EXHIBIT 4.(b)(4)
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FOURTH
SUPPLEMENTAL INDENTURE
AMONG
PLAYTEX PRODUCTS, INC., as Issuer,
BBA ACQUISITION, INC., as Guarantor
and IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
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$360,000,000
9% Senior Subordinated Notes due 2003
Dated as of October 31, 1995
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of October 31, 1995,
among Playtex Products, Inc., a Delaware corporation (the "Company"), BBA
Acquisition, Inc., a Delaware corporation (the "Guarantor"), 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 and, by
reason of such guarantee, entered into a Third Supplemental Indenture dated as
of June 6, 1995;
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WHEREAS, the Guarantor has also guaranteed the obligations of the
Company under the Credit Agreement;
WHEREAS, pursuant to Section 1013(b) of the Indenture, by reason of
such guarantee the Guarantor is required to execute this Fourth Supplemental
Indenture (this "Supplemental Indenture");
WHEREAS, the Company, the Guarantor 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 in this Supplemental Indenture and for
other good and valuable consideration, the receipt and sufficiency of which are
herein acknowledged, the Company, the Trustee and the Guarantor hereby agree for
the equal and the ratable benefit of all holders of the Securities as follows:
ARTICLE ONE
Definitions
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1.1 Definitions. For purposes of this Supplemental Indenture, the
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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.
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ARTICLE TWO
GUARANTEE
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2.1 Guarantee. For value received, Guarantor, in accordance with this
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Article Two, hereby absolutely, unconditionally and irrevocably guarantees to
the Trustee and the Holders, as if 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
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Obligation.
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(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. Guarantor
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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, 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) 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.
(c) 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
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embodied herein; and it is specifically acknowledged and agreed that this
Guarantee has been delivered by Guarantor free of any conditions whatsoever and
that no representations, warranties or promises have been made to 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 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 Guarantor set forth herein
constitute the full recourse obligations of Guarantor enforceable against it to
the full extent of all its assets and properties.
2.3 Guarantee Absolute and Unconditional. The obligations of
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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 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 Guarantor hereunder is irrevocable, absolute
and unconditional and (to the extent permitted by law) the
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liability and obligations of 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, 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 departure from, the Indenture or the Securities,
including any increase or decrease in the Indenture Obligations;
(c) the taking of security from the Company, 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, 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,
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Guarantor or any other Person and including any other guarantees received by the
Trustee;
(f) any other dealings by the Company or Guarantor
with any other Person, or with any security;
(g) the Trustee's or the Holders' acceptance of
compositions from the Company or 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,
Guarantor or any other Person on account of any indebtedness and liabilities
owing by the Company or 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
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
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Guarantor or any refinancing or restructuring of any of the Indenture
Obligations;
(k) the sale of the Company's or Guarantor's business
or any part thereof;
(l) any merger or consolidation, arrangement or
reorganization of the Company, Guarantor, any Person resulting from the merger
or consolidation of the Company or 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 Guarantor or
any change in the corporate relationship between the Company and 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 Guarantor (whether voluntary or involuntary) or the loss
of corporate existence;
(n) any arrangement or plan of reorganization
affecting the Company or Guarantor;
(o) any failure, omission or delay on the part of the
Company to conform or comply with any term of the Indenture;
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(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 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, Guarantor.
2.4 Right to Demand Full Performance. In the event of any demand for
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payment or performance by the Trustee from 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 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
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realization by the Trustee or the Holders of its rights to such security upon
foreclosure thereon, shall not, as between the Trustee and Guarantor, be
considered as a purchase of such security, or as payment, satisfaction or
reduction of the Indenture Obligations due to the Trustee or the Holders by the
Company or any part thereof. 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.
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(a) 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 Guarantor with respect to the Indenture
Obligations, whether by statute, rule of law or otherwise. 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. 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
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interest in the Securities by the Holders or in the Indenture, (ii) any release
of 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,
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, 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;
before requiring or becoming entitled to demand payment from Guarantor under
this Guarantee.
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2.6 Guarantor Remains Obligated in the Event the Company Is No Longer
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Obligated to Discharge Indenture Obligations. It is the express intention of
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the Trustee and 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 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 Guarantor shall be responsible for
the payment thereof to the Trustee or the Holders upon demand.
2.7 Waiver of Rights. Guarantor agrees (to the extent permitted by
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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
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United States Code), against the Company or any Subsidiary arising from the
existence of, or performance by, Guarantor under this Guarantee.
2.8 Guarantee Is In Addition to Other Security.
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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 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
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of the foregoing and except as otherwise provided in the Indenture, Guarantor
hereby consents and agrees, to the fullest extent permitted by applicable law,
that the rights of the Trustee hereunder, and the liability of 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 Trustee
upon the insolvency, bankruptcy or reorganization
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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
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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
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Suspension of Remedies.
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(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
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pursuant to Article Five or to pursue any rights or remedies hereunder or under
applicable law.
2.12 Trustee's Duties; Notice to Trustee.
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(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, 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, 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 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
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shall not have received
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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.
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2.13 Successors and Assigns. All terms, agreements and conditions of
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this Article Two shall extend to and be binding upon 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
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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
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all of the Indenture Obligations, 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 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 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 Guarantor shall enter into an amendment to
this Guarantee, reasonably
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satisfactory to the Trustee, evidencing such revival and reinstatement.
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, Guarantor
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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
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.
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2.16 Guarantee Subordinate to Senior Guarantor Indebtedness.
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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
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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.
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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 Guarantor or
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to its creditors, as such, or to its assets, or (b) any liquidation, dissolution
or other winding up of Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshaling of assets or liabilities of 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 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
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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 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
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(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 Guarantor for application to the payment of all
Senior Guarantor Indebtedness remaining unpaid, to the extent necessary 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 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
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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.
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(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 Guarantor or any Person acting on behalf of Guarantor in
respect of the Securities.
(b) No payment (excluding Payments in the form of
Permitted Guarantor Junior Securities) shall be made by 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,
Guarantor shall make any payment to the Trustee or the Holder of any Security
pursuant to this Guarantee
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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.
2.19 Payment Permitted by Guarantor if No Default.
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Nothing contained in this Article Two, elsewhere in the Indenture or in any of
the Securities shall prevent 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 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
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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
25
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 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 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 Guarantor, its creditors other than holders of Senior Guarantor
Indebtedness and the Holders of the Securities, the obligation of Guarantor,
which is absolute and unconditional, to pay to the Holders of the Securities the
26
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 Guarantor of the Holders of the Securities and
creditors of 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 Guarantor referred to in Section 2.17 of this
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,
27
including, in the event of any dissolution, winding up, liquidation or
reorganization of Guarantor whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of 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 Guarantor or by any act or failure to act by any such holder, or by
any non-compliance by 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
28
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 Guarantor and any other Person; provided, however, that in no
-------- -------
event shall 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.
29
2.24 Notice to Trustee by Guarantor.
------------------------------
(a) Guarantor shall give prompt written notice to the
Trustee of any fact known to 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 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
30
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 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 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 the rights of
such Person under
31
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 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 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.
32
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 this Article Two 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 Guarantor or any Affiliate of
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
33
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 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, 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.
34
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 THREE4
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).
35
3.4 Recitals. The Trustee shall not be responsible for any recital
--------
herein (other than the seventh 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 the Guarantor of this Supplemental Indenture. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture.
36
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 &
Chief Financial Officer
Attest:____________________
Name:
Title:
BBA Acquisition, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: /s/ Xxxxxxx X. Xxxx
Title: Vice President
Attest:____________________
Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Attest:____________________
Name:
Title:
