Exhibit 4(b)(10)
EXECUTION COPY
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TENTH
SUPPLEMENTAL INDENTURE
AMONG
PLAYTEX PRODUCTS, INC., as Issuer,
PERSONAL CARE HOLDINGS, INC.,
PERSONAL CARE GROUP, INC., and
CAREWELL INDUSTRIES, INC., as Guarantors
and IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
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$360,000,000
9% Senior Subordinated Notes due 2003
Dated as of January 28, 1998
THIS TENTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of January 28, 1998, among Playtex Products, Inc., a Delaware
corporation (the "Company"), Personal Care Holdings, Inc., a Delaware
corporation ("PCH"), Personal Care Group, Inc., a Delaware corporation ("PCG"),
and Carewell Industries, Inc., a Delaware corporation ("Carewell"), (each of
PCH, PCG and Carewell being referred to herein as a "Guarantor" and, together,
as the "Guarantors"), and IBJ Xxxxxxxx Bank & Trust Company (the "Trustee").
WHEREAS, Playtex Family Products Corporation ("Family Products"),
the Company and the Trustee entered into an Indenture dated as of February 2,
1994 (the "Initial Indenture") to provide for the issuance of Family Products'
9% Senior Subordinated Notes due 2003 (the "Securities");
WHEREAS, on March 8, 1994, Family Products was merged with and into
the Company, and pursuant to a First Supplemental Indenture of even date
therewith the Company assumed all of the obligations of Family Products under
the Securities and the Initial Indenture (the Initial Indenture, as amended,
being referred to herein as the "Indenture");
WHEREAS, Playtex Sales & Services, Inc., a Delaware corporation, has
guaranteed the obligations of the Company under the Credit Agreement and, by
reason of such guarantee, entered into a Second Supplemental Indenture dated as
of June 6, 1995;
WHEREAS, Playtex Manufacturing, Inc., a Delaware corporation, has
guaranteed the obligations of the Company under the Credit Agreement (as defined
in the Indenture) and, by reason of such guarantee, entered into a Third
Supplemental Indenture dated as of June 6, 1995;
WHEREAS, BBA Acquisition, Inc., a Delaware Corporation, has
guaranteed the obligations of the Company under the Credit Agreement and, by
reason of such guarantee, entered into a Fourth Supplemental Indenture dated as
of October 31, 1995;
WHEREAS, Sun Acquisition, Inc., a Delaware corporation, has
guaranteed the obligations of the Company under the Credit Agreement and, by
reason of such guarantee, entered into a Fifth Supplemental Indenture dated as
of October 31, 1995;
WHEREAS, on October 31, 1995, BBA Acquisition, Inc., merged with and
into Banana Boat Holding Corporation, a Delaware corporation ("BBH"), with BBH
succeeding to the business of BBA Acquisition, Inc. and assuming all the
obligations of BBA Acquisition, Inc., under the Securities and the Indenture
(the "BBH
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Merger") and, by reason of the BBH Merger, entered into a Sixth Supplemental
Indenture dated as of October 31, 1995;
WHEREAS, on October 31, 1995, Sun Acquisition, Inc., a Delaware
corporation, merged with and into Sun Pharmaceuticals Corp., a Delaware
corporation ("Sun"), with Sun succeeding to the business of Sun Acquisition,
Inc. and assuming all the obligations of Sun Acquisition, Inc. under the
Securities and the Indenture (the "Sun Merger") and, by reason of the Sun
Merger, entered into a Seventh Supplemental Indenture dated as of October 31,
1995;
WHEREAS, each of TH Marketing Corp. and Smile-Tote, Inc. has
guaranteed the obligations of the Company pursuant to an Indenture dated as of
July 21, 1997 by and among the Company, the subsidiaries of the Company named
therein, as guarantors, and Marine Midland Bank, as Trustee and, by reason of
such guarantee, entered into an Eighth Supplemental Indenture, dated as of July
21, 1997;
WHEREAS, the Company, Playtex Sales & Services, Inc., Playtex
Manufacturing, Inc., Sun Pharmaceuticals Corp., TH Marketing Corp., Smile-Tote,
Inc. and the Trustee made certain technical amendments to Section 1426 of the
Indenture and Section 2.26 of each of the Second through Fifth Supplemental
Indentures and by reason of such amendments, entered into a Ninth Supplemental
Indenture, dated as of August 21, 1997;
WHEREAS, the Guarantors have each guaranteed the obligations of the
Company under the Credit Agreement pursuant to a Subsidiaries Guarantee, dated
as of January 28, 1998;
WHEREAS, pursuant to Section 1013(b) of the Indenture, by reason of
such guarantees each Guarantor is required to execute this Tenth Supplemental
Indenture; and
WHEREAS, the Company, each of the Guarantors and the Trustee are
authorized to enter into this Supplemental Indenture;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are herein acknowledged, the Company, the
Trustee and each of the Guarantors hereby agree for the equal and the ratable
benefit of all holders of the Securities as follows:
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ARTICLE ONE
Definitions
1.1 Definitions. For purposes of this Supplemental Indenture, the
terms defined in the recitals shall have the meanings therein specified; any
terms defined in the Indenture and not defined herein shall have the same
meanings herein as therein defined; and references to Articles or Sections
shall, unless the context indicates otherwise, be references to Articles or
Sections of the Indenture.
