Exhibit 10.3
EXECUTION COPY
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$150,000,000
TERM LOAN AGREEMENT
among
PLAYTEX PRODUCTS, INC.
as the Borrower
The Several Lenders
from Time to Time Parties Hereto,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent
and
XXXXX FARGO BANK, N.A.,
as the Facility Manager
Dated as of July 21, 1997
Arranged By
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
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(TERM LOAN AGREEMENT)
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.................................................. 1
1.1 DEFINED TERMS................................................ 1
1.2 OTHER DEFINITIONAL PROVISIONS................................ 27
SECTION 2. LOANS........................................................ 27
2.1 LOANS........................................................ 27
2.2 PROCEDURE FOR BORROWING...................................... 28
SECTION 3. GENERAL PROVISIONS........................................... 28
3.1 FEES......................................................... 28
3.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT......................... 28
3.3 OPTIONAL AND MANDATORY PREPAYMENT............................ 30
3.4 CONVERSION AND CONTINUATION OPTIONS.......................... 32
3.5 MAXIMUM NUMBER OF INTEREST PERIODS........................... 32
3.6 INTEREST RATES AND PAYMENT DATES............................. 32
3.7 COMPUTATION OF INTEREST AND FEES............................. 33
3.8 INABILITY TO DETERMINE INTEREST RATE......................... 34
3.9 PRO RATA TREATMENT AND PAYMENTS.............................. 35
3.10 ILLEGALITY................................................... 36
3.11 REQUIREMENTS OF LAW.......................................... 36
3.12 TAXES........................................................ 38
3.13 INDEMNITY.................................................... 42
3.14 REPLACEMENT OF LENDER........................................ 42
SECTION 4. REPRESENTATIONS AND WARRANTIES................................. 43
4.1 FINANCIAL CONDITION.......................................... 43
4.2 NO CHANGE.................................................... 44
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW..................... 44
4.4 CORPORATE AUTHORIZATION; ENFORCEABLE OBLIGATIONS............. 44
4.5 NO LEGAL BAR................................................. 45
4.6 NO MATERIAL LITIGATION....................................... 45
4.7 NO DEFAULT................................................... 45
4.8 OWNERSHIP OF PROPERTY; LIENS................................. 45
4.9 INTELLECTUAL PROPERTY........................................ 46
4.10 NO BURDENSOME RESTRICTIONS................................... 46
4.11 TAXES........................................................ 46
4.12 FEDERAL REGULATIONS.......................................... 46
4.13 ERISA........................................................ 46
4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS.................... 47
4.15 SUBSIDIARIES................................................. 47
4.16 PURPOSE OF LOANS............................................. 47
4.17 ENVIRONMENTAL MATTERS........................................ 47
4.18 SENIOR INDEBTEDNESS.......................................... 49
4.19 DISCLOSURE................................................... 49
4.20 COLLATERAL DOCUMENTS......................................... 50
SECTION 5. CONDITIONS PRECEDENT......................................... 50
5.1 CONDITIONS TO EFFECTIVENESS.................................. 50
SECTION 6. AFFIRMATIVE COVENANTS........................................ 56
6.1 FINANCIAL STATEMENTS......................................... 56
6.2 CERTIFICATES; OTHER INFORMATION.............................. 57
6.3 PAYMENT OF OBLIGATIONS....................................... 58
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE............. 58
6.5 MAINTENANCE OF PROPERTY; INSURANCE........................... 58
6.6 INSPECTION OF PROPERTY, BOOKS AND RECORDS; DISCUSSION........ 58
6.7 NOTICES...................................................... 59
6.8 ENVIRONMENTAL LAWS........................................... 60
SECTION 7. NEGATIVE COVENANTS........................................... 60
7.1 LIMITATION ON INDEBTEDNESS................................... 60
7.2 LIMITATION ON RESTRICTED PAYMENTS............................ 61
7.3 LIMITATION ON TRANSACTIONS WITH AFFILIATES................... 64
7.4 LIMITATION ON LIENS.......................................... 65
7.5 LIMITATION ON SALE OF ASSETS................................. 65
7.6 LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF
SUBSIDIARIES................................................ 66
7.7 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES...................................... 66
7.8 CONSOLIDATION, MERGER, SALE OF ASSETS........................ 67
7.9 CERTAIN PROVISIONS RELATING TO OTHER DEBT INSTRUMENTS........ 68
SECTION 8. EVENTS OF DEFAULT............................................ 69
SECTION 9. THE AGENTS................................................... 72
9.1 APPOINTMENT.................................................. 72
9.2 DELEGATION OF DUTIES......................................... 72
9.3 EXCULPATORY PROVISIONS....................................... 73
9.4 RELIANCE BY AGENTS........................................... 73
9.5 NOTICE OF DEFAULT............................................ 73
9.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS..................... 74
9.7 INDEMNIFICATION.............................................. 74
9.8 AGENT IN ITS INDIVIDUAL CAPACITY............................. 75
9.9 SUCCESSOR AGENTS............................................. 75
9.10 INTERCREDITOR AGREEMENT AND COLLATERAL DOCUMENTS............. 75
9.11 OTHER TITLES................................................. 76
SECTION 10. MISCELLANEOUS................................................ 76
10.1 AMENDMENTS AND WAIVERS....................................... 76
10.2 NOTICES...................................................... 77
10.3 NO WAIVER; CUMULATIVE REMEDIES............................... 79
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES................... 79
10.5 PAYMENT OF EXPENSES AND TAXES................................ 79
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS....... 80
10.7 ADJUSTMENTS; SET-OFF......................................... 83
10.8 RELEASE OF NEW SUBSIDIARY GUARANTEES......................... 83
10.9 MODIFICATION OF SCHEDULES.................................... 84
10.10 COUNTERPARTS................................................. 84
10.11 SEVERABILITY................................................. 84
10.12 INTEGRATION.................................................. 84
10.13 GOVERNING LAW................................................ 84
10.14 SUBMISSION TO JURISDICTION; WAIVERS.......................... 84
10.15 ACKNOWLEDGMENTS.............................................. 85
10.16 WAIVERS OF JURY TRIAL........................................ 86
10.17 CONFIDENTIALITY.............................................. 86
(TERM LOAN AGREEMENT)
SCHEDULES
1.1 Addresses for Notice, Commitments
3.2 Term Loan Amortization
4.1 Financial Condition
4.2 No Change
4.5 No Legal Bar
4.6 Material Litigation
4.9 Intellectual Property Claims
4.15 Subsidiaries
4.17 Environmental Matters
4.20 UCC filing jurisdictions
6.8 Environmental Laws
7.1 Existing Indebtedness
EXHIBITS
A Note
B-1 Borrower Security Agreement
X-0 Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxxx
X-0 Subsidiary Security Agreement
B-4 Subsidiary Stock Pledge Agreement
C Subsidiary Guarantee
D Borrowing Certificate
E-1 Opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
E-2 Opinion of Xxxxxxxx & Xxxxxxxx
E-3 Opinion of Xxxx X. Xxxxxxxxxxx
E-4 Opinion of Xxxxxx, Xxxxxxxxx & Xxxxxxxxx
E-5 Opinion of Xxxxxxxxx, Xxxxx & Xxxxxx, LLP
F Assignment and Acceptance
G Trademark Subsidiary Agreement
H Intercreditor Agreement
(TERM LOAN AGREEMENT)
THIS TERM LOAN AGREEMENT, dated as of July 21, 1997, is among (a)
PLAYTEX PRODUCTS, INC., a Delaware corporation (the "BORROWER"), (b) the several
banks and other financial institutions from time to time parties to this
Agreement, (the "LENDERS"), (c) DLJ CAPITAL FUNDING, INC. ("DLJ"), as
syndication agent (the "SYNDICATION AGENT") and (d) XXXXX FARGO BANK, N.A.
("XXXXX FARGO"), as facility manager for the Lenders hereunder (in such
capacity, the "FACILITY MANAGER").
WHEREAS, the Borrower, the several lenders parties thereto on the
date hereof and The Chase Manhattan Bank, as agent, are parties to a Credit
Agreement, dated as of June 6, 1995 (as amended, supplemented or otherwise
modified to the Closing Date (this and other capitalized terms used in these
recitals without definition being used as defined in subsection 1.1), the
"EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrower proposes to prepay all of its outstanding
indebtedness under the Existing Credit Agreement on the Closing Date and
terminate any commitments thereunder; and
WHEREAS, in order to finance (i) the prepayment of approximately
$391,900,000 in aggregate principal amount of existing indebtedness under the
Existing Credit Agreement and accrued and unpaid interest thereon, and (ii) the
payment of up to $10,000,000 in Transaction Costs, the Borrower proposes to
issue the Senior Notes under the Senior Note Indenture for aggregate gross
proceeds of not less than $150,000,000 and borrow under the Credit Agreement
Term A Loans in an aggregate principal amount of $55,000,000 and Revolving
Credit Loans in an initial aggregate principal amount of $46,900,000, the
Lenders have agreed, subject to the terms and conditions set forth herein, to
make the Loans under this Agreement.
NOW THEREFORE, in consideration of the premises, the Borrower, the
Agents and the Lenders agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, terms defined in the
preamble or recitals hereto are used as so defined and the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "PRIME RATE" shall mean the rate of interest per
annum publicly announced from time to time by Xxxxx Fargo as its prime
rate in effect at its principal office (the Prime Rate not being
(TERM LOAN AGREEMENT)
intended to be the lowest rate of interest charged by Xxxxx Fargo in
connection with extensions of credit to debtors); "BASE CD RATE" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D Assessment
Rate; "THREE-MONTH SECONDARY CD RATE" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following
such day), or, if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Facility Manager from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Facility Manager from three
federal funds brokers of recognized standing selected by it. Any change in
the ABR due to a change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate, respectively.
"ABR LOANS": Loans the rate of interest applicable to which is
based upon the ABR.
"ACQUIRED INDEBTEDNESS": means Indebtedness of a Person (i) existing
at the time such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness
shall be deemed to be incurred on the date of the related acquisition of
assets from any Person or the date the acquired Person becomes a
Subsidiary.
"ACQUISITION REVOLVING CREDIT COMMITMENTS": the commitment of a
lender under the Credit Agreement to make Acquisition Revolving Credit
Loans to the Borrower as set forth in the Credit Agreement.
(TERM LOAN AGREEMENT)
"ACQUISITION REVOLVING CREDIT LOANS": Acquisition Revolving Credit
Loans under the Credit Agreement.
"ADMINISTRATIVE AGENT": Xxxxx Fargo, in its capacity as
administrative agent under the Credit Agreement, and its successors and
assigns.
"AFFILIATE": with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person or (ii) any other
Person that owns, directly or indirectly, 10% or more of such Person's
equity ownership or Voting Stock or any officer or director of any such
Person or other Person or with respect to any natural Person, any person
having a relationship with such Person by blood, marriage or adoption not
more remote than first cousin or, in the case of any Lender which is an
investment fund, any other fund which is managed by the same investment
advisor or an Affiliate thereof. For the purposes of this definition,
"control" when used with respect to any specified Person means the power
to direct the management and policies of such Person directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AGENTS": the Facility Manager and the Syndication Agent, and for
the purposes of Section 9 only, the Collateral Agent.
"AGREEMENT": this Term Loan Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPAREL NOTES": the Junior Subordinated Notes dated December 28,
1988 issued by the Borrower in the approximate original aggregate
principal amount of $38,350,000, the outstanding principal amount of which
as of March 31, 1997 was approximately $78,400,000, and additional notes
in the form thereof issued in lieu of cash interest, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof and thereof.
"APPLICABLE ABR MARGIN": as of any date of determination, a
percentage equal to 0.25%.
"APPLICABLE EURODOLLAR MARGIN": as of any date of determination, a
percentage per annum equal to 1.50%.
"ARRANGER": Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, as
arranger of the credit facilities described herein.
"ASSET SALE": any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and
(TERM LOAN AGREEMENT)
leaseback transaction but not the grant of a pledge or security interest)
(collectively, a "transfer"), directly or indirectly, in one or a series
of related transactions, of (i) any Capital Stock of any Subsidiary; (ii)
all or substantially all of the properties and assets of any division or
line of business of the Borrower or any of its Subsidiaries; or (iii) any
other properties or assets (other than cash) of the Borrower or any
Subsidiary, other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties and assets (A) that is governed by the provisions
described in subsection 7.8, (B) from any Wholly Owned Subsidiary to the
Borrower in accordance with the terms of this Agreement, (C) having a
market value of less than $1,000,000 (it being understood that if the
market value of the properties or assets being transferred exceeds
$1,000,000, the entire value and not just the portion in excess of
$1,000,000, shall be deemed to have been the subject of an Asset Sale),
(D) to any Wholly Owned Subsidiary which is a Guarantor, (E) which are
obsolete to the Borrower's and its Subsidiaries' businesses or (F) from
any Wholly Owned Subsidiary to any other Wholly Owned Subsidiary which is
a Guarantor.
"ASSIGNEE": as defined in subsection 10.6(c).
"AVERAGE LIFE": as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of such
Indebtedness multiplied by (b) the amount of each such principal payment
by (ii) the sum of all such principal payments.
"BOARD": the Board of Governors of the Federal Reserve System (or
any successor thereto).
"BOARD OF DIRECTORS": The board of directors of the Borrower or any
duly authorized committee of such board.
"BORROWER": as defined in the introduction to this Agreement.
"BORROWER SECURITY AGREEMENT": the Security Agreement to be executed
and delivered by the Borrower, substantially in the form of Exhibit B-1,
as the same may be amended, supplemented or otherwise modified from time
to time.
"BORROWER SECURITY DOCUMENTS": the collective reference to the
Borrower Security Agreement and the Borrower Stock Pledge Agreement.
"BORROWER STOCK PLEDGE AGREEMENT": the Pledge Agreement to be
executed and delivered by the Borrower, substantially in the form of
Exhibit B-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"BUSINESS": as defined in subsection 4.17(b).
(TERM LOAN AGREEMENT)
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or San Francisco are authorized or
required by law to close.
"CANADIAN SUBSIDIARY": any Subsidiary organized under the laws of
Canada or any province thereof, a majority of the assets of which are
located in Canada.
"CAPITAL LEASE OBLIGATIONS": of any Person, any obligations of such
Person under any capital lease of real or personal property which, in
accordance with GAAP, has been recorded as a capitalized lease obligation.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"CASH EQUIVALENTS": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency or instrumentality thereof, (b)
certificates of deposit, time deposits, overnight bank deposits, bankers'
acceptances and repurchase agreements of any commercial bank which has
capital and surplus in excess of $500,000,000 having maturities of one
year or less from the date of acquisition, (c) commercial paper of an
issuer rated at least A-1 by Standard and Poor's Ratings Group or P-1 by
Xxxxx'x Investors Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments having maturities of nine
months or less from the date of acquisition, (d) securities with
maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United
States or by any political subdivision or taxing authority of any such
state, commonwealth or territory, the securities of which state,
commonwealth, territory, political subdivision or taxing authority (as the
case may be) are rated at least A by Standard & Poor's Ratings Group or A
by Xxxxx'x Investors Services, Inc., (e) securities with maturities of one
year or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition, or (f) shares of money
market accounts or funds which invest only in the types of securities
described in (a) through (e) above.
"C/D ASSESSMENT RATE": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss. 327.3(d) (or any
successor provision) to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation's (or such successor's) insuring time
deposits at offices of such institution in the United States.
(TERM LOAN AGREEMENT)
"C/D RESERVE PERCENTAGE": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
such Board) in respect of new non-personal time deposits in Dollars having
a maturity of 30 days or more.
"CHANGE OF CONTROL": the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than Permitted Holders, is or becomes
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have beneficial
ownership of all shares that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the Voting Stock of all
classes of Voting Stock of the Borrower; (ii) the Borrower consolidates
with or merges with or into any Person or conveys, transfers or leases all
or substantially all of its assets to any Person, or any corporation
consolidates with or merges with or into the Borrower, in any such event
pursuant to a transaction in which the outstanding Voting Stock of the
Borrower is changed into or exchanged for cash securities or other
property, other than any such transaction (1) where the outstanding Voting
Stock of the Borrower is not changed or exchanged at all (except to the
extent necessary to reflect a change in the jurisdiction of incorporation
of the Borrower) or (2) where (A) the outstanding Voting Stock of the
Borrower is changed into or exchanged for (x) Voting Stock of the
surviving corporation or the Borrower which is not Redeemable Capital
Stock or (y) cash, securities and other property (other than Capital Stock
of the surviving corporation) in an amount which could be paid by the
Borrower as a Restricted Payment pursuant to subsection 7.2 (and such
amount shall be treated as a Restricted Payment subject to the provisions
of subsection 7.2) and (B) no "person" or "group" other than Permitted
Holders owns immediately after such transaction, directly or indirectly,
more than 50% of the total outstanding Voting Stock of the surviving
corporation, or (iii) the Borrower is liquidated or dissolved or adopts a
plan of liquidation or dissolution other than in a transaction which
complies with the provisions of subsection 7.8
"CLOSING DATE": the date on which the conditions precedent set forth
in subsection 5.1 shall be satisfied, PROVIDED that such date shall be no
later than August 31, 1997.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all assets of the Loan Parties, now owned or
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document.
(TERM LOAN AGREEMENT)
"COLLATERAL AGENT": Xxxxx Fargo acting in its capacity as collateral
agent under the applicable Security Documents on behalf of the Lenders and
the Persons party to the Intercreditor Agreement (other than the
Borrower), and its successors and assigns.
"COMMITMENT": as to any Lender, the obligation of such Lender to
make a Loan to the Borrower on the Closing Date in a principal amount not
to exceed the amount set forth opposite such Lender's name on Schedule 1.1
under the heading "Loan Commitment".
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"CONSOLIDATED ASSETS": with respect to the Borrower, the total
assets shown on the balance sheet of the Borrower and its Consolidated
Subsidiaries, as determined on a Consolidated basis in accordance with
GAAP, as of the last day of the Borrower's latest full fiscal quarter.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO": for any period, as
applied to any Person, the ratio of (a) the sum of Consolidated Net
Income, Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated Non-Cash Charges deducted in computing Consolidated Net
Income (Loss) in each case, for such period, of such Person and its
Subsidiaries on a Consolidated basis, all determined in accordance with
GAAP to (b) the sum of Consolidated Interest Expense for such period and
cash dividends (other than any such non-cash dividends in the form of
Qualified Capital Stock which does not provide for the payment of cash
dividends prior to any Stated Maturity of the principal of the Notes) paid
on any Preferred Stock, and non-cash dividends paid on any Redeemable
Capital Stock, of such Person during such period; PROVIDED that (i) in
making such computation, the Consolidated Interest Expense attributable to
interest on any Indebtedness computed on a pro forma basis and (A) bearing
a floating interest rate shall be computed as if the rate in effect on the
date of computation had been the applicable rate for the entire period and
(B) which was not outstanding during the period for which the computation
is being made but which bears, at the option of such Person, a fixed or
floating rate of interest, shall be computed by applying, at the option of
such Person, either the fixed or floating rate and (ii) in making such
computation, the Consolidated Interest Expense of such Person attributable
to interest on any Indebtedness under a revolving credit facility computed
on a pro forma basis shall be computed based upon the average daily
balance of such Indebtedness during the applicable period.
"CONSOLIDATED INCOME TAX EXPENSE": of any Person means, for any
period, the provision for federal, state, local and foreign income taxes
of such Person and its Consolidated subsidiaries for such period as are
determined in accordance with GAAP.
(TERM LOAN AGREEMENT)
"CONSOLIDATED INTEREST EXPENSE": of any Person, without duplication,
for any period, as applied to any Person, the sum of (a) the interest
expense of such Person and its Consolidated subsidiaries for such period,
on a Consolidated basis, including, without limitation, (i) amortization
of debt discount, (ii) the net cost under interest rate contracts
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation and (iv) accrued interest, plus (b)(i) the
interest component of Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person during such period and (ii)
all capitalized interest of such Person and its Consolidated subsidiaries,
in each case as determined in accordance with GAAP.
"CONSOLIDATED NET INCOME": of any Person means, for any period, the
Consolidated net income (or loss) of such Person and its Consolidated
subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such Consolidated net
income (or loss), by excluding, without duplication, (i) all extraordinary
gains and losses, (ii) the portion of Consolidated net income (or loss) of
such Person and its Consolidated subsidiaries allocable to minority
interests in unconsolidated Persons to the extent that cash dividends or
distributions have not actually been received by such Person or one of its
Consolidated subsidiaries, (iii) net income (or loss) of any Person
combined with such Person or any of its subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of
combination, (iv) any gain or loss, net of taxes, realized upon the
termination of any employee pension benefit plan, (v) aggregate net gains
(less all fees and expenses relating thereto) in respect of dispositions
of assets other than in the ordinary course of business, (vi) the net
income of any subsidiary to the extent that the declaration of dividends
or similar distributions by that subsidiary of that income is not at the
time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulations applicable to that subsidiary or its
stockholders, (vii) all non-cash interest income arising from Indebtedness
owed to the Borrower or any of its Subsidiaries from Playtex Apparel
Partners, L.P. (net of any non-cash interest expense arising from
Indebtedness in existence on the date of this Agreement or any
refinancings thereof (or any pay-in-kind obligation issued pursuant to the
terms thereof) owed by the Borrower or any of its Subsidiaries to the
Playtex Apparel Partners, L.P. or its partners or their transferees),
(viii) any restoration to income of any contingency reserve, except to the
extent that provision for such reserve was made out of income accrued at
any time following the date of this Agreement, (ix) any net gain from the
collection of proceeds of life insurance policies or (x) any gain arising
from the acquisition of any securities, or the extinguishment, under GAAP,
of any Indebtedness of such Person.
"CONSOLIDATED NON-CASH CHARGES": of any Person, for any period, the
aggregate depreciation, amortization and other non-cash charges of such
Person and its Consolidated Subsidiaries for such period, as determined in
accordance with GAAP (excluding any non-cash charge which requires an
accrual or reserve for cash charges for any future period).
(TERM LOAN AGREEMENT)
"CONSOLIDATION": with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the
extent the accounts of such Person and each of its subsidiaries would
normally be consolidated with those of such Person, all in accordance with
GAAP. The term "Consolidated" shall have a similar meaning.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CREDIT AGREEMENT": the Credit Agreement dated as of July 21, 1997,
among the Borrower, the several banks and other financial institutions
from time to time parties thereto, DLJ Capital Funding, Inc., as
syndication agent, and Xxxxx Fargo, as administrative agent, as amended,
renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified from time to time (including, without
limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplementations or other
modifications of the foregoing).
"CREDIT AGREEMENT AGENT": Xxxxx Fargo, as administrative agent for
the lenders under the Credit Agreement, and its successors and assigns.
"DEFAULT": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"DLJ": as defined in the introduction to this Agreement.
"DISINTERESTED DIRECTOR": with respect to any transaction or series
of related transactions, a member of the Board of Directors who does not
have any material direct or indirect financial interest in or with respect
to such transaction or series of related transactions.
"DOLLARS" AND "$": dollars in lawful currency of the United States
of America.
"DOMESTIC SUBSIDIARY": a Subsidiary of the Borrower which is
incorporated in a state of the United States or in the District of
Columbia.
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health
(as a result of exposure to Materials of Environmental Concern) or the
environment, as now or may at any time hereafter be in effect.
(TERM LOAN AGREEMENT)
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such system.
"EURODOLLAR BASE RATE": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the average of the respective rates notified to the Facility Manager by
each of the Reference Lenders as the rate at which such Reference Lender
is offered Dollar deposits at or about 10:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to the amount
of its Eurodollar Loans to be outstanding during such Interest Period.
"EURODOLLAR LOANS": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
EURODOLLAR BASE RATE
1.00 -Eurocurrency Reserve Requirements
"EVENT OF DEFAULT": any of the events specified in Section 8,
PROVIDED that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"EXCESS AMOUNT": as defined in subsection 3.3(g).
"EXCHANGE ACT": the Securities Exchange Act of 1934, as amended.
"EXCLUDED ASSETS": the assets and other property held by the
Borrower (including shares of Capital Stock) relating to the Jhirmack
Business.
(TERM LOAN AGREEMENT)
"EXISTING CREDIT AGREEMENT": as defined in the recitals to this
Agreement.
"EXISTING LENDERS": the lenders under the Existing Credit Agreement.
"EXISTING LOAN DOCUMENTS": the "Loan Documents" under the Existing
Credit Agreement.
"EXISTING REVOLVING CREDIT LOANS": the revolving credit loans and
swing line loans outstanding under the Existing Credit Agreement on the
Closing Date.
"EXISTING TERM LOANS": the term loans outstanding under the Existing
Credit Agreement on the Closing Date.
"FACILITY MANAGER": as defined in the introduction to this Agreement
and also means and includes any successor facility manager appointed
pursuant to subsection 9.9.
"FINANCING LEASE": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the United
States of America, consistently applied, which are in effect on the date
of this Agreement.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE": the reference to the Subsidiaries Guarantee.
"GUARANTEED DEBT": of any Person, without duplication, all
Indebtedness of any other Person referred to in the definition of
Indebtedness guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness,
(ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Indebtedness or to assure the holder of
such Indebtedness against loss, (iii) to supply funds to, or in any other
manner invest in, the debtor (including any agreement to pay for property
or services without requiring that such property be received or such
services be rendered), (iv) to maintain working capital or equity capital
of the debtor, or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or (v) otherwise to assure a creditor
against loss; PROVIDED that the term "guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary
course of business.
(TERM LOAN AGREEMENT)
"GUARANTOR": any Person delivering a Guarantee or a supplement
thereto pursuant to this Agreement.
"INDEBTEDNESS": with respect to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and
other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent
or otherwise, of such Person in connection with any letters of credit
issued under letter of credit facilities, acceptance facilities or other
similar facilities and in connection with any agreement to purchase,
redeem, exchange, convert or otherwise acquire for value any Capital Stock
of such Person, or any warrants, rights or options to acquire such Capital
Stock, now or thereafter outstanding, (ii) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments, (iii)
all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person
(even if the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property), but excluding trade payables arising in the ordinary
course of business, (iv) all obligations under Interest Rate Agreements of
such Person, (v) all Capital Lease Obligations of such Person, (vi) all
Indebtedness referred to in clauses (i) through (v) above of other Persons
and all dividends of other Persons, the payment of which is secured by (or
for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien, upon or with respect
or property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (vii) all Guaranteed Debt of
such Person, (viii) all Redeemable Capital Stock valued at the greater of
its voluntary or involuntary maximum fixed repurchase price plus accrued
and unpaid dividends, and (ix) any amendment, supplement, modification,
deferral, renewal, extension, refunding or refinancing of any Indebtedness
of the types referred to in clauses (i) through (viii) above. For purposes
hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such
Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Agreement, and if such
price is based upon, or measured by, the fair market value of such
Redeemable Capital Stock, such fair market value to be determined in good
faith by the Board of Directors of such Person.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": as defined in subsection 4.9.
(TERM LOAN AGREEMENT)
"INTERCREDITOR AGREEMENT": the intercreditor agreement dated as of
July 21, 1997, by and among the Borrower, the other Loan Parties, the
Collateral Agent, the Administrative Agent and the Facility Manager,
substantially in the form of Exhibit H annexed hereto, as such
Intercreditor Agreement may hereafter be amended, supplemented or modified
from time to time.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the first day of
each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period and (c) as to
any Eurodollar Loan having an Interest Period longer than three months,
each day which is three months or a whole multiple thereof after the first
day of such Interest Period and the last day of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three, six or nine months (or, if
available, twelve months) thereafter, as selected by the Borrower in
its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three, six or nine months (or, if
available, twelve months) thereafter, as selected by the Borrower by
irrevocable notice to the Facility Manager not less than three
Business Days prior to the last day of the then current Interest
Period with respect thereto;
PROVIDED that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period for any Loans that would otherwise
extend beyond the date final payment is due on such Loans shall end
on such date of final payment;
(iii) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no
(TERM LOAN AGREEMENT)
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a
calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"INTEREST RATE AGREEMENT": with respect to any Person, any interest
rate swap agreement, interest rate future, interest rate option, interest
rate cap or other interest rate hedge arrangement, to or under which such
Person is a party or a beneficiary.
"INVESTMENT": with respect to any Person, directly or indirectly,
any advance, loan (including guarantees), or other extension of credit or
capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account
or use of others), or any purchase, acquisition or ownership by such
Person of any Capital Stock, bonds, notes, debentures or other securities
issued or owned by, any other Person and all other items that are or would
be classified as investments on a balance sheet prepared in accordance
with GAAP.
"JHIRMACK BUSINESS": the assets and liabilities of the Borrower and
its Subsidiaries relating to Jhirmack hair care products, including the
Capital Stock of any Subsidiary, substantially all of the assets and
liabilities of which relate to Jhirmack hair care products.
"LENDER": as defined in the introduction to this Agreement.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever which makes
any property or asset available for the payment or performance of any
liability in priority to the payment or performance of ordinary, unsecured
creditors (including, without limitation, any conditional sale or other
title retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"LOAN": as defined in subsection 2.1.
"LOAN DOCUMENTS": this Agreement, the Notes, the Trademark
Subsidiary Agreement, the Guarantee, the Intercreditor Agreement and the
Security Documents.
"LOAN MATURITY DATE": September 15, 2003.
"LOAN PARTIES": the Borrower and each Subsidiary of the Borrower
which is a party to a Loan Document.
(TERM LOAN AGREEMENT)
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Agents, the Collateral Agent or
the Lenders hereunder or thereunder.
"MATERIAL ENVIRONMENTAL AMOUNT": an amount payable by the Borrower
and/or its Subsidiaries in excess of $10,000,000 for remedial costs,
compliance costs, compensatory damages, punitive damages, fines, penalties
or any combination thereof.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"MATERIAL SUBSIDIARY": each Subsidiary of the Borrower which (i) for
the most recent fiscal year of the Borrower accounted for more than 10% of
the Consolidated revenues of the Borrower and its Subsidiaries or (ii) at
the end of such fiscal year, was the owner (beneficial or otherwise) of
more than 10% of the Consolidated Assets of the Borrower and its
Subsidiaries, all as shown on the Borrower's Consolidated financial
statements for such fiscal year. In addition, Playtex Marketing
Corporation shall be deemed to be a "Material Subsidiary."
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS": (a) with respect to any Asset Sale by any
Person, the proceeds thereof in the form of cash or Cash Equivalents
including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for,
cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Borrower or any Subsidiary) net of
(i) brokerage commissions and other reasonable fees and expenses
(including fees and expenses of counsel and investment bankers) related to
such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of
such Asset Sale, (iv) amounts required to be paid to any Person (other
than the Borrower or any Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (v) appropriate amounts to be
provided by the Borrower or any Subsidiary, as the case may be, as a
reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Borrower or any Subsidiary, as the
case may be, after such Asset Sale, including, without limitation, pension
and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated
(TERM LOAN AGREEMENT)
with such Asset Sale, all as reflected in an officers' certificate
delivered to the Facility Manager and (b) with respect to any issuance or
sale of Capital Stock or options, warrants or rights to purchase Capital
Stock, or debt securities or Capital Stock that have been converted into
or exchanged for Capital Stock, as referred to under subsection 7.2, the
proceeds of such issuance or sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations when
received in the form of, or stock of other assets when disposed of for,
cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Borrower or any Subsidiary), net of
attorney's fees, accountant's fees and brokerage, consultation,
underwriting and other fees and expenses actually incurred in connection
with such issuance or sale and net of taxes paid or payable as a result
thereof.
"NEW SUBSIDIARY": any Wholly-Owned Subsidiary of the Borrower formed
subsequent to May 1, 1995, which (a) is a Guarantor or has become a
Guarantor by means of a supplement to the Guarantee in form and substance
satisfactory to the Agents (unless, in each case, released from such
Guarantee pursuant to subsection 10.8), (b) all of the Capital Stock of
which is pledged to the Collateral Agent, as collateral security for the
Obligations (as defined in the Borrower Pledge Agreement), pursuant to the
Borrower Pledge Agreement or a supplement thereto in form and substance
satisfactory to the Agents and (c) if not in existence on the Closing
Date, has delivered to the Agents such legal opinions, secretary's
certificates, resolutions and other customary documents in connection with
the supplements referred to in (a) and (b) above as the Facility Manager
may reasonably request.
"NON-EXCLUDED TAXES": as defined in subsection 3.12.
"NOTE": as defined in subsection 3.2(e).
"NOTIFYING LENDER": any Lender that gives written irrevocable notice
to the Facility Manager, on or prior to the date on which such Lender
becomes a party to this Agreement, to the effect that it will not request
that any promissory note be issued to it pursuant to subsection 3.2(e),
and any direct or indirect Assignee of such Lender, in its capacity as
such an Assignee.
"OLD PLAYTEX PRODUCTS SUBORDINATED DEBT": the $105,000,000 in
aggregate principal amount of 15% Subordinated Notes issued by the
Borrower and originally due December 31, 2000, which was redeemed in full
on March 4, 1994.
"PARTICIPANT": as defined in subsection 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any successor thereto.
(TERM LOAN AGREEMENT)
"PERMITTED HOLDERS": each of (i) HWH Capital Partners, L.P., HWH
Valentine Partners, L.P., HWH Surplus Valentine Partners, L.P. (each a
"Partnership") or Xxxx Wheat & Partners Incorporated and any of their
respective Affiliates; (ii) any officer or other member of management
employed by the Borrower or any Subsidiary as of the date of this
Agreement; (iii) Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxx; (iv) family members
or relatives of the persons described in clauses (ii) and (iii); (v) any
trusts created for the benefit of the persons described in clause (ii),
(iii) or (iv); (vi) in the event of incompetence or death of any of the
persons described in clauses (ii), (iii) or (iv), such person's estate,
executor, administrator, committee or other personal representatives or
beneficiaries; and (vii) upon a distribution by a Partnership of all or
any of the stock of the Borrower, the limited partners of such a
Partnership.
"PERMITTED INDEBTEDNESS": the following:
(i) Indebtedness of the Borrower under the Credit Agreement in an
aggregate principal amount at any one time outstanding not to exceed
$170,000,000, reduced by (A) any scheduled principal payments actually
made and (B) any amounts by which any revolving credit facility commitment
is permanently reduced and the revolving credit loans, to the extent
required, are indefeasibly and irrevocably paid in cash;
(ii) Guarantees by, and Liens on the property of, any Subsidiary
guaranteeing or securing the Borrower's Indebtedness under the Credit
Agreement;
(iii) Indebtedness of the Borrower under this Agreement and
Guarantees by, and Liens on the property of, any Subsidiary guaranteeing
or securing the Borrower's Indebtedness under this Agreement;
(iv) Indebtedness of the Borrower or any Subsidiary outstanding on
the date of this Agreement and listed on schedule 7.1 hereto;
(v) Indebtedness (a) of the Borrower owing to a Wholly Owned
Subsidiary which is a Guarantor or (b) of a Wholly Owned Subsidiary which
is a Guarantor owing to the Borrower or another Wholly Owned Subsidiary
which is a Guarantor; PROVIDED that any such Indebtedness is made pursuant
to an intercompany note and, in the case of Indebtedness of the Borrower
owing to a Subsidiary, is subordinated in right of payment from and after
such time as the Notes shall become due and payable (whether at Stated
Maturity, acceleration or otherwise) to the payment and performance of the
Borrower's obligations under the Notes; PROVIDED, FURTHER, that (x) any
disposition, pledge or transfer of any such Indebtedness to a Person
(other than the Borrower or a Wholly Owned Subsidiary which is a
Guarantor) shall be deemed to be an incurrence of such Indebtedness by the
obligor not permitted by this clause (v) and (y) any transaction pursuant
to which any Wholly Owned Subsidiary, which has Indebtedness owing to the
Borrower or any other Wholly Owned Subsidiary, ceases to be a Wholly
(TERM LOAN AGREEMENT)
Owned Subsidiary shall be deemed to be the incurrence of Indebtedness by
the Borrower or such other Wholly Owned Subsidiary that is not permitted
by this clause (v);
(vi) obligations of the Borrower or any Subsidiary pursuant to
Interest Rate Agreements designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates in respect of
Indebtedness of the Borrower or any of its Subsidiaries, which obligations
do not exceed the aggregate principal amount of such Indebtedness;
(vii) trade and standby letters of credit issued for the account of
the Borrower or any Subsidiary of the Borrower in the ordinary course of
its business (excluding letters of credit described in clauses (viii) and
(ix) below);
(viii)letters of credit of up to $7,500,000 in the aggregate at any
time outstanding issued for the account of the Borrower or any Subsidiary
of the Borrower for any purpose other than in the ordinary course of
business;
(ix) letters of credit issued for the account of the Borrower in
support of the Borrower's self-insurance obligations and in support of
Indebtedness under industrial revenue bonds, to the extent that such
obligations or such Indebtedness are recorded on the balance sheet of the
Borrower;
(x) Capital Lease Obligations, industrial revenue bonds and Purchase
Money Obligations of the Borrower or any Subsidiary, not to exceed
$10,000,000 in the aggregate at any time outstanding;
(xi) Indebtedness of the Borrower or any Canadian Subsidiary
incurred to fund the working capital requirements necessary for the
Canadian operations of any Canadian Subsidiary in an amount not to exceed
$10,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness of the Borrower pursuant to the Senior Notes and
Indebtedness of any Subsidiary pursuant to a guarantee of the Senior Notes
provided that such Subsidiary is a Guarantor;
(xiii)Indebtedness of the Borrower pursuant to the Senior
Subordinated Notes and Indebtedness of any Subsidiary pursuant to a
subordinated guarantee of the Senior Subordinated Notes provided that such
Subsidiary is a Guarantor;
(xiv) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness described in paragraphs (ii), (iii), (iv), (xii) and (xiii)
of this definition of "Permitted Indebtedness," including any successive
refinancings so long as such refinancing does not increase the aggregate
principal amount of Indebtedness represented thereby plus the lesser of
(TERM LOAN AGREEMENT)
(I) the stated amount of any premium or other payment required to be paid
in connection with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (II) the amount of premium or other
payment actually paid at such time to refinance the Indebtedness, plus, in
either case, the amount of expenses of the Borrower incurred in connection
with such refinancing and, in the case of Senior Indebtedness or
Subordinated Indebtedness, such refinancing does not reduce the Average
Life to Stated Maturity or the Stated Maturity of such Indebtedness; and
(xv) Indebtedness of the Borrower or any Subsidiary which is a
Guarantor in addition to that described in paragraphs (i) through (xiv) of
this definition of "Permitted Indebtedness" in an aggregate principal
amount outstanding at any given time not to exceed $50,000,000, which
amount, notwithstanding the provisions of paragraph (i) hereof, may be
incurred under the Credit Agreement.
"PERMITTED INVESTMENT": (i) Investments in the Borrower or in any
Wholly Owned Subsidiary which is a Guarantor or Investments by the
Borrower or any Subsidiary in a Person, if as a result of such Investment
(a) such Person becomes a Wholly Owned Subsidiary which is a Guarantor or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated
into, the Borrower or any Wholly Owned Subsidiary which is a Guarantor;
(ii) Investments in the Notes and the Guarantees; (iii) Indebtedness owing
to a Subsidiary described under clause (v) of the definition of "Permitted
Indebtedness"; (iv) Temporary Cash Investments; (v) Investments acquired
by the Borrower or any Subsidiary in connection with an Asset Sale
permitted under subsection 7.5 to the extent such Investments are non-cash
consideration as permitted under such subsection; (vi) Investments in
existence on the date of this Agreement, and (vii) in addition to the
Investments described in clauses (i) through (vi) of this definition of
"Permitted Investments," Investments in any Subsidiary, or in any joint
venture or other entity in an amount not to exceed $35,000,000 in the
aggregate since the date of this Agreement.
