XXXXXX, INC.
as Issuer,
XXXXXX PRODUCTS COMPANY,
as the Initial Guarantor,
XXXXXXX PRODUCTS CO., INC.,
as the First Additional Guarantor,
DERMABLEND, INC.,
as the Second Additional Guarantor
and
MARINE MIDLAND BANK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 14, 1998
(Supplementing A Trust Indenture Dated as of November 6, 1997)
10% Senior Subordinated Notes due 2007
THIS FIRST SUPPLEMENTAL INDENTURE dated as of the 14th day of
July 1998 (the "First Supplemental Indenture") among XXXXXX, INC., a Delaware
corporation (the "Company"), XXXXXX PRODUCTS COMPANY, a Delaware corporation
(the "Initial Guarantor"), XXXXXXX PRODUCTS CO., INC., a Florida corporation
(the "First Additional Guarantor"), DERMABLEND, INC. (the "Second Additional
Guarantor" and, together with the First Additional Guarantor, the "Additional
Guarantors") and MARINE MIDLAND BANK, as trustee (the "Trustee").
RECITALS:
The Company, the Initial Guarantor and the Trustee are parties
to an Indenture dated as of November 6, 1997 (the "Indenture") relating to the
creation by the Company of an issue of $100,000,000 of its 10?% Senior
Subordinated Notes due 2007 (the "Securities");
The Initial Guarantor has issued a guarantee of the Securities
(the "Guarantee") pursuant to which the Initial Guarantor has guaranteed, in
accordance with Article Eleven of the Indenture, all Guaranteed Obligations (as
such term is defined in the Indenture); and
The Company, the Initial Guarantor, the Additional Guarantors
and the Trustee now desire to enter into this First Supplemental Indenture
pursuant to Section 10.01(iv) of the Indenture, without the consent of the
Holders, in order to add further Guarantees of the Securities under the
Indenture.
Capitalized terms used herein without definition shall have
the meanings given such terms in the Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and for other good
and valuable consideration, it is covenanted and agreed, for the benefit of each
other and for the equal and proportionate benefit of the Holders of the
Securities issued under the Indenture, as follows:
ARTICLE ONE
JOINDER AND GUARANTEES OF THE
ADDITIONAL GUARANTORS
Section 101. The Additional Guarantors hereby absolutely,
unconditionally and irrevocably guarantee the Guaranteed Obligations to the
Holders and the Trustee to the same extent and according to the terms of the
Guarantee attached to the Notes and according to the forms of Guarantee attached
as Exhibit A and Exhibit B hereto pursuant to Section 11.05 of the Indenture, as
if such Additional Guarantors had been original signatories to the Guarantee.
Section 102. The Additional Guarantors hereby absolutely,
unconditionally and irrevocably agree to be parties to the Indenture according
to the terms of the Indenture, as if such Additional Guarantors had been
original signatories to the Indenture.
Section 103. As of the date hereof, all references to the
"Guarantors" in the Indenture, the Notes and the Guarantee shall be deemed to
refer collectively to the Initial Guarantor and the Additional Guarantors.
ARTICLE TWO
MISCELLANEOUS
Section 201. Governing Law. The laws of the State of New York
shall govern this First Supplemental Indenture and the Guarantees referred to
herein without regard to principles of conflicts of law.
Section 202. Counterpart Originals. The parties may sign any
number of copies of this First Supplemental Indenture and the Guarantees
referred to herein. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 203. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this First Supplemental Indenture, the recitals contained herein or the
Guarantees referred to herein and it shall not be responsible for any statement
of the Company or the Additional Guarantors in this First Supplemental Indenture
or the Guarantees referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
XXXXXX, INC.
By:
Name:
Title:
XXXXXX PRODUCTS COMPANY
By:
Name:
Title:
XXXXXXX PRODUCTS CO., INC.
By:
Name:
Title:
DERMABLEND, INC.
By:
Name:
Title:
MARINE MIDLAND BANK,
as Trustee
By:
Name:
Title:
EXHIBIT A
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
Xxxxxxx Products Co., Inc. (the "Additional Guarantor") has
unconditionally and irrevocably guaranteed on a senior subordinated basis (such
guarantee being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of and interest or premium or Liquidated Damages, if
any, on the Securities, whether on the Maturity Date, by acceleration, call for
redemption, upon a Change of Control Offer, upon an Asset Sale Offer or
otherwise, the due and punctual payment of interest on the overdue principal and
interest, if any, on the Securities and expenses, indemnification or otherwise,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms set forth in Article
Eleven and Article Twelve of the Indenture and (ii) in case of any extension of
time of payment or renewal of any Securities or any of such other obligations,
that the same will 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.
The obligations of the Additional Guarantor to the Holders and
to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth and are expressly subordinated and subject in right of payment to the
prior payment in full of all Guarantor Senior Indebtedness of the Additional
Guarantor, to the extent and in the manner provided, in Article Eleven and
Article Twelve of the Indenture, and reference is hereby made to such Indenture
for the precise terms of the Guarantee therein made.
No past, present or future director, officer, incorporator,
employee or stockholder (or other person performing similar functions with
respect to a person who is not a corporation), as such, of the Additional
Guarantor shall have any liability under the Guarantee by reason of such
person's status as director, officer, incorporator, employee or stockholder (or
other person performing similar functions with respect to a person who is not a
corporation). Each holder of a Security by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
XXXXXXX PRODUCTS CO., INC.
By:
Name:
Title:
EXHIBIT B
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
Dermablend, Inc. (the "Additional Guarantor") has
unconditionally and irrevocably guaranteed on a senior subordinated basis (such
guarantee being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of and interest or premium or Liquidated Damages, if
any, on the Securities, whether on the Maturity Date, by acceleration, call for
redemption, upon a Change of Control Offer, upon an Asset Sale Offer or
otherwise, the due and punctual payment of interest on the overdue principal and
interest, if any, on the Securities and expenses, indemnification or otherwise,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms set forth in Article
Eleven and Article Twelve of the Indenture and (ii) in case of any extension of
time of payment or renewal of any Securities or any of such other obligations,
that the same will 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.
The obligations of the Additional Guarantor to the Holders and
to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth and are expressly subordinated and subject in right of payment to the
prior payment in full of all Guarantor Senior Indebtedness of the Additional
Guarantor, to the extent and in the manner provided, in Article Eleven and
Article Twelve of the Indenture, and reference is hereby made to such Indenture
for the precise terms of the Guarantee therein made.
No past, present or future director, officer, incorporator,
employee or stockholder (or other person performing similar functions with
respect to a person who is not a corporation), as such, of the Additional
Guarantor shall have any liability under the Guarantee by reason of such
person's status as director, officer, incorporator, employee or stockholder (or
other person performing similar functions with respect to a person who is not a
corporation). Each holder of a Security by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
DERMABLEND, INC.
By:
Name:
Title:
