RESTRICTED ACCOUNT AGREEMENT
Exhibit 4.3
This RESTRICTED ACCOUNT AGREEMENT (the “Agreement”) dated as of the date specified at the end of this Agreement is entered into among PLAYTEX PRODUCTS, INC. (“Customer”), XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, in its capacity as trustee (together with its successors and assigns in such capacity, the “Trustee”), for the benefit holders of certain 8% Senior Secured Notes due 2011 of Customer (the “Senior Notes”) pursuant to the Indenture, dated as of February 19, 2004 (the “Indenture”), among the Customer, the Guarantors named therein and the Trustee and the Xxxxx Fargo Bank identified in the signature block at the end of this Agreement (“Xxxxx Fargo”), and acknowledged by each of the entities listed on Schedule I (collectively, the “Guarantors”), and sets forth the rights of the Trustee and the obligations of Xxxxx Fargo with respect to the deposit account(s) of Customer at Xxxxx Fargo identified as the Restricted Account(s) at the end of this Agreement. As used in this Agreement, the term “Restricted Account” refers, individually and collectively, to each such deposit account. All references herein to the “UCC” shall mean the Uniform Commercial Code as in effect in the State of New York.
1. TRUSTEE’S INTERESTS IN RESTRICTED ACCOUNT. Trustee represents that it has been designated as trustee for the benefit of the holders of the Senior Notes of the Customer, who have been granted a security interest in the Restricted Account. Customer hereby confirms, and Xxxxx Fargo hereby acknowledges, the security interest granted by Customer to the Trustee in all of Customer’s right, title and interest in and to the Restricted Account and all sums now or hereafter on deposit in or payable or withdrawable from the Restricted Account or any successor or replacement account (the “Account Funds”). Except as specifically provided otherwise in this Agreement, Customer has given the Trustee complete control over the Account Funds. Trustee hereby appoints Xxxxx Fargo as agent for Trustee only for the purpose of perfecting the security interest of Trustee in the Account Funds while they are in the Restricted Account. Customer hereby instructs Xxxxx Fargo to indicate on its records for the Restricted Account that Trustee has a security interest in the Restricted Account. Xxxxx Fargo hereby agrees to do this. Customer and Trustee would like to use the service of Xxxxx Fargo described in this Agreement (the “Service”) to further the arrangements between Trustee and Customer regarding the Account Funds.
2. ACCESS TO RESTRICTED ACCOUNT. Trustee agrees that Customer will be allowed access to the Account Funds until Xxxxx Fargo receives written instructions from Trustee directing that Customer no longer has access to any Account Funds (the “Instructions”). Trustee agrees with Customer that it shall not deliver the Instructions to Xxxxx Fargo except after the occurrence and during the continuation of an Event of Default under (and as defined in) the Indenture; it being understood and agreed that Xxxxx Fargo shall rely exclusively on Instructions as to the existence of such Event of Default and shall be under no obligation to make any independent investigation as to the existence of such Event of Default. Customer agrees that the Account Funds should be paid to Trustee after Xxxxx Fargo receives the Instructions, and hereby irrevocably authorizes Xxxxx Fargo to comply with the Instructions even if Customer objects in any way to the Instructions. Customer further agrees that after Xxxxx Fargo receives the Instructions, Customer will not have access to any Account Funds.
1
3. BALANCE REPORTS. Xxxxx Fargo agrees, at the telephone request of Trustee on any Business Day (a day on which Xxxxx Fargo is open to conduct its regular banking business, other than a Saturday, Sunday or public holiday) to make available to the Trustee a report (the “Balance Report”) showing the opening available balance in the Restricted Account as of the beginning of that Business Day, either on-line (over the Internet) or by facsimile transmission, at Xxxxx Fargo’s option. Customer expressly consents to this transmission of information. The Trustee and Customer understand and agree that the opening available balance in the Restricted Account at the beginning of any Business Day will be determined after deducting from the Restricted Account the face amount (“Returned Item Amount”) of all checks, automated clearing house entries, and other items credited to the Restricted Account and then returned unpaid on the immediately preceding Business Day for any reason (“Returned Item”). Customer will be informed of the balances in the Restricted Account by the means arranged between Xxxxx Fargo and Customer.
4. TRANSFERS TO TRUSTEE. Xxxxx Fargo agrees that on each Business Day after it receives the Instructions, it will transfer to the Trustee’s account specified at the end of this Agreement with the bank specified at the end of this Agreement (the “Trustee Account”) the full amount of the opening available balance in the Restricted Account at the beginning of such Business Day. Xxxxx Fargo will use the Fedwire system to make such transfers unless for any reason the Fedwire system is unavailable, in which case Xxxxx Fargo will determine the funds transfer system to be used in making each funds transfer and the means by which each transfer will be made. Xxxxx Fargo, Trustee and Customer each agree that Xxxxx Fargo will comply with instructions given to Xxxxx Fargo by Trustee directing disposition or transfer of funds in the Restricted Account without further consent by Customer, subject to the terms of this Agreement (or, if disposition or transfer is requested by a means other than wire transfer, subject to Xxxxx Fargo’s standard policies, procedures and documentation in effect from time to time governing the type of disposition or transfer requested). Except as otherwise required by law, Xxxxx Fargo will not agree with any third party to comply with instructions for disposition or transfer of funds in the Restricted Account originated by such third party.
5. DELAYS IN MAKING FUNDS TRANSFERS. Trustee and Customer understand that a funds transfer may be delayed or not made if (a) the transfer would cause Xxxxx Fargo to exceed any limitation on its intra-day net funds position established in accordance with Federal Reserve or other regulatory guidelines or to violate any other Federal Reserve or other regulatory risk control program, or (b) the funds transfer would otherwise cause Xxxxx Fargo to violate any applicable law or regulation. If a funds transfer cannot be made or will be delayed, Xxxxx Fargo will attempt to notify Trustee by telephone.
6. RELIANCE ON ACCOUNT NUMBER OF WIRE TRANSFER BENEFICIARY. If Trustee indicates a name and an identifying number for the bank of the person or entity to receive funds transfers out of the Restricted Account, Trustee and Customer understand that Xxxxx Fargo will rely on the number Trustee indicates even if that number identifies a bank different from the bank Trustee named. If Trustee indicates a name and an account number for the person or entity to receive funds transfers out of the Restricted Account, Trustee and Customer understand that the bank of that person or entity may rely on the account number Trustee indicates even if that account number is not the account number for the person or entity who is to receive the transfers.
2
7. REPORTING ERRORS IN TRANSFERS. If Trustee or Customer learns of any error in a funds transfer or any unauthorized funds transfer, then the party learning of such error or unauthorized transfer (the “Informed Party”) must notify Xxxxx Fargo as soon as possible by telephone at (800) AT-XXXXX (which is a recorded line), and provide written confirmation to Xxxxx Fargo of such telephonic notice within two Business Days at the address given for Xxxxx Fargo on the signature page of this Agreement. In no case may such notice to Xxxxx Fargo by an Informed Party be made more than fourteen (14) calendar days after Xxxxx Fargo’s first confirmation of a funds transfer to such Informed Party. If a funds transfer is made in error and Xxxxx Fargo suffers a loss because the Trustee or Customer breached its agreement to notify Xxxxx Fargo of such error within this fourteen (14) calendar day period, then the party or parties which breached this agreement shall be obligated to reimburse Xxxxx Fargo for such loss promptly upon demand by Xxxxx Fargo; provided, however, that in the event both the Trustee and Customer breach this notification requirement, the Trustee shall not be obligated to reimburse Xxxxx Fargo for such loss unless Customer fails to satisfy Xxxxx Fargo’s demand for such reimbursement within fifteen (15) calendar days after such demand is made on Customer.
8. RETURNED ITEM AMOUNTS. The Trustee and Customer understand and agree that the Returned Item Amount of each Returned Item will be paid by Xxxxx Fargo debiting the Restricted Account, without notice to the Trustee or Customer, on the Business Day that each Returned Item is received. Customer agrees to pay the Returned Item Amounts immediately on demand, without setoff or counterclaim, to the extent there are not sufficient funds in the Restricted Account to cover such Returned Item Amounts on the day they are to be debited to the Restricted Account. After Xxxxx Fargo receives the Instructions, Trustee agrees to pay the Returned Item Amounts within thirty (30) calendar days after demand, without setoff or counterclaim, to the extent the Returned Item Amounts are not paid in full by Customer within fifteen (15) calendar days after demand on Customer by Xxxxx Fargo, and to the extent such Trustee received proceeds from the corresponding Returned Item(s).
9. XXXXX FARGO FEES. Customer agrees to pay all Xxxxx Fargo’s fees and charges for the maintenance and administration of the Restricted Account and for the cash management and other account services provided with respect to the Restricted Account (collectively “Xxxxx Fargo Fees”), including, but not limited to, the fees for (a) the Balance Reports provided on the Restricted Account, (b) the wire transfer services provided with respect to the Restricted Account, (c) Returned Items, (d) funds advanced to cover overdrafts in the Restricted Account (but without Xxxxx Fargo being in any way obligated to make any such advances), and (e) duplicate bank statements on the Restricted Account. The Xxxxx Fargo Fees will be paid by Xxxxx Fargo debiting the Restricted Account. All such debits will be made on the Business Day that the Xxxxx Fargo Fees are due without notice to the Trustee or Customer. If there are not sufficient funds in the Restricted Account to cover fully the Xxxxx Fargo Fees on the Business Day they are debited from the Restricted Account such shortfall or the amount of such Xxxxx Fargo Fees will be paid by Customer sending Xxxxx Fargo a check in the amount of such shortfall or such Xxxxx Fargo Fees, without setoff or counterclaim, within fifteen (15) calendar days after demand of Xxxxx Fargo. Xxxxx Fargo may, in its discretion, change the Xxxxx Fargo Fees upon thirty (30) calendar days prior written notice to Customer and Trustee.
10. ACCOUNT DOCUMENTATION. Trustee and Customer agree that, except as specifically provided in this Agreement, the Restricted Account will be subject to, and Xxxxx
3
Fargo’s operation of the Restricted Account will be in accordance with, the terms and provisions of Xxxxx Fargo’s separate deposit account agreement governing the Restricted Account (“Account Agreement”), a copy of which Customer and Trustee acknowledge having received. In the event of any conflict between this Agreement and the Account Agreement, this Agreement shall govern.
11. SUPPORT SERVICES FOR XXXXX FARGO. Customer and Trustee understand that some bank affiliates of Xxxxx Fargo may provide support services in connection with the services to be provided by Xxxxx Fargo under this Agreement. Customer and Trustee agree to, and authorize, the performance of such support services by such bank affiliates.
12. BANK STATEMENTS. After Xxxxx Fargo receives the Instructions, Xxxxx Fargo will, if so indicated on the signature page of this Agreement, send to Trustee by United States mail, at the address indicated for Trustee after its signature to this Agreement, duplicate copies of all bank statements on the Restricted Account which are sent to Customer. Customer will have thirty (30) calendar days after its receipt of a bank statement and Trustee will have thirty (30) calendar days after its receipt of a bank statement to notify Xxxxx Fargo of an error in such statement, unless within such thirty (30) calendar days either Customer or Trustee learns that the other party has notified Xxxxx Fargo of such error. Xxxxx Fargo’s liability for such errors is limited as provided in Section 18 of this Agreement.
13. WAIVER OF SETOFF RIGHTS. Xxxxx Fargo hereby waives any right it may now or hereafter have from time to time to apply any Account Funds against the payment of any indebtedness from time to time owing to Xxxxx Fargo from Customer, except for debits to the Restricted Account permitted under this Agreement for the payment of Returned Item Amounts and Xxxxx Fargo Fees.
14. BANKRUPTCY NOTICE. If Xxxxx Fargo at any time receives notice of the commencement of a bankruptcy case or other insolvency or liquidation proceeding by or against Customer (a “Bankruptcy Notice”), Xxxxx Fargo will notify the other parties to this Agreement, other than Customer. In such circumstances Xxxxx Fargo agrees to continue to comply with its obligations under this Agreement, except to the extent that any action required of Xxxxx Fargo under this Agreement is prohibited under applicable bankruptcy laws or regulations or is stayed pursuant to the automatic stay imposed under the United States Bankruptcy Code or by order of any court or agency.
15. CLAIMS, LEGAL PROCESS AND NOTICES. If Xxxxx Fargo receives any claim, notice, legal process or court order relating to the Account Funds or the Restricted Account, Xxxxx Fargo will notify Trustee and Customer of such receipt, unless Xxxxx Fargo knows that either Trustee, with respect to so notifying the Trustee, or Customer, with respect to so notifying Customer, is already aware of such claim, notice, legal process or court order. Trustee and Customer understand and agree that Xxxxx Fargo will comply with any such legal process, legal notice or court order it receives if Xxxxx Fargo determines in its sole discretion that such legal process, legal notice or court order is legally binding on it. If any claim or notice received by Xxxxx Fargo is not legally binding on it, as determined in its sole discretion, Trustee agrees to instruct Xxxxx Fargo promptly by telephone, confirmed in writing, to comply or not comply with such claim or notice and Xxxxx Fargo agrees to comply with such instructions if (a) such instructions are given promptly after the Trustee is notified of such claim or notice and (b)
4
such instructions do not require Xxxxx Fargo to violate any applicable law, regulation or court order. Customer hereby irrevocably agrees that Xxxxx Fargo is to follow such instructions of the Trustee with respect to any such non-binding claim or notice even if such claim or notice is from Customer. If Xxxxx Fargo does not receive prompt instructions from Trustee regarding compliance or non-compliance with any such non-binding claim or notice, the Trustee and Customer agree that Xxxxx Fargo will not comply with such claim or notice.
16. INDEMNIFICATION FOR FOLLOWING INSTRUCTIONS. Trustee and Customer each agree that, notwithstanding any other provision of this Agreement, Xxxxx Fargo will not be liable to the Trustee or Customer for any losses, liabilities, damages, claims (including, but not limited to, third party claims), demands, obligations, actions, suits, judgments, penalties, costs or expenses, including, but not limited to, attorneys’ fees, (collectively, “Losses and Liabilities”) suffered or incurred by the Trustee or Customer as a result of or in connection with, (a) Xxxxx Fargo complying with any binding legal process, legal notice or court order referred to in Section 15 of this Agreement, (b) Xxxxx Fargo following any instruction of Trustee to comply or not comply with any non-binding claim or notice referred to in Section 15, (c) if no such instruction from Trustee is promptly received, Xxxxx Fargo not complying with any such non-binding claim or notice, (d) Xxxxx Fargo following any other instruction or request of Trustee, or (e) Xxxxx Fargo complying with its obligations under this Agreement. Further, Customer will indemnify Xxxxx Fargo against any Losses and Liabilities Xxxxx Fargo may suffer or incur as a result of or in connection with any of the circumstances referred to in subsections (a) through (e) in the preceding sentence.
17. NO REPRESENTATIONS OR WARRANTIES OF XXXXX FARGO. Xxxxx Fargo agrees to perform its obligations under this Agreement in a manner consistent with the quality provided when Xxxxx Fargo performs similar services for its own account. However, Xxxxx Fargo cannot be responsible for the errors, acts or omissions of others, such as communications carriers, correspondents or clearinghouses through which Xxxxx Fargo may perform its obligations under this Agreement or receive or transmit information in performing its obligations under this Agreement. The Trustee and the Customer also understand that Xxxxx Fargo cannot be responsible for any loss, liability or delay caused by wars, failures in communications networks, labor disputes, legal constraints, fires, power surges or failures, earthquakes, civil disturbances or other events beyond Xxxxx Fargo’s control. XXXXX FARGO MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICE IT IS TO PERFORM UNDER THIS AGREEMENT OTHER THAN THOSE EXPRESSLY SPECIFIED IN THIS AGREEMENT.
18. LIMITATION OF LIABILITY. In the event that Trustee, the Customer or Xxxxx Fargo suffers or incurs any Losses and Liabilities as a result of, or in connection with, its or any other party’s performance or failure to perform its obligations under this Agreement, the affected parties shall negotiate in good faith in an effort to reach a mutually satisfactory allocation of such Losses and Liabilities, it being understood that Xxxxx Fargo will not be responsible for any Losses and Liabilities due to any cause other than its own negligence or breach of this Agreement, in which case its liability to Trustee and Customer shall, unless otherwise provided by any law which cannot be varied by contract, be limited to direct money damages in an amount not to exceed ten (10) times all the Xxxxx Fargo Fees charged or incurred during the calendar month immediately preceding the calendar month in which such Losses and
5
Liabilities occurred (or, if no Xxxxx Fargo Fees were charged or incurred in the preceding month, the Xxxxx Fargo Fees charged or incurred in the month in which the Losses and Liabilities occurred). Customer will indemnify Xxxxx Fargo against all Losses and Liabilities suffered or incurred by Xxxxx Fargo as a result of third party claims; provided, however, that to the extent such Losses and Liabilities are directly caused by Xxxxx Fargo’s negligence or breach of this Agreement such indemnity will only apply to those Losses and Liabilities which exceed the liability limitation specified in the preceding sentence. The limitation of Xxxxx Fargo’s liability and the indemnification by Customer set out above will not be applicable to the extent any Losses and Liabilities of any party to this Agreement are directly caused by Xxxxx Fargo’s gross negligence or willful misconduct. IN NO EVENT XXXX XXXXX FARGO BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER ANY CLAIM IS BASED ON CONTRACT OR TORT, WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO XXXXX FARGO AND REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM OR ACTION ALLEGING GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FAILURE TO EXERCISE REASONABLE CARE OR FAILURE TO ACT IN GOOD FAITH. Any action against Xxxxx Fargo by Customer or the Trustee under or related to this Agreement must be brought within twelve months after the cause of action accrues.
19. TERMINATION. This Agreement and the Service may be terminated by Trustee or by Xxxxx Fargo at any time by the terminating party or parties giving thirty (30) calendar days prior written notice of such termination to the other parties to this Agreement at their contact addresses specified after their signatures to this Agreement; provided, however, that this Agreement and the Service may be terminated (a) immediately upon written notice from Xxxxx Fargo to Customer and Trustee should any Trustee fail to make any payment when due to Xxxxx Fargo from Trustee under the terms of this Agreement, and (b) ten (10) calendar days after Trustee and Customer receive written notice of such termination from Xxxxx Fargo if Customer fails to pay any Xxxxx Fargo Fees as provided in this Agreement; provided, however, that such termination will not occur if Trustee pays, within such ten (10) calendar days, but without either Trustee being obligated to make such payment, all such unpaid fees up to the date the notice of termination was sent. Trustee and Customer agree that the Restricted Account may be closed as provided in the Account Agreement. Customer’s and the Trustee’s obligations, as provided in this Agreement, to report errors in funds transfers and bank statements and to pay the Xxxxx Fargo Fees, as well as the indemnifications made, and the limitations on the liability of Well Fargo accepted, by Customer and Trustee under this Agreement will continue after the termination of this Agreement and/or the closure of the Restricted Account with respect to all the circumstances to which they are applicable existing or occurring before such termination or closure, and any liability of any party to this Agreement, as determined under the provisions of this Agreement, with respect to acts or omissions of such party prior to such termination or closure will also survive such termination or closure; provided, however, that Trustee’s obligations of reimbursement hereunder will end forty-five (45) calendar days after such termination and/or closure, except with respect to written claims made to Trustee prior to expiration of such forty-five (45) day period. Upon any termination of this Agreement and the Service or closure of the Restricted Account all collected balances in the Restricted Account on the date of such termination or closure will be transferred to Trustee as requested by Trustee in writing to Xxxxx Fargo.
6
20. MODIFICATIONS, AMENDMENTS, AND WAIVERS. This Agreement may not be modified or amended, or any provision thereof waived, except in a writing signed by all the parties to this Agreement; provided, however, that the Xxxxx Fargo Fees may be changed after thirty (30) calendar days prior written notice to Customer and Trustee.
21. NOTICES. All notices from one party to another shall be in writing, or be made by a telecommunications device capable of creating a written record, shall be delivered to Customer, Trustee and/or Xxxxx Fargo at their contact addresses specified after their signatures to this Agreement, or any other address of any party notified to the other parties in writing, and shall be effective upon receipt. Any notice sent by one party to this Agreement to another party shall also be sent to the other parties to this Agreement. Xxxxx Fargo is authorized by Customer and Trustee to act on any instructions or notices received by Xxxxx Fargo if (a) such instructions or notices purport to be made in the name of Trustee, (b) Xxxxx Fargo reasonably believes that they are so made, and (c) they do not conflict with the terms of this Agreement as such terms may be amended from time to time, unless such conflicting instructions or notices are supported by a court order.
22. SUCCESSORS AND ASSIGNS. Neither Customer nor Trustee may assign or transfer its rights or obligations under this Agreement to any person or entity without the prior written consent of Xxxxx Fargo, which consent will not be unreasonably withheld. Xxxxx Fargo may not assign its rights or obligations under this Agreement to any person or entity without the prior written consent of Trustee, which consent will not be unreasonably withheld; provided, however, that no such consent will be required if the assignee is a bank affiliate of Xxxxx Fargo.
23. GOVERNING LAW. Customer and Trustee understand that Xxxxx Fargo’s provision of the Service under this Agreement is subject to federal laws and regulations. To the extent that such federal laws and regulations are not applicable, the rights and obligations of all the parties to this Agreement under this Agreement shall be governed by and be construed in accordance with the laws of the State of New York, regardless of any provision in any other agreement, for purposes of the UCC and with respect to the Agreement, the State of New York shall be deemed to be Xxxxx Fargo’s jurisdiction (within the meaning of §9-304 of the UCC), without regard to conflicts of law principles.
24. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Xxxxx Fargo represents and warrants that it has not received any notice of any other security interest in, pledge or assignment of, or other claim (except for claims and interest of the parties hereto) on any of the Restricted Accounts.
(b) Xxxxx Fargo represents and warrants that it has not agreed with any third party to comply with instructions or other directions concerning the Restricted Accounts or the disposition of funds in the Restricted Accounts originated by any third party.
(c) Xxxxx Fargo covenants and agrees that the each of the Restricted Accounts is a “deposit account” as defined in Section 9-102(29) of the UCC.
7
(d) Xxxxx Fargo represents that it is an organization that is engaged in the business of banking and is therefore a “bank” within the meaning of Section 9-102(8) of the UCC.
(e) Xxxxx Fargo represents and warrants that, with respect to the Agreement, its “jurisdiction” (as determined by the rules set forth in Section 9-304(b) of the UCC) is the State of New York.
25. SEVERABILITY. To the extent that this Agreement or the Service to be provided under this Agreement are inconsistent with, or prohibited or unenforceable under, any applicable law or regulation, they will be deemed ineffective only to the extent of such prohibition or unenforceability and be deemed modified and applied in a manner consistent with such law or regulation. Any provision of this Agreement which is deemed unenforceable or invalid in any jurisdiction shall not effect the enforceability or validity of the remaining provisions of this Agreement or the same provision in any other jurisdiction.
26. USURY. It is never the intention of Xxxxx Fargo to violate any applicable usury or interest rate laws. Xxxxx Fargo does not agree to, or intend to contract for, charge, collect, take, reserve or receive (collectively, “charge or collect”) any amount in the nature of interest or in the nature of a fee, penalty or other charge which would in any way or event cause Xxxxx Fargo to charge or collect more than the maximum Xxxxx Fargo would be permitted to charge or collect by any applicable federal or state law. Any such excess interest or unauthorized fee shall, notwithstanding anything stated to the contrary in this Agreement, be applied first to reduce the amount owed, if any, and then any excess amounts will be refunded.
27. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original with the same effect as if the signatures thereto and hereto were upon the same instrument.
28. ENTIRE AGREEMENT. This Agreement, together with the Account Agreement, contains the entire and only agreement among all the parties to this Agreement and between Xxxxx Fargo and Customer and Xxxxx Fargo and the Trustee with respect to (a) the Service, (b) the interest of the Trustee in the Account Funds and the Restricted Account, and (c) Xxxxx Fargo’s obligations to the Trustee in connection with the Account Funds and the Restricted Account.
29. ACKNOWLEDGEMENTS. Each of the Guarantors hereby acknowledges and agrees with this Agreement as evidenced by its signature below.
[Signatures to follow]
8
This Agreement has been signed by the duly authorized officers or representatives of Customer, the Trustee and Xxxxx Fargo on the date specified below.
DATE: February 19, 2004
RESTRICTED ACCOUNT NUMBER(S): [ ]
TRUSTEE ACCOUNT NUMBER:
Xxxxx Fargo Bank, N.A.
San Francisco, CA
ABA 000000000
Beneficiary: Corporate Trust Services
Account Number: 0000000000
Attn: Xxxxxx X’Xxxxxxx
Ref: Playtex Products, Inc. (SEI
#[ ])
BANK OF TRUSTEE ACCOUNT: Xxxxx Fargo Bank, N.A.