ARTICLE TWO
GUARANTEE
2.1 Guarantee. For value received, each Guarantor, in accordance
with this Article Two, hereby absolutely, unconditionally and irrevocably
guarantees to the Trustee and the Holders, as if such Guarantor was the
principal debtor, the punctual payment and performance when due of all Indenture
Obligations (which for purposes of this Guarantee shall also be deemed to
include all commissions, fees, charges, costs and other expenses (including
reasonable legal fees and disbursements of one counsel) arising out of, or
incurred by the Trustee or the Holders in connection with, the enforcement of
this Guarantee) on a senior subordinated basis.
2.2 Continuing Guarantee; No Right of Set-Off; Independent
Obligation.
(a) This Guarantee shall be a continuing guarantee of the
payment and performance of all Indenture Obligations and shall remain in full
force and effect until the payment in full of all of the Indenture Obligations
and shall apply to and secure any ultimate balance due or remaining unpaid to
the Trustee or the Holders; and this Guarantee shall not be considered as wholly
or partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Each Guarantor covenants and agrees to comply with all
obligations, covenants, agreements and provisions applicable to it in the
Indenture including those set forth in Article Eight. Without limiting the
generality of the foregoing, each Guarantor's liability shall extend to all
amounts which constitute part of the Indenture Obligations and would be owed by
the Company under the Indenture and the Securities but for the fact that they
are unenforceable, reduced, limited, impaired, suspended or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Company.
(b) Each Guarantor hereby guarantees that the Indenture
Obligations will be paid to the Trustee without set-off or counterclaim or other
reduction whatsoever (whether for taxes, withholding or otherwise) in lawful
currency of the United States of America.
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(c) Each Guarantor's liability to pay or perform or cause the
performance of the Indenture Obligations under this Guarantee shall arise
forthwith after demand for payment or performance by the Trustee has been given
to Guarantor in the manner prescribed in Section 106 of the Indenture.
(d) Except as provided herein, the provisions of this Article
Two cover all agreements between the parties hereto relative to the Guarantee
and none of the parties shall be bound by any representation, warranty or
promise made by any Person relative thereto which is not embodied herein; and it
is specifically acknowledged and agreed that this Guarantee has been delivered
by each Guarantor free of any conditions whatsoever and that no representations,
warranties or promises have been made to such Guarantor affecting its
liabilities hereunder, and that the Trustee shall not be bound by any
representations, warranties or promises now or at any time hereafter made by the
Company to any Guarantor.
(e) This Guarantee is a guarantee of payment, performance and
compliance and not of collectibility and is in no way conditioned or contingent
upon any attempt to collect from or enforce performance or compliance by the
Company or upon any other event or condition whatsoever.
(f) The obligations of each Guarantor set forth herein
constitute the full recourse obligations of such Guarantor enforceable against
it to the full extent of all its assets and properties.
