SECURITY AGREEMENT": each Subsidiary Security Agreement
to be executed and delivered by each Domestic Subsidiary, in substantially
the form of Exhibit B-3, as the same may be amended, supplemented or
otherwise modified from time to time.
"SUBSIDIARY STOCK PLEDGE AGREEMENT": each Pledge Agreement to be
executed and delivered by each Domestic Subsidiary, substantially in the
form of Exhibit B-4, as the same may be amended, supplemented or otherwise
modified from time to time.
"SYNDICATION AGENT": as defined in the introduction to this
Agreement and also means and includes any successor syndication agent
appointed pursuant to subsection 9.9.
"TEMPORARY CASH INVESTMENTS": (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by
the United States of America, or an instrumentality or agency thereof, and
guaranteed fully as to principal, premium, if any, and interest by the
United States of America, (ii) any certificate of deposit, maturing not
more than one year after the date of acquisition, issued by, or time
deposit of, the Facility Manager or a commercial banking institution that
is a member of the Federal Reserve System and that has combined capital
and surplus and undivided profits of not less than $500,000,000, whose
debt has a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's Investors Service Inc.
("Moody's") or any successor rating agency or "A-1" (or higher) according
to Standard & Poor's Corporation ("S&P") or any successor rating agency,
(iii) commercial paper, maturing not more than one year after the date of
acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of Borrower) organized and existing under the laws of the
United States of America with a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or
"A-1" (or higher) according to S&P, (iv) any money market deposit accounts
issued or offered by the Facility Manager or a domestic commercial bank
having a capital and surplus in excess of $500,000,000.
"TERM A LOANS": the tranche A term loans of the Borrower under the
Credit Agreement in the original principal amount of $55,000,000.
"TRADEMARK SUBSIDIARY AGREEMENT": the Trademark Subsidiary
Agreement, dated the Closing Date, made by the Borrower and Playtex
Marketing Corporation in
(TERM LOAN AGREEMENT)
<PAGE>
favor of the Collateral Agent, substantially in the form of Exhibit G, as
the same may be amended, supplemented or otherwise modified from time to
time.
"TRANSACTION COSTS": the fees, costs and expenses paid or payable by
any Loan Party pursuant hereto on the Closing Date and other fees, costs,
premiums and expenses paid or payable by any Loan Party in connection with
the Transactions.
"TRANSACTIONS": the transactions contemplated under this Agreement
and the other Loan Documents on the Closing Date, the repayment of the
Borrower's indebtedness under the Existing Credit Agreement, the issuance
of the Senior Notes, the borrowing of the Term A Loans and the Revolving
Credit Loans and other transactions related to any of the foregoing.
"TRANSFEREE": as defined in subsection 10.6(f).
"TYPE": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"UNRESTRICTED SUBSIDIARY": any subsidiary that would but for this
definition of "Unrestricted Subsidiary" be a Subsidiary organized or
acquired after the date of this Agreement as to which all of the following
conditions apply: (a) neither the Borrower nor any of its other
Subsidiaries (other than Unrestricted Subsidiaries) provides credit
support for any Indebtedness of such Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness); (b)
such Subsidiary is not liable, directly or indirectly, with respect to any
Indebtedness other than Unrestricted Subsidiary Indebtedness; (c) neither
the Borrower nor any of its Subsidiaries (other than Unrestricted
Subsidiaries) has made an Investment in such Unrestricted Subsidiary
unless such Investment was permitted by the provisions of subsection 7.2;
and (d) the Board of Directors of the Borrower, as provided below, shall
have designated such Subsidiary (including any newly formed or acquired
Subsidiary) to be an Unrestricted Subsidiary; PROVIDED that after giving
effect to such designation, such Subsidiary does not own, directly or
indirectly, any Capital Stock of any other Subsidiary. Any such
designation by the Board of Directors of the Borrower shall be evidenced
to the Agents by filing with the Agents a Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complies with the foregoing conditions. The Board of Directors
of the Borrower may designate any Unrestricted Subsidiary as a Subsidiary;
PROVIDED that (i) immediately after giving PRO FORMA effect to such
designation, the Borrower could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the restrictions under
subsection 7.1 of the Agreement; and (ii) all Indebtedness of such
Unrestricted Subsidiary shall be deemed to be incurred on the date such
Unrestricted Subsidiary becomes a Subsidiary. Any subsidiary of an
Unrestricted Subsidiary shall be an Unrestricted Subsidiary for purposes
of this Agreement.
(TERM LOAN AGREEMENT)
<PAGE>
"UNRESTRICTED SUBSIDIARY INDEBTEDNESS": of any Unrestricted
Subsidiary, the Indebtedness of such Unrestricted Subsidiary (a) as to
which neither the Borrower nor any Subsidiary is directly or indirectly
liable (by virtue of the Borrower or any such Subsidiary being the primary
obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness), and (b) which, upon the occurrence of a default with
respect thereto, does not result in, or permit any holder of any
Indebtedness of the Borrower or any Subsidiary to declare, a default on
such Indebtedness of the Borrower or any Subsidiary or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity.
"VOTING STOCK": stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or
trustees of a corporation (irrespective of whether or not at the time
stock of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).
"WELLS FARGO": as defined in the introduction to this Agreement.
"WHOLLY OWNED SUBSIDIARY": a Subsidiary all the outstanding Capital
Stock (other than directors' qualifying shares) of which are owned by the
Borrower or another Wholly Owned Subsidiary.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Note or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified and references to Schedules to this Agreement are references
to such Schedules as amended, supplemented, or otherwise modified from time to
time in accordance with the terms hereof.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(TERM LOAN AGREEMENT)
<PAGE>
SECTION 2. LOANS
2.1 LOANS.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make a term loan (a "LOAN"; collectively, the "LOANS") to
the Borrower on the Closing Date in an amount not to exceed the amount of the
Commitment of such Lender.
(b) The 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 Facility Manager in accordance with subsections 2.2 and 3.4.
(c) The proceeds of the Loans shall be used on the Closing Date,
together with other funds available to the Borrower, including, without
limitation, the proceeds of the Senior Notes under the Senior Note Indenture,
the Term A Loans and the Revolving Credit Loans under the Credit Agreement, to
refinance in full the Existing Term Loans and Existing Revolving Credit Loans
and to pay the Transaction Costs in an aggregate amount not exceeding
$10,000,000.
2.2 PROCEDURE FOR BORROWING. The Borrower shall give the Facility
Manager irrevocable notice (which notice must be received by the Facility
Manager prior to 1:00 P.M., New York City time, (a) 3 Business Days prior to the
Closing Date, if all or any part of the Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the Closing Date, otherwise) requesting
that the Lenders make the Loans on the Closing Date and specifying (i) the
amount to be borrowed, (ii) whether the Loans are to be initially Eurodollar
Loans, ABR Loans or a combination thereof, and (iii) if the 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 Facility Manager shall promptly notify each Lender
having a Commitment thereof. Not later than 10:00 A.M. on the Closing Date each
Lender shall make available to the Facility Manager at its office specified in
subsection 10.2 the amount of such Lender's pro rata share of its Loans in
immediately available funds. The Facility Manager shall on such date credit the
account of the Borrower on the books of such office of the Facility Manager with
the aggregate of the amounts made available to the Facility Manager by the
Lenders and in like funds as received by the Facility Manager.
SECTION 3. GENERAL PROVISIONS
3.1 FEES. (a) The Borrower agrees to pay to the Facility Manager for
its own account the annual administrative fee agreed upon by the Facility
Manager, the Arranger and the Borrower.
(TERM LOAN AGREEMENT)
<PAGE>
(b) The Borrower shall pay to the Arranger and the Syndication Agent
the amounts set forth in the letter agreement dated July 2, 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 Closing Date to each Lender
such amounts as have been agreed upon by the Arranger and such Lender.
3.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower hereby
unconditionally promises to pay to the Facility Manager for the account of each
Lender the principal amount of the Loans of such Lender, in 25 installments,
commencing September 15, 1997, each such installment in an amount equal to such
Lender's pro rata share of the respective amounts set forth for the Loans in
Schedule 3.2 for such installment (or the then unpaid principal amount of such
Loan, on the date that the Loans become due and payable pursuant to Section 8).
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
subsection 3.6.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Facility Manager, acting for this purpose as an agent of the
Borrower, shall maintain the Register pursuant to subsection 10.6(d), and a
subaccount therein for each Lender, in which shall be recorded (i) the amount of
each Loan made hereunder, the Type thereof and, in the case of Eurodollar Loans,
each Interest Period applicable thereto, (ii) each continuation thereof and each
conversion of all or a portion thereof to another Type, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iv) both the amount of any sum received
by the Facility Manager hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 3.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded: PROVIDED, HOWEVER, that the
failure of any Lender or the Facility Manager to maintain the Register or any
such account, as the case may be, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower agrees that, upon request to the Facility Manager
by any Lender (other than a Notifying Lender), the Borrower will execute and
deliver to such Lender (i) a promissory note of the Borrower evidencing the Loan
of such Lender, substantially in the form of Exhibit A, with appropriate
insertions as to date and principal amount (a "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 Loan of such Lender, with interest on the
unpaid
(TERM LOAN AGREEMENT)
<PAGE>
principal amount thereof from time to time outstanding under such Note as set
forth in subsection 3.6. Each Lender is hereby authorized to record the date,
Type and amount of each Loan made by such Lender, each continuation thereof,
each conversion of all or a portion thereof to another Type, the date and amount
of each payment or repayment of principal thereof and, in the case of Eurodollar
Loans, the length of each Interest Period with respect thereto, on the schedule
annexed to and constituting a part of any Note requested by it to evidence such
Loan, and any such recordation shall constitute PRIMA FACIE evidence of the
accuracy of the information so recorded, PROVIDED that the failure by any Lender
to make any such recordation or any error in any such recordation shall not
affect any of the obligations of the Borrower.
3.3 OPTIONAL AND MANDATORY PREPAYMENT. (a) The Borrower may at any
time and from time to time prepay the Loans, in whole or in part, without
premium or penalty except as otherwise provided in subsection 3.3(b) below, upon
at least three Business Days' in the case of Eurodollar Loans, or one Business
Day's in the case of ABR Loans, irrevocable notice to the Facility Manager,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Facility Manager shall promptly notify each Lender. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection 3.13
and accrued interest to such date and premium, if any, on the amount prepaid.
Partial prepayments of the Loans shall be applied to the remaining installments
of principal thereof in direct order of their scheduled maturities. Amounts
prepaid on account of the Loans may not be reborrowed. Partial voluntary
prepayments shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.
(b) Any voluntary prepayment of the Loans made on or prior to the
third anniversary of the Closing Date shall be subject to the payment of a
premium, as set forth below:
(i) 3.0% of the principal amount of Loans prepaid pursuant
to subsection 3.3(a) on or prior to the first anniversary of the Closing
Date;
(ii) 2.0% of the principal amount of Loans prepaid pursuant to
subsection 3.3(a) subsequent to the first anniversary and prior to or on
the second anniversary of the Closing Date; and
(iii) 1.0% of the principal amount of Loans prepaid pursuant
to subsection 3.3(a) subsequent to the second anniversary and prior to or
on the third anniversary of the Closing Date.
(c) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale, such Net Cash
Proceeds
(TERM LOAN AGREEMENT)
<PAGE>
shall be applied in accordance with the provisions of subsection 7.5. If the
Borrower is required to apply any portion of any Net Cash Proceeds to prepay any
Indebtedness evidenced by the Senior Subordinated Notes, the Senior Notes or the
Term A Loans or to reduce the Acquisition Revolving Credit Commitments under the
terms of the Senior Subordinated Note Indenture, the Senior Note Indenture or
the Credit Agreement, respectively, then notwithstanding anything contained in
this subsection 3.3 to the contrary, the Borrower shall apply such Net Cash
Proceeds toward the prepayment of the Loans as provided in this subsection
3.3(c) so as to eliminate any obligation to prepay such other Indebtedness. Any
prepayment of the Loans pursuant to this subsection 3.3(c) shall be made on a
pro rata basis with the prepayment of the Term A Loans and, from and after
December 15, 2000, the permanent reduction of the Acquisition Revolving Credit
Commitments in accordance with the provisions of subsection 6.3(c) of the Credit
Agreement.
(d) If, subsequent to the Closing Date, a Change of Control shall
occur, the Borrower shall prepay the Loans in full, without the payment of any
premium or penalty, upon the occurrence of such Change of Control.
(e) All mandatory prepayments of the Loans shall be applied to the
remaining installments of the Loans ratably according to the amounts thereof.
The application of prepayments referred to in the preceding sentence shall be
made first to ABR Loans and second to Eurodollar Loans. Mandatory prepayments of
the Loans may not be reborrowed.
(f) On the date which is the earlier of (x) 30 days after the date
on which a "change of control" (as defined in any of the Senior Subordinated
Indenture, the Senior Note Indenture or the Credit Agreement) occurs and (y) the
date on which the Borrower shall have offered to repurchase or shall be required
to prepay, as the case may be, the Senior Subordinated Notes, the Senior Notes
or the Term A Loans and the Revolving Credit Loans or to terminate the Revolving
Credit Commitments (as defined in the Credit Agreement) as a result of such
change of control, the Borrower shall prepay the Loans in full without the
payment of any premium or penalty.
(g) In the event the amount of any prepayment of Loans required to
be made under this subsection 3.3 (other than subsections 3.3(d) and 3.3(f))
shall exceed the aggregate principal amount of such Loans which are ABR Loans
(the amount of any such excess being called the "EXCESS AMOUNT"), the Borrower
shall have the right, in lieu of making such prepayment in full, to prepay all
such outstanding ABR Loans when due and to deposit on the date of the required
prepayment an amount equal to the Excess Amount with the Collateral Agent in a
cash collateral account maintained by and in the sole dominion and control of
the Collateral Agent. Any amounts so deposited shall be held by the Collateral
Agent as collateral security for the Obligations (as defined in the Borrower
Security Agreement) and applied to the prepayment of the applicable Eurodollar
Loans at the end of the current Interest Periods applicable thereto. On any
Business Day on which (A) collected amounts remain on deposit in or to the
credit of such cash collateral account after giving effect to the payments made
on such day pursuant to this subsection 3.3(g) and (B) the Borrower shall have
delivered to the
(TERM LOAN AGREEMENT)
<PAGE>
Collateral Agent a written request or a telephonic request (which shall be
promptly confirmed in writing) that such remaining collected amounts be invested
in the Cash Equivalents specified in such request, the Collateral Agent shall
invest such remaining collected amounts in such Cash Equivalents on an overnight
basis; PROVIDED, HOWEVER, that the Collateral Agent shall have continuous
dominion and full control over any such investments (and over any interest that
accrues thereon) to the same extent that it has dominion and control over such
cash collateral account. Any such deposited amounts so invested (together with
any interest thereon) shall be deposited in such cash collateral account not
later then 11:30 a.m. on the next succeeding Business Day.
3.4 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Facility Manager at least one Business Day's prior irrevocable notice of such
election, PROVIDED that any such conversion may only be made on the last day of
an Interest Period with respect thereto. The Borrower may elect from time to
time to convert ABR Loans to Eurodollar Loans by giving the Facility Manager at
least three Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Facility Manager shall promptly notify each Lender. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as provided herein,
PROVIDED that (i) no Loan may be converted into a Eurodollar Loan when any Event
of Default has occurred and is continuing and the Facility Manager has or the
Required Lenders have determined that such a conversion is not appropriate and
(ii) no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the date of the final payment of Loans.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Facility Manager, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
PROVIDED that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Facility Manager has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the date of the final payment of
principal of Loans and PROVIDED, FURTHER that if the Borrower shall fail to give
such notice or if such continuation is not permitted such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
(c) Notwithstanding anything herein to the contrary, no Loan shall
be made as, or converted to, a Eurodollar Loan with an Interest Period longer
than one month prior to 30 days following the Closing Date or such earlier date
as the Facility Manager shall notify the Borrower that Loans may be made as or
converted to Eurodollar Loans with Interest Periods longer than one month.
(TERM LOAN AGREEMENT)
<PAGE>
3.5 MAXIMUM NUMBER OF INTEREST PERIODS. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be made pursuant to such elections so that, after giving effect
thereto, the aggregate number of Interest Periods in effect shall not exceed
eight.
3.6 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the sum of the Eurodollar Rate determined for such day
plus the Applicable Eurodollar Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable ABR Margin.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of overdue interest, commitment fee or
other amount, the rate described in subsection 3.6(b) plus 2%, in each case from
the date of such non-payment until such amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to subsection 3.6(c) shall be
payable from time to time on demand.
(e) If any Reference Lender shall resign as such, such Reference
Lender shall thereupon cease to be a Reference Lender, and the Borrower and the
Facility Manager (after consultation with the Lenders) shall, by notice to the
Lenders, designate another Lender as a Reference Lender so that there shall at
all times be at least two Reference Lenders.
(f) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Facility Manager as contemplated hereby. If a
Reference Lender shall be unable or shall otherwise fail to supply such rates to
the Facility Manager upon its request, the rate of interest shall be determined
on the basis of the quotations of the remaining Reference Lenders or Reference
Lender.
3.7 COMPUTATION OF INTEREST AND FEES. (a) Whenever the ABR is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Facility Manager shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of
(TERM LOAN AGREEMENT)
<PAGE>
business on the day on which such change becomes effective. The Facility Manager
shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Facility Manager
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The Facility
Manager shall, at the request of the Borrower, deliver to the Borrower a
statement showing the quotations used by the Facility Manager in determining any
interest rate pursuant to subsection 3.6(a) or (b).
3.8 INABILITY TO DETERMINE INTEREST RATE. (a) If prior to the first
day of any Interest Period:
(i) the Facility Manager shall have determined (which determination,
in the absence of manifest error, shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, or
(ii) the Facility Manager shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Facility Manager shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
converted to or continued as ABR Loans and (z) any outstanding Eurodollar Loans
that were to be continued as such for such Interest Period, shall be converted
on such first day to ABR Loans. Until such notice has been withdrawn by the
Facility Manager, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans. The Facility Manager agrees to withdraw any such notice as soon as
reasonably practicable after the Facility Manager is notified of a change in
circumstances which makes such notice inapplicable.
(b) If prior to the first day of any Interest Period of nine months
or more in length, the Facility Manager shall have received notice from any
Lender that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lender (as
conclusively certified by such Lender) of making or maintaining its affected
Loans during such Interest Period, the Facility Manager shall give telecopy or
telephonic notice thereof to the Borrower and the Lenders as soon as practicable
thereafter. If such notice is given, subject to the provisions hereof in
subsections 2.2 and 3.4 allowing the Borrower to select Interest Periods of a
different length, (x) any Eurodollar Loans
(TERM LOAN AGREEMENT)
<PAGE>
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans for such Interest Period shall be
converted to or continued as ABR Loans and (z) any outstanding Eurodollar Loans
that were to be continued as such for such Interest Period shall be converted,
on the first day of such Interest Period, to ABR Loans. Until such notice has
been withdrawn by such Lender (which each Lender agrees to do when the
circumstances that prompted the delivery of such notice no longer exist), no
further Eurodollar Loans having an Interest Period of nine months or more shall
be made or continued as such, nor shall the Borrower have the right to convert
ABR Loans to Eurodollar Loans having an Interest Period of nine months or more.
3.9 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing of any Loans
by the Borrower from the Lenders hereunder and each payment by the Borrower on
account of any Loans or of any fees hereunder shall be made pro rata according
to the respective share of the Lenders in the Loan or Commitments.
(b) Whenever (i) any payment received by the Facility Manager under
this Agreement or any Note or (ii) any other amounts received by the Facility
Manager for or on behalf of the Borrower (including, without limitation,
proceeds of collateral or payments under any guarantee) pursuant to the
Intercreditor Agreement is insufficient to pay in full all amounts then due and
payable to the Agents and the Lenders under this Agreement and under the other
Loan Documents, such payment shall be, subject to the provisions of the
Intercreditor Agreement, distributed by the Facility Manager and applied by the
Facility Manager and the Lenders in the following order: FIRST, to the payment
of fees and expenses due and payable to the Agents under and in connection with
this Agreement; SECOND, to the payment of all expenses due and payable under
subsection 10.5, ratably among the Agents and the Lenders in accordance with the
aggregate amount of such payments owed to the Agents and each such Lender;
THIRD, to the payment of interest then due and payable hereunder, ratably in
accordance with the aggregate amount of interest owed to each such Lender; and
FOURTH, to the payment of the principal amount of the Loans then due and payable
and, in the case of proceeds of collateral or payments under any guarantee, to
the payment of any other obligations to any Lender not covered in First through
Third above ratably secured by such collateral or ratably guaranteed under any
such guarantee, ratably among the Lenders in accordance with the aggregate
principal amount and, in the case of proceeds of Collateral or payments under
any guarantee, the obligations secured or guaranteed thereby owed to each such
Lender.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Facility Manager, for the
account of the Lenders, at the Facility Manager's office specified in subsection
10.2, in Dollars and in immediately available funds. Any payment received by the
Facility Manager after such time shall be deemed to have been received on the
next Business Day. The Facility Manager shall distribute such payments to the
(TERM LOAN AGREEMENT)
<PAGE>
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day (and interest thereon shall be payable at the then applicable rate
during such extension) unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.
3.10 ILLEGALITY. (a) Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (i) such Lender shall
promptly after becoming aware thereof notify the Facility Manager and the
Borrower thereof, (ii) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans to
Eurodollar Loans shall forthwith be cancelled and (iii) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to subsection
3.13. If circumstances subsequently change so that it is no longer unlawful for
an affected Lender to make or maintain Eurodollar Loans as contemplated
hereunder, such Lender will, as soon as reasonably practicable after such Lender
becomes aware of such change in circumstances, notify the Borrower and the
Facility Manager, and upon receipt of such notice, the obligations of such
Lender to make or continue Eurodollar Loans or to convert ABR Loans into
Eurodollar Loans shall be reinstated.
(b) Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of subsection 3.10(a) with respect to such Lender, it
will, if requested by the Borrower and to the extent permitted by law or by the
relevant Governmental Authority, endeavor in good faith to change the lending
office at which it books its Eurodollar Loans hereunder if such change would
make it lawful for such Lender to continue to make or maintain Eurodollar Loans
as contemplated hereunder, PROVIDED, HOWEVER, that such change can be made us
such a manner that such Lender, in its sole determination, suffers no increased
cost or economic, legal or regulatory disadvantage.
3.11 REQUIREMENTS OF LAW. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(TERM LOAN AGREEMENT)
<PAGE>
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by subsection 3.12, changes
in taxes imposed on the overall net income of such Lender or changes in
franchise taxes (including branch profit taxes and taxes computed under
alternate methods, at least one of which is computed on overall net
income) applicable to such Lender) (each tax to which this subsection
3.11(a)(i) applies being referred to as a "COVERED TAX");
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, (A) such Lender shall
promptly notify the Facility Manager and the Borrower in writing of the
occurrence of such event, (B) such Lender shall promptly deliver to the Facility
Manager and the Borrower a certificate describing in reasonable detail the
change which has occurred, the net amount of such increased cost to such Lender
(to the extent such cost has not been recovered through a corresponding increase
in the interest rate otherwise chargeable with respect to the Loans) to the date
of such certificate, and the method by which such amount has been calculated,
and (C) the Borrower shall pay to the Facility Manager for the account of such
Lender, within thirty days after delivery of the certificate referred to in
clause (B) above, such amounts as will compensate such Lender for such increased
cost or reduced amount receivable. Each Lender shall allocate such additional
costs among its customers in good faith and on an equitable basis.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Facility Manager) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as
(TERM LOAN AGREEMENT)
<PAGE>
will compensate such Lender for such reduction. Notwithstanding any other
provision of this subsection 3.11, no Lender shall demand compensation for any
increased cost or reduction referred to above if it shall not at the time be the
general policy or practice of such Lender to demand such compensation in similar
circumstances under comparable provisions of other credit agreements, if any.
(c) A certificate as to any additional amounts payable pursuant to
this subsection 3.11 submitted by any Lender to the Borrower (with a copy to the
Facility Manager) shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
3.12 TAXES. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(collectively, "TAXES"), now or hereafter imposed, levied, collected, withheld
or assessed by any Governmental Authority, excluding (i) Taxes on net income and
franchise Taxes (including without limitation branch profit Taxes, minimum Taxes
and Taxes computed under alternate methods, at least one of which is computed on
net income) imposed on the Facility Manager or any Lender as a result of a
present or former connection between the Facility Manager or such Lender and the
jurisdiction of the Governmental Authority imposing such Tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Facility Manager or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement) and any withholding of tax under Section 3406 of the
Code or (ii) any Taxes to the extent that they are in effect and would apply as
of the date any person becomes a Transferee, or as of the date the Lender
changes its applicable lending office, to the extent such Taxes become
applicable as a result of such change, other than a change in the applicable
lending office made pursuant to subsection 3.12(e) below. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Facility Manager or any Lender hereunder, the amounts so payable
to the Facility Manager or such Lender shall be increased to the extent
necessary to yield to the Facility Manager or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, PROVIDED, HOWEVER, that the
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements of subsection
3.12(b) or 3.12(c), as the case may be. Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Facility Manager for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt, to
the extent such a receipt is received by the Borrower, or other written proof of
payment showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to the
Facility Manager the required receipts
(TERM LOAN AGREEMENT)
<PAGE>
or other required documentary evidence, the Borrower shall indemnify the
Facility Manager and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Facility Manager or any Lender as a
result of any such failure. The agreements in this subsection 3.12(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is a "bank" under Section 881(c)(3)(A) of the
Code and that is not incorporated or organized under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Facility Manager on or
before the date on which it becomes a Lender (A) two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Facility Manager two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by such Lender; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Facility Manager;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred after the date such Lender becomes a
party to this Agreement (in the event of any change in treaty, law or
regulation) and prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Facility Manager. Such Lender shall
certify (x) in the case of a Form 1001 or 4224 or successor applicable form,
that it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes and (y) in the case of
a Form W-8 or W-9 or successor applicable form, that it is entitled to an
exemption from United States backup withholding tax.
(c) Each Lender that is not a "bank" under Section 881(c)(3)(A) of
the Code and that is not incorporated or organized under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Facility Manager on or
before the date on which it becomes a Lender, either (1) (x) a statement
under penalties of perjury that such Lender (A) is not a "bank" under
Section 881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has
(TERM LOAN AGREEMENT)
<PAGE>
not been treated as a bank for purposes of any tax, securities law or
other filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements, (B) is not a
10-percent shareholder within the meaning of Section 881(c)(3)(B) of the
Code (C) is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code, and
(D) is not receiving payments under this Agreement that are effectively
connected with the conduct of a trade or business within the United States
and (y) an Internal Revenue Service Form W-8 or successor applicable form,
or (2) (x) two duly completed copies of United States Internal Revenue
Service Form 4224, or successor applicable form, and (y) and Internal
Revenue Service Form W-8 or W-9 as the case may be, or successor
applicable form;
(ii) deliver to the Borrower and the Facility Manager further
copies of said forms, or any successor applicable forms or other manner of
certification on or before the date that any such form or certification
expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent forms and certifications previously delivered
by such Lender, and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may be reasonably requested by the
Borrower or the Facility Manager;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred after the date such Lender becomes a
party to this Agreement (in the event of any change in treaty, law or
regulation) and prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Facility Manager. Such Lender shall
certify in the case of a Form W-8 that it is entitled to an exemption from
United States backup withholding tax and in the case of any other form required
to be delivered pursuant to this subsection 3.12(c) that it is entitled to
receive payments under this Agreement without deduction of any United States
federal income withholding tax or is exempt from United States backup
withholding tax according to the requirements of such form.
(d) Each Lender that is incorporated or organized under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Facility Manager, on or
before the date on which it becomes a Lender, two duly completed copies of
Form W-9 or successor applicable form;
(ii) deliver to the Borrower and the Facility Manager two
further copies of said Form W-9 or any successor applicable form or other
manner of
(TERM LOAN AGREEMENT)
<PAGE>
certification on or before the date that such Form W-9 expires or becomes
obsolete or after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Facility Manager;
unless in any such case an event (including, without limitation, any change in
law or regulation) has occurred after the date such Lender becomes a party to
this Agreement (in the event of any change in law or regulation) and prior to
the date on which any such delivery would otherwise be required which renders
such form inapplicable or which would prevent such Lender from duly completing
and delivering such form with respect to it and such Lender so advises the
Borrower and the Facility Manager. Such Lender shall certify in the case of such
form that it is exempt from United States backup withholding tax according to
the requirements of such form.
(e) Any Lender claiming additional amounts pursuant to subsection
3.11(a)(i) or 3.12 shall use its reasonable efforts (consistent with internal
policy and applicable legal and regulatory restrictions) to take such action, as
requested by the Borrower in writing, including, without limitation, changing
its applicable lending office to another existing office of such Lender, if the
taking of such action would avoid the need for or reduce the amount of any such
additional amounts and would not, in the judgment of such Lender, be otherwise
materially adverse to such Lender.
(f) If the Borrower determines in good faith that a reasonable basis
exists for contesting a Covered Tax or Non-Excluded Tax, the relevant Lender or
the Facility Manager, as applicable, shall cooperate with the Borrower in
challenging such Covered Tax or Non-Excluded Tax at the Borrower's expense if
requested by the Borrower (it being understood and agreed that neither the
Facility Manager nor any Lender shall have any obligation to contest, or any
responsibility for contesting, any Covered Tax or Non-Excluded Tax). If any
Lender or the Facility Manager, as applicable, receives a refund (whether by way
of a direct payment or by offset) of any Covered Tax or Non-Excluded Tax for
which a payment has been made pursuant to subsections 3.11(a)(i) or 3.12 or
claims any credit or other tax benefit as a result of the payment of such
Covered Tax or Non-Excluded Tax by the Borrower, which refund or credit in the
good faith judgment of such Lender or the Facility Manager, as the case may be,
is allocable to such payment made under subsections 3.11(a)(i) or 3.12, the
amount of such refund or credit (together with any interest received thereon)
shall be paid to the Borrower to the extent payment has been made in full by the
Borrower pursuant to subsections 3.11(a)(i) or 3.12.
(g) Each Person that shall become a Lender or a Participant pursuant
to subsection 10.6 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms and statements required pursuant to this
subsection 3.12, provided that in the case
(TERM LOAN AGREEMENT)
<PAGE>
of a Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
3.13 INDEMNITY. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Eurodollar Margin or Applicable
ABR Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.14 REPLACEMENT OF LENDER. If the Borrower becomes obligated to pay
additional amounts described in subsections 3.10, 3.11 or 3.12 as a result of
any condition described in such subsections and payment of such amount is
demanded by any Lender, then the Borrower may, on ten Business Days' prior
written notice to the Facility Manager and such Lender, cause such Lender to
(and such Lender shall) assign pursuant to subsection 10.6(c) all of its rights
and obligations under this Agreement to a Lender or other entity selected by the
Borrower for a purchase price equal to the outstanding principal amount of such
Lender's Loans and all accrued interest and fees and losses and expenses of the
types referred to in subsection 3.13 and all other amounts due to such Lender
hereunder, PROVIDED that in no event shall the assigning Lender be required to
pay or surrender to such purchasing Lender or other entity any of the fees
received by such assigning Lender pursuant to this Agreement; PROVIDED, FURTHER,
that such assigning Lender shall continue to be entitled to the benefits of
subsection 10.5 hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans, the Borrower hereby represents and warrants to the Agents
and each Lender that:
(TERM LOAN AGREEMENT)
<PAGE>
4.1 FINANCIAL CONDITION. (a) The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 28, 1996 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by KPMG Peat Marwick LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at March 29, 1997 and June 28, 1997 and the related unaudited consolidated
statements of income and of cash flows for the three-month period ended on each
such date, in each case certified by a Responsible Officer, copies of which have
heretofore been furnished to the Agents, present fairly in all material respects
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such dates, and the consolidated results of their operations
and their consolidated cash flows for the three-month periods then ended
(subject to changes resulting from audit and normal year-end adjustments).
(b) The unaudited PRO FORMA consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of March 29, 1997 after giving
effect to the making of the Loans under this Agreement on the Closing Date, the
issuance of the Senior Notes, the borrowing of the Term A Loans and the
Revolving Credit Loans and the other Transactions to be consummated on or prior
to the Closing Date, certified by a Responsible Officer, copies of which have
heretofore been furnished to the Agents, presents fairly in all material
respects on a PRO FORMA basis the estimated financial position of the Borrower
and its consolidated Subsidiaries as at such date, after giving effect to such
events as if such events had occurred on such date.
(c) All such financial statements referred to in subsection 4.1(a),
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants or Responsible Officer, as the case may
be, and as disclosed therein).
(d) Except as set forth on Schedule 4.1, neither the Borrower nor
any of its consolidated Subsidiaries had, at June 28, 1997, any Guaranteed Debt,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or in the notes thereto and which would be reasonably
likely to have a Material Adverse Effect. Except as set forth on Schedule 4.1,
during the period from December 28, 1996 to and including the Closing Date there
has been no sale, transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person other than a New Subsidiary) material in
relation to the consolidated financial condition of the Borrower and its
consolidated Subsidiaries at December 28, 1996.
(TERM LOAN AGREEMENT)
<PAGE>
4.2 NO CHANGE. Except as set forth on Schedule 4.2, since December
28, 1996 (a) there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect and (b) no dividends or
other distributions have been declared, paid or made upon the Capital Stock of
the Borrower nor has any of the Capital Stock of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any of its
Subsidiaries.
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Borrower
and its Subsidiaries (other than Inter Stretch Ltd.) (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the failure to be
so qualified and in good standing would not be reasonably likely to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 CORPORATE AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Borrower
and each of its Subsidiaries has the corporate power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which it is a
party. The Borrower has the corporate power and authority, and the legal right,
to borrow hereunder and has taken all necessary corporate action to authorize
the borrowings on the terms and conditions of this Agreement and any Notes. The
Borrower and each of its Subsidiaries has taken all necessary corporate action
to authorize the execution, delivery and performance of the Loan Documents to
which it is a party. 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 hereunder or in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which the Borrower or any of its Subsidiaries is a party or the
consummation of the Transactions 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. This Agreement has been duly executed
and delivered on behalf of the Borrower. Each Loan Document to which the
Borrower or any of its Subsidiaries is a party has been duly executed and
delivered on behalf of each such Loan Party. This Agreement and each other Loan
Document to which it is a party constitutes a legal, valid and binding
obligation of the Borrower enforceable against the Borrower 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. Each Loan
Document to which any of the Subsidiaries is a party constitutes a legal, valid
and binding obligation of such Subsidiary enforceable against it in accordance
with its terms,
(TERM LOAN AGREEMENT)
<PAGE>
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.
4.5 NO LEGAL BAR. Except as set forth on Schedule 4.5, the
execution, delivery and performance of the Loan Documents to which the Borrower
or any of its Subsidiaries is a party, the borrowings hereunder and the use of
the proceeds thereof and the consummation of the Transactions will not violate
any Requirement of Law or Contractual Obligation of 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).
4.6 NO MATERIAL LITIGATION. Except as set forth on Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to any of the
Loan Documents, the Senior Note Indenture, the Credit Agreement or the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
4.7 NO DEFAULT. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold or subleasehold interest in, all its other property (other than
Intellectual Property), and none of such property is subject to any Lien except
as permitted by subsection 7.4.
4.9 INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "INTELLECTUAL
PROPERTY"). Except as set forth on Schedule 4.9, no claim has been asserted and
is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Borrower know of any valid basis for any such claim
which, in either case, could reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule
(TERM LOAN AGREEMENT)
<PAGE>
4.9, the use of such Intellectual Property by the Borrower and its Subsidiaries
does not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
4.10 NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
4.11 TAXES. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all material tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all material taxes shown to be
due and payable on said returns or on any assessments made against it or any of
its property and all other material taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority that if not filed or paid,
as the case may be, could reasonably be expected to have a Material Adverse
Effect (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower
or its Subsidiaries, as the case may be); no tax Lien has been filed that could
reasonably be expected to have a Material Adverse Effect, and, to the knowledge
of the Borrower, no claim is being asserted, with respect to any such tax, fee
or other charge.
4.12 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used (i) for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U if such use
would result in a violation of Regulation U, (ii) in any manner which would
violate the provisions of Regulation G, T, U or X of the Board or (iii) to
finance the acquisition of any "margin stock" in connection with a tender offer
for such stock which has not been approved by the board of directors of the
issuer of such stock. If requested by any Lender or the Facility Manager, the
Borrower will furnish to the Facility Manager and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U.
4.13 ERISA. No "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred with respect to
any Plan that remains outstanding in any respect and that could reasonably be
expected to have a Material Adverse Effect. No Reportable Event has occurred,
each Plan has complied in all respects with the applicable provisions of ERISA
and the Code and no termination of a Single Employer Plan has occurred except
where such Reportable Event, noncompliance or termination could not reasonably
be expected to have a Material Adverse Effect. No Lien in favor of the PBGC or a
Plan has arisen that remains outstanding in any respect. The present value of
all accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits, except where any
such excess could not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Commonly
(TERM LOAN AGREEMENT)
<PAGE>
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made, and no such Multiemployer Plan is in
Reorganization or is Insolvent, except in each instance where such withdrawal,
liability, Reorganization or Insolvency could not reasonably be expected to have
a Material Adverse Effect.
4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. The Borrower is not subject to regulation under any Federal or
State statute or regulation which limits its ability to incur Indebtedness.
4.15 SUBSIDIARIES. All of the Subsidiaries of the Borrower at the
date hereof are set forth on Schedule 4.15. All Subsidiaries of the Borrower
which have guaranteed the Senior Notes or the Senior Subordinated Notes are
parties to the Subsidiaries Guarantee.
4.16 PURPOSE OF LOANS. The proceeds of the Loans shall be used on
the Closing Date, together with other funds available to the Borrower, including
without limitation, the proceeds of the Senior Notes, the proceeds of the Term A
Loans and the Revolving Credit Loans under the Credit Agreement, to refinance in
full the Existing Revolving Credit Loans and Existing Term Loans and to pay the
Transaction Costs in an aggregate amount not exceeding $10,000,000.
4.17 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 4.17:
(a) To the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower or any of its
Subsidiaries (the "PROPERTIES") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii)
could reasonably be expected to give rise to liability under, any
applicable Environmental Law except in either case insofar as such
violation or liability, or any aggregation thereof, is not reasonably
likely to result in the payment of a Material Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance, and have in the last 5
years been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any applicable Environmental Law with respect
to the Properties or the business operated by the Borrower or any of its
Subsidiaries (the "BUSINESS") except in either case with respect to any
instances of non-compliance or violation which individually or in the
aggregate
(TERM LOAN AGREEMENT)
<PAGE>
would not be reasonably likely to result in the payment of a Material
Environmental Amount.
(c) Neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened except insofar as such
notice or threatened notice, or any aggregation thereof, does not involve
a matter or matters that is or are reasonably likely to result in the
payment of a Material Environmental Amount.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any Environmental
Law, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give
rise to liability under, any applicable Environmental Law except insofar
as any such violation or liability referred to in this subsection, or any
aggregation thereof, is not reasonably likely to result in the payment of
a Material Environmental Amount.
(e) No judicial or governmental or administrative action is pending
or, to the knowledge of the Borrower, threatened, under any Environmental
Law to which the Borrower or any Subsidiary is or, to the knowledge of the
Borrower, will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business except insofar as such proceeding,
action, decree, order or other requirement, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
(f) To the best knowledge of the Borrower, there has been no release
of Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, violation of or in amounts or in a manner that could
reasonably give rise to liability to the Borrower or its Subsidiaries
under applicable Environmental Laws except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
4.18 SENIOR INDEBTEDNESS. The obligations of the Borrower under this
Agreement and the Loan Documents constitute "Senior Indebtedness" and
"Designated Senior Indebtedness", as such terms are defined in the Senior
Subordinated Indenture; and the
(TERM LOAN AGREEMENT)
<PAGE>
obligations of the Borrower under the Apparel Notes are subordinated in right of
payment to all amounts payable by the Borrower under this Agreement and the Loan
Documents and under any refinancing of such amounts (unless such refinancing is
not entitled to be "Senior Debt" as such term is defined in the Indenture
relating to the Old Playtex Products Subordinated Debt). This Agreement
constitutes a "Credit Agreement" as defined in the Senior Subordinated
Indenture, including without limitation for purposes of clauses (i) and (ii) of
the definition of "Permitted Indebtedness" and the definitions of "Senior
Indebtedness" and "Designated Senior Indebtedness"; and the security granted by
the Borrower's Subsidiaries to the Collateral Agent for the benefit of the
Lenders under the Security Documents constitutes either security permitted to be
granted by Subsidiaries for purposes of clause (c)(y)(1)(B) of Section 1013 of
the Senior Subordinated Indenture or a refinancing of permitted Liens pursuant
to clauses (ii) and (xiii) of the definition of "Permitted Indebtedness" under
the Senior Subordinated Indenture, and the Guarantee executed by the Borrower's
Subsidiaries constitutes either guarantees permitted to be granted by
Subsidiaries for purposes of clause (c)(y)(2)(iv) of Section 1013 of the Senior
Subordinated Indenture or a refinancing of permitted guarantees pursuant to
clauses (ii) and (xiii) of the definition of "Permitted Indebtedness" under the
Senior Subordinated Indenture. This Agreement constitutes a "Credit Agreement"
as defined in the Senior Note Indenture, including without limitation for
purposes of clauses (i) and (ii) of the definition of "Permitted Indebtedness"
and clause (i) of the definition of "Permitted Liens" and the Guarantee and the
Liens granted by the Borrower's Subsidiaries in favor of the Collateral Agent
for the benefit of the Lenders constitute permitted guarantees and Liens under
clause (ii) of the definition of "Permitted Indebtedness" under the Senior Note
Indenture.