"PERMITTED LIENS": (i) Liens securing Indebtedness under this
Agreement, and Liens securing Indebtedness under the Credit Agreement
provided that such Liens also secure on a pari passu basis Indebtedness
under this Agreement, (ii) Liens for taxes, assessments or governmental
charges or claims that either (A) are not yet delinquent or (B) are being
contested in good faith by appropriate proceedings and as to which
appropriate reserves have been established or other provisions have been
made in accordance with GAAP; (iii) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other Liens imposed by law and arising in the ordinary
course of business and with respect to amounts that, to the extent
applicable, either (A) are not yet delinquent or (B) are being contested
in good faith by appropriate proceedings and as to which appropriate
reserves have been established or other provisions have been made in
accordance with GAAP; (iv) Liens on property of a Person existing at the
time such Person is merged into,
(TERM LOAN AGREEMENT)
consolidated with or acquired by the Borrower or any Subsidiary of the
Borrower which is a Guarantor; PROVIDED that such Liens were not incurred
in contemplation of such merger or consolidation and do not extend to any
assets other than those of (A) the Person merged into or consolidated with
the Borrower or any Subsidiary which is a Guarantor or (B) those of an
unrelated third party; (v) Liens on property existing at the time of
acquisition thereof by the Borrower or any Subsidiary of the Borrower
which is a Guarantor; PROVIDED that such Liens were not incurred in
contemplation of such acquisition; (vi) Liens existing on the date of this
Agreement; (vii) replacement Liens securing any Indebtedness refinanced as
permitted in clause (xiv) of the definition of "Permitted Indebtedness;"
(viii) Liens arising under licensing agreements entered into by the
Borrower or any Subsidiary in the ordinary course of business for the use
of Intellectual Property or other intangible assets of the Borrower or
such Subsidiary, and settlements, permissions, consents to use, and other
similar agreements concerning Intellectual Property or judgments
adjudicating rights in Intellectual Property; (ix) Liens securing sale and
leaseback transactions, Capital Lease Obligations, industrial revenue
bonds and Purchase Money Obligations permitted to be incurred under clause
(x) of the definition of "Permitted Indebtedness;" (x) Liens securing any
Indebtedness of the Borrower or any Subsidiary which is a Guarantor
permitted to be incurred pursuant to clauses (vi) (to the extent permitted
under the Senior Note Indenture), (viii), (xi) and (xv) of the definition
of "Permitted Indebtedness;" (xi) Liens (other than any Lien imposed by
the Employer Retirement Income Security Act of 1974, as amended) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements; (xii) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, progress payments, government
contracts and other obligations of like nature (exclusive of obligations
for the payment of borrowed money), in each case, incurred in the ordinary
course of business; (xiii) attachment or judgment Liens not giving rise to
a Default or an Event of Default; and (xiv) leases, subleases, easements,
rights-of-way, encroachments and other survey defects, restrictions and
other similar charges or encumbrances not materially interfering with the
ordinary conduct of business of the Borrower or any of its Subsidiaries.
"PERSON": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
(TERM LOAN AGREEMENT)
"PREFERRED STOCK": with respect to any Person, any Capital Stock of
any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class in such Person.
"PROPERTIES": as defined in subsection 4.17(a).
"PURCHASE MONEY OBLIGATIONS": any Indebtedness secured by a Lien on
assets related to the business of the Borrower or its Subsidiaries, and
any additions and accessions thereto, which are purchased by the Borrower
or any Subsidiary at any time after the Notes are issued; PROVIDED that
(i) the security agreement or conditional sales or other title retention
contract pursuant to which the Lien on such assets is created
(collectively a "Purchase Money Security Agreement") shall be entered into
within 90 days after the purchase or substantial completion of the
construction of such assets and shall at all times be confined solely to
the assets so purchased or acquired, any additions and accessions thereto
and any proceeds therefrom, (ii) at no time shall the aggregate principal
amount of the outstanding Indebtedness secured thereby be increased,
except in connection with the purchase of additions and accessions thereto
and except in respect of fees and other obligations in respect of such
Indebtedness and (iii)(A) the aggregate outstanding principal amount of
Indebtedness secured thereby (determined on a per asset basis in the case
of any additions and accessions) shall not at the time such Purchase Money
Security Agreement is entered into exceed 100% of the purchase price to
the Borrower or any Subsidiary of the assets subject thereto or (B) the
Indebtedness secured thereby shall be with recourse solely to the assets
so purchased or acquired, any additions and accessions thereto and any
proceeds therefrom.
"QUALIFIED CAPITAL STOCK": of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"REDEEMABLE CAPITAL STOCK": any Capital Stock that, either by its
terms or by the terms of any security into which it is convertible or
exchangeable or otherwise, is, or upon the happening of an event or
passage of time would be, required to be redeemed prior to any Stated
Maturity of the principal of the Notes or is redeemable at the option of
the holder thereof at any time prior to any such Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to
any such Stated Maturity at the option of the holder thereof.
"REFERENCE LENDERS": Xxxxx Fargo and two other Lenders or lenders
under the Credit Agreement to be appointed with the consent of the
Facility Manager and the Borrower.
"REGISTER": as defined in subsection 10.6(d).
(TERM LOAN AGREEMENT)
"REGISTRATION RIGHTS AGREEMENT": the Registration Rights Agreement,
dated as of July 21, 1997, between the Borrower and the initial purchaser
of the Senior Notes for the benefit of the holders of the Senior Notes.
"REGULATION U": Regulation U of the Board as in effect from time to
time.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the 30-day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss.
2615.
"REQUIRED LENDERS": at any time, Lenders holding at least 51% of the
then outstanding principal amount of the Loans (or, prior to the Closing
Date, the Commitments).
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"RESPONSIBLE OFFICER": the chief executive officer or the president
of the Borrower or, with respect to financial matters, the chief financial
officer or the vice president-finance of the Borrower.
"RESTRICTED PAYMENT": as defined in subsection 7.2.
"REVOLVING CREDIT LOANS": the revolving credit loans of the Borrower
under the Credit Agreement.
"SECURITIES ACT": the Securities Act of 1933, as amended from time
to time, and any successor statute.
"SECURITY DOCUMENTS": the collective reference to the Borrower
Security Agreement, the Stock Pledge Agreements, the Subsidiary Security
Agreements and all other security documents hereafter delivered to the
Collateral Agent granting a Lien on any asset or assets of any Person to
secure the obligations and liabilities of the Borrower hereunder and under
any of the other Loan Documents or to secure any guarantee of any such
obligations and liabilities.
"SENIOR INDEBTEDNESS": any Indebtedness which ranks PARI PASSU in
right of payment with, and which is not expressly by its terms
subordinated in right of payment
(TERM LOAN AGREEMENT)
of principal, interest or premium, if any, to the Notes, whether or not
such Indebtedness is secured.
"SENIOR NOTE INDENTURE": the Indenture dated as of July 21, 1997
between the Borrower, as issuer, and Marine Midland Bank, as trustee, as
the same may be amended, supplemented or otherwise modified from time to
time, except as prohibited by the terms hereof.
"SENIOR NOTES": the 8 7/8% Senior Notes Due 2004 issued by the
Borrower in the aggregate original amount of $150,000,000 pursuant to the
Senior Note Indenture, together with such new senior notes issued by the
Borrower subsequent to the Closing Date in exchange for any or all of the
Senior Notes pursuant to the terms of the Registration Rights Agreement in
the aggregate principal amount equal to the aggregate principal amount of
the Senior Notes so exchanged, which new senior notes shall be registered
under the Securities Act.
"SENIOR SUBORDINATED INDENTURE": the Indenture dated as of February
2, 1994 between the Borrower, as Issuer, and IBJ Xxxxxxxx Bank & Trust
Company, as Trustee, as the same has been and may be amended, supplemented
or otherwise modified from time to time, except as prohibited by the terms
hereof.
"SENIOR SUBORDINATED NOTES": the Senior Subordinated Notes of the
Borrower issued pursuant to the Senior Subordinated Indenture.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"STATED MATURITY": when used with respect to any Indebtedness or any
installment of interest thereon, means the dates specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness
or such installment of interest, as the case may be, is due and payable.
"STOCK PLEDGE AGREEMENTS": the collective reference to the Borrower
Stock Pledge Agreement and the Subsidiary Stock Pledge Agreements.
"SUBORDINATED INDEBTEDNESS": Indebtedness of the Borrower
subordinated in right of payment to the Notes, including, without
limitation, the Senior Subordinated Notes.
"SUBSIDIARIES GUARANTEE": the Guarantee to be made by the
Subsidiaries listed as Subsidiary Guarantors on Schedule 4.15,
substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
(TERM LOAN AGREEMENT)
"SUBSIDIARY": as to any Person, a majority of the equity ownership
or the Voting Stock of which is at the time owed, directly or indirectly,
by the Borrower or by one or more other Subsidiaries, or by the Borrower
and one or more other Subsidiaries; PROVIDED that, an Unrestricted
Subsidiary shall not be deemed a Subsidiary for purposes of this
Agreement.
"SUBSIDIARY SECURITY AGREEMENT": each Subsidiary Security Agreement
to be executed and delivered by each Domestic Subsidiary, in substantially
the form of Exhibit B-3, as the same may be amended, supplemented or
otherwise modified from time to time.
"SUBSIDIARY STOCK PLEDGE AGREEMENT": each Pledge Agreement to be
executed and delivered by each Domestic Subsidiary, substantially in the
form of Exhibit B-4, as the same may be amended, supplemented or otherwise
modified from time to time.
"SYNDICATION AGENT": as defined in the introduction to this
Agreement and also means and includes any successor syndication agent
appointed pursuant to subsection 9.9.
"TEMPORARY CASH INVESTMENTS": (i) any evidence of Indebtedness,
maturing not more than one year after the date of acquisition, issued by
the United States of America, or an instrumentality or agency thereof, and
guaranteed fully as to principal, premium, if any, and interest by the
United States of America, (ii) any certificate of deposit, maturing not
more than one year after the date of acquisition, issued by, or time
deposit of, the Facility Manager or a commercial banking institution that
is a member of the Federal Reserve System and that has combined capital
and surplus and undivided profits of not less than $500,000,000, whose
debt has a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Xxxxx'x Investors Service Inc.
("Moody's") or any successor rating agency or "A-1" (or higher) according
to Standard & Poor's Corporation ("S&P") or any successor rating agency,
(iii) commercial paper, maturing not more than one year after the date of
acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of Borrower) organized and existing under the laws of the
United States of America with a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or
"A-1" (or higher) according to S&P, (iv) any money market deposit accounts
issued or offered by the Facility Manager or a domestic commercial bank
having a capital and surplus in excess of $500,000,000.
"TERM A LOANS": the tranche A term loans of the Borrower under the
Credit Agreement in the original principal amount of $55,000,000.
"TRADEMARK SUBSIDIARY AGREEMENT": the Trademark Subsidiary
Agreement, dated the Closing Date, made by the Borrower and Playtex
Marketing Corporation in
(TERM LOAN AGREEMENT)
favor of the Collateral Agent, substantially in the form of Exhibit G, as
the same may be amended, supplemented or otherwise modified from time to
time.
"TRANSACTION COSTS": the fees, costs and expenses paid or payable by
any Loan Party pursuant hereto on the Closing Date and other fees, costs,
premiums and expenses paid or payable by any Loan Party in connection with
the Transactions.
"TRANSACTIONS": the transactions contemplated under this Agreement
and the other Loan Documents on the Closing Date, the repayment of the
Borrower's indebtedness under the Existing Credit Agreement, the issuance
of the Senior Notes, the borrowing of the Term A Loans and the Revolving
Credit Loans and other transactions related to any of the foregoing.
"TRANSFEREE": as defined in subsection 10.6(f).
"TYPE": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"UNRESTRICTED SUBSIDIARY": any subsidiary that would but for this
definition of "Unrestricted Subsidiary" be a Subsidiary organized or
acquired after the date of this Agreement as to which all of the following
conditions apply: (a) neither the Borrower nor any of its other
Subsidiaries (other than Unrestricted Subsidiaries) provides credit
support for any Indebtedness of such Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness); (b)
such Subsidiary is not liable, directly or indirectly, with respect to any
Indebtedness other than Unrestricted Subsidiary Indebtedness; (c) neither
the Borrower nor any of its Subsidiaries (other than Unrestricted
Subsidiaries) has made an Investment in such Unrestricted Subsidiary
unless such Investment was permitted by the provisions of subsection 7.2;
and (d) the Board of Directors of the Borrower, as provided below, shall
have designated such Subsidiary (including any newly formed or acquired
Subsidiary) to be an Unrestricted Subsidiary; PROVIDED that after giving
effect to such designation, such Subsidiary does not own, directly or
indirectly, any Capital Stock of any other Subsidiary. Any such
designation by the Board of Directors of the Borrower shall be evidenced
to the Agents by filing with the Agents a Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complies with the foregoing conditions. The Board of Directors
of the Borrower may designate any Unrestricted Subsidiary as a Subsidiary;
PROVIDED that (i) immediately after giving PRO FORMA effect to such
designation, the Borrower could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the restrictions under
subsection 7.1 of the Agreement; and (ii) all Indebtedness of such
Unrestricted Subsidiary shall be deemed to be incurred on the date such
Unrestricted Subsidiary becomes a Subsidiary. Any subsidiary of an
Unrestricted Subsidiary shall be an Unrestricted Subsidiary for purposes
of this Agreement.
(TERM LOAN AGREEMENT)
"UNRESTRICTED SUBSIDIARY INDEBTEDNESS": of any Unrestricted
Subsidiary, the Indebtedness of such Unrestricted Subsidiary (a) as to
which neither the Borrower nor any Subsidiary is directly or indirectly
liable (by virtue of the Borrower or any such Subsidiary being the primary
obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness), and (b) which, upon the occurrence of a default with
respect thereto, does not result in, or permit any holder of any
Indebtedness of the Borrower or any Subsidiary to declare, a default on
such Indebtedness of the Borrower or any Subsidiary or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity.
"VOTING STOCK": stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or
trustees of a corporation (irrespective of whether or not at the time
stock of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).
"XXXXX FARGO": as defined in the introduction to this Agreement.
"WHOLLY OWNED SUBSIDIARY": a Subsidiary all the outstanding Capital
Stock (other than directors' qualifying shares) of which are owned by the
Borrower or another Wholly Owned Subsidiary.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Note or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified and references to Schedules to this Agreement are references
to such Schedules as amended, supplemented, or otherwise modified from time to
time in accordance with the terms hereof.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(TERM LOAN AGREEMENT)
SECTION 2. LOANS
2.1 LOANS.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make a term loan (a "LOAN"; collectively, the "LOANS") to
the Borrower on the Closing Date in an amount not to exceed the amount of the
Commitment of such Lender.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii)
ABR Loans or (iii) a combination thereof, as determined by the Borrower and
notified to the Facility Manager in accordance with subsections 2.2 and 3.4.
(c) The proceeds of the Loans shall be used on the Closing Date,
together with other funds available to the Borrower, including, without
limitation, the proceeds of the Senior Notes under the Senior Note Indenture,
the Term A Loans and the Revolving Credit Loans under the Credit Agreement, to
refinance in full the Existing Term Loans and Existing Revolving Credit Loans
and to pay the Transaction Costs in an aggregate amount not exceeding
$10,000,000.
2.2 PROCEDURE FOR BORROWING. The Borrower shall give the Facility
Manager irrevocable notice (which notice must be received by the Facility
Manager prior to 1:00 P.M., New York City time, (a) 3 Business Days prior to the
Closing Date, if all or any part of the Loans are to be initially Eurodollar
Loans, or (b) one Business Day prior to the Closing Date, otherwise) requesting
that the Lenders make the Loans on the Closing Date and specifying (i) the
amount to be borrowed, (ii) whether the Loans are to be initially Eurodollar
Loans, ABR Loans or a combination thereof, and (iii) if the Loans are to be
entirely or partly Eurodollar Loans, the respective amounts of each such Type of
Loan and the respective lengths of the initial Interest Periods therefor. Upon
receipt of such notice the Facility Manager shall promptly notify each Lender
having a Commitment thereof. Not later than 10:00 A.M. on the Closing Date each
Lender shall make available to the Facility Manager at its office specified in
subsection 10.2 the amount of such Lender's pro rata share of its Loans in
immediately available funds. The Facility Manager shall on such date credit the
account of the Borrower on the books of such office of the Facility Manager with
the aggregate of the amounts made available to the Facility Manager by the
Lenders and in like funds as received by the Facility Manager.
SECTION 3. GENERAL PROVISIONS
3.1 FEES. (a) The Borrower agrees to pay to the Facility Manager for
its own account the annual administrative fee agreed upon by the Facility
Manager, the Arranger and the Borrower.
(TERM LOAN AGREEMENT)
(b) The Borrower shall pay to the Arranger and the Syndication Agent
the amounts set forth in the letter agreement dated July 2, 1997 among the
Arranger, the Syndication Agent and the Borrower in the amounts and on the dates
set forth therein. The Arranger shall pay on the Closing Date to each Lender
such amounts as have been agreed upon by the Arranger and such Lender.
3.2 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower hereby
unconditionally promises to pay to the Facility Manager for the account of each
Lender the principal amount of the Loans of such Lender, in 25 installments,
commencing September 15, 1997, each such installment in an amount equal to such
Lender's pro rata share of the respective amounts set forth for the Loans in
Schedule 3.2 for such installment (or the then unpaid principal amount of such
Loan, on the date that the Loans become due and payable pursuant to Section 8).
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
subsection 3.6.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Facility Manager, acting for this purpose as an agent of the
Borrower, shall maintain the Register pursuant to subsection 10.6(d), and a
subaccount therein for each Lender, in which shall be recorded (i) the amount of
each Loan made hereunder, the Type thereof and, in the case of Eurodollar Loans,
each Interest Period applicable thereto, (ii) each continuation thereof and each
conversion of all or a portion thereof to another Type, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iv) both the amount of any sum received
by the Facility Manager hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 3.2(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded: PROVIDED, HOWEVER, that the
failure of any Lender or the Facility Manager to maintain the Register or any
such account, as the case may be, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower agrees that, upon request to the Facility Manager
by any Lender (other than a Notifying Lender), the Borrower will execute and
deliver to such Lender (i) a promissory note of the Borrower evidencing the Loan
of such Lender, substantially in the form of Exhibit A, with appropriate
insertions as to date and principal amount (a "Note"), payable to the order of
such Lender and representing the obligation of the Borrower to pay a principal
amount equal to the amount of the Loan of such Lender, with interest on the
unpaid
(TERM LOAN AGREEMENT)
principal amount thereof from time to time outstanding under such Note as set
forth in subsection 3.6. Each Lender is hereby authorized to record the date,
Type and amount of each Loan made by such Lender, each continuation thereof,
each conversion of all or a portion thereof to another Type, the date and amount
of each payment or repayment of principal thereof and, in the case of Eurodollar
Loans, the length of each Interest Period with respect thereto, on the schedule
annexed to and constituting a part of any Note requested by it to evidence such
Loan, and any such recordation shall constitute PRIMA FACIE evidence of the
accuracy of the information so recorded, PROVIDED that the failure by any Lender
to make any such recordation or any error in any such recordation shall not
affect any of the obligations of the Borrower.
3.3 OPTIONAL AND MANDATORY PREPAYMENT. (a) The Borrower may at any
time and from time to time prepay the Loans, in whole or in part, without
premium or penalty except as otherwise provided in subsection 3.3(b) below, upon
at least three Business Days' in the case of Eurodollar Loans, or one Business
Day's in the case of ABR Loans, irrevocable notice to the Facility Manager,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice the
Facility Manager shall promptly notify each Lender. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection 3.13
and accrued interest to such date and premium, if any, on the amount prepaid.