2.3 Guarantee Absolute and Unconditional. The obligations of each
Guarantor hereunder are independent of the obligations of the Company under the
Securities and the Indenture and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not an action or proceeding is
brought against the Company and whether or not the Company is joined in any such
action or proceeding. The liability of each Guarantor hereunder is irrevocable,
absolute and unconditional and (to the extent permitted by law) the liability
and obligations of each Guarantor hereunder shall not be released, discharged,
mitigated, waived, impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in
respect of any indebtedness or other obligation of the Company or any other
Person under the Indenture or the Securities, or any agreement or instrument
relating to any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee or the Holders may
extend to, or make with, the Company, a Guarantor or any other Person, or any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Indenture Obligations, or any other amendment or waiver of, or any
consent to or
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departure from, the Indenture or the Securities, including any increase or
decrease in the Indenture Obligations;
(c) the taking of security from the Company, a Guarantor or
any other Person, and the release, discharge or alteration of, or other dealing
with such security;
(d) the abstention from taking security from the Company, a
Guarantor or any other Person or from perfecting, continuing to keep perfected
or taking advantage of any security;
(e) any loss, diminution of value or lack of enforceability of
any security received from the Company, a Guarantor or any other Person and
including any other guarantees received by the Trustee;
(f) any other dealings by the Company or a Guarantor with any
other Person, or with any security;
(g) the Trustee's or the Holders' acceptance of compositions
from the Company or a Guarantor;
(h) the application by the Holders or the Trustee of all
monies at any time and from time to time received from the Company, a Guarantor
or any other Person on account of any indebtedness and liabilities owing by the
Company or a Guarantor to the Trustee or the Holders, in such manner as the
Trustee or the Holders deems best and the changing of such application in whole
or in part and at any time or from time to time, or any manner of application of
collateral or proceeds thereof, to all or any of the Indenture Obligations, or
the manner of sale of any collateral;
(i) the release or discharge of the Company or a Guarantor or
of any other guarantor of the Securities or of any Person liable directly as
surety or otherwise by operation of law or otherwise for the Securities other
than an express release in writing given by the Trustee, on behalf of the
Holders, of the liability and obligations of Guarantor hereunder;
(j) any change in the name, business, capital structure or
governing instrument of the Company or a Guarantor or any refinancing or
restructuring of any of the Indenture Obligations;
(k) the sale of the Company's or a Guarantor's business or any
part thereof;
(l) any merger or consolidation, arrangement or reorganization
of the Company, a Guarantor, any Person resulting from the merger or
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consolidation of the Company or a Guarantor with any other Person or any other
successor to such Person or merged or consolidated Person or any other change in
the corporate existence, structure or ownership of the Company or a Guarantor or
any change in the corporate relationship between the Company and a Guarantor, or
any termination of such relationship;
(m) the insolvency, bankruptcy, liquidation, winding up,
dissolution, receivership, arrangement, readjustment, assignment for the benefit
of creditors or distribution of the assets of the Company or its assets or any
resulting discharge of any obligations of the Company (whether voluntary or
involuntary) or of a Guarantor (whether voluntary or involuntary) or the loss of
corporate existence;
(n) any arrangement or plan of reorganization affecting the
Company or a Guarantor;
(o) any failure, omission or delay on the part of the Company
to conform or comply with any term of the Indenture;
(p) any limitation on the liability or obligations of the
Company or any other person under the Indenture, or any discharge, termination,
cancellation, distribution, irregularity, invalidity or unenforceability, in
whole or in part, of the Indenture;
(q) any other circumstance that might otherwise constitute a
defense available to, or discharge of, the Company or a Guarantor; or
(r) any modification, compromise, settlement or release by the
Trustee, or by operation law or otherwise, of the Indenture Obligations or the
liability of the Company or any other obligor under the Securities or of any
collateral, in whole or in part, and any refusal of payment by the Trustee, in
whole or in part, from any other obligor or other guarantor in connection with
any of the Indenture Obligations, whether or not with notice to or further
assent by, or any reservation of rights against, a Guarantor.
2.4 Right to Demand Full Performance. In the event of any demand for
payment or performance by the Trustee from a Guarantor hereunder, the Trustee or
the Holders shall have the right to demand its full claim and to receive all
dividends or other payments in respect thereof until the Indenture Obligations
have been paid in full and each Guarantor shall continue to be liable hereunder
for any balance which may be owing to the Trustee or the Holders by the Company
under the Indenture and the Securities. The retention by the Trustee or the
Holders of any security, prior to the realization by the Trustee or the Holders
of its rights to such security upon foreclosure thereon, shall not, as between
the Trustee and a Guarantor, be considered as a purchase of such security, or as
payment, satisfaction or reduction of the Indenture Obligations
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due to the Trustee or the Holders by the Company or any part thereof. Each
Guarantor, promptly after demand, will reimburse the Trustee and the Holders for
all costs and expenses of collecting such amount under, or enforcing this
Guarantee, including, without limitation, the reasonable fees and expenses of
counsel.
2.5 Waivers.
(a) Each Guarantor hereby expressly waives (to the extent
permitted by law) notice of the acceptance of this Guarantee and notice of the
incurrence, existence, renewal, extension or the non-performance, non-payment,
or non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of the Indenture or the Securities or any other notice
whatsoever to or upon the Company or a Guarantor with respect to the Indenture
Obligations, whether by statute, rule of law or otherwise. Each Guarantor hereby
acknowledges communication to it of the terms of the Indenture and the
Securities and all of the provisions therein contained and consents to and
approves the same. Each Guarantor hereby expressly waives (to the extent
permitted by law) diligence, presentment, protest and demand for payment with
respect to (i) any notice of any sale, transfer or other disposition of any
right, title to or interest in the Securities by the Holders or in the
Indenture, (ii) any release of a Guarantor from its obligations hereunder
resulting from any loss by it of its rights of subrogation hereunder and (iii)
any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge, release or defense of a guarantor or surety or that might
otherwise limit recourse against Guarantor.
(b) Without prejudice to any of the rights or resources which
the Trustee or the Holders may have against the Company, each Guarantor hereby
expressly waives (to the extent permitted by law) any right to require the
Trustee or the Holders to:
(i) enforce, assert, exercise, initiate or exhaust any
rights, remedies or recourse against the Company, a Guarantor or any other
Person under the Indenture or otherwise;
(ii) value, realize upon or dispose of any security of
the Company or any other Person held by the Trustee or the Holders;
(iii) initiate or exhaust any other remedy which the
Trustee or the Holders may have in law or equity; or
(iv) mitigate the damages resulting from any default
under the Indenture;
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before requiring or becoming entitled to demand payment from Guarantor under
this Guarantee.
2.6 Guarantor Remains Obligated in the Event the Company Is No
Longer Obligated to Discharge Indenture Obligations. It is the express intention
of the Trustee and each Guarantor that if for any reason the Company has no
legal existence, is or becomes under no legal obligation to discharge the
Indenture Obligations owing to the Trustee or the Holders by the Company or if
any of the Indenture Obligations owing by the Company to the Trustee or the
Holders becomes irrecoverable from the Company by operation of law or for any
reason whatsoever, this Guarantee and the covenants, agreements and obligations
of Guarantor contained in this Article Two shall nevertheless be binding upon
each Guarantor, as a principal debtor, until such time as all such Indenture
Obligations have been paid in full to the Trustee and all Indenture Obligations
owing to the Trustee or the Holders by the Company have been discharged, or such
earlier time as Section 402 shall apply to the Securities and each Guarantor
shall be responsible for the payment thereof to the Trustee or the Holders upon
demand.
2.7 Waiver of Rights. Each Guarantor agrees (to the extent permitted
by law) that it hereby waives and will not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, exoneration,
contribution, indemnity or subrogation (whether contractual, under Section 509
of Title Eleven of the United States Code, under common law or otherwise) or any
similar rights or "claims" (as such term is defined under Title Eleven of the
United States Code), against the Company or any Subsidiary arising from the
existence of, or performance by, such Guarantor under this Guarantee.
2.8 Guarantee Is In Addition to Other Security. This Guarantee shall
be in addition to and not in substitution for any other guarantees or other
security which the Trustee may now or hereafter hold in respect of the Indenture
Obligations owing to the Trustee or the Holders by the Company, and (except as
may be required by law) the Trustee shall be under no obligation to marshal in
favor of a Guarantor any other guarantees or other security or any moneys or
other assets which the Trustee may be entitled to receive or upon which the
Trustee or the Holders may have a claim.
2.9 Release of Security Interests. Without limiting the generality
of the foregoing and except as otherwise provided in the Indenture, each
Guarantor hereby consents and agrees, to the fullest extent permitted by
applicable law, that the rights of the Trustee hereunder, and the liability of
such Guarantor hereunder, shall not be affected by any and all releases for any
purpose of any collateral, if any, from the Liens and security interests created
by any collateral document and that this Guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Indenture Obligations is rescinded or must otherwise be returned by
the
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Trustee upon the insolvency, bankruptcy or reorganization of the Company or
otherwise, all as though such payment had not been made.
2.10 No Bar to Further Actions. Except as provided by law, no action
or proceeding brought or instituted under this Article Two and this Guarantee
and no recovery or judgment in pursuance thereof shall be a bar or defense to
any further action or proceeding which may be brought under this Article Two and
this Guarantee by reason of any further default or defaults under this Article
Two and this Guarantee or in the payment of any of the Indenture Obligations
owing by the Company.
2.11 Failure to Exercise Rights Shall Not Operate As a Waiver; No
Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on the
part of the Trustee or the Holders, any right, power, privilege or remedy under
this Article Two and this Guarantee shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power, privilege or remedy preclude
any other or further exercise thereof, or the exercise of any other rights,
powers, privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity.
(b) Nothing contained in this Article Two shall limit the
right of the Trustee or the Holders to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
2.12 Trustee's Duties; Notice to Trustee.
(a) Any provision in this Article Two or elsewhere in the
Indenture allowing the Trustee to request any information or to take any action
authorized by, or on behalf of, a Guarantor shall be permissive and shall not be
obligatory on the Trustee except as the Holders may direct in accordance with
the provisions of the Indenture or where the failure of the Trustee to request
any such information or to take any such action arises from the Trustee's
negligence, bad faith or willful misconduct.
(b) The Trustee shall not be required to inquire into the
existence, powers or capacities of the Company, a Guarantor or the officers,
directors or agents acting or purporting to act on their respective behalf.
(c) Notwithstanding the provisions of this Article Two or any
other provision of the Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received
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written notice thereof from the Company; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist, provided however,
that if a Responsible Officer of the Trustee shall not have received any such
notice from the Company at least three Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on, any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date; nor shall the
Trustee be charged with knowledge of the curing of any such default or the
elimination of the act or condition preventing any such payment unless and until
the Responsible Officer of the Trustee shall have received an Officers'
Certificate to such effect.
(d) In case that at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article Two shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article Two in addition to or in place of the
Trustee.
2.13 Successors and Assigns. All terms, agreements and conditions of
this Article Two shall extend to and be binding upon each Guarantor and its
successors and permitted assigns and shall enure to the benefit of and may be
enforced by the Trustee and its successors and assigns; provided, however, that
Guarantor may not assign any of its rights or obligations hereunder other than
in accordance with Article Eight.
2.14 Release of Guarantee. Concurrently with the payment in full of
all of the Indenture Obligations, each Guarantor shall be released from and
relieved of its obligations under this Article Two. Upon the delivery by the
Company to the Trustee of an Officers' Certificate and, if requested by the
Trustee, an Opinion of Counsel to the effect that the transaction giving rise to
the release of this Guarantee was made by the Company in accordance with the
provisions of the Indenture and the Securities, the Trustee shall execute any
documents reasonably required in order to evidence the release of each Guarantor
from its obligations under this Guarantee. If any of the Indenture Obligations
are revived and reinstated after the termination of this Guarantee, then all of
the obligations of each Guarantor under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time as the
Indenture Obligations are paid in full, and each Guarantor shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
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This Guarantee shall terminate upon a merger or consolidation of
Guarantor with the Company, in accordance with Article Eight.
This Guarantee shall be automatically and unconditionally released
and discharged upon the occurrence of any of the conditions set forth in Section
1013(d) of the Indenture.
2.15 Execution of Guarantee. To evidence the Guarantee, each
Guarantor hereby agrees upon request of the Trustee to execute a guarantee
substantially in the form set forth in Section 205, with appropriate name and
reference changes, to be endorsed on each Security authenticated and delivered
by the Trustee and that this Supplemental Indenture shall be executed on behalf
of such Guarantor by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
If an officer whose signature is on this Supplemental Indenture no
longer holds that office at the time the Trustee authenticates a Security on
which this Guarantee is endorsed, such Guarantee shall be valid nevertheless.
2.16 Guarantee Subordinate to Senior Guarantor Indebtedness. Each
Guarantor covenants and agrees and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article Two, this Guarantee is hereby subordinate
and subject in right of payment as provided in this Article to the prior payment
in full, in cash or Cash Equivalents or in any other manner acceptable to the
requisite holders of Designated Senior Guarantor Indebtedness, of all Senior
Guarantor Indebtedness; provided, however, that the Indebtedness represented by
this Guarantee in all respects shall rank equally with, or prior to, all
existing and future unsecured Indebtedness of Guarantor that is subordinated to
Senior Guarantor Indebtedness.