4.19 DISCLOSURE. No statement or information (other than projections
and PRO FORMA financial information) contained in this Agreement, any other Loan
Document, the Offering Memorandum relating to the Senior Notes or any other
document, certificate or written statement furnished to the Agents or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or any other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Offering Memorandum, as of
the Closing Date) any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
materially misleading. The projections and PRO FORMA financial information
contained in the materials referenced above were prepared in good faith, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth thereto by a material amount. As of the Closing
Date, there is no fact known to any Loan Party and not previously disclosed to
the Agents and the Lenders in writing prior to the date hereof (other than
general economic conditions, which conditions are commonly known and affect
businesses generally) which has, or which could reasonably be expected to have,
in the reasonable judgment of such Loan Party, a Material Adverse Effect.
(TERM LOAN AGREEMENT)
<PAGE>
4.20 COLLATERAL DOCUMENTS. Each of the Security Documents is
effective to create in favor of the Collateral Agent for the ratable benefit of
the Lenders and the lenders under the Credit Agreement, a legal, valid and
enforceable security interest in the Collateral described therein and when (i)
UCC financing statements have been filed in the offices listed on Schedule 4.20,
(ii) the Borrower Security Agreement and the Subsidiary Security Agreement have
been filed with the United States Patent and Trademark Office, (iii) the
Collateral Agent has possession of all Pledged Stock (as defined in the Pledge
Agreements) and (iv) the Existing Credit Agreement, the other Existing Loan
Documents and all filings made in connection therewith have been duly
terminated, such security interests will (except with respect to Inventory
located outside of the United States) constitute perfected liens on, and
security interests in, all right, title and interest of the Loan Party party
thereto in the Collateral described therein, subject only to Liens permitted to
exist pursuant to this Agreement.
SECTION 5. CONDITIONS PRECEDENT
5.1 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
and the agreement of each Lender to make the initial Loans requested to be made
by it is subject to the satisfaction, immediately prior to or substantially
concurrently with the making of such Loan on the Closing Date, of the following
conditions precedent:
(a) LOAN DOCUMENTS AND RELATED DOCUMENTS. The Syndication Agent
shall have received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each Lender,
(ii) the Senior Note Indenture, executed and delivered by a duly
authorized officer of the Borrower, (iii) the Credit Agreement, executed
by a duly authorized officer of the Borrower, (iv) the Guarantee, executed
and delivered by a duly authorized officer of each Domestic Subsidiary,
(v) the Subsidiary Stock Pledge Agreements executed by a duly authorized
officer of each Domestic Subsidiary, together with an Acknowledgement and
Consent thereto executed by a duly authorized officer of the Issuer (as
defined therein), (vi) the Subsidiary Security Agreements executed and
delivered by a duly authorized officer of each Domestic Subsidiary, (vii)
the Borrower Security Agreement, executed by a duly authorized officer of
the Borrower, (viii) the Borrower Stock Pledge Agreement, executed by a
duly authorized officer of the Borrower, together with an Acknowledgment
and Consent thereto executed by a duly authorized officer of Playtex
Beauty Care, Inc., Playtex Investment Corp., Playtex International Corp.,
Playtex Manufacturing, Inc., Playtex Sales & Services, Inc., Smile Tote,
Inc., Sun Pharmaceuticals Corp. and TH Marketing Corp., (ix) the Trademark
Subsidiary Agreement, executed and delivered by a duly authorized officer
of each party thereto, (x) for each Lender requesting the same pursuant to
subsection 3.2(e), its Notes executed by a duly authorized officer of the
Borrower and (xi) the Intercreditor Agreement, executed and delivered by a
duly authorized officer of each party thereto.
(TERM LOAN AGREEMENT)
<PAGE>
(b) EXISTING RELATED AGREEMENTS. The Syndication Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Borrower, of the Trademark Licenses (as defined
in the Borrower Security Agreement), the Apparel Notes and such other
documents or instruments as may be reasonably requested by any Agent,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which the Borrower, or its
Subsidiaries may be a party.
(c) BORROWING CERTIFICATE. The Syndication Agent shall have received
a certificate of the Borrower, dated the Closing Date, substantially in
the form of Exhibit D, with appropriate insertions and attachments,
satisfactory in form and substance to the Syndication Agent, executed by
the President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(d) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. The Syndication Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Syndication Agent, of the Board of Directors of each
Loan Party authorizing (i) the execution, delivery and performance of the
Loan Documents to which it is a party, (ii) in the case of the Borrower,
the borrowings contemplated hereunder and (iii) the granting by it of the
Liens created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of such Loan Party as
of the Closing Date, which certificate shall be in form and substance
reasonably satisfactory to the Syndication Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(e) INCUMBENCY CERTIFICATES. The Syndication Agent shall have
received a certificate of each Loan Party, dated the Closing Date, as to
the incumbency and signature of the officers of such Loan Party executing
any Loan Document on the Closing Date, satisfactory in form and substance
to the Syndication Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of such Loan Party.
(f) CORPORATE DOCUMENTS. The Syndication Agent shall have received
true and complete copies of the certificate of incorporation and by-laws
of each Loan Party, certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary of such
Loan Party.
(g) CONSENTS, AUTHORIZATIONS AND FILINGS. The Syndication Agent
shall have received a certificate of a Responsible Officer of the Borrower
(i) attaching copies of all consents, authorizations and filings referred
to in subsection 4.4, and (ii) stating that such consents, authorizations
and filings are in full force and effect, and each such consent,
authorization and filing shall be in form and substance reasonably
satisfactory to the Syndication Agent.
(TERM LOAN AGREEMENT)
<PAGE>
(h) FEES AND EXPENSES. The Agents, the Arranger, and the Lenders
shall have received the fees and expenses required to be received by it on
the Closing Date referred to in subsection 3.1.
(i) LEGAL OPINIONS. The Syndication Agent shall have received,
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Paul, Weiss, Rifkind,
Wharton & Garrison, counsel to the Borrower and the other Loan
Parties, substantially in the form of Exhibit E-1; and the executed
legal opinions of Paul, Weiss, Rifkind, Wharton & Garrison, with
respect to each of (1) the Senior Notes and the Senior Note
Indenture and (2) the Term A Loans, the Revolving Credit Loans and
the Credit Agreement, together with a reliance letter authorizing
the Facility Manager, the Syndication Agent and the Lenders to rely
on such opinions as though addressed to them;
(ii) the executed legal opinion of Cummings and Lockwood,
L.P., special local counsel to the Borrower, substantially in the
form of Exhibit E-2;
(iii) the executed legal opinion of Paul E. Yestrumskas,
General Counsel of the Borrower, substantially in the form of
Exhibit E-3;
(iv) the executed legal opinion of Amster, Rothstein &
Ebenstein, special counsel to the Borrower with respect to
intellectual property matters, substantially in the form of Exhibit
E-4; and
(v) the executed legal opinion of Rosenfeld, Meyer & Susman,
LLP, special local counsel to Smile Tote, Inc., substantially in the
form of Exhibit E-5.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Syndication Agent may
reasonably require.
(j) PLEDGED STOCK; STOCK POWERS. The Syndication Agent shall have
received stock certificates for each share of Capital Stock pledged
pursuant to the Borrower Pledge Agreement and pursuant to the Subsidiary
Stock Pledge Agreements, together with a blank undated stock power for
each such certificate signed by the pledgor of such certificate.
(k) ACTIONS TO PERFECT LIENS. The Syndication Agent shall have
received (i) UCC-1 Financing Statements in form and substance satisfactory
to the Syndication Agent and the Arranger for each jurisdiction listed on
Schedule III to the Borrower Security Agreement and Schedule III to the
Subsidiary Security Agreement and all other agreements, documents and
instruments that may be necessary or desirable in
(TERM LOAN AGREEMENT)
<PAGE>
order to create in favor of the Collateral Agent, for the benefit of the
Lenders, a valid and perfected first priority security interest in the
Collateral, and (ii) UCC-3 Termination Statements in respect of each UCC-I
Financing Statement filed with respect to collateral securing the Existing
Credit Agreement or any guaranty obligations in connection therewith and
any other agreements, documents and instruments that may be necessary to
terminate the security interest granted to the agent under the Existing
Credit Agreement (including, without limitation, any termination
statements to be filed with the U.S. Patent and Trademark Office).
(l) LIEN SEARCHES. The Syndication Agent shall have received the
results of a recent search by a Person satisfactory to the Syndication
Agent of Uniform Commercial Code filings which may have been filed with
respect to personal property of the Borrower and its material domestic
Subsidiaries, and the results of such search shall be satisfactory to the
Syndication Agent.
(m) INSURANCE. The Syndication Agent shall have received evidence in
form and substance satisfactory to it that all of the requirements of
subsection 6.5 shall have been satisfied.
(n) ISSUANCE OF SENIOR NOTES AND THE BORROWING OF TERM A LOANS AND
REVOLVING CREDIT LOANS. (1) On or prior to the Closing Date, (a) the
Borrower and the other parties thereto shall have executed and delivered
the Senior Notes and the Senior Note Indenture, in each case all of the
terms and conditions (including without limitation with respect to
interest rates, amortization, maturity, representations and warranties,
covenants, remedies and events of default) of which, and all of the
exhibits of which, shall be in form and substance satisfactory to the
Syndication Agent and the Arranger, (b) all conditions precedent to the
issuance of the Senior Notes shall have been satisfied or, with the
consent of the Syndication Agent and the Arranger, waived, (c) the Senior
Notes shall have been issued under the Senior Note Indenture in an
aggregate principal amount of $150,000,000 and (d) the Borrower shall have
received gross proceeds from the issuance thereof in an aggregate amount
equal to $150,000,000. The Borrower shall have delivered to the
Syndication Agent a fully executed or conformed copy of the Senior Note
Indenture (including all exhibits and schedules thereto) and a specimen
copy of the Senior Notes.
(2) On or prior to the Closing Date, (a) the Borrower and the other
parties thereto shall have executed and delivered the Credit Agreement,
the promissory notes evidencing the Term A Loans, the Revolving Credit
Loans and the Intercreditor Agreement, in each case all of the terms and
conditions (including without limitation with respect to interest rates,
amortization, maturity, representations and warranties, covenants,
remedies and events of default) of which, and all of the exhibits of
which, shall be in form and substance satisfactory to the Syndication
Agent and the Arranger, (b) all conditions precedent to the borrowing of
the Term A Loans and the Revolving Credit Loans shall have been satisfied
or, with the consent of the Syndication Agent
(TERM LOAN AGREEMENT)
<PAGE>
and the Arranger, waived and (c) the Borrower shall have received gross
proceeds from the borrowing of the Term A Loans and the Revolving Credit
Loans under the Credit Agreement in an aggregate amount equal to
$101,900,000. The Borrower shall have delivered to the Syndication Agent a
fully executed or conformed copy of the Credit Agreement and the
Intercreditor Agreement (including all exhibits and schedules thereto) and
copies of the promissory notes evidencing the Term A Loans and the
Revolving Credit Loans.
(o) TRANSACTION COSTS. The Transaction Costs shall not exceed
$10,000,000.
(p) REFINANCING OF EXISTING LOANS. The Syndication Agent shall have
received evidence satisfactory to it that (i) all Existing Revolving
Credit Loans and Existing Term Loans will be refinanced in full as
contemplated by subsection 4.16, (ii) the agent under the Existing Credit
Agreement will receive from the Borrower for, if applicable, the account
of the Existing Lenders (w) all accrued and unpaid interest under the
Existing Credit Agreement, (x) any costs payable to any Existing Lender
pursuant to the Existing Credit Agreement as a result of the refinancing
of such Existing Lender's Existing Term Loans or Existing Revolving Credit
Loans, (y) all accrued and unpaid fees (including letter of credit
commissions and commitment fees) owing under the Existing Credit Agreement
and (z) any other amounts owing to any Existing Lender under the Existing
Credit Agreement notified in writing to the Borrower by the existing agent
or any Existing Lender and (iii) the commitments to lend under the
Existing Credit Agreement will be terminated. The Borrower shall have
delivered to the Syndication Agent all termination statements,
satisfactions and releases as to any financing statements which shall
release all liens securing any and all indebtedness under the Existing
Credit Agreement and other releases relating to any guarantees executed in
connection therewith.
(q) FINANCIAL STATEMENTS.
(a) The Syndication Agent shall have received from the
Borrower (i) audited financial statements of the Borrower and its
consolidated Subsidiaries for fiscal years 1994, 1995 and 1996,
consisting of consolidated balance sheets and the related
consolidated statements of income and cash flows for such fiscal
years, and (ii) unaudited financial statements of the Borrower and
its consolidated Subsidiaries as at March 29, 1997 and June 28,
1997, each consisting of a consolidated balance sheet and the
related consolidated statements of income and cash flows for the
three-month period ending on such date, all in reasonable detail and
certified by a Responsible Officer of the Borrower that they fairly
present in material respects the consolidated financial condition of
the Borrower and its consolidated Subsidiaries as at the dates
indicated and the consolidated results of their operations and their
cash flows for the periods indicated, subject to changes resulting
from audit and normal year-end adjustments.
(TERM LOAN AGREEMENT)
<PAGE>
(b) The Syndication Agent shall have received the PRO FORMA
balance sheet of the Borrower and its Subsidiaries referred to in
subsection 4.1(b), which shall be in form and substance satisfactory
to the Syndication Agent.
(r) NO MATERIAL ADVERSE CHANGE. Since December 28, 1996, or the date
of the audited financial statements most recently filed with the
Securities and Exchange Commission or other appropriate government agency,
no Material Adverse Effect shall have occurred.
(s) LITIGATION. There shall exist no pending or threatened material
litigation, proceedings or investigations which (x) would contest the
consummation of any of the Transactions or (y) could reasonably be
expected to have a Material Adverse Effect.