Partial prepayments of the Loans shall be applied to the remaining installments
of principal thereof in direct order of their scheduled maturities. Amounts
prepaid on account of the Loans may not be reborrowed. Partial voluntary
prepayments shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.
(b) Any voluntary prepayment of the Loans made on or prior to the
third anniversary of the Closing Date shall be subject to the payment of a
premium, as set forth below:
(i) 3.0% of the principal amount of Loans prepaid pursuant
to subsection 3.3(a) on or prior to the first anniversary of the Closing
Date;
(ii) 2.0% of the principal amount of Loans prepaid pursuant to
subsection 3.3(a) subsequent to the first anniversary and prior to or on
the second anniversary of the Closing Date; and
(iii) 1.0% of the principal amount of Loans prepaid pursuant
to subsection 3.3(a) subsequent to the second anniversary and prior to or
on the third anniversary of the Closing Date.
(c) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale, such Net Cash
Proceeds
(TERM LOAN AGREEMENT)
shall be applied in accordance with the provisions of subsection 7.5. If the
Borrower is required to apply any portion of any Net Cash Proceeds to prepay any
Indebtedness evidenced by the Senior Subordinated Notes, the Senior Notes or the
Term A Loans or to reduce the Acquisition Revolving Credit Commitments under the
terms of the Senior Subordinated Note Indenture, the Senior Note Indenture or
the Credit Agreement, respectively, then notwithstanding anything contained in
this subsection 3.3 to the contrary, the Borrower shall apply such Net Cash
Proceeds toward the prepayment of the Loans as provided in this subsection
3.3(c) so as to eliminate any obligation to prepay such other Indebtedness. Any
prepayment of the Loans pursuant to this subsection 3.3(c) shall be made on a
pro rata basis with the prepayment of the Term A Loans and, from and after
December 15, 2000, the permanent reduction of the Acquisition Revolving Credit
Commitments in accordance with the provisions of subsection 6.3(c) of the Credit
Agreement.
(d) If, subsequent to the Closing Date, a Change of Control shall
occur, the Borrower shall prepay the Loans in full, without the payment of any
premium or penalty, upon the occurrence of such Change of Control.
(e) All mandatory prepayments of the Loans shall be applied to the
remaining installments of the Loans ratably according to the amounts thereof.
The application of prepayments referred to in the preceding sentence shall be
made first to ABR Loans and second to Eurodollar Loans. Mandatory prepayments of
the Loans may not be reborrowed.
(f) On the date which is the earlier of (x) 30 days after the date
on which a "change of control" (as defined in any of the Senior Subordinated
Indenture, the Senior Note Indenture or the Credit Agreement) occurs and (y) the
date on which the Borrower shall have offered to repurchase or shall be required
to prepay, as the case may be, the Senior Subordinated Notes, the Senior Notes
or the Term A Loans and the Revolving Credit Loans or to terminate the Revolving
Credit Commitments (as defined in the Credit Agreement) as a result of such
change of control, the Borrower shall prepay the Loans in full without the
payment of any premium or penalty.
(g) In the event the amount of any prepayment of Loans required to
be made under this subsection 3.3 (other than subsections 3.3(d) and 3.3(f))
shall exceed the aggregate principal amount of such Loans which are ABR Loans
(the amount of any such excess being called the "EXCESS AMOUNT"), the Borrower
shall have the right, in lieu of making such prepayment in full, to prepay all
such outstanding ABR Loans when due and to deposit on the date of the required
prepayment an amount equal to the Excess Amount with the Collateral Agent in a
cash collateral account maintained by and in the sole dominion and control of
the Collateral Agent. Any amounts so deposited shall be held by the Collateral
Agent as collateral security for the Obligations (as defined in the Borrower
Security Agreement) and applied to the prepayment of the applicable Eurodollar
Loans at the end of the current Interest Periods applicable thereto. On any
Business Day on which (A) collected amounts remain on deposit in or to the
credit of such cash collateral account after giving effect to the payments made
on such day pursuant to this subsection 3.3(g) and (B) the Borrower shall have
delivered to the
(TERM LOAN AGREEMENT)
Collateral Agent a written request or a telephonic request (which shall be
promptly confirmed in writing) that such remaining collected amounts be invested
in the Cash Equivalents specified in such request, the Collateral Agent shall
invest such remaining collected amounts in such Cash Equivalents on an overnight
basis; PROVIDED, HOWEVER, that the Collateral Agent shall have continuous
dominion and full control over any such investments (and over any interest that
accrues thereon) to the same extent that it has dominion and control over such
cash collateral account. Any such deposited amounts so invested (together with
any interest thereon) shall be deposited in such cash collateral account not
later then 11:30 a.m. on the next succeeding Business Day.
3.4 CONVERSION AND CONTINUATION OPTIONS. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Facility Manager at least one Business Day's prior irrevocable notice of such
election, PROVIDED that any such conversion may only be made on the last day of
an Interest Period with respect thereto. The Borrower may elect from time to
time to convert ABR Loans to Eurodollar Loans by giving the Facility Manager at
least three Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Facility Manager shall promptly notify each Lender. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as provided herein,
PROVIDED that (i) no Loan may be converted into a Eurodollar Loan when any Event
of Default has occurred and is continuing and the Facility Manager has or the
Required Lenders have determined that such a conversion is not appropriate and
(ii) no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the date of the final payment of Loans.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Facility Manager, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
PROVIDED that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Facility Manager has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the date of the final payment of
principal of Loans and PROVIDED, FURTHER that if the Borrower shall fail to give
such notice or if such continuation is not permitted such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
(c) Notwithstanding anything herein to the contrary, no Loan shall
be made as, or converted to, a Eurodollar Loan with an Interest Period longer
than one month prior to 30 days following the Closing Date or such earlier date
as the Facility Manager shall notify the Borrower that Loans may be made as or
converted to Eurodollar Loans with Interest Periods longer than one month.
(TERM LOAN AGREEMENT)
3.5 MAXIMUM NUMBER OF INTEREST PERIODS. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be made pursuant to such elections so that, after giving effect
thereto, the aggregate number of Interest Periods in effect shall not exceed
eight.
3.6 INTEREST RATES AND PAYMENT DATES. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the sum of the Eurodollar Rate determined for such day
plus the Applicable Eurodollar Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable ABR Margin.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of overdue interest, commitment fee or
other amount, the rate described in subsection 3.6(b) plus 2%, in each case from
the date of such non-payment until such amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that interest accruing pursuant to subsection 3.6(c) shall be
payable from time to time on demand.
(e) If any Reference Lender shall resign as such, such Reference
Lender shall thereupon cease to be a Reference Lender, and the Borrower and the
Facility Manager (after consultation with the Lenders) shall, by notice to the
Lenders, designate another Lender as a Reference Lender so that there shall at
all times be at least two Reference Lenders.
(f) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Facility Manager as contemplated hereby. If a
Reference Lender shall be unable or shall otherwise fail to supply such rates to
the Facility Manager upon its request, the rate of interest shall be determined
on the basis of the quotations of the remaining Reference Lenders or Reference
Lender.
3.7 COMPUTATION OF INTEREST AND FEES. (a) Whenever the ABR is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Facility Manager shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of
(TERM LOAN AGREEMENT)
business on the day on which such change becomes effective. The Facility Manager
shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Facility Manager
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The Facility
Manager shall, at the request of the Borrower, deliver to the Borrower a
statement showing the quotations used by the Facility Manager in determining any
interest rate pursuant to subsection 3.6(a) or (b).
3.8 INABILITY TO DETERMINE INTEREST RATE. (a) If prior to the first
day of any Interest Period:
(i) the Facility Manager shall have determined (which determination,
in the absence of manifest error, shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period, or
(ii) the Facility Manager shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Facility Manager shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
converted to or continued as ABR Loans and (z) any outstanding Eurodollar Loans
that were to be continued as such for such Interest Period, shall be converted
on such first day to ABR Loans. Until such notice has been withdrawn by the
Facility Manager, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans. The Facility Manager agrees to withdraw any such notice as soon as
reasonably practicable after the Facility Manager is notified of a change in
circumstances which makes such notice inapplicable.
(b) If prior to the first day of any Interest Period of nine months
or more in length, the Facility Manager shall have received notice from any
Lender that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lender (as
conclusively certified by such Lender) of making or maintaining its affected
Loans during such Interest Period, the Facility Manager shall give telecopy or
telephonic notice thereof to the Borrower and the Lenders as soon as practicable
thereafter. If such notice is given, subject to the provisions hereof in
subsections 2.2 and 3.4 allowing the Borrower to select Interest Periods of a
different length, (x) any Eurodollar Loans
(TERM LOAN AGREEMENT)
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans for such Interest Period shall be
converted to or continued as ABR Loans and (z) any outstanding Eurodollar Loans
that were to be continued as such for such Interest Period shall be converted,
on the first day of such Interest Period, to ABR Loans. Until such notice has
been withdrawn by such Lender (which each Lender agrees to do when the
circumstances that prompted the delivery of such notice no longer exist), no
further Eurodollar Loans having an Interest Period of nine months or more shall
be made or continued as such, nor shall the Borrower have the right to convert
ABR Loans to Eurodollar Loans having an Interest Period of nine months or more.
3.9 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing of any Loans
by the Borrower from the Lenders hereunder and each payment by the Borrower on
account of any Loans or of any fees hereunder shall be made pro rata according
to the respective share of the Lenders in the Loan or Commitments.
(b) Whenever (i) any payment received by the Facility Manager under
this Agreement or any Note or (ii) any other amounts received by the Facility
Manager for or on behalf of the Borrower (including, without limitation,
proceeds of collateral or payments under any guarantee) pursuant to the
Intercreditor Agreement is insufficient to pay in full all amounts then due and
payable to the Agents and the Lenders under this Agreement and under the other
Loan Documents, such payment shall be, subject to the provisions of the
Intercreditor Agreement, distributed by the Facility Manager and applied by the
Facility Manager and the Lenders in the following order: FIRST, to the payment
of fees and expenses due and payable to the Agents under and in connection with
this Agreement; SECOND, to the payment of all expenses due and payable under
subsection 10.5, ratably among the Agents and the Lenders in accordance with the
aggregate amount of such payments owed to the Agents and each such Lender;
THIRD, to the payment of interest then due and payable hereunder, ratably in
accordance with the aggregate amount of interest owed to each such Lender; and
FOURTH, to the payment of the principal amount of the Loans then due and payable
and, in the case of proceeds of collateral or payments under any guarantee, to
the payment of any other obligations to any Lender not covered in First through
Third above ratably secured by such collateral or ratably guaranteed under any
such guarantee, ratably among the Lenders in accordance with the aggregate
principal amount and, in the case of proceeds of Collateral or payments under
any guarantee, the obligations secured or guaranteed thereby owed to each such
Lender.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Facility Manager, for the
account of the Lenders, at the Facility Manager's office specified in subsection
10.2, in Dollars and in immediately available funds. Any payment received by the
Facility Manager after such time shall be deemed to have been received on the
next Business Day. The Facility Manager shall distribute such payments to the
(TERM LOAN AGREEMENT)
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day (and interest thereon shall be payable at the then applicable rate
during such extension) unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.
3.10 ILLEGALITY. (a) Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (i) such Lender shall
promptly after becoming aware thereof notify the Facility Manager and the
Borrower thereof, (ii) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans to
Eurodollar Loans shall forthwith be cancelled and (iii) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to subsection
3.13. If circumstances subsequently change so that it is no longer unlawful for
an affected Lender to make or maintain Eurodollar Loans as contemplated
hereunder, such Lender will, as soon as reasonably practicable after such Lender
becomes aware of such change in circumstances, notify the Borrower and the
Facility Manager, and upon receipt of such notice, the obligations of such
Lender to make or continue Eurodollar Loans or to convert ABR Loans into
Eurodollar Loans shall be reinstated.
(b) Each Lender agrees that, upon the occurrence of any event giving
rise to the operation of subsection 3.10(a) with respect to such Lender, it
will, if requested by the Borrower and to the extent permitted by law or by the
relevant Governmental Authority, endeavor in good faith to change the lending
office at which it books its Eurodollar Loans hereunder if such change would
make it lawful for such Lender to continue to make or maintain Eurodollar Loans
as contemplated hereunder, PROVIDED, HOWEVER, that such change can be made us
such a manner that such Lender, in its sole determination, suffers no increased
cost or economic, legal or regulatory disadvantage.
3.11 REQUIREMENTS OF LAW. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(TERM LOAN AGREEMENT)
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Loan made by
it, or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by subsection 3.12, changes
in taxes imposed on the overall net income of such Lender or changes in
franchise taxes (including branch profit taxes and taxes computed under
alternate methods, at least one of which is computed on overall net
income) applicable to such Lender) (each tax to which this subsection
3.11(a)(i) applies being referred to as a "COVERED TAX");
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, (A) such Lender shall
promptly notify the Facility Manager and the Borrower in writing of the
occurrence of such event, (B) such Lender shall promptly deliver to the Facility
Manager and the Borrower a certificate describing in reasonable detail the
change which has occurred, the net amount of such increased cost to such Lender
(to the extent such cost has not been recovered through a corresponding increase
in the interest rate otherwise chargeable with respect to the Loans) to the date
of such certificate, and the method by which such amount has been calculated,
and (C) the Borrower shall pay to the Facility Manager for the account of such
Lender, within thirty days after delivery of the certificate referred to in
clause (B) above, such amounts as will compensate such Lender for such increased
cost or reduced amount receivable. Each Lender shall allocate such additional
costs among its customers in good faith and on an equitable basis.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Facility Manager) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as
(TERM LOAN AGREEMENT)
will compensate such Lender for such reduction. Notwithstanding any other
provision of this subsection 3.11, no Lender shall demand compensation for any
increased cost or reduction referred to above if it shall not at the time be the
general policy or practice of such Lender to demand such compensation in similar
circumstances under comparable provisions of other credit agreements, if any.
(c) A certificate as to any additional amounts payable pursuant to
this subsection 3.11 submitted by any Lender to the Borrower (with a copy to the
Facility Manager) shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
3.12 TAXES. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(collectively, "TAXES"), now or hereafter imposed, levied, collected, withheld
or assessed by any Governmental Authority, excluding (i) Taxes on net income and
franchise Taxes (including without limitation branch profit Taxes, minimum Taxes
and Taxes computed under alternate methods, at least one of which is computed on
net income) imposed on the Facility Manager or any Lender as a result of a
present or former connection between the Facility Manager or such Lender and the
jurisdiction of the Governmental Authority imposing such Tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Facility Manager or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement) and any withholding of tax under Section 3406 of the
Code or (ii) any Taxes to the extent that they are in effect and would apply as
of the date any person becomes a Transferee, or as of the date the Lender
changes its applicable lending office, to the extent such Taxes become
applicable as a result of such change, other than a change in the applicable
lending office made pursuant to subsection 3.12(e) below. If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Facility Manager or any Lender hereunder, the amounts so payable
to the Facility Manager or such Lender shall be increased to the extent
necessary to yield to the Facility Manager or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, PROVIDED, HOWEVER, that the
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements of subsection
3.12(b) or 3.12(c), as the case may be. Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Facility Manager for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt, to
the extent such a receipt is received by the Borrower, or other written proof of
payment showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to the
Facility Manager the required receipts
(TERM LOAN AGREEMENT)
or other required documentary evidence, the Borrower shall indemnify the
Facility Manager and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Facility Manager or any Lender as a
result of any such failure. The agreements in this subsection 3.12(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is a "bank" under Section 881(c)(3)(A) of the
Code and that is not incorporated or organized under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Facility Manager on or
before the date on which it becomes a Lender (A) two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Facility Manager two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered by such Lender; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Facility Manager;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred after the date such Lender becomes a
party to this Agreement (in the event of any change in treaty, law or
regulation) and prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Facility Manager. Such Lender shall
certify (x) in the case of a Form 1001 or 4224 or successor applicable form,
that it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes and (y) in the case of
a Form W-8 or W-9 or successor applicable form, that it is entitled to an
exemption from United States backup withholding tax.
(c) Each Lender that is not a "bank" under Section 881(c)(3)(A) of
the Code and that is not incorporated or organized under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Borrower and the Facility Manager on or
before the date on which it becomes a Lender, either (1) (x) a statement
under penalties of perjury that such Lender (A) is not a "bank" under
Section 881(c)(3)(A) of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and has
(TERM LOAN AGREEMENT)
not been treated as a bank for purposes of any tax, securities law or
other filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any exemption
from tax, securities law or other legal requirements, (B) is not a
10-percent shareholder within the meaning of Section 881(c)(3)(B) of the
Code (C) is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code, and
(D) is not receiving payments under this Agreement that are effectively
connected with the conduct of a trade or business within the United States
and (y) an Internal Revenue Service Form W-8 or successor applicable form,
or (2) (x) two duly completed copies of United States Internal Revenue
Service Form 4224, or successor applicable form, and (y) and Internal
Revenue Service Form W-8 or W-9 as the case may be, or successor
applicable form;
(ii) deliver to the Borrower and the Facility Manager further
copies of said forms, or any successor applicable forms or other manner of
certification on or before the date that any such form or certification
expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent forms and certifications previously delivered
by such Lender, and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may be reasonably requested by the
Borrower or the Facility Manager;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred after the date such Lender becomes a
party to this Agreement (in the event of any change in treaty, law or
regulation) and prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Facility Manager. Such Lender shall
certify in the case of a Form W-8 that it is entitled to an exemption from
United States backup withholding tax and in the case of any other form required
to be delivered pursuant to this subsection 3.12(c) that it is entitled to
receive payments under this Agreement without deduction of any United States
federal income withholding tax or is exempt from United States backup
withholding tax according to the requirements of such form.
(d) Each Lender that is incorporated or organized under the laws of
the United States of America or a state thereof shall:
(i) deliver to the Borrower and the Facility Manager, on or
before the date on which it becomes a Lender, two duly completed copies of
Form W-9 or successor applicable form;
(ii) deliver to the Borrower and the Facility Manager two
further copies of said Form W-9 or any successor applicable form or other
manner of
(TERM LOAN AGREEMENT)
certification on or before the date that such Form W-9 expires or becomes
obsolete or after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Facility Manager;
unless in any such case an event (including, without limitation, any change in
law or regulation) has occurred after the date such Lender becomes a party to
this Agreement (in the event of any change in law or regulation) and prior to
the date on which any such delivery would otherwise be required which renders
such form inapplicable or which would prevent such Lender from duly completing
and delivering such form with respect to it and such Lender so advises the
Borrower and the Facility Manager. Such Lender shall certify in the case of such
form that it is exempt from United States backup withholding tax according to
the requirements of such form.
(e) Any Lender claiming additional amounts pursuant to subsection
3.11(a)(i) or 3.12 shall use its reasonable efforts (consistent with internal
policy and applicable legal and regulatory restrictions) to take such action, as
requested by the Borrower in writing, including, without limitation, changing
its applicable lending office to another existing office of such Lender, if the
taking of such action would avoid the need for or reduce the amount of any such
additional amounts and would not, in the judgment of such Lender, be otherwise
materially adverse to such Lender.
(f) If the Borrower determines in good faith that a reasonable basis
exists for contesting a Covered Tax or Non-Excluded Tax, the relevant Lender or
the Facility Manager, as applicable, shall cooperate with the Borrower in
challenging such Covered Tax or Non-Excluded Tax at the Borrower's expense if
requested by the Borrower (it being understood and agreed that neither the
Facility Manager nor any Lender shall have any obligation to contest, or any
responsibility for contesting, any Covered Tax or Non-Excluded Tax). If any
Lender or the Facility Manager, as applicable, receives a refund (whether by way
of a direct payment or by offset) of any Covered Tax or Non-Excluded Tax for
which a payment has been made pursuant to subsections 3.11(a)(i) or 3.12 or
claims any credit or other tax benefit as a result of the payment of such
Covered Tax or Non-Excluded Tax by the Borrower, which refund or credit in the
good faith judgment of such Lender or the Facility Manager, as the case may be,
is allocable to such payment made under subsections 3.11(a)(i) or 3.12, the
amount of such refund or credit (together with any interest received thereon)
shall be paid to the Borrower to the extent payment has been made in full by the
Borrower pursuant to subsections 3.11(a)(i) or 3.12.