This Article Two shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Guarantor Indebtedness, and such provisions are made for the benefit of
the holders of Senior Guarantor Indebtedness; and such holders are made obligees
hereunder and they or each of them may enforce such provisions.
2.17 Payment Over of Proceeds Upon Dissolution of the Guarantor,
etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to a Guarantor or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of a
Guarantor, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or
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(c) any assignment for the benefit of creditors or any other marshaling of
assets or liabilities of a Guarantor, then and in any such event:
(1) the holders of Senior Guarantor Indebtedness shall
be entitled to receive payment in full in cash or Cash Equivalents or in any
other manner acceptable to the requisite holders of Designated Senior Guarantor
Indebtedness, of all amounts due on or in respect of all Senior Guarantor
Indebtedness, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character (excluding Permitted Guarantor
Junior Securities) on account of the principal of, premium, if any, or interest
on the Securities or on account of the purchase, redemption, defeasance or other
acquisition of or in respect of the Securities (including any payment or other
distribution which may be received from the holders of Subordinated Indebtedness
as a result of any payment on such Subordinated Indebtedness); and
(2) any payment or distribution of assets of such
Guarantor of any kind or character, whether in cash, property or securities
(excluding Permitted Guarantor Junior Securities), by set-off or otherwise, to
which Holders or the Trustee would be entitled but for the provisions of this
Article shall be paid by the liquidating trustee or agent or other Person making
such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Guarantor
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any such
Senior Guarantor Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Guarantor
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash or Cash Equivalents or in any other manner acceptable to
the requisite holders of Designated Senior Guarantor Indebtedness, of all Senior
Guarantor Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Guarantor Indebtedness;
and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of such Guarantor of any kind or
character, whether in cash, property or securities, in respect of principal,
premium, if any, and interest on he Securities or on account of the purchase,
redemption, defeasance or other acquisition of or in respect of the Securities
before all Senior Guarantor Indebtedness is paid in full, then and in such event
such payment or distribution (excluding Permitted Guarantor Junior Securities)
(including any payment or other distribution which may be received from the
holders of Subordinated Indebtedness as a result of any payment on such
Subordinated Indebtedness) shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other person making payment or distribution of assets of such Guarantor for
application to the payment of all Senior Guarantor Indebtedness remaining
unpaid, to the extent necessary
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to pay all Senior Guarantor Indebtedness in full in cash or Cash Equivalents or
in any other manner acceptable to the requisite holders of Designated Senior
Guarantor Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Guarantor Indebtedness and until so
paid shall be held in trust for the benefit of the holders of Senior Guarantor
Indebtedness.
The consolidation of a Guarantor with, or the merger of Guarantor
with or into, another Person or the liquidation or dissolution of Guarantor
following the sale, assignment, conveyance, transfer, lease or other disposal of
all or substantially all of its properties or assets to another Person upon the
terms and conditions set forth in Article Eight of the Indenture shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of Guarantor
for the purposes of this Section 2.17 if the Person formed by such consolidation
or the surviving entity of such merger or the Person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal such properties or
assets, as the case may be, shall as a part of such consolidation, merger, sale,
assignment, conveyance, transfer, lease, or other disposal comply with the
conditions set forth in Article Eight.
2.18 Default on Senior Guarantor Indebtedness.
(a) Upon the maturity of any Senior Guarantor Indebtedness by
lapse of time, acceleration or otherwise, all principal thereof and interest
thereon and other amounts due in connection therewith shall first be paid in
full in cash or Cash Equivalents or in any other manner acceptable to the
requisite holders of such Designated Senior Guarantor Indebtedness before any
payment is made by a Guarantor or any Person acting on behalf of a Guarantor in
respect of the Securities.
(b) No payment (excluding Payments in the form of Permitted
Guarantor Junior Securities) shall be made by a Guarantor in respect of the
Securities during the period in which Section 2.17 of this Supplemental
Indenture shall be applicable, during any suspension of payments in effect under
Section 1203(a) or during any Payment Blockage Period in effect under Section
1203(b).
(c) In the event that, notwithstanding the foregoing, a
Guarantor shall make any payment to the Trustee or the Holder of any Security
pursuant to this Guarantee prohibited by the foregoing provisions of this
Section, then and in such event such payment shall be paid over and delivered
forthwith to the representatives of Senior Guarantor Indebtedness or as a court
of competent jurisdiction shall direct and until so paid shall be held in trust
for the benefit of the holders of Senior Guarantor Indebtedness.