(t) TRANSACTIONS. The Syndication Agent and the Arranger shall be
reasonably satisfied that the aggregate sources of proceeds are sufficient
to consummate the Transactions.
(u) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the Syndication
Agent and the Arranger, and the Syndication Agent and the Arranger shall
have received such other documents in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall reasonably
request.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitments remain
in effect or any other amount is owing to any Lender or the Agents hereunder,
the Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to:
6.1 FINANCIAL STATEMENTS. Furnish to the Agents:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by KPMG Peat Marwick
or other independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Lenders; and
(TERM LOAN AGREEMENT)
<PAGE>
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the corresponding figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein) and except that the quarterly financial statements
provided pursuant to subsection 6.1(b) shall only be required to include
footnotes to the extent such footnotes would be required to be included on Form
10-Q filed with the Securities and Exchange Commission.
6.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Agents:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a certificate of a Responsible
Officer stating that, to the best of such Officer's knowledge, the
Borrower during such period has observed or performed all of its covenants
and other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents, to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(c) not later than 45 days following the end of each fiscal quarter
of the Borrower, the Borrower shall deliver a certificate of a Responsible
Officer for any fiscal quarter in which aggregate Asset Sales exceed
$5,000,000 describing in reasonable detail such Asset Sales and the
derivation and intended application of the Net Cash Proceeds thereof;
(d) not later than 40 days after the end of each fiscal year of the
Borrower, a copy of the projections by the Borrower of the operating
budget and cash flow budget of the Borrower and its Subsidiaries for the
succeeding fiscal year prepared on a quarterly basis, such projections to
be accompanied by a certificate of a Responsible
(TERM LOAN AGREEMENT)
<PAGE>
Officer to the effect that such projections have been prepared in good
faith on the basis of reasonable assumptions and that such Officer has no
reason to believe they are incorrect or misleading in any material
respect;
(e) within five days after the same are sent, (i) copies of all
financial statements and reports which the Borrower sends to its
stockholders, and (ii) within five days after the same are filed, copies
of all financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(f) promptly, such additional financial and other information as the
Agents or any Lender may from time to time reasonably request; PROVIDED
that any such information specifically requested by any Lender shall be
delivered to such Lender directly by the Borrower.
6.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except (a) if (i) in the
reasonable business judgment of the Borrower or such Subsidiary, as the case may
be, it is in its best economic interest not to preserve and maintain such
rights, privileges or franchises, and (ii) such failure to preserve and maintain
such rights, privileges or franchises would not, in the aggregate, be reasonably
likely to have a Material Adverse Effect and (b) as otherwise permitted pursuant
to subsection 7.8, comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect; and, with
respect to the Borrower on a consolidated basis, continue to engage in the
consumer products and related or incidental consumer services business and in
extensions of the Borrower's existing business and product lines.
6.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property useful and
necessary in its business in good working order and condition (normal wear and
tear excepted), except to the extent that the failure to do so with respect to
any such property would not individually or in the aggregate be reasonably
likely to have a Material Adverse Effect; maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general geographic area by companies engaged in the same or
a similar business (or, in
(TERM LOAN AGREEMENT)
<PAGE>
lieu of or supplemental to such insurance, adopt such other plan or method of
protection, whether by the establishment of an insurance fund or reserve to be
held and applied to make good losses from casualties or liabilities, or
otherwise, and consistent with sound business practice, as may be determined by
the Board of Directors of the Borrower); and furnish to the Agents and each
Lender, upon written request, full information as to the insurance carried.
6.6 INSPECTION OF PROPERTY, BOOKS AND RECORDS; DISCUSSION. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Agent or Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time on any Business Day and as often as may reasonably be
desired and to discuss the business, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and employees of
the Borrower and its Subsidiaries and with its independent certified public
accountants; PROVIDED that such Agent or Lender shall notify the Borrower prior
to any contact with such accountants and shall give the Borrower the opportunity
to participate in such discussions.
6.7 NOTICES. Promptly give notice to the Agents of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of
its Subsidiaries in which the amount involved is $5,000,000 or more and
not covered by insurance or which would be reasonably likely to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contributor to a Plan, the
creation of any Lien (within the meaning of Section 4068 with respect to a
Plan) in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer Plan or
Multiemployer Plan;
(TERM LOAN AGREEMENT)
<PAGE>
(e) any development or event which would be reasonably likely to
have a Material Adverse Effect; and
(f) no later than two Business Days prior to the making thereof, any
offer by the Borrower to purchase or any repayment of, as the case may be,
any Senior Subordinated Notes, Senior Notes or Term A Loans or any
termination of the Revolving Credit Commitments (as defined in the Credit
Agreement) pursuant to the Senior Subordinated Indenture, Senior Note
Indenture or Credit Agreement, respectively, in connection with the
occurrence of a "change of control" (as defined in the Senior Subordinated
Indenture/Senior Note Indenture or Credit Agreement, respectively).
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
The Facility Manager shall deliver to Lenders any and all financial
statements, certificates, notices, other information and documents provided by
the Borrower pursuant to the provisions of subsections 6.1, 6.2 and 6.7 promptly
upon its receipt thereof. Notwithstanding anything to the contrary stated in
this Agreement, upon the occurrence and during the continuance of an Event of
Default, any financial statements, certificates, notices, other information or
documents required to be delivered to the Agents by the Borrower pursuant to the
provisions of subsections 6.1, 6.2 and 6.7 shall be delivered directly by the
Borrower to the Agents and each Lender within the time period required
thereunder.
6.8 ENVIRONMENTAL LAWS. (a) Except as set forth on Schedule 6.8,
comply with, and use its reasonable best efforts to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in an material respects with and maintain, and use its
reasonable best efforts to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws except to the extent that failure to do so could not be
reasonably expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
(TERM LOAN AGREEMENT)
<PAGE>
SECTION 7. NEGATIVE COVENANTS
7.1 LIMITATION ON INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, issue, assume, guarantee, or
otherwise in any manner become directly or indirectly liable for or with respect
to or otherwise incur (collectively, "incur") any Indebtedness (including any
Acquired Indebtedness but excluding any Permitted Indebtedness); PROVIDED
HOWEVER that the Borrower and any Subsidiary that is a Guarantor may incur
Indebtedness if the Consolidated Fixed Charge Coverage Ratio for the Borrower
for the four full fiscal quarters immediately preceding the incurrence of such
Indebtedness taken as one period (and after giving pro forma effect to (i) the
incurrence of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, at the
beginning of such four-quarter period; (ii) the incurrence, repayment or
retirement of any other Indebtedness by the Borrower and its Subsidiaries since
the first day of such four-quarter period as if such Indebtedness was incurred,
repaid or retired at the beginning of such four-quarter period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such four-quarter period); (iii) in the case of Acquired
Indebtedness, the related acquisition (as if such acquisition had been
consummated on the first day of such four-quarter period); and (iv) any
acquisition or disposition by the Borrower and its Subsidiaries of any company
or any business or any assets out of the ordinary course of business, whether by
merger, stock purchase or sale, or asset purchase or sale or any related
repayment of Indebtedness, in each case since the first day of such four-quarter
period, as if such acquisition or disposition had been consummated on the first
day of such four-quarter period) is equal to or greater than 2.0:1.0.
7.2 LIMITATION ON RESTRICTED PAYMENTS.
(a) The Borrower will not, and will not permit any Subsidiary to,
directly or indirectly:
(i) declare or pay any dividend on, or make any distribution
to holders of, Capital Stock of the Borrower (other than dividends
or distributions payable in shares of Qualified Capital Stock of the
Borrower or in options, warrants or other rights to acquire such
Qualified Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any Capital Stock of the Borrower or
any Capital Stock of any Affiliate of the Borrower (other than
Capital Stock of any Subsidiary) or options, warrants or other
rights to acquire such Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any
scheduled principal payment,
(TERM LOAN AGREEMENT)
<PAGE>
any sinking fund payment or maturity, (x) any Subordinated
Indebtedness or (y) any Senior Notes;
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Subsidiary to any Person (other than (x) with
respect to any Capital Stock held by the Borrower or any of its
Wholly Owned Subsidiaries or (y) with respect to Capital Stock held
by any other Person made on a pro rata basis consistent with the
ownership interests in such Capital Stock to the owners of such
Capital Stock);
(v) incur, create or assume any guarantee of Indebtedness of
any Affiliate of the Borrower (other than a Wholly Owned Subsidiary
of the Borrower); or
(vi) make any Investment in any Person (other than any
Permitted Investments);
(any of the payments described in paragraphs (i) through (vi) above, other
than any such action that is a Permitted Payment, collectively,
"Restricted Payments") unless at the time of and after giving effect to
the proposed Restricted Payment (the amount of any such Restricted
Payment, if other than cash, as determined by the Board of Directors,
whose determination shall be conclusive and evidenced by a board
resolution), (1) no Default or Event of Default shall have occurred and be
continuing; (2) immediately before and immediately after giving effect to
such transaction on a pro forma basis, the Borrower could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) under the
provisions described pursuant to subsection 7.1; and (3) the aggregate
amount of all such Restricted Payments declared or made after the date of
this Agreement does not exceed the sum of:
(A) $30,000,000;
(B) 50% of the aggregate cumulative Consolidated Net Income of
the Borrower accrued on a cumulative basis during the period
beginning on the first day of the Borrower's fiscal quarter
commencing prior to the date of this Agreement and ending on the
last day of the Borrower's last fiscal quarter ending prior to the
date of the Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
(C) the aggregate Net Cash Proceeds received after the date of
this Agreement by the Borrower from the issuance or sale (other than
to any of its Subsidiaries) of its Qualified Capital Stock or any
option, warrants or rights to purchase such Qualified Capital Stock
of the Borrower (except, in each case, to the extent such proceeds
are used to purchase, redeem or otherwise retire Capital Stock or
Subordinated Indebtedness as set forth below);
(TERM LOAN AGREEMENT)
<PAGE>
(D) the aggregate Net Cash Proceeds received after the date of
this Agreement by the Borrower (other than from any of its
Subsidiaries) upon the exercise of any options or warrants to
purchase Qualified Capital Stock of the Borrower; and
(E) the aggregate Net Cash Proceeds received after the date of
this Agreement by the Borrower from debt securities or Redeemable
Capital Stock that have been converted into or exchanged for
Qualified Capital Stock of the Borrower to the extent such debt
securities or Redeemable Capital Stock are originally sold for cash
plus the aggregate Net Cash Proceeds received by the Borrower at the
time of such conversion or exchange.
(b) Notwithstanding the foregoing, and in the case of clauses (b),
(c) and (d) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(clauses (a) through (d) being referred to as a "Permitted Payment"):
(a) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would be permitted by the provisions of paragraph (a) of this
subsection 7.2 and such payment shall be deemed to have been paid on such
date of declaration for purposes of the calculation required by paragraph
(a) of this subsection 7.2;
(b) the repurchase, redemption or other acquisition or retirement of
any shares of Capital Stock of the Borrower in exchange for (including any
such exchange pursuant to the exercise of a conversion right or privilege
in connection therewith cash is paid in lieu of the issuance of fractional
shares or scrip), or out of the Net Cash Proceeds of, a substantially
concurrent issue and sale for cash (other than to a Subsidiary) of other
Qualified Capital Stock of the Borrower; PROVIDED that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock are
excluded from clause (C) of paragraph (a) of this subsection 7.2;
(c) any repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness or any Senior Notes in exchange for, or out of the net
proceeds of, a substantially concurrent issuance and sale for cash (other
than to any Subsidiary of the Borrower) of any Qualified Capital Stock of
the Borrower; PROVIDED that the Net Cash Proceeds from the issuance of
such Qualified Capital Stock are excluded from clause (C) of paragraph (a)
of this subsection 7.2; and
(d) the repurchase, redemption, defeasance, retirement, refinancing,
acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) or any Senior Notes (a
"refinancing") through the issuance of new Subordinated Indebtedness of
the Borrower or new Senior
(TERM LOAN AGREEMENT)
<PAGE>
Indebtedness, respectively; PROVIDED that any such new Subordinated
Indebtedness or any such new Senior Indebtedness (1) shall be in a
principal amount that does not exceed the principal amount so refinanced
(or, if such old Subordinated Indebtedness or old Senior Indebtedness
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration or acceleration thereof, then such lesser
amount as of the date of determination), plus the lesser of (I) the stated
amount of any premium or other payment required to be paid in connection
with such a refinancing pursuant to the terms of the Subordinated
Indebtedness or Senior Indebtedness being refinanced or (II) the amount of
premium or other payment actually paid at such time to refinance the
Subordinated Indebtedness or Senior Indebtedness, plus, in either case,
the amount of expenses of the Borrower incurred in connection with such
refinancing; (2) has an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the Notes; (3) has a Stated
Maturity for its final scheduled principal payment later than the Stated
Maturity for the final scheduled principal payment of the Notes; and (4)
in the case of Subordinated Indebtedness is expressly subordinated in
right of payment to the Notes at least to the same extent as the
Subordinated Indebtedness to be refinanced.
7.3 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate of the Borrower (other than the Borrower or a Wholly Owned Subsidiary)
unless (i) such transactions or series of related transactions is in writing on
terms that are no less favorable to the Borrower or such Subsidiary, as the case
may be, than would be available in a comparable transaction in arm's-length
dealings with an unrelated third party and (ii) with respect to any transaction
or series of related transactions involving aggregate payments in excess of
$5,000,000, the Borrower delivers an officers' certificate to the Facility
Manager certifying that such transaction or series of related transactions
complies with clause (i) above and such transaction or series of related
transactions has been approved by a majority of the Disinterested Directors of
the Board of Directors; PROVIDED that any transaction or series of related
transactions otherwise permitted under this paragraph (other than any
transaction or series of related transactions with respect to the making of any
Permitted Investment pursuant to clause (vii) of the definition of "Permitted
Investment" or any Restricted Payment permitted pursuant to subsection 7.2)
pursuant to which the Borrower or any Subsidiary of the Borrower shall receive
or render value exceeding $25,000,000 shall not be permitted unless, prior to
the consummation of any such transaction or series of related transactions, the
Borrower shall have received an opinion, from an independent nationally
recognized investment banking firm or firm experienced in the appraisal or
similar review of similar types of transactions, that such transaction is fair
to the Borrower from a financial point of view; PROVIDED, FURTHER, that this
covenant shall not apply to (A) any transaction with an officer or member of the
Board of Directors of the Borrower entered into in the ordinary course of
business (including, without limitation, the Borrower 1994 Stock Option Plan and
(TERM LOAN AGREEMENT)
<PAGE>
other compensation or employee benefit arrangements with any officer or member
of the Board of Directors of the Borrower), (B) transactions or agreements in
existence on the date of this Agreement (and extensions or amendments thereof on
terms which are not materially less favorable to the Borrower than the terms of
any such transaction or agreement as in existence on the date of this
Agreement), (C) directors' fees, (D) any reasonable employment agreement
approved by the Board of Directors of the Borrower and entered into in the
ordinary course of business of the Borrower or any extensions thereof on
substantially equivalent terms, (E) loans to employees not exceeding $1,500,000
in the aggregate outstanding at any time, (F) any employee benefit plan
available to employees of the Borrower generally, and (G) sales by the Borrower
of its products in the ordinary course of business on arm's-length terms.
(b) The Borrower will cause Playtex Investment Corp. not to amend,
modify or in any way alter the terms of the Agreement, dated as of November 5,
1991, between Playtex Investment Corp. and Playtex Apparel Partners, L.P. in a
manner adverse to the Borrower or any Subsidiary.
7.4 LIMITATION ON LIENS. The Borrower will not and will not permit
any Subsidiary to, create, incur, affirm or suffer to exist any Lien of any kind
(other than Permitted Liens) upon any property or assets (including any
intercompany notes) of the Borrower or any Subsidiary owned on the date of this
Agreement or acquired after the date of this Agreement, or any income or profits
therefrom.
If the Borrower or any of its Subsidiaries shall create or assume
any Lien upon any of its properties or assets, whether now owned or hereafter
acquired, other than Permitted Liens, it shall make or cause to be made
effective provision whereby the obligations of the Borrower and the Subsidiaries
under the Loan Documents will be secured by such Lien equally and ratably with
any and all other Indebtedness secured thereby as long as any such Indebtedness
shall be so secured; PROVIDED that, notwithstanding the foregoing, this
provision shall not be construed as a consent by the Lenders to the creation or
assumption of any such Lien other than a Permitted Lien.
7.5 LIMITATION ON SALE OF ASSETS.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) at
least 85% of the proceeds from such Asset Sale are received in cash; PROVIDED
HOWEVER, that the amount of (A) any Senior Indebtedness (as shown on the
Borrower's or such Subsidiaries' most recent balance sheet or in the notes
thereto) of the Borrower or any such Subsidiary that are assumed by the
transferee of any asset in connection with any Asset Sale and (B) any deferred
payment obligations received by the Borrower or any such Subsidiary as proceeds
of an Asset Sale that are concurrently with the Asset Sale converted into cash
without recourse to the Borrower or any of its Subsidiaries, shall be deemed to
be cash for purposes of this provision, (ii) the Borrower or such Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the shares or assets sold (as determined by the Board of
Directors of the Borrower and
(TERM LOAN AGREEMENT)
<PAGE>
evidenced by a board resolution) and (iii) the Net Cash Proceeds received by the
Borrower or such Subsidiary from such Asset Sale are applied in accordance with
the following paragraphs. Notwithstanding the foregoing, clause (i) of the
preceding sentence shall not apply to any Asset Sale or portions thereof
involving Excluded Assets or the making of any Permitted Investment pursuant to
clause (vii) of the definition of "Permitted Investment" or any Restricted
Payment permitted pursuant to subsection 7.2.
(b) The Borrower may, within 12 months of such Asset Sale, invest
such Net Cash Proceeds in properties and assets that (as determined by the Board
of Directors) replace the properties and assets that were the subject of the
Asset Sale or in properties and assets that will be used in the businesses of
the Borrower or its Subsidiaries existing on the date of this Agreement or in a
business reasonably related thereto, which for purposes of this Agreement shall
include any consumer products business. The amount of such Net Cash Proceeds not
invested as set forth in this paragraph shall on or prior to the first
anniversary of such Asset Sale be applied by the Borrower to the prepayment, on
a pro rata basis with the prepayment of the Term A Loans and, from and after
December 15, 2000, the permanent reduction of the Acquisition Revolving Credit
Commitments under the Credit Agreement, of the Term Loans on or prior to the
Business Day following the date such Net Cash Proceeds are not so invested, at a
price equal to 100% of the principal amount thereof, plus accrued interest
thereon to the date of prepayment.
7.6 LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF
SUBSIDIARIES. The Borrower will not permit (a) any Subsidiary to issue any
Capital Stock (other than to the Borrower or any Wholly Owned Subsidiary that is
a Guarantor) or (b) any Person (other than the Borrower or a Wholly Owned
Subsidiary that is a Guarantor) to acquire any Capital Stock of any Subsidiary
from the Borrower or any Wholly Owned Subsidiary, except upon the sale of all of
the outstanding Capital Stock of such Subsidiary owned by the Borrower.
7.7 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make any other distribution on its Capital Stock to the
Borrower or any other Subsidiary, (b) pay any Indebtedness owed to the Borrower
or any Subsidiary, (c) make any Investment in the Borrower or (d) transfer any
of its properties or assets to the Borrower or any Subsidiary, except (i) any
encumbrance or restriction pursuant to the Senior Note Indenture, the
Subordinated Note Indenture or the Credit Agreement as in effect on the date of
this Agreement or any other agreement in effect on the date of this Agreement,
(ii) any encumbrance or restriction, with respect to a Subsidiary that is not a
Subsidiary of the Borrower on the date of this Agreement, in existence at the
time such Person becomes a Subsidiary of the Borrower and not incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary,
(iii) customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Borrower or any Subsidiary, (iv) any
encumbrance or restriction contained in a working capital facility permitted to
be incurred pursuant to paragraph (xi) of the definition of "Permitted
(TERM LOAN AGREEMENT)
<PAGE>
Indebtedness" and (v) any encumbrance or restriction existing under any
agreement that extends, renews, refinances or replaces the agreements containing
the encumbrances or restrictions in the foregoing clauses (i) and (ii), PROVIDED
that the terms and conditions of any such encumbrances or restrictions are not
materially less favorable to the holders of the Notes than those under or
pursuant to the agreement evidencing the Indebtedness so extended, renewed,
refinanced or replaced.
7.8 CONSOLIDATION, MERGER, SALE OF ASSETS. The Borrower shall not,
in a single transaction or a series of related transactions, consolidate with or
merge with or into any other Person or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to
any Person or group of affiliated Persons, or permit any of its Subsidiaries to
enter into any such transaction or transactions if such transaction or
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Borrower and its Subsidiaries on a Consolidated basis to any other
Person or group of affiliated Persons, unless at the time and after giving
effect thereto (i) either (a) the Borrower shall be the continuing corporation
or (b) the Person (if other than the Borrower) formed by such consolidation or
into which the Borrower is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially all
of the properties and assets of the Borrower and its Subsidiaries on a
Consolidated basis (the "Surviving Entity") shall be a corporation duly
organized and validly existing under the laws of the United States of America,
any state thereof or the District of Columbia and such Person assumes by a
supplemental agreement in a form reasonably satisfactory to the Facility
Manager, all the obligations of the Borrower under the Notes and this Agreement,
and this Agreement shall remain in full force and effect; (ii) immediately
before and immediately after giving effect to such transaction on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing;
(iii) immediately before and immediately after giving effect to such transaction
on a pro forma basis (on the assumption that the transaction occurred on the
first day of the four-quarter period immediately prior to the consummation of
such transaction with the appropriate adjustments with respect to the
transaction being included in such pro forma calculation), the Borrower (or the
Surviving Entity if the Borrower is not the continuing obligor under this
Agreement) could incur $1.00 of additional Indebtedness pursuant to subsection
7.1 (other than Permitted Indebtedness); (iv) each Guarantor unless it is the
other party to the transactions described above, shall have by supplemental
agreement confirming that its Guarantee shall apply to such Person's obligations
under this Agreement and the Notes; (v) if any of the property or assets of the
Borrower or any of its Subsidiaries would thereupon become subject to any Lien,
the provisions of subsection 7.4 are complied with; and (vi) the Borrower or the
Surviving Entity shall have delivered, or caused to be delivered, to the
Facility Manager, in form and substance reasonably satisfactory to the Facility
Manager, an officers' certificate and an opinion of counsel, each to the effect
that such consolidation, merger, transfer, sale, assignment, lease or other
transaction and the supplemental agreement in respect thereto comply with the
provisions described herein and that all conditions precedent herein provided
for relating to such transaction have been complied with.
(TERM LOAN AGREEMENT)
<PAGE>
Each Guarantor shall not, and the Borrower will not permit a
Guarantor to, in a single transaction or series of related transactions, merge
or consolidate with or into any other corporation (other than the Borrower or
any other Guarantor) or other entity, or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties and assets on
a Consolidated basis to any entity (other than the Borrower or any other
Guarantor) unless at the time and after giving effect thereto: (i) either (a)
such Guarantor shall be the continuing corporation or (b) the entity (if other
than such Guarantor) formed by such consolidation or into which such Guarantor
is merged or the entity which acquires by sale, assignment, conveyance,
transfer, lease or disposition the properties and assets of such Guarantor shall
be a corporation duly organized and validly existing under the laws of the
United States, any state thereof or the District of Columbia and shall expressly
assume by a supplemental agreement, executed and delivered to the Facility
Manager, in a form reasonably satisfactory to the Facility Manager, all the
obligations of such Guarantor under the Subsidiaries Guarantee, the Notes and
this Agreement; (ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing; and (iii) such Guarantor shall have delivered to the
Facility Manager, in form and substance reasonably satisfactory to the Facility
Manager, an officers' certificate and an opinion of counsel, each stating that
such consolidation, merger, sale, assignment, conveyance, transfer, lease or
disposition and such supplemental agreement comply with this Agreement, and
thereafter all obligations of the predecessor shall terminate.
Notwithstanding the foregoing, in the event of a sale or other
disposition of all or substantially all of the assets of the Guarantor or any
other Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of such Guarantor, then such
Guarantor (in the event of a sale or other disposition, by way of such merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) shall
be released and relieved of any obligations under its Guarantee.
In the event of any transaction described in and complying with the
conditions listed in the immediately preceding paragraphs in which the Borrower
or any Guarantor is not the continuing corporation, the successor Person formed
or remaining shall succeed to, and be substituted for, and may exercise every
right and power of, the Borrower or such Guarantor, as the case may be, and the
Borrower or such Guarantor, as the case may be, would be discharged from all
obligations and covenants under this Agreement, the Notes and such Guarantee, as
the case may be; PROVIDED that in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal and interest on
the Notes or such Guarantee, as the case may be.
7.9 CERTAIN PROVISIONS RELATING TO OTHER DEBT INSTRUMENTS. The
Borrower will not, and will not permit any of its Subsidiaries to, (a) make any
optional payment or optional prepayment on or redemption or purchase of any
Indebtedness (other than the notes and the loans under the Credit Agreement to
the extent not prohibited under this Agreement)
(TERM LOAN AGREEMENT)
<PAGE>
or pay any interest on any Indebtedness in cash which may in accordance with the
terms thereof be paid by the issuance of additional Indebtedness or offer to do
any of the foregoing, except that (i) the Borrower may redeem or purchase any of
the Senior Subordinated Notes or the Senior Notes with 50% of the Net Cash
Proceeds from any offering of Capital Stock of the Borrower subsequent to the
Closing Date (other than any such offering to the extent the Net Cash Proceeds
of which are used to make an investment or acquisition permitted by subsection
7.2), and (ii) the Borrower may pay interest in cash on the Apparel Notes on
each scheduled interest payment date therefor so long as (x) no Default or Event
of Default has occurred and is continuing or would result therefrom, (y) the
amount of such payment is net of all interest accrued and unpaid on the PAP
Debenture for the same period as the Borrower's cash interest payment on the
Apparel Notes and (z) the net cash payment by the Borrower does not exceed
$150,000 in any fiscal year; (b) amend, modify or change, or consent or agree to
any such amendment, modification or change in any material respect to, any of
the terms of any such Indebtedness (other than under the Credit Agreement),
including, without limitation, the Senior Subordinated Note Indenture and the
Senior Note Indenture (other than any such amendment, modification or change
which would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon); or (c) amend, modify or change, or consent or agree to any
such amendment, modification or change in any material respect to, any of the
provisions of the Credit Agreement that would have the effect of (i) shortening
the maturity of or requiring the earlier payment of any principal of any loan or
letter of credit reimbursement obligations under the Credit Agreement, (ii)
changing the definition of "Required Lenders" in the Credit Agreement, or (iii)
changing any mandatory prepayments or commitment reductions pursuant to a
"Material Asset Sale" (as such term is defined in the Credit Agreement) in a
manner that disproportionately disadvantages the Lenders relative to the lenders
under the Credit Agreement, in each case without the prior written consent of
the Required Lenders under this Agreement. The Borrower hereby designates all of
its obligations under this Agreement and the other Loan Documents as "Designated
Senior Indebtedness" for purposes of the Senior Subordinated Note Indenture.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) there shall be a default in the payment of any interest on any
Loans when it becomes due and payable, and such default shall continue for
a period of 5 Business Days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Loan when and as the same shall become due and
payable (upon acceleration, optional or mandatory redemption, required
repurchase or otherwise);
(TERM LOAN AGREEMENT)
<PAGE>
(c) (i) there shall be a default in the performance, or breach, of
any covenant or agreement of the Borrower or any Guarantor under this
Agreement or the other Loan Documents (other than a default in the
performance, or breach, of a covenant or agreement which is specifically
dealt with in paragraphs (a) or (b) above or in clauses (ii) and (iii) of
this paragraph (c)) and such default or breach shall continue for a period
of 30 days after written notice has been given, by certified mail, to the
Borrower by the Facility Manager; or (ii) there shall be a default in the
performance or breach of the provisions described in subsection 7.8; or
(iii) there shall be a default in the performance of or breach of the
provisions of Section 4 of the Borrower Security Agreement;
(d) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Loans) or in the payment of any Guaranteed Debt (other than the Loans), in
either case in an aggregate outstanding principal amount in excess of
$25,000,000 beyond the period of grace (not to exceed 60 days), if any,
provided in the instrument or agreement under which such Indebtedness or
Guaranteed Debt was created, after giving effect to any consents or
waivers relating thereto, or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guaranteed Debt or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Guaranteed Debt (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guaranteed Debt to become
payable in an aggregate amount exceeding $25,000,000 and either (X) such
default or breach under clause (i) or clause (ii) hereof continues for a
period of 20 Business Days and is not cured or waived during such period;
or (Y) such Indebtedness or Guaranteed Debt is either already matured at
its final maturity in accordance with its terms or shall be accelerated;
(e) any Guarantee shall for any reason cease to be, or be asserted
in writing by any Guarantor or the Borrower not to be, in full force and
effect, enforceable in accordance with its terms, except to the extent
contemplated by this Agreement and any such Guarantee;
(f) one or more final judgments, orders or decrees for the payment
of money in excess of $15,000,000, either individually or in the
aggregate, shall be entered against the Borrower or any Subsidiary or any
of their respective properties and shall not be discharged and either (a)
enforcement proceedings shall have been commenced upon such judgment,
order or decree or (b) there shall have been a period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of an appeal or otherwise, shall not be in effect;
(TERM LOAN AGREEMENT)
<PAGE>
(g) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the
Borrower, any Guarantor or any Material Subsidiary in an involuntary case
or proceeding under any applicable Bankruptcy Law or (ii) a decree or
order adjudging the Borrower or any Guarantor or any Material Subsidiary
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment
or composition of or in respect of the Borrower, any Guarantor or any
Material Subsidiary under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Borrower, any Guarantor or any
Material Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any such decree
or order for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of 60
consecutive days;
(h) (i) The Borrower, any Guarantor or any Material Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy
Law or any other case or proceeding to be adjudicated bankrupt or
insolvent, (ii) the Borrower, any Guarantor or any Material Subsidiary
consents to the entry of a decree or order for relief in respect of the
Borrower, such Guarantor or such Material Subsidiary in an involuntary
case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, (iii) the Borrower, any Guarantor or any Material Subsidiary files a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, (iv) the Borrower, any Guarantor or any
Material Subsidiary (x) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Borrower, any Guarantor or such Material Subsidiary or of any substantial
part of its property, (y) makes an assignment for the benefit of creditors
or (z) admits in writing its inability to pay its debts generally as they
become due or (v) the Borrower, any Guarantor or any Material Subsidiary
takes any corporate action in furtherance of any such actions in this
paragraph (h);
(i) (i) Any of the Security Documents shall cease, for any reason,
to be in full force and effect, or the Borrower or any other Loan Party
which is a party to any of the Security Documents shall so assert or (ii)
the Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
(j) Any of the subordination provisions in Article Twelve of the
Senior Subordinated Indenture shall cease, for any reason, to be in full
force and effect, or the Borrower or any other party to the Senior
Subordinated Indenture or any holder of the Senior Subordinated Notes
shall so assert;
then, and in any such event, (1) if such event is an Event of Default specified
in paragraph (g) or (h) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing
(TERM LOAN AGREEMENT)
<PAGE>
under this Agreement shall immediately become due and payable, and (2) if such
event is any other Event of Default, the following actions may be taken: with
the consent of the Required Lenders, the Facility Manager may, or upon the
request of the Required Lenders, the Facility Manager shall, by notice to the
Borrower (i) declare the Commitments to be terminated forthwith whereupon the
Commitments shall immediately terminate and (ii) declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this Agreement
to be due and payable forthwith, whereupon the same shall immediately become due
and payable.
Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE AGENTS
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints Wells Fargo as the Facility Manager of such Lender under this Agreement
and the other Loan Documents, and each Lender hereby irrevocably designates and
appoints DLJ as the Syndication Agent under this Agreement and the other Loan
Documents. Each Lender hereby confirms the appointment by the Facility Manager
of Wells Fargo as the Collateral Agent under the Intercreditor Agreement. Each
Lender irrevocably authorizes each Agent to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to such Agent by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. As between the Lenders and
the Agents, notwithstanding any provision to the contrary elsewhere in this
Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein or in other Loan Documents, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent. The
provisions of this Section 9 are solely for the benefit of each Agent, and the
Lenders and the Borrower shall have no rights as a third party beneficiary of
any of the provisions thereof.
9.2 DELEGATION OF DUTIES. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 EXCULPATORY PROVISIONS. None of the Agents or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer
(TERM LOAN AGREEMENT)
<PAGE>
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents, under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. No Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower.
9.4 RELIANCE BY AGENTS. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Agents. Each Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Facility Manager,
which shall promptly forward such notice to other Agents. Each Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the other Loan Documents, in
the case of the Agent other than the Collateral Agent, in accordance with a
request of the Required Lenders (unless the consent of all Lenders is expressly
required under subsection 10.1) or, in the case of the Collateral Agent, in
accordance with the Intercreditor Agreement, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.
9.5 NOTICE OF DEFAULT. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that any Agent receives such a
notice, such Agent shall give notice thereof to the Lenders and the other
Agents. The Facility Manager shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required Lenders
(unless the consent of all Lenders is expressly required under subsection 10.1);
PROVIDED that unless and until the Facility Manager shall have received such
directions, the Facility Manager may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
(TERM LOAN AGREEMENT)
<PAGE>
9.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender expressly
acknowledges that none of the Agents or any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by such Agent to any Lender. Each
Lender represents to each Agent that it has, independently and without reliance
upon such Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by any Agent
hereunder, no Agent shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of any Agent or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
9.7 INDEMNIFICATION. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) and their respective
Affiliates and their respective directors, officers, employees and agents,
ratably according to their respective pro rata shares of the aggregate
outstanding Loans in effect on the date on which indemnification is sought (or,
if indemnification is sought after the date upon which the Commitments shall
have terminated and the Loans shall have been paid in full, ratably in
accordance with their pro rata shares of the aggregate Loans immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Agent under or in connection with any of
the foregoing; PROVIDED that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent's
contractual breach, gross negligence or willful misconduct. The agreements in
this subsection 9.7 shall survive the payment of the Loans and all other amounts
payable hereunder.
(TERM LOAN AGREEMENT)
<PAGE>
9.8 AGENT IN ITS INDIVIDUAL CAPACITY. Any Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though such Agent were not an Agent hereunder and
under the other Loan Documents. With respect to its Loans made by it and with
respect to any Letter of Credit issued or participated in by it, if any, such
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include such Agent in its
individual capacity.
9.9 SUCCESSOR AGENTS. The Syndication Agent may resign at any time
upon ten Business Days' notice thereof to the Borrower and other Agents. The
Facility Manager may resign as Facility Manager upon 30 days' notice to the
other Agents and the Lenders. If the Facility Manager or the Syndication Agent
shall resign as an Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall, unless an Event of Default has
occurred and is continuing, be approved by the Borrower, whereupon such
successor agent shall succeed to the rights, powers, and duties of the Facility
Manager or the Syndication Agent, as the case may be, and the term "Facility
Manager" or "Syndication Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Facility Manager's or Syndication
Agent's rights, powers and duties as Facility Manager or Syndication Agent, as
the case may be, shall be terminated, without any other or further act or deed
on the part of such former Facility Manager or Syndication Agent or any of the
parties to this Agreement. After any retiring Facility Manager's or Syndication
Agent's resignation, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Facility Manager or Syndication Agent, as the case may be, under this Agreement
and the other Loan Documents. The terms of the resignation of the Collateral
Agent shall be as set forth in the Intercreditor Agreement.
9.10 INTERCREDITOR AGREEMENT AND COLLATERAL DOCUMENTS.
(a) Each Lender hereby authorizes the Facility Manager to enter into
the Intercreditor Agreement on behalf of and for the benefit of such Lender, and
agrees to be bound by the terms of the Intercreditor Agreement; PROVIDED that
the Facility Manager shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in the
Intercreditor Agreement without the prior consent of Required Lenders. Each
Lender hereby authorizes the Collateral Agent to enter into the Guarantee and
the Security Documents and to take all action contemplated by the Intercreditor
Agreement; PROVIDED that the Collateral Agent shall not enter into or consent to
any amendment, modification, termination or waiver of any provision contained in
the Guarantee or Security Document without the prior consent of Required
Lenders. Each Lender agrees that no Lender shall have any right individually to
seek or to enforce the Guarantee or to realize upon the security granted by any
Security Document, it being understood and agreed that such rights and remedies
may be exercised by the Collateral Agent for the benefit of Lenders and the
parties to the Intercreditor Agreement upon the terms of the Guarantee, the
Security
(TERM LOAN AGREEMENT)
<PAGE>
Documents and the Intercreditor Agreement. Each Lender and Agent hereby
authorizes the Collateral Agent to release any Collateral as permitted or
required under this Agreement, the Security Documents and the Intercreditor
Agreement, and agrees that a certificate executed by the Collateral Agent
evidencing the release of such Collateral shall be conclusive evidence of such
release as to any third party.
(b) If there is any conflict between this Agreement and any other
Loan Document, except the Intercreditor Agreement, this Agreement and such other
Loan Document shall be interpreted and construed, if possible, so as to avoid or
minimize such conflict but, to the extent (and only to the extent) of such
conflict, this Agreement shall prevail and control. If there is any conflict
between the Intercreditor Agreement and any Loan Document, including this
Agreement, the Intercreditor Agreement and such Loan Document shall be
interpreted and construed, if possible, so as to avoid or minimize such conflict
but, to the extent (and only to the extent) of such conflict, the Intercreditor
Agreement shall prevail and control.
9.11 OTHER TITLES. None of the Lenders identified on the facing page
or signature pages of this Agreement as an "arranger" or other similar title or
capacity shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified as an
"arranger" or other similar title or capacity shall have or be deemed to have
any fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on any of the Lenders so identified in deciding
to enter into this Agreement or taking or not taking action hereunder.
SECTION 10. MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified, except in accordance with the provisions of this subsection 10.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Facility Manager may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Facility Manager, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; PROVIDED
HOWEVER, that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of maturity of any Loan
or any installment thereof, or reduce the stated rate of any interest or fee or
premium payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Commitments,
in each case without the consent of each Lender affected thereby (provided that
with the consent
(TERM LOAN AGREEMENT)
<PAGE>
of Lenders holding 80% of the outstanding Loans the date of any scheduled
installment of the Loans may be extended to a date not later than September 15,
2003), (ii) amend, modify or waive any provision of this subsection 10.1 or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents or release a
material portion of the Collateral (an increase in the amount of any
Indebtedness of the Borrower secured ratably by the Collateral shall not be
deemed to be a release of Collateral) or any Guarantee other than as provided
for herein, in each case without the written consent of all the Lenders, or
(iii) amend, modify or waive any provision of Section 9 without the written
consent of the Agents and the Collateral Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Lenders, the Agents and the
Collateral Agent. In the case of any waiver, the Borrower, the Lenders, the
Agents and the Collateral Agent shall be restored to their former positions and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any or other Default or Event of Default, or impair any
right consequent thereon. Each Lender agrees that, in the event of any
amendment, supplement or modification to or waiver of any of the terms of this
Agreement that would cause any Note that might be issued to it under subsection
3.2(e) after such amendment, supplement, modification or waiver to be different
from any Note held by it, such Lender will promptly endorse such Note held by it
to reflect such amendment, supplement, modification or waiver.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or 3 days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Agents, and as set forth in Schedule 1.1 in the case of the other parties
hereto, or to such other address as may be hereafter notified by the respective
pages hereto:
The Borrower: Playtex Products, Inc.
300 Nyala Farms Road
Westport, Connecticut 06880
Attention: Michael F. Goss
Telecopy: 203-341-4260
With a copy to: Haas Wheat & Partners Incorporated
300 Crescent Court
Suite 1700
Dallas, Texas 75201
Attention: Robert B. Haas
Douglas D. Wheat
Telecopy: 214-871-8317
(TERM LOAN AGREEMENT)
<PAGE>
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York New York 10019
Attention: Mitchell S. Fishman
Telecopy: 212-757-3990
The Facility Manager: Wells Fargo Bank, N.A.
420 Montgomery Street
9th Floor
San Francisco, CA 94104
Attention: Judi Steele
Telecopy: 415-989-4319
With a copy to: Wells Fargo Bank, N.A.
1445 Ross Avenue
Suite 400
Dallas, TX 75202
Attention: Todd D. Robichaux
Telecopy: 214-777-4044
The Syndication Agent: DLJ Capital Funding, Inc.
2121 Avenue of the Stars
Los Angeles, CA 90067
Attention: Eric Swanson
Kevin Smith
Telecopy: (310) 282-6178
PROVIDED that any notice, request or demand to or upon the Agents or the Lenders
pursuant to subsection 3.3, 3.4 or 3.8 shall not be effective until received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
(TERM LOAN AGREEMENT)
<PAGE>
10.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees, without
duplication of any amounts payable pursuant to subsection 3.1, (a) to pay or
reimburse the Arranger and the Syndication Agent for all of their respective
out-of-pocket costs and expenses (including all out-of-pocket costs and expenses
arising in connection with the syndication of the Loans and any due diligence
investigation performed by the Arranger or the Syndication Agent) incurred in
connection with the development, negotiation, preparation, execution and
delivery of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, whether or not any of the Transactions has been
consummated, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the fees and
disbursements of counsel to the Arranger and the Syndication Agent, and to pay
or reimburse each Agent and the Collateral Agent for any such fees, costs and
expenses related to periods subsequent to the Closing Date, (b) to pay or
reimburse the Agents, the Collateral Agent, the Arranger and, from and after the
occurrence of a Default or an Event of Default, each Lender, for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable and documented fees and
disbursements of counsel to the Agents, the Collateral Agent and the Arranger
and each Lender, (c) to pay, indemnify, and hold each Lender, each Agent, the
Collateral Agent, the Arranger and their respective Affiliates and their
respective directors, trustees, officers, employees and agents and each other
Person controlling any of the foregoing within the meaning of either Section 15
of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended, harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender, each
Agent, the Collateral Agent, the Arranger and their respective Affiliates and
their respective directors, officers, employees and agents and each other Person
controlling any of the foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act
of 1934, as amended, harmless from and against any and all other claims,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents, or the use of the proceeds of the Loans and
any such other documents, including without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "INDEMNIFIED LIABILITIES") (including all legal and other
expenses incurred in connection with investigation, defending or participating
in any action or proceeding relating to any indemnified liabilities (whether or
not such Person is a party to any such action or proceeding), PROVIDED that the
Borrower shall have no obligation hereunder to any Person with
(TERM LOAN AGREEMENT)
<PAGE>
respect to indemnified liabilities arising from the contractual breach, gross
negligence or willful misconduct of such Person as determined by a final
judgment of a court of competent jurisdiction. The agreements in this subsection
shall survive repayment of the Loans and all other amounts payable hereunder
and, in the case of any Lender that may assign any interest in its Commitments
or Loans hereunder, shall (to the extent arising out of such time as it was a
Lender) survive the making of such assignment, notwithstanding that such
assigning Lender may cease to be a party hereto.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agents and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks, financial
institutions, or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Facility Manager shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, PROVIDED that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 3.11, 3.12, 3.13 and 10.5 with respect
to its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender, PROVIDED that, in the case of subsection 3.12, such
Participant shall have complied with the requirements of said subsection and
PROVIDED, FURTHER, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred. Participants (other than an Affiliate of the Lender granting such
participation) shall not be entitled to require such Lender to take or omit to
take any action hereunder except action directly affecting (i) the extension of
the scheduled final maturity date of any portion of the principal amount of or
the postponement of the date of payment of interest on any Loan allocated to
such Participant (it
(TERM LOAN AGREEMENT)
<PAGE>
being understood that changes in interim amortization amounts are not extensions
of scheduled final maturity dates), or (ii) a reduction of the principal amount
of or the rate of interest payable on any Loan allocated to such Participant
(other than any waiver of any increase in the interest rate applicable to Loans
pursuant to subsection 3.6(c)).
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any Affiliate thereof or, with the consent of the Borrower and, in the
case of assignments by Lenders other than the Syndication Agent, the Facility
Manager (which in each case shall not be unreasonably withheld), to an
additional bank or financial institution or other entity (an "ASSIGNEE") all or
any part of its rights and obligations (in minimum amounts equal to at least
$5,000,000 of the aggregate Commitments and outstanding Loans in the case of an
Assignee that is not then a Lender or an Affiliate thereof unless such
assignment is of all of a Lender's interest hereunder) under this Agreement and
the other Loan Documents pursuant to an Assignment and Acceptance, substantially
in the form of Exhibit F, executed by such Assignee, such assigning Lender (and,
in the case of an Assignee that is not then a Lender or an Affiliate thereof, by
the Borrower and the Facility Manager) and delivered to the Facility Manager for
its acceptance and recording in the Register. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (i) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with Commitments as set forth
therein, and (ii) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto, except that
it shall (to the extent arising out of such time as it was a Lender) remain
entitled to the benefit of the indemnities and other rights stated to survive
the termination hereof).
(d) The Facility Manager, acting for this purpose as an agent of the
Borrower, shall maintain at its address referred to in subsection 10.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive and the Borrower, the Facility
Manager and the Lenders shall treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Facility Manager
in accordance with the provisions of subsection 10.6(c)) together with payment,
unless waived by the Syndication
(TERM LOAN AGREEMENT)
<PAGE>
Agent, to the Facility Manager of a registration and processing fee of $3,500,
the Facility Manager shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower. No assignment shall be
effective unless it has been recorded in the Register as provided in this
subsection 10.6(e).
(f) Subject to the provisions of subsection 10.17, the Borrower
authorizes each Lender to disclose to any Participant or Assignee (each, a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the Borrower and its Affiliates which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law or any pledge or
assignment of any Loan or Note by a Lender that is an investment fund to its
trustee in support of its obligations to its trustee, without notice to or
consent of the Borrower or the Agents; PROVIDED HOWEVER that any assignment by
such trustee shall be subject to the provisions of subsection 13.6(c) hereof.
10.7 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of its Loans owing to it,
or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 8(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans owing to it, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all
(TERM LOAN AGREEMENT)
<PAGE>
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Facility Manager after any such set-off
and application made by such Lender, PROVIDED that the failure to give such
notice shall not affect the validity of such set-off and application.
(c) The Borrower, the Lenders and the Facility Manager hereby
acknowledge and agree that the provisions of this subsection 10.7 are subject to
the provisions of the Intercreditor Agreement. To the extent that any Lender is
required pursuant to the provisions of the Intercreditor Agreement to turn over
to the Collateral Agent any payments otherwise subject to the provisions of this
subsection 10.7, such payments shall not be subject to the provisions of this
subsection 10.7.
10.8 RELEASE OF NEW SUBSIDIARY GUARANTEES. (a) If required to do so
pursuant to the provisions of subsection 13.8 of the Credit Agreement, the
Collateral Agent shall release each New Subsidiary (as defined in the Credit
Agreement) requested to be released from the Guarantee, PROVIDED that prior to
or concurrently with such release, any guarantee by such New Subsidiary of the
Senior Subordinated Notes, the Senior Notes and the Credit Agreement is
released; and provided further that the foregoing provisions shall be subject to
the terms of the Intercreditor Agreement.
(b) If (i) in connection with the dissolution or liquidation of any
New Subsidiary permitted hereunder or (ii) with respect to any New Subsidiary
which does not have any assets other than DE MINIMIS assets, the Borrower
requests the Collateral Agent to release such New Subsidiary from the Guarantee,
the Collateral Agent shall so release such New Subsidiary PROVIDED that prior to
or concurrently with such release, any guarantee by such New Subsidiary of the
Senior Subordinated Notes, the Senior Notes and the Credit Agreement is
released; and provided further that the foregoing provisions shall be subject to
the terms of the Intercreditor Agreement.
10.9 MODIFICATION OF SCHEDULES. The Borrower may, from time to time,
amend, supplement or otherwise modify any of the Schedules to this Agreement by
delivering a copy of such amended, supplemented or modified Schedule to the
Agents (which schedule the Facility Manager shall deliver a copy to each Lender)
in accordance with the provisions of subsection 10.2 and such Schedule as
amended, supplemented or modified shall be deemed to replace and supersede the
existing Schedule unless objected to in writing by the Agents or the Required
Lenders within 10 days after receipt thereof by the Lenders.
10.10 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and
(TERM LOAN AGREEMENT)
<PAGE>
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Facility Manager.
10.11 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the removing provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.12 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agents or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or the other Loan
Documents.
10.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTES
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
10.14 SUBMISSION TO JURISDICTION; WAIVERS. (a) The Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York
and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to the Borrower at its address set forth in
subsection 10.2 or at such other address of which the Facility
Manager shall have been notified pursuant thereto; and
(TERM LOAN AGREEMENT)
<PAGE>
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
(b) Each of the Borrower, the Facility Manager and the Lenders
hereby irrevocably and unconditionally waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this subsection any special, exemplary, punitive or
consequential damages.
10.15 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes and the other Loan Documents;
(b) none of the Agents, the Collateral Agent or any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Agents, the Collateral Agent or any Lender, on one
hand, and the Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE FACILITY MANAGER AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.17 CONFIDENTIALITY. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
and each other Loan Document that is designated by the Borrower in writing
confidential; PROVIDED that nothing herein shall prevent any Lender from
disclosing any such information (a) to the Agents or any other Lender, (b) to
any Transferee which receives such information having been made aware of the
confidential nature thereof or to any direct or indirect contractual
counterparties in swap agreements or such contractual counterparties'
professional advisors provided that such contractual counterparties or their
professional advisors agree to handle the above-described confidential
information in accordance with safe and sound practices which are substantially
the same as those followed by banking institutions, (c) to its employees,
directors, agents, attorneys, accountants and other professional advisors, (d)
upon the request or demand of any Governmental Authority having jurisdiction
over such Lender (provided that notice of such request or demand shall be
furnished to the Borrower unless such notice is legally prohibited or such
Governmental Authority requests that such notice not be furnished to the
Borrower or
(TERM LOAN AGREEMENT)
<PAGE>
such request is in connection with normal oversight activities by such
Governmental Authority), (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law (provided that notice of such order or requirement shall be
furnished to the Borrower unless such notice is legally prohibited or such court
or Governmental Authority requests that such notice or requirement not be
furnished to the Borrower), (f) which has been publicly disclosed other than in
breach of this Agreement, or (g) in connection with the exercise of any remedy
hereunder.
(TERM LOAN AGREEMENT)
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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/ Michael Goss
-----------------------------------
Title: Executive Vice President
--------------------------------
(TERM LOAN AGREEMENT)
S-1
<PAGE>
LENDERS: WELLS FARGO BANK, N.A.,
individually and as Facility Manager
By: /s/ Todd D. Robichaux
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-2
<PAGE>
DLJ CAPITAL FUNDING, INC.,
individually and as the Syndication
Agent
By: /s/ Eric Swanson
------------------------------------
Title: Managing director
---------------------------------
(TERM LOAN AGREEMENT)
S-3
<PAGE>
CITIBANK, N.A.
By: /s/ Hans L. Christonsen
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-4
<PAGE>
PRIME INCOME TRUST
By: /s/ Rafael Scolari
------------------------------------
Title: Senior Vice President Portfolio
Manager
---------------------------------
(TERM LOAN AGREEMENT)
S-5
<PAGE>
KZH-ING-1 CORPORATION
By: /s/ Andrew Taylor
------------------------------------
Title: Authorized Agent
---------------------------------
(TERM LOAN AGREEMENT)
S-6
<PAGE>
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/ Anne McCarthy
------------------------------------
Title: Authorized Signatory
---------------------------------
(TERM LOAN AGREEMENT)
S-7
<PAGE>
KZH-SOLEIL CORPORATION
By: /s/ Andrew Taylor
------------------------------------
Title: Authorized Agent
---------------------------------
(TERM LOAN AGREEMENT)
S-8
<PAGE>
CRESCENT/MACH I PARTNERS,
L.P.
by TCW Asset Management Company,
as its Investment Manager
By: /s/ Justin L. Driscoll
------------------------------------
Title: Senior Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-9
<PAGE>
KZH-CRESCENT CORPORATION
By: /s/ Andrew Taylor
------------------------------------
Title: Authorized Agent
---------------------------------
(TERM LOAN AGREEMENT)
S-10
<PAGE>
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
by TCW Asset Management Company, as
Attorney-in-Fact
By: /s/ Mark L. Gold
--------------------------------------
Name: Mark L. Gold
Title: Managing Director
By: /s/ Justin L. Driscoll
--------------------------------------
Name: Justin L. Driscoll
Title: Senior Vice President
(TERM LOAN AGREEMENT)
S-11
<PAGE>
VAN KAMPEN AMERICAN
CAPITAL PRIME RATE INCOME
TRUST
By: /s/ Jeffrey W. Mallet
------------------------------------
Title: Senior Vice President - Portfolio
Manager
---------------------------------
(TERM LOAN AGREEMENT)
S-12
<PAGE>
DEEPROCK & COMPANY
by Eaton Vance Management, as
Investment Advisor
By: /s/ Scott H. Page
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-13
<PAGE>
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(TERM LOAN AGREEMENT)
S-14
<PAGE>
OCTAGON CREDIT INVESTORS
LOAN PORTFOLIO
(a unit of The Chase Manhattan Bank)
By: /s/ James P. Ferguson
------------------------------------
Name: James P. Ferguson
Title: Managing Director
(TERM LOAN AGREEMENT)
S-15
<PAGE>
ROYALTON COMPANY
by Pacific Investment management
Company as its Investment Advisor
By: /s/ Raymond Kennedy
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-16
PLAYTEX PRODUCTS, INC.
ANNOUNCES $470 MILLION REFINANCING
WESTPORT, Conn. -- July 21, 1997 -- Playtex Products, Inc. (NYSE:
PYX) announced today it has refinanced its $470 million in bank debt with a new
$320 million senior credit facility and $150 million in unsecured Senior Notes.
In announcing the refinancing, Michael R. Gallagher, Chief Executive
Officer, said, "This refinancing will greatly add to our ability to execute our
growth plans. In particular, our acquisition capabilities are significantly
enhanced with the reduction in our required principal payments over the next
five years by more that $300 million."
The Company has refinanced all of the outstanding senior
indebtedness under its prior credit agreement with $150 million in 87/8%
unsecured Senior Notes due 2004, a $150 million senior secured term loan
facility due 2003, and a $170 million senior secured credit agreement,
consisting of a $115 million revolving credit facility and a $55 million term
loan facility. The $150 million term loan due 2003 will bear interest at LIBOR
plus 1.5% and will have terms and conditions substantially similar to the Senior
Notes. The remaining senior secured credit facilities will bear interest at
LIBOR plus 1.25%.
"We are delighted with this new credit structure," said Mr.
Gallagher. "With this refinancing completed, we have significantly increased our
financial flexibility without materially increasing our annual interest
expense."
The Company expects an after-tax write-off of approximately $4.1
million, or $.08 per share, in the third quarter of 1997 associated with the
deferred financing costs from the prior credit agreement.
Playtex Products is a leading manufacturer and distributor of
personal care products marketed under such brand names as Playtex, Banana Boat,
Biosun, Woolite, Jhirmack, and Tek.
The Senior Notes have not been, and will not be, registered under
the Securities Act of 1933, as amended, and may not be sold without an exemption
from registration under the Act.
CONTACT: Michael F. Goss
Executive Vice President and CFO
203/341-4264