(g) Each Person that shall become a Lender or a Participant pursuant
to subsection 10.6 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms and statements required pursuant to this
subsection 3.12, provided that in the case
(TERM LOAN AGREEMENT)
of a Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
3.13 INDEMNITY. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Eurodollar Margin or Applicable
ABR Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.14 REPLACEMENT OF LENDER. If the Borrower becomes obligated to pay
additional amounts described in subsections 3.10, 3.11 or 3.12 as a result of
any condition described in such subsections and payment of such amount is
demanded by any Lender, then the Borrower may, on ten Business Days' prior
written notice to the Facility Manager and such Lender, cause such Lender to
(and such Lender shall) assign pursuant to subsection 10.6(c) all of its rights
and obligations under this Agreement to a Lender or other entity selected by the
Borrower for a purchase price equal to the outstanding principal amount of such
Lender's Loans and all accrued interest and fees and losses and expenses of the
types referred to in subsection 3.13 and all other amounts due to such Lender
hereunder, PROVIDED that in no event shall the assigning Lender be required to
pay or surrender to such purchasing Lender or other entity any of the fees
received by such assigning Lender pursuant to this Agreement; PROVIDED, FURTHER,
that such assigning Lender shall continue to be entitled to the benefits of
subsection 10.5 hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans, the Borrower hereby represents and warrants to the Agents
and each Lender that:
(TERM LOAN AGREEMENT)
4.1 FINANCIAL CONDITION. (a) The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 28, 1996 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by KPMG Peat Marwick LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at March 29, 1997 and June 28, 1997 and the related unaudited consolidated
statements of income and of cash flows for the three-month period ended on each
such date, in each case certified by a Responsible Officer, copies of which have
heretofore been furnished to the Agents, present fairly in all material respects
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such dates, and the consolidated results of their operations
and their consolidated cash flows for the three-month periods then ended
(subject to changes resulting from audit and normal year-end adjustments).
(b) The unaudited PRO FORMA consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of March 29, 1997 after giving
effect to the making of the Loans under this Agreement on the Closing Date, the
issuance of the Senior Notes, the borrowing of the Term A Loans and the
Revolving Credit Loans and the other Transactions to be consummated on or prior
to the Closing Date, certified by a Responsible Officer, copies of which have
heretofore been furnished to the Agents, presents fairly in all material
respects on a PRO FORMA basis the estimated financial position of the Borrower
and its consolidated Subsidiaries as at such date, after giving effect to such
events as if such events had occurred on such date.
(c) All such financial statements referred to in subsection 4.1(a),
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants or Responsible Officer, as the case may
be, and as disclosed therein).
(d) Except as set forth on Schedule 4.1, neither the Borrower nor
any of its consolidated Subsidiaries had, at June 28, 1997, any Guaranteed Debt,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or in the notes thereto and which would be reasonably
likely to have a Material Adverse Effect. Except as set forth on Schedule 4.1,
during the period from December 28, 1996 to and including the Closing Date there
has been no sale, transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person other than a New Subsidiary) material in
relation to the consolidated financial condition of the Borrower and its
consolidated Subsidiaries at December 28, 1996.
(TERM LOAN AGREEMENT)
4.2 NO CHANGE. Except as set forth on Schedule 4.2, since December
28, 1996 (a) there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect and (b) no dividends or
other distributions have been declared, paid or made upon the Capital Stock of
the Borrower nor has any of the Capital Stock of the Borrower been redeemed,
retired, purchased or otherwise acquired for value by the Borrower or any of its
Subsidiaries.
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the Borrower
and its Subsidiaries (other than Inter Stretch Ltd.) (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the failure to be
so qualified and in good standing would not be reasonably likely to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 CORPORATE AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Borrower
and each of its Subsidiaries has the corporate power and authority, and the
legal right, to make, deliver and perform the Loan Documents to which it is a
party. The Borrower has the corporate power and authority, and the legal right,
to borrow hereunder and has taken all necessary corporate action to authorize
the borrowings on the terms and conditions of this Agreement and any Notes. The
Borrower and each of its Subsidiaries has taken all necessary corporate action
to authorize the execution, delivery and performance of the Loan Documents to
which it is a party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which the Borrower or any of its Subsidiaries is a party or the
consummation of the Transactions other than (i) any filings required in order to
perfect and/or insure the priority of Liens created pursuant to the Security
Documents and (ii) those the failure to obtain or make would not be reasonably
likely to have a Material Adverse Effect. This Agreement has been duly executed
and delivered on behalf of the Borrower. Each Loan Document to which the
Borrower or any of its Subsidiaries is a party has been duly executed and
delivered on behalf of each such Loan Party. This Agreement and each other Loan
Document to which it is a party constitutes a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally, and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law) and an implied covenant of good faith and fair dealing. Each Loan
Document to which any of the Subsidiaries is a party constitutes a legal, valid
and binding obligation of such Subsidiary enforceable against it in accordance
with its terms,
(TERM LOAN AGREEMENT)
except as enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law) and an
implied covenant of good faith and fair dealing.
4.5 NO LEGAL BAR. Except as set forth on Schedule 4.5, the
execution, delivery and performance of the Loan Documents to which the Borrower
or any of its Subsidiaries is a party, the borrowings hereunder and the use of
the proceeds thereof and the consummation of the Transactions will not violate
any Requirement of Law or Contractual Obligation of the Borrower or of any of
its Subsidiaries except for violations in the aggregate which would not be
reasonably likely to have a Material Adverse Effect and will not result in, or
require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation (other than Liens (i) created or permitted by the
Security Documents and (ii) which in the aggregate would not reasonably be
expected to have a Material Adverse Effect).
4.6 NO MATERIAL LITIGATION. Except as set forth on Schedule 4.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to any of the
Loan Documents, the Senior Note Indenture, the Credit Agreement or the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
4.7 NO DEFAULT. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold or subleasehold interest in, all its other property (other than
Intellectual Property), and none of such property is subject to any Lien except
as permitted by subsection 7.4.
4.9 INTELLECTUAL PROPERTY. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "INTELLECTUAL
PROPERTY"). Except as set forth on Schedule 4.9, no claim has been asserted and
is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does the Borrower know of any valid basis for any such claim
which, in either case, could reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule
(TERM LOAN AGREEMENT)
4.9, the use of such Intellectual Property by the Borrower and its Subsidiaries
does not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
4.10 NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
4.11 TAXES. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all material tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all material taxes shown to be
due and payable on said returns or on any assessments made against it or any of
its property and all other material taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority that if not filed or paid,
as the case may be, could reasonably be expected to have a Material Adverse
Effect (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower
or its Subsidiaries, as the case may be); no tax Lien has been filed that could
reasonably be expected to have a Material Adverse Effect, and, to the knowledge
of the Borrower, no claim is being asserted, with respect to any such tax, fee
or other charge.
4.12 FEDERAL REGULATIONS. No part of the proceeds of any Loans will
be used (i) for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U if such use
would result in a violation of Regulation U, (ii) in any manner which would
violate the provisions of Regulation G, T, U or X of the Board or (iii) to
finance the acquisition of any "margin stock" in connection with a tender offer
for such stock which has not been approved by the board of directors of the
issuer of such stock. If requested by any Lender or the Facility Manager, the
Borrower will furnish to the Facility Manager and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U.
4.13 ERISA. No "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred with respect to
any Plan that remains outstanding in any respect and that could reasonably be
expected to have a Material Adverse Effect. No Reportable Event has occurred,
each Plan has complied in all respects with the applicable provisions of ERISA
and the Code and no termination of a Single Employer Plan has occurred except
where such Reportable Event, noncompliance or termination could not reasonably
be expected to have a Material Adverse Effect. No Lien in favor of the PBGC or a
Plan has arisen that remains outstanding in any respect. The present value of
all accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits, except where any
such excess could not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Commonly
(TERM LOAN AGREEMENT)
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made, and no such Multiemployer Plan is in
Reorganization or is Insolvent, except in each instance where such withdrawal,
liability, Reorganization or Insolvency could not reasonably be expected to have
a Material Adverse Effect.
4.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not
an "investment company", within the meaning of the Investment Company Act of
1940, as amended. The Borrower is not subject to regulation under any Federal or
State statute or regulation which limits its ability to incur Indebtedness.
4.15 SUBSIDIARIES. All of the Subsidiaries of the Borrower at the
date hereof are set forth on Schedule 4.15. All Subsidiaries of the Borrower
which have guaranteed the Senior Notes or the Senior Subordinated Notes are
parties to the Subsidiaries Guarantee.
4.16 PURPOSE OF LOANS. The proceeds of the Loans shall be used on
the Closing Date, together with other funds available to the Borrower, including
without limitation, the proceeds of the Senior Notes, the proceeds of the Term A
Loans and the Revolving Credit Loans under the Credit Agreement, to refinance in
full the Existing Revolving Credit Loans and Existing Term Loans and to pay the
Transaction Costs in an aggregate amount not exceeding $10,000,000.
4.17 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 4.17:
(a) To the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower or any of its
Subsidiaries (the "PROPERTIES") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a violation of, or (ii)
could reasonably be expected to give rise to liability under, any
applicable Environmental Law except in either case insofar as such
violation or liability, or any aggregation thereof, is not reasonably
likely to result in the payment of a Material Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance, and have in the last 5
years been in compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any applicable Environmental Law with respect
to the Properties or the business operated by the Borrower or any of its
Subsidiaries (the "BUSINESS") except in either case with respect to any
instances of non-compliance or violation which individually or in the
aggregate
(TERM LOAN AGREEMENT)
would not be reasonably likely to result in the payment of a Material
Environmental Amount.
(c) Neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened except insofar as such
notice or threatened notice, or any aggregation thereof, does not involve
a matter or matters that is or are reasonably likely to result in the
payment of a Material Environmental Amount.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any Environmental
Law, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give
rise to liability under, any applicable Environmental Law except insofar
as any such violation or liability referred to in this subsection, or any
aggregation thereof, is not reasonably likely to result in the payment of
a Material Environmental Amount.
(e) No judicial or governmental or administrative action is pending
or, to the knowledge of the Borrower, threatened, under any Environmental
Law to which the Borrower or any Subsidiary is or, to the knowledge of the
Borrower, will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business except insofar as such proceeding,
action, decree, order or other requirement, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
(f) To the best knowledge of the Borrower, there has been no release
of Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, violation of or in amounts or in a manner that could
reasonably give rise to liability to the Borrower or its Subsidiaries
under applicable Environmental Laws except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
4.18 SENIOR INDEBTEDNESS. The obligations of the Borrower under this
Agreement and the Loan Documents constitute "Senior Indebtedness" and
"Designated Senior Indebtedness", as such terms are defined in the Senior
Subordinated Indenture; and the
(TERM LOAN AGREEMENT)
obligations of the Borrower under the Apparel Notes are subordinated in right of
payment to all amounts payable by the Borrower under this Agreement and the Loan
Documents and under any refinancing of such amounts (unless such refinancing is
not entitled to be "Senior Debt" as such term is defined in the Indenture
relating to the Old Playtex Products Subordinated Debt). This Agreement
constitutes a "Credit Agreement" as defined in the Senior Subordinated
Indenture, including without limitation for purposes of clauses (i) and (ii) of
the definition of "Permitted Indebtedness" and the definitions of "Senior
Indebtedness" and "Designated Senior Indebtedness"; and the security granted by
the Borrower's Subsidiaries to the Collateral Agent for the benefit of the
Lenders under the Security Documents constitutes either security permitted to be
granted by Subsidiaries for purposes of clause (c)(y)(1)(B) of Section 1013 of
the Senior Subordinated Indenture or a refinancing of permitted Liens pursuant
to clauses (ii) and (xiii) of the definition of "Permitted Indebtedness" under
the Senior Subordinated Indenture, and the Guarantee executed by the Borrower's
Subsidiaries constitutes either guarantees permitted to be granted by
Subsidiaries for purposes of clause (c)(y)(2)(iv) of Section 1013 of the Senior
Subordinated Indenture or a refinancing of permitted guarantees pursuant to
clauses (ii) and (xiii) of the definition of "Permitted Indebtedness" under the
Senior Subordinated Indenture. This Agreement constitutes a "Credit Agreement"
as defined in the Senior Note Indenture, including without limitation for
purposes of clauses (i) and (ii) of the definition of "Permitted Indebtedness"
and clause (i) of the definition of "Permitted Liens" and the Guarantee and the
Liens granted by the Borrower's Subsidiaries in favor of the Collateral Agent
for the benefit of the Lenders constitute permitted guarantees and Liens under
clause (ii) of the definition of "Permitted Indebtedness" under the Senior Note
Indenture.
4.19 DISCLOSURE. No statement or information (other than projections
and PRO FORMA financial information) contained in this Agreement, any other Loan
Document, the Offering Memorandum relating to the Senior Notes or any other
document, certificate or written statement furnished to the Agents or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or any other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Offering Memorandum, as of
the Closing Date) any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
materially misleading. The projections and PRO FORMA financial information
contained in the materials referenced above were prepared in good faith, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth thereto by a material amount. As of the Closing
Date, there is no fact known to any Loan Party and not previously disclosed to
the Agents and the Lenders in writing prior to the date hereof (other than
general economic conditions, which conditions are commonly known and affect
businesses generally) which has, or which could reasonably be expected to have,
in the reasonable judgment of such Loan Party, a Material Adverse Effect.
(TERM LOAN AGREEMENT)
4.20 COLLATERAL DOCUMENTS. Each of the Security Documents is
effective to create in favor of the Collateral Agent for the ratable benefit of
the Lenders and the lenders under the Credit Agreement, a legal, valid and
enforceable security interest in the Collateral described therein and when (i)
UCC financing statements have been filed in the offices listed on Schedule 4.20,
(ii) the Borrower Security Agreement and the Subsidiary Security Agreement have
been filed with the United States Patent and Trademark Office, (iii) the
Collateral Agent has possession of all Pledged Stock (as defined in the Pledge
Agreements) and (iv) the Existing Credit Agreement, the other Existing Loan
Documents and all filings made in connection therewith have been duly
terminated, such security interests will (except with respect to Inventory
located outside of the United States) constitute perfected liens on, and
security interests in, all right, title and interest of the Loan Party party
thereto in the Collateral described therein, subject only to Liens permitted to
exist pursuant to this Agreement.
SECTION 5. CONDITIONS PRECEDENT
5.1 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
and the agreement of each Lender to make the initial Loans requested to be made
by it is subject to the satisfaction, immediately prior to or substantially
concurrently with the making of such Loan on the Closing Date, of the following
conditions precedent:
(a) LOAN DOCUMENTS AND RELATED DOCUMENTS. The Syndication Agent
shall have received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each Lender,
(ii) the Senior Note Indenture, executed and delivered by a duly
authorized officer of the Borrower, (iii) the Credit Agreement, executed
by a duly authorized officer of the Borrower, (iv) the Guarantee, executed
and delivered by a duly authorized officer of each Domestic Subsidiary,
(v) the Subsidiary Stock Pledge Agreements executed by a duly authorized
officer of each Domestic Subsidiary, together with an Acknowledgement and
Consent thereto executed by a duly authorized officer of the Issuer (as
defined therein), (vi) the Subsidiary Security Agreements executed and
delivered by a duly authorized officer of each Domestic Subsidiary, (vii)
the Borrower Security Agreement, executed by a duly authorized officer of
the Borrower, (viii) the Borrower Stock Pledge Agreement, executed by a
duly authorized officer of the Borrower, together with an Acknowledgment
and Consent thereto executed by a duly authorized officer of Playtex
Beauty Care, Inc., Playtex Investment Corp., Playtex International Corp.,
Playtex Manufacturing, Inc., Playtex Sales & Services, Inc., Smile Tote,
Inc., Sun Pharmaceuticals Corp. and TH Marketing Corp., (ix) the Trademark
Subsidiary Agreement, executed and delivered by a duly authorized officer
of each party thereto, (x) for each Lender requesting the same pursuant to
subsection 3.2(e), its Notes executed by a duly authorized officer of the
Borrower and (xi) the Intercreditor Agreement, executed and delivered by a
duly authorized officer of each party thereto.
(TERM LOAN AGREEMENT)
(b) EXISTING RELATED AGREEMENTS. The Syndication Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Borrower, of the Trademark Licenses (as defined
in the Borrower Security Agreement), the Apparel Notes and such other
documents or instruments as may be reasonably requested by any Agent,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which the Borrower, or its
Subsidiaries may be a party.
(c) BORROWING CERTIFICATE. The Syndication Agent shall have received
a certificate of the Borrower, dated the Closing Date, substantially in
the form of Exhibit D, with appropriate insertions and attachments,
satisfactory in form and substance to the Syndication Agent, executed by
the President or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(d) CORPORATE PROCEEDINGS OF THE LOAN PARTIES. The Syndication Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Syndication Agent, of the Board of Directors of each
Loan Party authorizing (i) the execution, delivery and performance of the
Loan Documents to which it is a party, (ii) in the case of the Borrower,
the borrowings contemplated hereunder and (iii) the granting by it of the
Liens created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of such Loan Party as
of the Closing Date, which certificate shall be in form and substance
reasonably satisfactory to the Syndication Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(e) INCUMBENCY CERTIFICATES. The Syndication Agent shall have
received a certificate of each Loan Party, dated the Closing Date, as to
the incumbency and signature of the officers of such Loan Party executing
any Loan Document on the Closing Date, satisfactory in form and substance
to the Syndication Agent, executed by the President or any Vice President
and the Secretary or any Assistant Secretary of such Loan Party.
(f) CORPORATE DOCUMENTS. The Syndication Agent shall have received
true and complete copies of the certificate of incorporation and by-laws
of each Loan Party, certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary of such
Loan Party.
(g) CONSENTS, AUTHORIZATIONS AND FILINGS. The Syndication Agent
shall have received a certificate of a Responsible Officer of the Borrower
(i) attaching copies of all consents, authorizations and filings referred
to in subsection 4.4, and (ii) stating that such consents, authorizations
and filings are in full force and effect, and each such consent,
authorization and filing shall be in form and substance reasonably
satisfactory to the Syndication Agent.
(TERM LOAN AGREEMENT)
(h) FEES AND EXPENSES. The Agents, the Arranger, and the Lenders
shall have received the fees and expenses required to be received by it on
the Closing Date referred to in subsection 3.1.
(i) LEGAL OPINIONS. The Syndication Agent shall have received,
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx, counsel to the Borrower and the other Loan
Parties, substantially in the form of Exhibit E-1; and the executed
legal opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, with
respect to each of (1) the Senior Notes and the Senior Note
Indenture and (2) the Term A Loans, the Revolving Credit Loans and
the Credit Agreement, together with a reliance letter authorizing
the Facility Manager, the Syndication Agent and the Lenders to rely
on such opinions as though addressed to them;
(ii) the executed legal opinion of Xxxxxxxx and Xxxxxxxx,
X.X., special local counsel to the Borrower, substantially in the
form of Exhibit E-2;
(iii) the executed legal opinion of Xxxx X. Xxxxxxxxxxx,
General Counsel of the Borrower, substantially in the form of
Exhibit E-3;
(iv) the executed legal opinion of Xxxxxx, Xxxxxxxxx &
Xxxxxxxxx, special counsel to the Borrower with respect to
intellectual property matters, substantially in the form of Exhibit
E-4; and
(v) the executed legal opinion of Xxxxxxxxx, Xxxxx & Xxxxxx,
LLP, special local counsel to Smile Tote, Inc., substantially in the
form of Exhibit E-5.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Syndication Agent may
reasonably require.