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2.19 Payment Permitted by Guarantor if No Default. Nothing contained
in this Article Two, elsewhere in the Indenture or in any of the Securities
shall prevent a Guarantor, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of such
Guarantor referred to in Section 2.17 of this Supplemental Indenture or under
the conditions described in Section 2.18 of this Supplemental Indenture from
making payments at any time of principal of, premium, if any, or interest on the
Securities.
2.20 Subrogation to Rights of Holders of Senior Guarantor
Indebtedness. Subject to the payment in full of all Senior Guarantor
Indebtedness in cash or Cash Equivalents or in any other manner acceptable to
the requisite holders of Senior Guarantor Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Guarantor Indebtedness to receive payments and distributions of cash, property
and securities applicable to Senior Guarantor Indebtedness until the principal
of, premium, if any, and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Guarantor Indebtedness of any cash, property or securities to which the
holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Two, and no payments over pursuant to the provisions
of this Article Two to the holders of Senior Guarantor Indebtedness by Holders
of the Securities or the Trustee, shall, as among a Guarantor, its creditors
other than holders of Senior Guarantor Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by such Guarantor to or on
account of the Senior Guarantor Indebtedness.
2.21 Provisions Solely to Define Relative Rights. The provisions of
Section 2.16 through 2.30 of this Supplemental Indenture are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Guarantor Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in the Indenture or in the
Securities is intended to or shall (a) impair as among a Guarantor, its
creditors other than holders of Senior Guarantor Indebtedness and the Holders of
the Securities, the obligation of such Guarantor, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of,
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against a Guarantor of the Holders of the Securities and
creditors of such Guarantor other than the holders of Senior Guarantor
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
the Indenture, subject to the rights, if any, under this Article of the holders
of Senior Guarantor Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of a Guarantor referred to in Section
2.17 of this
15
Supplemental Indenture to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 2.18 of
this Supplemental Indenture, to prevent any payment prohibited by such Section
or enforce their rights pursuant to Section 2.18(c) of this Supplemental
Indenture.
2.22 Trustee to Effectuate Subordination. Each Holder of a Security
by his acceptance thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Two and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of any
dissolution, winding up, liquidation or reorganization of a Guarantor whether in
bankruptcy, insolvency, receivership proceedings, or otherwise, the timely
filing of a claim for the unpaid balance of the indebtedness of such Guarantor
owing to such Holder in the form required in such proceedings and the causing of
such claim to be approved. If the Trustee does not file a proper claim at least
30 days before the expiration of the time to file such claim, then the holders
of Senior Guarantor Indebtedness, and their agents, trustees or other
representatives are authorized to do so on behalf of the Holders.
2.23 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Guarantor Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of a Guarantor or by any act or failure to act by any such holder, or by
any non-compliance by a Guarantor with the terms, provisions and covenants of
the Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
(b) Without limiting the generality of Subsection (a) of this
Section, the holders of Senior Guarantor Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article Two or the obligations hereunder of the Holders of the Securities to the
holders of Senior Guarantor Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Guarantor Indebtedness (or the Senior Indebtedness
guaranteed thereby) or any instrument evidencing the same or any agreement under
which Senior Guarantor Indebtedness (or the Senior Indebtedness guaranteed
thereby) is outstanding; (2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Guarantor Indebtedness
(or the Senior Indebtedness guaranteed thereby); (3) release any Person liable
in any manner for the collection or payment of Senior Guarantor Indebtedness (or
the Senior Indebtedness guaranteed thereby); and (4) exercise or refrain from
exercising any rights against a Guarantor and any other Person; provided,
however, that in no event shall
16
any such actions limit the right of the Holders of the Securities to take any
action to accelerate the maturity of the Securities in accordance with
provisions described under Article Five or to pursue any rights or remedies
hereunder or under applicable laws if the taking of such action does not
otherwise violate the terms of this Article Two.