ý RUSTEE IS TO BE SENT DUPLICATE BANK STATEMENTS
XXXXX FARGO BANK, N.A.
|
|
By: |
/s/ Xxxxxxxx X. Xxxxxxxxx, III |
|
|
|
|
|
|
|
|
Name: |
Xxxxxxxx X. Xxxxxxxxx, III |
|
|
|
|
|
|
|
|
Title: |
Vice President |
|
Address for all Notices:
0000 Xxxx Xxxxxx, 0xx Xxxxx
XXX # X0000-000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx III
Fax: (000) 000-0000
with a copy to:
0000 XXX Xxxxxxx, Xxxxx 000
MAC # T5395-100
Dallas, TX 75240-1000
Attention: Xxxxx Xxxxxxx
Fax: (000) 000-0000
|
PLAYTEX PRODUCTS, INC. |
XXXXX FARGO BANK
MINNESOTA, |
||||||||
|
|
|
||||||||
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
By: |
/s/ Xxxxxx X. X’Xxxxxxx |
|
||||
|
Name: |
Xxxxx X. Xxxxxx |
|
Name: |
Xxxxxx X. X’Xxxxxxx |
|
||||
|
Title: |
Executive Vice President and Chief Financial Officer |
|
Title: |
Assistant Vice President |
|
||||
|
|
|
|
|
||||||
|
|
Address For All Notices: |
|
Address For All Notices: |
||||||
|
|
|
|
|
||||||
|
000 Xxxxx Xxxxx Xxxx |
|
Xxxxx Fargo Bank Minnesota, N.A., Corporate |
|||||||
|
Xxxxxxxx, XX 00000 |
|
Trust Services |
|||||||
|
Attention: Xxxxx Xxxxxx |
|
000 Xxxxx Xxxxxx, Xxxxx 000 |
|||||||
|
Facsimile: (000) 000-0000 |
|
Xxxxxxxxxx, XX 00000 |
|||||||
|
With a copy to: |
|
Attention: Xxxxxx X. X’Xxxxxxx |
|||||||
|
|
|
|
Telephone: (000) 000-0000 |
||||||
|
Xxxx Wheat & Partners, L.P. |
|
Facsimile: (000) 000-0000 |
|||||||
|
000 Xxxxxxxx Xxxxx |
|
|
|||||||
|
Xxxxx 0000 |
|
|
|||||||
|
Xxxxxx, XX 00000 |
|
|
|||||||
|
Attention: Xxxx Xxxxxxxxx |
|
|
|||||||
|
Facsimile: (000) 000-0000 |
|
|
|||||||
The foregoing Restricted Account Agreement is hereby acknowledged and agreed with as of the day and year first written above.
|
|
PLAYTEX SALES & SERVICES, INC. |
|||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|
||||
|
|
|
|
||||
|
|
PLAYTEX MANUFACTURING, INC. |
|||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|
||||
|
|
|
|
||||
|
|
PLAYTEX INVESTMENT CORP. |
|||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|
||||
|
|
|
|
||||
|
|
PLAYTEX INTERNATIONAL CORP. |
|||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|
||||
|
|
|
|
||||
|
|
TH MARKETING CORP. |
|||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
SMILE-TOTE, INC. |
|||||
|
|
|
|
||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|
|
|||
|
|
|
|
|
|||
|
|
SUN PHARMACEUTICALS CORP. |
|||||
|
|
|
|
||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|||||
|
|
PERSONAL CARE GROUP, INC. |
|||||
|
|
|
|
||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|||||
|
|
|
|||||
|
|
PERSONAL CARE HOLDINGS, INC. |
|||||
|
|
|
|||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
|
|
|
|||||
|
|
|
|||||
|
|
CAREWELL INDUSTRIES, INC. |
|||||
|
|
|
|
||||
|
|
|
|
||||
|
|
By: |
/s/ Xxxxx X. Xxxxxx |
|
|||
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|||
|
|
|
Title: |
Executive
Vice President and |
|||
SCHEDULE I
The Guarantors
|
Name |
|
State of Incorporation |
|
Playtex Sales & Services, Inc. |
|
Delaware |
|
Playtex Manufacturing, Inc. |
|
Delaware |
|
Playtex Investment Corp. |
|
Delaware |
|
Playtex International Corp. |
|
Delaware |
|
TH Marketing Corp. |
|
Delaware |
|
Smile-Tote, Inc. |
|
California |
|
Sun Pharmaceuticals Corp. |
|
Delaware |
|
Personal Care Group, Inc. |
|
Delaware |
|
Personal Care Holdings, Inc. |
|
Delaware |
|
Carewell Industries, Inc. |
|