(j) PLEDGED STOCK; STOCK POWERS. The Syndication Agent shall have
received stock certificates for each share of Capital Stock pledged
pursuant to the Borrower Pledge Agreement and pursuant to the Subsidiary
Stock Pledge Agreements, together with a blank undated stock power for
each such certificate signed by the pledgor of such certificate.
(k) ACTIONS TO PERFECT LIENS. The Syndication Agent shall have
received (i) UCC-1 Financing Statements in form and substance satisfactory
to the Syndication Agent and the Arranger for each jurisdiction listed on
Schedule III to the Borrower Security Agreement and Schedule III to the
Subsidiary Security Agreement and all other agreements, documents and
instruments that may be necessary or desirable in
(TERM LOAN AGREEMENT)
order to create in favor of the Collateral Agent, for the benefit of the
Lenders, a valid and perfected first priority security interest in the
Collateral, and (ii) UCC-3 Termination Statements in respect of each UCC-I
Financing Statement filed with respect to collateral securing the Existing
Credit Agreement or any guaranty obligations in connection therewith and
any other agreements, documents and instruments that may be necessary to
terminate the security interest granted to the agent under the Existing
Credit Agreement (including, without limitation, any termination
statements to be filed with the U.S. Patent and Trademark Office).
(l) LIEN SEARCHES. The Syndication Agent shall have received the
results of a recent search by a Person satisfactory to the Syndication
Agent of Uniform Commercial Code filings which may have been filed with
respect to personal property of the Borrower and its material domestic
Subsidiaries, and the results of such search shall be satisfactory to the
Syndication Agent.
(m) INSURANCE. The Syndication Agent shall have received evidence in
form and substance satisfactory to it that all of the requirements of
subsection 6.5 shall have been satisfied.
(n) ISSUANCE OF SENIOR NOTES AND THE BORROWING OF TERM A LOANS AND
REVOLVING CREDIT LOANS. (1) On or prior to the Closing Date, (a) the
Borrower and the other parties thereto shall have executed and delivered
the Senior Notes and the Senior Note Indenture, in each case all of the
terms and conditions (including without limitation with respect to
interest rates, amortization, maturity, representations and warranties,
covenants, remedies and events of default) of which, and all of the
exhibits of which, shall be in form and substance satisfactory to the
Syndication Agent and the Arranger, (b) all conditions precedent to the
issuance of the Senior Notes shall have been satisfied or, with the
consent of the Syndication Agent and the Arranger, waived, (c) the Senior
Notes shall have been issued under the Senior Note Indenture in an
aggregate principal amount of $150,000,000 and (d) the Borrower shall have
received gross proceeds from the issuance thereof in an aggregate amount
equal to $150,000,000. The Borrower shall have delivered to the
Syndication Agent a fully executed or conformed copy of the Senior Note
Indenture (including all exhibits and schedules thereto) and a specimen
copy of the Senior Notes.
(2) On or prior to the Closing Date, (a) the Borrower and the other
parties thereto shall have executed and delivered the Credit Agreement,
the promissory notes evidencing the Term A Loans, the Revolving Credit
Loans and the Intercreditor Agreement, in each case all of the terms and
conditions (including without limitation with respect to interest rates,
amortization, maturity, representations and warranties, covenants,
remedies and events of default) of which, and all of the exhibits of
which, shall be in form and substance satisfactory to the Syndication
Agent and the Arranger, (b) all conditions precedent to the borrowing of
the Term A Loans and the Revolving Credit Loans shall have been satisfied
or, with the consent of the Syndication Agent
(TERM LOAN AGREEMENT)
and the Arranger, waived and (c) the Borrower shall have received gross
proceeds from the borrowing of the Term A Loans and the Revolving Credit
Loans under the Credit Agreement in an aggregate amount equal to
$101,900,000. The Borrower shall have delivered to the Syndication Agent a
fully executed or conformed copy of the Credit Agreement and the
Intercreditor Agreement (including all exhibits and schedules thereto) and
copies of the promissory notes evidencing the Term A Loans and the
Revolving Credit Loans.
(o) TRANSACTION COSTS. The Transaction Costs shall not exceed
$10,000,000.
(p) REFINANCING OF EXISTING LOANS. The Syndication Agent shall have
received evidence satisfactory to it that (i) all Existing Revolving
Credit Loans and Existing Term Loans will be refinanced in full as
contemplated by subsection 4.16, (ii) the agent under the Existing Credit
Agreement will receive from the Borrower for, if applicable, the account
of the Existing Lenders (w) all accrued and unpaid interest under the
Existing Credit Agreement, (x) any costs payable to any Existing Lender
pursuant to the Existing Credit Agreement as a result of the refinancing
of such Existing Lender's Existing Term Loans or Existing Revolving Credit
Loans, (y) all accrued and unpaid fees (including letter of credit
commissions and commitment fees) owing under the Existing Credit Agreement
and (z) any other amounts owing to any Existing Lender under the Existing
Credit Agreement notified in writing to the Borrower by the existing agent
or any Existing Lender and (iii) the commitments to lend under the
Existing Credit Agreement will be terminated. The Borrower shall have
delivered to the Syndication Agent all termination statements,
satisfactions and releases as to any financing statements which shall
release all liens securing any and all indebtedness under the Existing
Credit Agreement and other releases relating to any guarantees executed in
connection therewith.
(q) FINANCIAL STATEMENTS.
(a) The Syndication Agent shall have received from the
Borrower (i) audited financial statements of the Borrower and its
consolidated Subsidiaries for fiscal years 1994, 1995 and 1996,
consisting of consolidated balance sheets and the related
consolidated statements of income and cash flows for such fiscal
years, and (ii) unaudited financial statements of the Borrower and
its consolidated Subsidiaries as at March 29, 1997 and June 28,
1997, each consisting of a consolidated balance sheet and the
related consolidated statements of income and cash flows for the
three-month period ending on such date, all in reasonable detail and
certified by a Responsible Officer of the Borrower that they fairly
present in material respects the consolidated financial condition of
the Borrower and its consolidated Subsidiaries as at the dates
indicated and the consolidated results of their operations and their
cash flows for the periods indicated, subject to changes resulting
from audit and normal year-end adjustments.
(TERM LOAN AGREEMENT)
(b) The Syndication Agent shall have received the PRO FORMA
balance sheet of the Borrower and its Subsidiaries referred to in
subsection 4.1(b), which shall be in form and substance satisfactory
to the Syndication Agent.
(r) NO MATERIAL ADVERSE CHANGE. Since December 28, 1996, or the date
of the audited financial statements most recently filed with the
Securities and Exchange Commission or other appropriate government agency,
no Material Adverse Effect shall have occurred.
(s) LITIGATION. There shall exist no pending or threatened material
litigation, proceedings or investigations which (x) would contest the
consummation of any of the Transactions or (y) could reasonably be
expected to have a Material Adverse Effect.
(t) TRANSACTIONS. The Syndication Agent and the Arranger shall be
reasonably satisfied that the aggregate sources of proceeds are sufficient
to consummate the Transactions.
(u) ADDITIONAL MATTERS. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the Syndication
Agent and the Arranger, and the Syndication Agent and the Arranger shall
have received such other documents in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall reasonably
request.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitments remain
in effect or any other amount is owing to any Lender or the Agents hereunder,
the Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to:
6.1 FINANCIAL STATEMENTS. Furnish to the Agents:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by KPMG Peat Marwick
or other independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Lenders; and
(TERM LOAN AGREEMENT)
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the corresponding figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein) and except that the quarterly financial statements
provided pursuant to subsection 6.1(b) shall only be required to include
footnotes to the extent such footnotes would be required to be included on Form
10-Q filed with the Securities and Exchange Commission.
6.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Agents:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and (b), a certificate of a Responsible
Officer stating that, to the best of such Officer's knowledge, the
Borrower during such period has observed or performed all of its covenants
and other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents, to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(c) not later than 45 days following the end of each fiscal quarter
of the Borrower, the Borrower shall deliver a certificate of a Responsible
Officer for any fiscal quarter in which aggregate Asset Sales exceed
$5,000,000 describing in reasonable detail such Asset Sales and the
derivation and intended application of the Net Cash Proceeds thereof;
(d) not later than 40 days after the end of each fiscal year of the
Borrower, a copy of the projections by the Borrower of the operating
budget and cash flow budget of the Borrower and its Subsidiaries for the
succeeding fiscal year prepared on a quarterly basis, such projections to
be accompanied by a certificate of a Responsible
(TERM LOAN AGREEMENT)
Officer to the effect that such projections have been prepared in good
faith on the basis of reasonable assumptions and that such Officer has no
reason to believe they are incorrect or misleading in any material
respect;
(e) within five days after the same are sent, (i) copies of all
financial statements and reports which the Borrower sends to its
stockholders, and (ii) within five days after the same are filed, copies
of all financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(f) promptly, such additional financial and other information as the
Agents or any Lender may from time to time reasonably request; PROVIDED
that any such information specifically requested by any Lender shall be
delivered to such Lender directly by the Borrower.
6.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except (a) if (i) in the
reasonable business judgment of the Borrower or such Subsidiary, as the case may
be, it is in its best economic interest not to preserve and maintain such
rights, privileges or franchises, and (ii) such failure to preserve and maintain
such rights, privileges or franchises would not, in the aggregate, be reasonably
likely to have a Material Adverse Effect and (b) as otherwise permitted pursuant
to subsection 7.8, comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect; and, with
respect to the Borrower on a consolidated basis, continue to engage in the
consumer products and related or incidental consumer services business and in
extensions of the Borrower's existing business and product lines.
6.5 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property useful and
necessary in its business in good working order and condition (normal wear and
tear excepted), except to the extent that the failure to do so with respect to
any such property would not individually or in the aggregate be reasonably
likely to have a Material Adverse Effect; maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general geographic area by companies engaged in the same or
a similar business (or, in
(TERM LOAN AGREEMENT)
lieu of or supplemental to such insurance, adopt such other plan or method of
protection, whether by the establishment of an insurance fund or reserve to be
held and applied to make good losses from casualties or liabilities, or
otherwise, and consistent with sound business practice, as may be determined by
the Board of Directors of the Borrower); and furnish to the Agents and each
Lender, upon written request, full information as to the insurance carried.
6.6 INSPECTION OF PROPERTY, BOOKS AND RECORDS; DISCUSSION. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Agent or Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time on any Business Day and as often as may reasonably be
desired and to discuss the business, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and employees of
the Borrower and its Subsidiaries and with its independent certified public
accountants; PROVIDED that such Agent or Lender shall notify the Borrower prior
to any contact with such accountants and shall give the Borrower the opportunity
to participate in such discussions.
6.7 NOTICES. Promptly give notice to the Agents of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of
its Subsidiaries in which the amount involved is $5,000,000 or more and
not covered by insurance or which would be reasonably likely to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contributor to a Plan, the
creation of any Lien (within the meaning of Section 4068 with respect to a
Plan) in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer Plan or
Multiemployer Plan;
(TERM LOAN AGREEMENT)
(e) any development or event which would be reasonably likely to
have a Material Adverse Effect; and
(f) no later than two Business Days prior to the making thereof, any
offer by the Borrower to purchase or any repayment of, as the case may be,
any Senior Subordinated Notes, Senior Notes or Term A Loans or any
termination of the Revolving Credit Commitments (as defined in the Credit
Agreement) pursuant to the Senior Subordinated Indenture, Senior Note
Indenture or Credit Agreement, respectively, in connection with the
occurrence of a "change of control" (as defined in the Senior Subordinated
Indenture/Senior Note Indenture or Credit Agreement, respectively).
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
The Facility Manager shall deliver to Lenders any and all financial
statements, certificates, notices, other information and documents provided by
the Borrower pursuant to the provisions of subsections 6.1, 6.2 and 6.7 promptly
upon its receipt thereof. Notwithstanding anything to the contrary stated in
this Agreement, upon the occurrence and during the continuance of an Event of
Default, any financial statements, certificates, notices, other information or
documents required to be delivered to the Agents by the Borrower pursuant to the
provisions of subsections 6.1, 6.2 and 6.7 shall be delivered directly by the
Borrower to the Agents and each Lender within the time period required
thereunder.
6.8 ENVIRONMENTAL LAWS. (a) Except as set forth on Schedule 6.8,
comply with, and use its reasonable best efforts to ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in an material respects with and maintain, and use its
reasonable best efforts to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws except to the extent that failure to do so could not be
reasonably expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
(TERM LOAN AGREEMENT)
SECTION 7. NEGATIVE COVENANTS
7.1 LIMITATION ON INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, issue, assume, guarantee, or
otherwise in any manner become directly or indirectly liable for or with respect
to or otherwise incur (collectively, "incur") any Indebtedness (including any
Acquired Indebtedness but excluding any Permitted Indebtedness); PROVIDED
HOWEVER that the Borrower and any Subsidiary that is a Guarantor may incur
Indebtedness if the Consolidated Fixed Charge Coverage Ratio for the Borrower
for the four full fiscal quarters immediately preceding the incurrence of such
Indebtedness taken as one period (and after giving pro forma effect to (i) the
incurrence of such Indebtedness and (if applicable) the application of the net
proceeds therefrom, including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds occurred, at the
beginning of such four-quarter period; (ii) the incurrence, repayment or
retirement of any other Indebtedness by the Borrower and its Subsidiaries since
the first day of such four-quarter period as if such Indebtedness was incurred,
repaid or retired at the beginning of such four-quarter period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such four-quarter period); (iii) in the case of Acquired
Indebtedness, the related acquisition (as if such acquisition had been
consummated on the first day of such four-quarter period); and (iv) any
acquisition or disposition by the Borrower and its Subsidiaries of any company
or any business or any assets out of the ordinary course of business, whether by
merger, stock purchase or sale, or asset purchase or sale or any related
repayment of Indebtedness, in each case since the first day of such four-quarter
period, as if such acquisition or disposition had been consummated on the first
day of such four-quarter period) is equal to or greater than 2.0:1.0.
7.2 LIMITATION ON RESTRICTED PAYMENTS.
(a) The Borrower will not, and will not permit any Subsidiary to,
directly or indirectly:
(i) declare or pay any dividend on, or make any distribution
to holders of, Capital Stock of the Borrower (other than dividends
or distributions payable in shares of Qualified Capital Stock of the
Borrower or in options, warrants or other rights to acquire such
Qualified Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any Capital Stock of the Borrower or
any Capital Stock of any Affiliate of the Borrower (other than
Capital Stock of any Subsidiary) or options, warrants or other
rights to acquire such Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any
scheduled principal payment,
(TERM LOAN AGREEMENT)
any sinking fund payment or maturity, (x) any Subordinated
Indebtedness or (y) any Senior Notes;
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Subsidiary to any Person (other than (x) with
respect to any Capital Stock held by the Borrower or any of its
Wholly Owned Subsidiaries or (y) with respect to Capital Stock held
by any other Person made on a pro rata basis consistent with the
ownership interests in such Capital Stock to the owners of such
Capital Stock);
(v) incur, create or assume any guarantee of Indebtedness of
any Affiliate of the Borrower (other than a Wholly Owned Subsidiary
of the Borrower); or
(vi) make any Investment in any Person (other than any
Permitted Investments);
(any of the payments described in paragraphs (i) through (vi) above, other
than any such action that is a Permitted Payment, collectively,
"Restricted Payments") unless at the time of and after giving effect to
the proposed Restricted Payment (the amount of any such Restricted
Payment, if other than cash, as determined by the Board of Directors,
whose determination shall be conclusive and evidenced by a board
resolution), (1) no Default or Event of Default shall have occurred and be
continuing; (2) immediately before and immediately after giving effect to
such transaction on a pro forma basis, the Borrower could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) under the
provisions described pursuant to subsection 7.1; and (3) the aggregate
amount of all such Restricted Payments declared or made after the date of
this Agreement does not exceed the sum of:
(A) $30,000,000;
(B) 50% of the aggregate cumulative Consolidated Net Income of
the Borrower accrued on a cumulative basis during the period
beginning on the first day of the Borrower's fiscal quarter
commencing prior to the date of this Agreement and ending on the
last day of the Borrower's last fiscal quarter ending prior to the
date of the Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
(C) the aggregate Net Cash Proceeds received after the date of
this Agreement by the Borrower from the issuance or sale (other than
to any of its Subsidiaries) of its Qualified Capital Stock or any
option, warrants or rights to purchase such Qualified Capital Stock
of the Borrower (except, in each case, to the extent such proceeds
are used to purchase, redeem or otherwise retire Capital Stock or
Subordinated Indebtedness as set forth below);
(TERM LOAN AGREEMENT)
(D) the aggregate Net Cash Proceeds received after the date of
this Agreement by the Borrower (other than from any of its
Subsidiaries) upon the exercise of any options or warrants to
purchase Qualified Capital Stock of the Borrower; and
(E) the aggregate Net Cash Proceeds received after the date of
this Agreement by the Borrower from debt securities or Redeemable
Capital Stock that have been converted into or exchanged for
Qualified Capital Stock of the Borrower to the extent such debt
securities or Redeemable Capital Stock are originally sold for cash
plus the aggregate Net Cash Proceeds received by the Borrower at the
time of such conversion or exchange.
(b) Notwithstanding the foregoing, and in the case of clauses (b),
(c) and (d) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(clauses (a) through (d) being referred to as a "Permitted Payment"):
(a) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would be permitted by the provisions of paragraph (a) of this
subsection 7.2 and such payment shall be deemed to have been paid on such
date of declaration for purposes of the calculation required by paragraph
(a) of this subsection 7.2;
(b) the repurchase, redemption or other acquisition or retirement of
any shares of Capital Stock of the Borrower in exchange for (including any
such exchange pursuant to the exercise of a conversion right or privilege
in connection therewith cash is paid in lieu of the issuance of fractional
shares or scrip), or out of the Net Cash Proceeds of, a substantially
concurrent issue and sale for cash (other than to a Subsidiary) of other
Qualified Capital Stock of the Borrower; PROVIDED that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock are
excluded from clause (C) of paragraph (a) of this subsection 7.2;
(c) any repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness or any Senior Notes in exchange for, or out of the net
proceeds of, a substantially concurrent issuance and sale for cash (other
than to any Subsidiary of the Borrower) of any Qualified Capital Stock of
the Borrower; PROVIDED that the Net Cash Proceeds from the issuance of
such Qualified Capital Stock are excluded from clause (C) of paragraph (a)
of this subsection 7.2; and
(d) the repurchase, redemption, defeasance, retirement, refinancing,
acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) or any Senior Notes (a
"refinancing") through the issuance of new Subordinated Indebtedness of
the Borrower or new Senior
(TERM LOAN AGREEMENT)
Indebtedness, respectively; PROVIDED that any such new Subordinated
Indebtedness or any such new Senior Indebtedness (1) shall be in a
principal amount that does not exceed the principal amount so refinanced
(or, if such old Subordinated Indebtedness or old Senior Indebtedness
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration or acceleration thereof, then such lesser
amount as of the date of determination), plus the lesser of (I) the stated
amount of any premium or other payment required to be paid in connection
with such a refinancing pursuant to the terms of the Subordinated
Indebtedness or Senior Indebtedness being refinanced or (II) the amount of
premium or other payment actually paid at such time to refinance the
Subordinated Indebtedness or Senior Indebtedness, plus, in either case,
the amount of expenses of the Borrower incurred in connection with such
refinancing; (2) has an Average Life to Stated Maturity greater than the
remaining Average Life to Stated Maturity of the Notes; (3) has a Stated
Maturity for its final scheduled principal payment later than the Stated
Maturity for the final scheduled principal payment of the Notes; and (4)
in the case of Subordinated Indebtedness is expressly subordinated in
right of payment to the Notes at least to the same extent as the
Subordinated Indebtedness to be refinanced.
7.3 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate of the Borrower (other than the Borrower or a Wholly Owned Subsidiary)
unless (i) such transactions or series of related transactions is in writing on
terms that are no less favorable to the Borrower or such Subsidiary, as the case
may be, than would be available in a comparable transaction in arm's-length
dealings with an unrelated third party and (ii) with respect to any transaction
or series of related transactions involving aggregate payments in excess of
$5,000,000, the Borrower delivers an officers' certificate to the Facility
Manager certifying that such transaction or series of related transactions
complies with clause (i) above and such transaction or series of related
transactions has been approved by a majority of the Disinterested Directors of
the Board of Directors; PROVIDED that any transaction or series of related
transactions otherwise permitted under this paragraph (other than any
transaction or series of related transactions with respect to the making of any
Permitted Investment pursuant to clause (vii) of the definition of "Permitted
Investment" or any Restricted Payment permitted pursuant to subsection 7.2)
pursuant to which the Borrower or any Subsidiary of the Borrower shall receive
or render value exceeding $25,000,000 shall not be permitted unless, prior to
the consummation of any such transaction or series of related transactions, the
Borrower shall have received an opinion, from an independent nationally
recognized investment banking firm or firm experienced in the appraisal or
similar review of similar types of transactions, that such transaction is fair
to the Borrower from a financial point of view; PROVIDED, FURTHER, that this
covenant shall not apply to (A) any transaction with an officer or member of the
Board of Directors of the Borrower entered into in the ordinary course of
business (including, without limitation, the Borrower 1994 Stock Option Plan and
(TERM LOAN AGREEMENT)
other compensation or employee benefit arrangements with any officer or member
of the Board of Directors of the Borrower), (B) transactions or agreements in
existence on the date of this Agreement (and extensions or amendments thereof on
terms which are not materially less favorable to the Borrower than the terms of
any such transaction or agreement as in existence on the date of this
Agreement), (C) directors' fees, (D) any reasonable employment agreement
approved by the Board of Directors of the Borrower and entered into in the
ordinary course of business of the Borrower or any extensions thereof on
substantially equivalent terms, (E) loans to employees not exceeding $1,500,000
in the aggregate outstanding at any time, (F) any employee benefit plan
available to employees of the Borrower generally, and (G) sales by the Borrower
of its products in the ordinary course of business on arm's-length terms.
(b) The Borrower will cause Playtex Investment Corp. not to amend,
modify or in any way alter the terms of the Agreement, dated as of November 5,
1991, between Playtex Investment Corp. and Playtex Apparel Partners, L.P. in a
manner adverse to the Borrower or any Subsidiary.
7.4 LIMITATION ON LIENS. The Borrower will not and will not permit
any Subsidiary to, create, incur, affirm or suffer to exist any Lien of any kind
(other than Permitted Liens) upon any property or assets (including any
intercompany notes) of the Borrower or any Subsidiary owned on the date of this
Agreement or acquired after the date of this Agreement, or any income or profits
therefrom.
If the Borrower or any of its Subsidiaries shall create or assume
any Lien upon any of its properties or assets, whether now owned or hereafter
acquired, other than Permitted Liens, it shall make or cause to be made
effective provision whereby the obligations of the Borrower and the Subsidiaries
under the Loan Documents will be secured by such Lien equally and ratably with
any and all other Indebtedness secured thereby as long as any such Indebtedness
shall be so secured; PROVIDED that, notwithstanding the foregoing, this
provision shall not be construed as a consent by the Lenders to the creation or
assumption of any such Lien other than a Permitted Lien.
7.5 LIMITATION ON SALE OF ASSETS.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) at
least 85% of the proceeds from such Asset Sale are received in cash; PROVIDED
HOWEVER, that the amount of (A) any Senior Indebtedness (as shown on the
Borrower's or such Subsidiaries' most recent balance sheet or in the notes
thereto) of the Borrower or any such Subsidiary that are assumed by the
transferee of any asset in connection with any Asset Sale and (B) any deferred
payment obligations received by the Borrower or any such Subsidiary as proceeds
of an Asset Sale that are concurrently with the Asset Sale converted into cash
without recourse to the Borrower or any of its Subsidiaries, shall be deemed to
be cash for purposes of this provision, (ii) the Borrower or such Subsidiary
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the shares or assets sold (as determined by the Board of
Directors of the Borrower and
(TERM LOAN AGREEMENT)
evidenced by a board resolution) and (iii) the Net Cash Proceeds received by the
Borrower or such Subsidiary from such Asset Sale are applied in accordance with
the following paragraphs. Notwithstanding the foregoing, clause (i) of the
preceding sentence shall not apply to any Asset Sale or portions thereof
involving Excluded Assets or the making of any Permitted Investment pursuant to
clause (vii) of the definition of "Permitted Investment" or any Restricted
Payment permitted pursuant to subsection 7.2.
(b) The Borrower may, within 12 months of such Asset Sale, invest
such Net Cash Proceeds in properties and assets that (as determined by the Board
of Directors) replace the properties and assets that were the subject of the
Asset Sale or in properties and assets that will be used in the businesses of
the Borrower or its Subsidiaries existing on the date of this Agreement or in a
business reasonably related thereto, which for purposes of this Agreement shall
include any consumer products business. The amount of such Net Cash Proceeds not
invested as set forth in this paragraph shall on or prior to the first
anniversary of such Asset Sale be applied by the Borrower to the prepayment, on
a pro rata basis with the prepayment of the Term A Loans and, from and after
December 15, 2000, the permanent reduction of the Acquisition Revolving Credit
Commitments under the Credit Agreement, of the Term Loans on or prior to the
Business Day following the date such Net Cash Proceeds are not so invested, at a
price equal to 100% of the principal amount thereof, plus accrued interest
thereon to the date of prepayment.
7.6 LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF
SUBSIDIARIES. The Borrower will not permit (a) any Subsidiary to issue any
Capital Stock (other than to the Borrower or any Wholly Owned Subsidiary that is
a Guarantor) or (b) any Person (other than the Borrower or a Wholly Owned
Subsidiary that is a Guarantor) to acquire any Capital Stock of any Subsidiary
from the Borrower or any Wholly Owned Subsidiary, except upon the sale of all of
the outstanding Capital Stock of such Subsidiary owned by the Borrower.
7.7 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make any other distribution on its Capital Stock to the
Borrower or any other Subsidiary, (b) pay any Indebtedness owed to the Borrower
or any Subsidiary, (c) make any Investment in the Borrower or (d) transfer any
of its properties or assets to the Borrower or any Subsidiary, except (i) any
encumbrance or restriction pursuant to the Senior Note Indenture, the
Subordinated Note Indenture or the Credit Agreement as in effect on the date of
this Agreement or any other agreement in effect on the date of this Agreement,
(ii) any encumbrance or restriction, with respect to a Subsidiary that is not a
Subsidiary of the Borrower on the date of this Agreement, in existence at the
time such Person becomes a Subsidiary of the Borrower and not incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary,
(iii) customary provisions restricting subletting or assignment of any lease
governing a leasehold interest of the Borrower or any Subsidiary, (iv) any
encumbrance or restriction contained in a working capital facility permitted to
be incurred pursuant to paragraph (xi) of the definition of "Permitted
(TERM LOAN AGREEMENT)
Indebtedness" and (v) any encumbrance or restriction existing under any
agreement that extends, renews, refinances or replaces the agreements containing
the encumbrances or restrictions in the foregoing clauses (i) and (ii), PROVIDED
that the terms and conditions of any such encumbrances or restrictions are not
materially less favorable to the holders of the Notes than those under or
pursuant to the agreement evidencing the Indebtedness so extended, renewed,
refinanced or replaced.
7.8 CONSOLIDATION, MERGER, SALE OF ASSETS. The Borrower shall not,
in a single transaction or a series of related transactions, consolidate with or
merge with or into any other Person or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to
any Person or group of affiliated Persons, or permit any of its Subsidiaries to
enter into any such transaction or transactions if such transaction or
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Borrower and its Subsidiaries on a Consolidated basis to any other
Person or group of affiliated Persons, unless at the time and after giving
effect thereto (i) either (a) the Borrower shall be the continuing corporation
or (b) the Person (if other than the Borrower) formed by such consolidation or
into which the Borrower is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially all
of the properties and assets of the Borrower and its Subsidiaries on a
Consolidated basis (the "Surviving Entity") shall be a corporation duly
organized and validly existing under the laws of the United States of America,
any state thereof or the District of Columbia and such Person assumes by a
supplemental agreement in a form reasonably satisfactory to the Facility
Manager, all the obligations of the Borrower under the Notes and this Agreement,
and this Agreement shall remain in full force and effect; (ii) immediately
before and immediately after giving effect to such transaction on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing;
(iii) immediately before and immediately after giving effect to such transaction
on a pro forma basis (on the assumption that the transaction occurred on the
first day of the four-quarter period immediately prior to the consummation of
such transaction with the appropriate adjustments with respect to the
transaction being included in such pro forma calculation), the Borrower (or the
Surviving Entity if the Borrower is not the continuing obligor under this
Agreement) could incur $1.00 of additional Indebtedness pursuant to subsection
7.1 (other than Permitted Indebtedness); (iv) each Guarantor unless it is the
other party to the transactions described above, shall have by supplemental
agreement confirming that its Guarantee shall apply to such Person's obligations
under this Agreement and the Notes; (v) if any of the property or assets of the
Borrower or any of its Subsidiaries would thereupon become subject to any Lien,
the provisions of subsection 7.4 are complied with; and (vi) the Borrower or the
Surviving Entity shall have delivered, or caused to be delivered, to the
Facility Manager, in form and substance reasonably satisfactory to the Facility
Manager, an officers' certificate and an opinion of counsel, each to the effect
that such consolidation, merger, transfer, sale, assignment, lease or other
transaction and the supplemental agreement in respect thereto comply with the
provisions described herein and that all conditions precedent herein provided
for relating to such transaction have been complied with.
(TERM LOAN AGREEMENT)
Each Guarantor shall not, and the Borrower will not permit a
Guarantor to, in a single transaction or series of related transactions, merge
or consolidate with or into any other corporation (other than the Borrower or
any other Guarantor) or other entity, or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties and assets on
a Consolidated basis to any entity (other than the Borrower or any other
Guarantor) unless at the time and after giving effect thereto: (i) either (a)
such Guarantor shall be the continuing corporation or (b) the entity (if other
than such Guarantor) formed by such consolidation or into which such Guarantor
is merged or the entity which acquires by sale, assignment, conveyance,
transfer, lease or disposition the properties and assets of such Guarantor shall
be a corporation duly organized and validly existing under the laws of the
United States, any state thereof or the District of Columbia and shall expressly
assume by a supplemental agreement, executed and delivered to the Facility
Manager, in a form reasonably satisfactory to the Facility Manager, all the
obligations of such Guarantor under the Subsidiaries Guarantee, the Notes and
this Agreement; (ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing; and (iii) such Guarantor shall have delivered to the
Facility Manager, in form and substance reasonably satisfactory to the Facility
Manager, an officers' certificate and an opinion of counsel, each stating that
such consolidation, merger, sale, assignment, conveyance, transfer, lease or
disposition and such supplemental agreement comply with this Agreement, and
thereafter all obligations of the predecessor shall terminate.
Notwithstanding the foregoing, in the event of a sale or other
disposition of all or substantially all of the assets of the Guarantor or any
other Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of such Guarantor, then such
Guarantor (in the event of a sale or other disposition, by way of such merger,
consolidation or otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such Guarantor) shall
be released and relieved of any obligations under its Guarantee.
In the event of any transaction described in and complying with the
conditions listed in the immediately preceding paragraphs in which the Borrower
or any Guarantor is not the continuing corporation, the successor Person formed
or remaining shall succeed to, and be substituted for, and may exercise every
right and power of, the Borrower or such Guarantor, as the case may be, and the
Borrower or such Guarantor, as the case may be, would be discharged from all
obligations and covenants under this Agreement, the Notes and such Guarantee, as
the case may be; PROVIDED that in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal and interest on
the Notes or such Guarantee, as the case may be.
7.9 CERTAIN PROVISIONS RELATING TO OTHER DEBT INSTRUMENTS. The
Borrower will not, and will not permit any of its Subsidiaries to, (a) make any
optional payment or optional prepayment on or redemption or purchase of any
Indebtedness (other than the notes and the loans under the Credit Agreement to
the extent not prohibited under this Agreement)
(TERM LOAN AGREEMENT)
or pay any interest on any Indebtedness in cash which may in accordance with the
terms thereof be paid by the issuance of additional Indebtedness or offer to do
any of the foregoing, except that (i) the Borrower may redeem or purchase any of
the Senior Subordinated Notes or the Senior Notes with 50% of the Net Cash
Proceeds from any offering of Capital Stock of the Borrower subsequent to the
Closing Date (other than any such offering to the extent the Net Cash Proceeds
of which are used to make an investment or acquisition permitted by subsection
7.2), and (ii) the Borrower may pay interest in cash on the Apparel Notes on
each scheduled interest payment date therefor so long as (x) no Default or Event
of Default has occurred and is continuing or would result therefrom, (y) the
amount of such payment is net of all interest accrued and unpaid on the PAP
Debenture for the same period as the Borrower's cash interest payment on the
Apparel Notes and (z) the net cash payment by the Borrower does not exceed
$150,000 in any fiscal year; (b) amend, modify or change, or consent or agree to
any such amendment, modification or change in any material respect to, any of
the terms of any such Indebtedness (other than under the Credit Agreement),
including, without limitation, the Senior Subordinated Note Indenture and the
Senior Note Indenture (other than any such amendment, modification or change
which would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon); or (c) amend, modify or change, or consent or agree to any
such amendment, modification or change in any material respect to, any of the
provisions of the Credit Agreement that would have the effect of (i) shortening
the maturity of or requiring the earlier payment of any principal of any loan or
letter of credit reimbursement obligations under the Credit Agreement, (ii)
changing the definition of "Required Lenders" in the Credit Agreement, or (iii)
changing any mandatory prepayments or commitment reductions pursuant to a
"Material Asset Sale" (as such term is defined in the Credit Agreement) in a
manner that disproportionately disadvantages the Lenders relative to the lenders
under the Credit Agreement, in each case without the prior written consent of
the Required Lenders under this Agreement. The Borrower hereby designates all of
its obligations under this Agreement and the other Loan Documents as "Designated
Senior Indebtedness" for purposes of the Senior Subordinated Note Indenture.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) there shall be a default in the payment of any interest on any
Loans when it becomes due and payable, and such default shall continue for
a period of 5 Business Days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Loan when and as the same shall become due and
payable (upon acceleration, optional or mandatory redemption, required
repurchase or otherwise);
(TERM LOAN AGREEMENT)
(c) (i) there shall be a default in the performance, or breach, of
any covenant or agreement of the Borrower or any Guarantor under this
Agreement or the other Loan Documents (other than a default in the
performance, or breach, of a covenant or agreement which is specifically
dealt with in paragraphs (a) or (b) above or in clauses (ii) and (iii) of
this paragraph (c)) and such default or breach shall continue for a period
of 30 days after written notice has been given, by certified mail, to the
Borrower by the Facility Manager; or (ii) there shall be a default in the
performance or breach of the provisions described in subsection 7.8; or
(iii) there shall be a default in the performance of or breach of the
provisions of Section 4 of the Borrower Security Agreement;
(d) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Loans) or in the payment of any Guaranteed Debt (other than the Loans), in
either case in an aggregate outstanding principal amount in excess of
$25,000,000 beyond the period of grace (not to exceed 60 days), if any,
provided in the instrument or agreement under which such Indebtedness or
Guaranteed Debt was created, after giving effect to any consents or
waivers relating thereto, or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guaranteed Debt or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Guaranteed Debt (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guaranteed Debt to become
payable in an aggregate amount exceeding $25,000,000 and either (X) such
default or breach under clause (i) or clause (ii) hereof continues for a
period of 20 Business Days and is not cured or waived during such period;
or (Y) such Indebtedness or Guaranteed Debt is either already matured at
its final maturity in accordance with its terms or shall be accelerated;
(e) any Guarantee shall for any reason cease to be, or be asserted
in writing by any Guarantor or the Borrower not to be, in full force and
effect, enforceable in accordance with its terms, except to the extent
contemplated by this Agreement and any such Guarantee;
(f) one or more final judgments, orders or decrees for the payment
of money in excess of $15,000,000, either individually or in the
aggregate, shall be entered against the Borrower or any Subsidiary or any
of their respective properties and shall not be discharged and either (a)
enforcement proceedings shall have been commenced upon such judgment,
order or decree or (b) there shall have been a period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of an appeal or otherwise, shall not be in effect;
(TERM LOAN AGREEMENT)
(g) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the
Borrower, any Guarantor or any Material Subsidiary in an involuntary case
or proceeding under any applicable Bankruptcy Law or (ii) a decree or
order adjudging the Borrower or any Guarantor or any Material Subsidiary
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment
or composition of or in respect of the Borrower, any Guarantor or any
Material Subsidiary under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Borrower, any Guarantor or any
Material Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and any such decree
or order for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of 60
consecutive days;
(h) (i) The Borrower, any Guarantor or any Material Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy
Law or any other case or proceeding to be adjudicated bankrupt or
insolvent, (ii) the Borrower, any Guarantor or any Material Subsidiary
consents to the entry of a decree or order for relief in respect of the
Borrower, such Guarantor or such Material Subsidiary in an involuntary
case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, (iii) the Borrower, any Guarantor or any Material Subsidiary files a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, (iv) the Borrower, any Guarantor or any
Material Subsidiary (x) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Borrower, any Guarantor or such Material Subsidiary or of any substantial
part of its property, (y) makes an assignment for the benefit of creditors
or (z) admits in writing its inability to pay its debts generally as they
become due or (v) the Borrower, any Guarantor or any Material Subsidiary
takes any corporate action in furtherance of any such actions in this
paragraph (h);
(i) (i) Any of the Security Documents shall cease, for any reason,
to be in full force and effect, or the Borrower or any other Loan Party
which is a party to any of the Security Documents shall so assert or (ii)
the Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
(j) Any of the subordination provisions in Article Twelve of the
Senior Subordinated Indenture shall cease, for any reason, to be in full
force and effect, or the Borrower or any other party to the Senior
Subordinated Indenture or any holder of the Senior Subordinated Notes
shall so assert;
then, and in any such event, (1) if such event is an Event of Default specified
in paragraph (g) or (h) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing
(TERM LOAN AGREEMENT)
under this Agreement shall immediately become due and payable, and (2) if such
event is any other Event of Default, the following actions may be taken: with
the consent of the Required Lenders, the Facility Manager may, or upon the
request of the Required Lenders, the Facility Manager shall, by notice to the
Borrower (i) declare the Commitments to be terminated forthwith whereupon the
Commitments shall immediately terminate and (ii) declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this Agreement
to be due and payable forthwith, whereupon the same shall immediately become due
and payable.
Except as expressly provided above in this Section 8, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE AGENTS
9.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints Xxxxx Fargo as the Facility Manager of such Lender under this Agreement
and the other Loan Documents, and each Lender hereby irrevocably designates and
appoints DLJ as the Syndication Agent under this Agreement and the other Loan
Documents. Each Lender hereby confirms the appointment by the Facility Manager
of Xxxxx Fargo as the Collateral Agent under the Intercreditor Agreement. Each
Lender irrevocably authorizes each Agent to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to such Agent by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. As between the Lenders and
the Agents, notwithstanding any provision to the contrary elsewhere in this
Agreement, no Agent shall have any duties or responsibilities, except those
expressly set forth herein or in other Loan Documents, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent. The
provisions of this Section 9 are solely for the benefit of each Agent, and the
Lenders and the Borrower shall have no rights as a third party beneficiary of
any of the provisions thereof.