2.24 Notice to Trustee by Guarantor.
(a) Each Guarantor shall give prompt written notice to the
Trustee of any fact known to such Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of any Guarantee. Notwithstanding
the provisions of this Article Two or any provision of the Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of
Securities, unless and until the Trustee shall have received written notice
thereof from a Guarantor or a holder of Senior Guarantor Indebtedness or from a
representative of Senior Guarantor Indebtedness or any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on the Security), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Guarantor Indebtedness or any trustee, fiduciary or agent
thereof, the Trustee shall have full power and authority to receive such money
and to apply the same to the purpose for which such money was received and shall
not be affected by any notice to the contrary which may be received by it within
two Business Days prior to such date; nor shall the Trustee be charged with
knowledge of the curing of any such default or the elimination of the act or
condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to
it of a written notice to the Trustee and a Guarantor by a Person representing
himself to be a representative of a holder or a holder of Senior Guarantor
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a representative or a holder of Senior Guarantor
Indebtedness (or a trustee, fiduciary or agent therefor); provided, however,
that failure to give such notice to a Guarantor shall not affect in any way the
ability of the Trustee to rely on such notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Guarantor Indebtedness to participate
in any payment or distribution pursuant to this Article Two, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Guarantor Indebtedness held by such Person,
the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to
17
the rights of such Person under this Article Two, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
2.25 Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of a Guarantor referred to in this
Article Two, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Guarantor Indebtedness
and other indebtedness of such Guarantor, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Two, provided that the foregoing shall apply only if
such court has been fully apprised of the provisions of this Article Two.
2.26 Rights of Trustee as a Holder of Senior Guarantor Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article Two with respect to any
Senior Guarantor Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Guarantor Indebtedness, and nothing in the
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in Sections 2.16 through 2.30 of this Supplemental Indenture shall apply to
claims of, or payments to, the Trustee under or pursuant to the provisions in
the Indenture regarding compensation and indemnification of the Trustee.
2.27 Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting under the Indenture, the term "Trustee" as used in this Article
Two shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article Two in
addition to or in place of the Trustee; provided, however, that Section 2.26 of
this Supplemental Indenture shall not apply to a Guarantor or any Affiliate of
such Guarantor if it or such Affiliate acts as Paying Agent.
2.28 No Suspension of Remedies. Nothing contained in this Article
Two shall limit the right of the Trustee or the Holders of Securities to take
any action to accelerate the maturity of the Securities pursuant to the
provisions described in Article Five and as set forth in the Indenture or to
pursue any rights or remedies hereunder or under applicable law, subject to the
rights, if any, under this Article Two of the
18
holders, from time to time, of Senior Guarantor Indebtedness to receive the
cash, property or securities receivable upon the exercise of such rights or
remedies.
2.29 Trustee's Relation to Senior Guarantor Indebtedness. With
respect to the holders of Senior Guarantor Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Two, and no implied covenants or
obligations with respect to the holders of Senior Guarantor Indebtedness shall
be read into this Article Two against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Guarantor Indebtedness
and the Trustee shall not be liable to any holder of Senior Guarantor
Indebtedness if it shall mistakenly in the absence of gross negligence or
willful misconduct pay over or deliver to Holders of the Securities, a Guarantor
or any other Person moneys or assets to which any holder of Senior Guarantor
Indebtedness shall be entitled by virtue of this Article Two or otherwise.
2.30 Limitation of Guarantor's Guarantee. Notwithstanding any other
provision of this Article Two or of the Indenture to the contrary, in the event
that the Guarantee provided pursuant to this Article Two would constitute or
result in a violation of any applicable fraudulent conveyance or similar law of
any relevant jurisdiction, the liability of the Guarantor under this Guarantee
shall be reduced to the maximum amount permissible under such applicable
fraudulent conveyance or similar law after taking into account and giving effect
to all Senior Guarantor Indebtedness.
ARTICLE THREE
Miscellaneous
3.1 Effect of the Supplemental Indenture. This Supplemental
Indenture supplements the Indenture and shall be a part and subject to all the
terms thereof. Except as supplemented hereby, the Indenture and the Securities
issued thereunder shall continue in full force and effect.
3.2 Counterparts. This Supplemental Indenture may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
3.3 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE 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).
3.4 Recitals. The Trustee shall not be responsible for any recital
herein (other than the thirteenth recital as it applies to the Trustee) as such
recitals shall be taken as statements of the Company, or the validity of the
execution by any
19
Guarantor of this Supplemental Indenture. The Trustee makes no representations
as to the validity or sufficiency of this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first written above.
PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
and CFO
PERSONAL CARE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
PERSONAL CARE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
CAREWELL INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
IBJ XXXXXXXX BANK & TRUST
COMPANY, as Trustee
By: /s/ Xxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