9.2 DELEGATION OF DUTIES. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 EXCULPATORY PROVISIONS. None of the Agents or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (a) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer
(TERM LOAN AGREEMENT)
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents, under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. No Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower.
9.4 RELIANCE BY AGENTS. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Agents. Each Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Facility Manager,
which shall promptly forward such notice to other Agents. Each Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the other Loan Documents, in
the case of the Agent other than the Collateral Agent, in accordance with a
request of the Required Lenders (unless the consent of all Lenders is expressly
required under subsection 10.1) or, in the case of the Collateral Agent, in
accordance with the Intercreditor Agreement, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.
9.5 NOTICE OF DEFAULT. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that any Agent receives such a
notice, such Agent shall give notice thereof to the Lenders and the other
Agents. The Facility Manager shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required Lenders
(unless the consent of all Lenders is expressly required under subsection 10.1);
PROVIDED that unless and until the Facility Manager shall have received such
directions, the Facility Manager may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
(TERM LOAN AGREEMENT)
9.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender expressly
acknowledges that none of the Agents or any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by such Agent to any Lender. Each
Lender represents to each Agent that it has, independently and without reliance
upon such Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by any Agent
hereunder, no Agent shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of any Agent or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
9.7 INDEMNIFICATION. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) and their respective
Affiliates and their respective directors, officers, employees and agents,
ratably according to their respective pro rata shares of the aggregate
outstanding Loans in effect on the date on which indemnification is sought (or,
if indemnification is sought after the date upon which the Commitments shall
have terminated and the Loans shall have been paid in full, ratably in
accordance with their pro rata shares of the aggregate Loans immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Agent under or in connection with any of
the foregoing; PROVIDED that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent's
contractual breach, gross negligence or willful misconduct. The agreements in
this subsection 9.7 shall survive the payment of the Loans and all other amounts
payable hereunder.
(TERM LOAN AGREEMENT)
9.8 AGENT IN ITS INDIVIDUAL CAPACITY. Any Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though such Agent were not an Agent hereunder and
under the other Loan Documents. With respect to its Loans made by it and with
respect to any Letter of Credit issued or participated in by it, if any, such
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include such Agent in its
individual capacity.
9.9 SUCCESSOR AGENTS. The Syndication Agent may resign at any time
upon ten Business Days' notice thereof to the Borrower and other Agents. The
Facility Manager may resign as Facility Manager upon 30 days' notice to the
other Agents and the Lenders. If the Facility Manager or the Syndication Agent
shall resign as an Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall, unless an Event of Default has
occurred and is continuing, be approved by the Borrower, whereupon such
successor agent shall succeed to the rights, powers, and duties of the Facility
Manager or the Syndication Agent, as the case may be, and the term "Facility
Manager" or "Syndication Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Facility Manager's or Syndication
Agent's rights, powers and duties as Facility Manager or Syndication Agent, as
the case may be, shall be terminated, without any other or further act or deed
on the part of such former Facility Manager or Syndication Agent or any of the
parties to this Agreement. After any retiring Facility Manager's or Syndication
Agent's resignation, the provisions of this Section 12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Facility Manager or Syndication Agent, as the case may be, under this Agreement
and the other Loan Documents. The terms of the resignation of the Collateral
Agent shall be as set forth in the Intercreditor Agreement.
9.10 INTERCREDITOR AGREEMENT AND COLLATERAL DOCUMENTS.
(a) Each Lender hereby authorizes the Facility Manager to enter into
the Intercreditor Agreement on behalf of and for the benefit of such Lender, and
agrees to be bound by the terms of the Intercreditor Agreement; PROVIDED that
the Facility Manager shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in the
Intercreditor Agreement without the prior consent of Required Lenders. Each
Lender hereby authorizes the Collateral Agent to enter into the Guarantee and
the Security Documents and to take all action contemplated by the Intercreditor
Agreement; PROVIDED that the Collateral Agent shall not enter into or consent to
any amendment, modification, termination or waiver of any provision contained in
the Guarantee or Security Document without the prior consent of Required
Lenders. Each Lender agrees that no Lender shall have any right individually to
seek or to enforce the Guarantee or to realize upon the security granted by any
Security Document, it being understood and agreed that such rights and remedies
may be exercised by the Collateral Agent for the benefit of Lenders and the
parties to the Intercreditor Agreement upon the terms of the Guarantee, the
Security
(TERM LOAN AGREEMENT)
Documents and the Intercreditor Agreement. Each Lender and Agent hereby
authorizes the Collateral Agent to release any Collateral as permitted or
required under this Agreement, the Security Documents and the Intercreditor
Agreement, and agrees that a certificate executed by the Collateral Agent
evidencing the release of such Collateral shall be conclusive evidence of such
release as to any third party.
(b) If there is any conflict between this Agreement and any other
Loan Document, except the Intercreditor Agreement, this Agreement and such other
Loan Document shall be interpreted and construed, if possible, so as to avoid or
minimize such conflict but, to the extent (and only to the extent) of such
conflict, this Agreement shall prevail and control. If there is any conflict
between the Intercreditor Agreement and any Loan Document, including this
Agreement, the Intercreditor Agreement and such Loan Document shall be
interpreted and construed, if possible, so as to avoid or minimize such conflict
but, to the extent (and only to the extent) of such conflict, the Intercreditor
Agreement shall prevail and control.
9.11 OTHER TITLES. None of the Lenders identified on the facing page
or signature pages of this Agreement as an "arranger" or other similar title or
capacity shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified as an
"arranger" or other similar title or capacity shall have or be deemed to have
any fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on any of the Lenders so identified in deciding
to enter into this Agreement or taking or not taking action hereunder.
SECTION 10. MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified, except in accordance with the provisions of this subsection 10.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Facility Manager may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Facility Manager, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; PROVIDED
HOWEVER, that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of maturity of any Loan
or any installment thereof, or reduce the stated rate of any interest or fee or
premium payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Commitments,
in each case without the consent of each Lender affected thereby (provided that
with the consent
(TERM LOAN AGREEMENT)
of Lenders holding 80% of the outstanding Loans the date of any scheduled
installment of the Loans may be extended to a date not later than September 15,
2003), (ii) amend, modify or waive any provision of this subsection 10.1 or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents or release a
material portion of the Collateral (an increase in the amount of any
Indebtedness of the Borrower secured ratably by the Collateral shall not be
deemed to be a release of Collateral) or any Guarantee other than as provided
for herein, in each case without the written consent of all the Lenders, or
(iii) amend, modify or waive any provision of Section 9 without the written
consent of the Agents and the Collateral Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Lenders, the Agents and the
Collateral Agent. In the case of any waiver, the Borrower, the Lenders, the
Agents and the Collateral Agent shall be restored to their former positions and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any or other Default or Event of Default, or impair any
right consequent thereon. Each Lender agrees that, in the event of any
amendment, supplement or modification to or waiver of any of the terms of this
Agreement that would cause any Note that might be issued to it under subsection
3.2(e) after such amendment, supplement, modification or waiver to be different
from any Note held by it, such Lender will promptly endorse such Note held by it
to reflect such amendment, supplement, modification or waiver.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or 3 days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Agents, and as set forth in Schedule 1.1 in the case of the other parties
hereto, or to such other address as may be hereafter notified by the respective
pages hereto:
The Borrower: Playtex Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telecopy: 000-000-0000
With a copy to: Xxxx Wheat & Partners Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
Telecopy: 000-000-0000
(TERM LOAN AGREEMENT)
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Telecopy: 212-757-3990
The Facility Manager: Xxxxx Fargo Bank, N.A.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: 000-000-0000
With a copy to: Xxxxx Fargo Bank, N.A.
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopy: 000-000-0000
The Syndication Agent: DLJ Capital Funding, Inc.
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Xxxxx Xxxxx
Telecopy: (000) 000-0000
PROVIDED that any notice, request or demand to or upon the Agents or the Lenders
pursuant to subsection 3.3, 3.4 or 3.8 shall not be effective until received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
(TERM LOAN AGREEMENT)
10.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees, without
duplication of any amounts payable pursuant to subsection 3.1, (a) to pay or
reimburse the Arranger and the Syndication Agent for all of their respective
out-of-pocket costs and expenses (including all out-of-pocket costs and expenses
arising in connection with the syndication of the Loans and any due diligence
investigation performed by the Arranger or the Syndication Agent) incurred in
connection with the development, negotiation, preparation, execution and
delivery of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, whether or not any of the Transactions has been
consummated, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the fees and
disbursements of counsel to the Arranger and the Syndication Agent, and to pay
or reimburse each Agent and the Collateral Agent for any such fees, costs and
expenses related to periods subsequent to the Closing Date, (b) to pay or
reimburse the Agents, the Collateral Agent, the Arranger and, from and after the
occurrence of a Default or an Event of Default, each Lender, for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable and documented fees and
disbursements of counsel to the Agents, the Collateral Agent and the Arranger
and each Lender, (c) to pay, indemnify, and hold each Lender, each Agent, the
Collateral Agent, the Arranger and their respective Affiliates and their
respective directors, trustees, officers, employees and agents and each other
Person controlling any of the foregoing within the meaning of either Section 15
of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended, harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender, each
Agent, the Collateral Agent, the Arranger and their respective Affiliates and
their respective directors, officers, employees and agents and each other Person
controlling any of the foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act
of 1934, as amended, harmless from and against any and all other claims,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents, or the use of the proceeds of the Loans and
any such other documents, including without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "INDEMNIFIED LIABILITIES") (including all legal and other
expenses incurred in connection with investigation, defending or participating
in any action or proceeding relating to any indemnified liabilities (whether or
not such Person is a party to any such action or proceeding), PROVIDED that the
Borrower shall have no obligation hereunder to any Person with
(TERM LOAN AGREEMENT)
respect to indemnified liabilities arising from the contractual breach, gross
negligence or willful misconduct of such Person as determined by a final
judgment of a court of competent jurisdiction. The agreements in this subsection
shall survive repayment of the Loans and all other amounts payable hereunder
and, in the case of any Lender that may assign any interest in its Commitments
or Loans hereunder, shall (to the extent arising out of such time as it was a
Lender) survive the making of such assignment, notwithstanding that such
assigning Lender may cease to be a party hereto.
10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agents and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks, financial
institutions, or other entities ("PARTICIPANTS") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Facility Manager shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, PROVIDED that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 3.11, 3.12, 3.13 and 10.5 with respect
to its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender, PROVIDED that, in the case of subsection 3.12, such
Participant shall have complied with the requirements of said subsection and
PROVIDED, FURTHER, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred. Participants (other than an Affiliate of the Lender granting such
participation) shall not be entitled to require such Lender to take or omit to
take any action hereunder except action directly affecting (i) the extension of
the scheduled final maturity date of any portion of the principal amount of or
the postponement of the date of payment of interest on any Loan allocated to
such Participant (it
(TERM LOAN AGREEMENT)
being understood that changes in interim amortization amounts are not extensions
of scheduled final maturity dates), or (ii) a reduction of the principal amount
of or the rate of interest payable on any Loan allocated to such Participant
(other than any waiver of any increase in the interest rate applicable to Loans
pursuant to subsection 3.6(c)).
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any Affiliate thereof or, with the consent of the Borrower and, in the
case of assignments by Lenders other than the Syndication Agent, the Facility
Manager (which in each case shall not be unreasonably withheld), to an
additional bank or financial institution or other entity (an "ASSIGNEE") all or
any part of its rights and obligations (in minimum amounts equal to at least
$5,000,000 of the aggregate Commitments and outstanding Loans in the case of an
Assignee that is not then a Lender or an Affiliate thereof unless such
assignment is of all of a Lender's interest hereunder) under this Agreement and
the other Loan Documents pursuant to an Assignment and Acceptance, substantially
in the form of Exhibit F, executed by such Assignee, such assigning Lender (and,
in the case of an Assignee that is not then a Lender or an Affiliate thereof, by
the Borrower and the Facility Manager) and delivered to the Facility Manager for
its acceptance and recording in the Register. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (i) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with Commitments as set forth
therein, and (ii) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto, except that
it shall (to the extent arising out of such time as it was a Lender) remain
entitled to the benefit of the indemnities and other rights stated to survive
the termination hereof).
(d) The Facility Manager, acting for this purpose as an agent of the
Borrower, shall maintain at its address referred to in subsection 10.2 a copy of
each Assignment and Acceptance delivered to it and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive and the Borrower, the Facility
Manager and the Lenders shall treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Facility Manager
in accordance with the provisions of subsection 10.6(c)) together with payment,
unless waived by the Syndication
(TERM LOAN AGREEMENT)
Agent, to the Facility Manager of a registration and processing fee of $3,500,
the Facility Manager shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower. No assignment shall be
effective unless it has been recorded in the Register as provided in this
subsection 10.6(e).
(f) Subject to the provisions of subsection 10.17, the Borrower
authorizes each Lender to disclose to any Participant or Assignee (each, a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the Borrower and its Affiliates which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law or any pledge or
assignment of any Loan or Note by a Lender that is an investment fund to its
trustee in support of its obligations to its trustee, without notice to or
consent of the Borrower or the Agents; PROVIDED HOWEVER that any assignment by
such trustee shall be subject to the provisions of subsection 13.6(c) hereof.
10.7 ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of its Loans owing to it,
or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 8(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans owing to it, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all
(TERM LOAN AGREEMENT)
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Facility Manager after any such set-off
and application made by such Lender, PROVIDED that the failure to give such
notice shall not affect the validity of such set-off and application.
(c) The Borrower, the Lenders and the Facility Manager hereby
acknowledge and agree that the provisions of this subsection 10.7 are subject to
the provisions of the Intercreditor Agreement. To the extent that any Lender is
required pursuant to the provisions of the Intercreditor Agreement to turn over
to the Collateral Agent any payments otherwise subject to the provisions of this
subsection 10.7, such payments shall not be subject to the provisions of this
subsection 10.7.
10.8 RELEASE OF NEW SUBSIDIARY GUARANTEES. (a) If required to do so
pursuant to the provisions of subsection 13.8 of the Credit Agreement, the
Collateral Agent shall release each New Subsidiary (as defined in the Credit
Agreement) requested to be released from the Guarantee, PROVIDED that prior to
or concurrently with such release, any guarantee by such New Subsidiary of the
Senior Subordinated Notes, the Senior Notes and the Credit Agreement is
released; and provided further that the foregoing provisions shall be subject to
the terms of the Intercreditor Agreement.
(b) If (i) in connection with the dissolution or liquidation of any
New Subsidiary permitted hereunder or (ii) with respect to any New Subsidiary
which does not have any assets other than DE MINIMIS assets, the Borrower
requests the Collateral Agent to release such New Subsidiary from the Guarantee,
the Collateral Agent shall so release such New Subsidiary PROVIDED that prior to
or concurrently with such release, any guarantee by such New Subsidiary of the
Senior Subordinated Notes, the Senior Notes and the Credit Agreement is
released; and provided further that the foregoing provisions shall be subject to
the terms of the Intercreditor Agreement.
10.9 MODIFICATION OF SCHEDULES. The Borrower may, from time to time,
amend, supplement or otherwise modify any of the Schedules to this Agreement by
delivering a copy of such amended, supplemented or modified Schedule to the
Agents (which schedule the Facility Manager shall deliver a copy to each Lender)
in accordance with the provisions of subsection 10.2 and such Schedule as
amended, supplemented or modified shall be deemed to replace and supersede the
existing Schedule unless objected to in writing by the Agents or the Required
Lenders within 10 days after receipt thereof by the Lenders.
10.10 COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and
(TERM LOAN AGREEMENT)
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Facility Manager.
10.11 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the removing provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.12 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agents or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or the other Loan
Documents.
10.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTES
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
10.14 SUBMISSION TO JURISDICTION; WAIVERS. (a) The Borrower hereby
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the nonexclusive general
jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York
and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail),
postage prepaid, to the Borrower at its address set forth in
subsection 10.2 or at such other address of which the Facility
Manager shall have been notified pursuant thereto; and
(TERM LOAN AGREEMENT)
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
(b) Each of the Borrower, the Facility Manager and the Lenders
hereby irrevocably and unconditionally waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this subsection any special, exemplary, punitive or
consequential damages.
10.15 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes and the other Loan Documents;
(b) none of the Agents, the Collateral Agent or any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Agents, the Collateral Agent or any Lender, on one
hand, and the Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE FACILITY MANAGER AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.17 CONFIDENTIALITY. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
and each other Loan Document that is designated by the Borrower in writing
confidential; PROVIDED that nothing herein shall prevent any Lender from
disclosing any such information (a) to the Agents or any other Lender, (b) to
any Transferee which receives such information having been made aware of the
confidential nature thereof or to any direct or indirect contractual
counterparties in swap agreements or such contractual counterparties'
professional advisors provided that such contractual counterparties or their
professional advisors agree to handle the above-described confidential
information in accordance with safe and sound practices which are substantially
the same as those followed by banking institutions, (c) to its employees,
directors, agents, attorneys, accountants and other professional advisors, (d)
upon the request or demand of any Governmental Authority having jurisdiction
over such Lender (provided that notice of such request or demand shall be
furnished to the Borrower unless such notice is legally prohibited or such
Governmental Authority requests that such notice not be furnished to the
Borrower or
(TERM LOAN AGREEMENT)
such request is in connection with normal oversight activities by such
Governmental Authority), (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law (provided that notice of such order or requirement shall be
furnished to the Borrower unless such notice is legally prohibited or such court
or Governmental Authority requests that such notice or requirement not be
furnished to the Borrower), (f) which has been publicly disclosed other than in
breach of this Agreement, or (g) in connection with the exercise of any remedy
hereunder.
(TERM LOAN AGREEMENT)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
BORROWER: PLAYTEX PRODUCTS, INC.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Title: Executive Vice President
--------------------------------
(TERM LOAN AGREEMENT)
S-1
LENDERS: XXXXX FARGO BANK, N.A.,
individually and as Facility Manager
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
X-0
XXX XXXXXXX XXXXXXX, XXX.,
individually and as the Syndication
Agent
By: /s/ Xxxx Xxxxxxx
------------------------------------
Title: Managing director
---------------------------------
(TERM LOAN AGREEMENT)
S-3
CITIBANK, N.A.
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-4
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Title: Senior Vice President Portfolio
Manager
---------------------------------
(TERM LOAN AGREEMENT)
S-5
KZH-ING-1 CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Title: Authorized Agent
---------------------------------
(TERM LOAN AGREEMENT)
S-6
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: /s/ Xxxx XxXxxxxx
------------------------------------
Title: Authorized Signatory
---------------------------------
(TERM LOAN AGREEMENT)
S-7
KZH-SOLEIL CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Title: Authorized Agent
---------------------------------
(TERM LOAN AGREEMENT)
S-8
CRESCENT/MACH I PARTNERS,
L.P.
by TCW Asset Management Company,
as its Investment Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Senior Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-9
KZH-CRESCENT CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Title: Authorized Agent
---------------------------------
(TERM LOAN AGREEMENT)
S-10
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
by TCW Asset Management Company, as
Attorney-in-Fact
By: /s/ Xxxx X. Gold
--------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
(TERM LOAN AGREEMENT)
S-11
XXX XXXXXX AMERICAN
CAPITAL PRIME RATE INCOME
TRUST
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President - Portfolio
Manager
---------------------------------
(TERM LOAN AGREEMENT)
S-12
DEEPROCK & COMPANY
by Xxxxx Xxxxx Management, as
Investment Advisor
By: /s/ Xxxxx X. Page
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-13
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(TERM LOAN AGREEMENT)
S-14
OCTAGON CREDIT INVESTORS
LOAN PORTFOLIO
(a unit of The Chase Manhattan Bank)
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
(TERM LOAN AGREEMENT)
S-15
ROYALTON COMPANY
by Pacific Investment management
Company as its Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Title: Vice President
---------------------------------
(TERM LOAN AGREEMENT)
S-16
