Exhibit 4.4
PLEDGE
AGREEMENT
This PLEDGE AGREEMENT, dated as of
February 19, 2004 (together with all amendments, modifications
and supplements, if any, from time to time hereto, this “
Agreement ”) between the Credit Parties that are
signatories hereto (each a “ Pledgor ” and
collectively, the “ Pledgors ”) and WELLS FARGO
BANK MINNESOTA, NATIONAL ASSOCIATION, in its capacity as trustee
(in such capacity, together with its successors and assigns, the
“ Trustee ”) for the benefit of holders of Notes
(as defined below) (the “ Secured Parties
”).
W I T N E S S E T H:
WHEREAS, pursuant to the Indenture,
dated as of the date hereof (as from time to time amended,
restated, supplemented or otherwise modified, the “
Indenture ”), by and among Playtex Products, Inc.
(“ Playtex ” or the “ Company
”), the Persons named therein as Guarantors and the Trustee,
the Company intends to issue 8% Senior Secured Notes due 2011 (the
“Notes”) and the Guarantors intend to guarantee payment
of the Notes and all other Note Obligations (as defined in the
Indenture);
WHEREAS, each Pledgor is the record
and beneficial owner of the shares of Stock listed in Part A of
Schedule I hereto opposite its name and the owner of
the promissory notes and instruments listed in Part B of
Schedule I hereto opposite its name;
WHEREAS, each Pledgor has agreed to
pledge the Pledged Collateral to the Trustee for the ratable
benefit of the Secured Parties and such pledge is intended to be a
second lien on the Pledged Collateral in accordance with the
Intercreditor Provisions of the Indenture (as defined below) and
the pledge on the Pledged Collateral granted to the Agent (as
defined below) under the Credit Pledge Agreement (as defined below)
is intended to be a first lien on the Pledged Collateral in
accordance with the Intercreditor Provisions of the
Indenture;
NOW, THEREFORE, in consideration of
the premises and the covenants hereinafter contained and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is agreed as follows:
1.
Definitions
. Unless
otherwise defined herein, terms defined in the Indenture are used
herein as therein defined, and the following shall have (unless
otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined):
“ Agent ” means
(i) initially, General Electric Capital Corporation in its capacity
as Agent for itself and the Lenders (as defined in Credit Pledge
Agreement) and (ii) the Credit Agreement Agent under any other
Credit Agreement.
“ Bankruptcy Code
” means title 11, United States Code, as amended from time to
time, and any successor statute thereto.
“ Credit Pledge
Agreement ” means (i) the Pledge Agreement, dated as of
the date hereof, among the Pledgors thereto and the Agent and (ii)
any similar Credit Agreement Security Document securing the Credit
Agreement Obligations.
“ Domestic Pledged
Entity ” means a Pledged Entity that is a Domestic
Subsidiary.
“ Foreign Pledged
Entity ” means a Pledged Entity that is a Foreign
Subsidiary.
“ Intercreditor Provisions
of the Indenture ” means Article 10 of the Indenture
as in effect from time to time.
“ Pledged Collateral
” has the meaning assigned to such term in
Section 2 hereof.
“ Pledged Entity
” means an issuer of Pledged Shares or Pledged
Indebtedness.
“ Pledged Indebtedness
” means the Indebtedness of any Pledged Entity evidenced by
promissory notes and instruments listed on Part B of
Schedule I hereto.
“ Pledged Shares
” means those shares of any Pledged Entity listed on Part A
of Schedule I hereto.
“ Secured Obligations
” has the meaning assigned to such term in
Section 3 hereof.
“ Stock ” means
all shares, options, warrants, general or limited partnership
interests, membership interests or other equivalents (regardless of
how designated) of or in a corporation, partnership, limited
liability company or equivalent entity whether voting or nonvoting,
including common stock, preferred stock or any other “equity
security” (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of
1934).
“ Termination Date
” means the date on which all principal of, accrued and
unpaid interest and premium and Liquidated Damages (as defined in
the Indenture) on the Notes are paid in full and all other Note
Obligations, that are due and payable at or prior to the time such
principal, accrued and unpaid interest and premium and Liquidated
Damages, if any, are paid in full, are paid in full.
2.
Pledge
. Each
Pledgor hereby pledges to Trustee, and grants to Trustee for the
benefit of the Secured Parties, a security interest in all of the
following (collectively, the “ Pledged Collateral
”):
(a)
the Pledged
Shares and the certificates representing the Pledged Shares (if
any), and all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all
of the Pledged Shares; and
(b)
such portion, as
provided in Section 6(d) below, of any additional shares of
stock of a Pledged Entity from time to time acquired by such
Pledgor in any manner
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(which shares
shall be deemed to be part of the Pledged Shares), and the
certificates representing such additional shares (if any), and all
dividends, distributions, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
Stock; and
(c)
the Pledged
Indebtedness and the promissory notes or instruments evidencing the
Pledged Indebtedness, and all interest, cash, instruments and other
property and assets from time to time received, receivable or
otherwise distributed in respect of the Pledged Indebtedness;
and
(d)
all additional
Indebtedness arising after the date hereof and owing to such
Pledgor and evidenced by promissory notes or other instruments,
together with such promissory notes and instruments, and all
interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
Notwithstanding the foregoing
provisions or any other provision of this Agreement, in no event
shall (i) more than 65% (rounded downwards to avoid fractional
shares) of the issued and outstanding shares of a class of voting
stock of Foreign Subsidiary constitute Pledged Shares or Pledged
Collateral hereunder and, if at any time any Pledgor delivers to
the Agent or Trustee, on and after the Transfer Date (as defined
below), certificates representing more than 65% (rounded downwards
to avoid fractional shares) of the issued and outstanding shares of
a class of voting stock of any Foreign Subsidiary that is owned by
such Pledgor, such excess shares shall not constitute Pledged
Shares or Pledged Collateral and shall not be subject to any right
of setoff by the Agent, any Lender or the Trustee (ii) any Stock
and other securities of Subsidiaries constitute Pledged Shares or
Pledged Collateral hereunder to the extent the Applicable Value
(defined as the aggregate principal amount, par value or book value
as carried by the Company or the market value, whichever is the
greatest of such Stock and other securities) (on a
Subsidiary-by-Subsidiary basis) is equal to or greater than 20% of
the aggregate principal amount of Notes then
outstanding.
3.
Security for
Obligations . This Agreement
secures, and the Pledged Collateral is security for, the prompt
payment in full when due, whether at stated maturity, by
acceleration or otherwise, and performance of all Note Obligations
of any kind under or in connection with the Indenture and the Note
Security Documents and all obligations of each Pledgor now or
hereafter existing under this Agreement including, without
limitation, all fees, costs and expenses whether in connection with
collection actions hereunder or otherwise (collectively, the
“ Secured Obligations ”).
4.
Delivery of
Pledged Collateral . All certificates and
all promissory notes and instruments evidencing the Pledged
Collateral, if any, shall be delivered to and held by or on behalf
of Agent, for itself and the benefit of Lenders, until the
Discharge of Credit Agreement Indebtedness and release of Liens, in
whole, in respect of any Additional First Lien Obligations, if any
(such date, the “ Transfer Date ”), at which
time, all such certificates, promissory notes and instruments, if
any, shall be delivered to the Trustee, in accordance with the
Intercreditor Provisions of the Indenture. All Pledged Shares
shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably
satisfactory
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to Agent and on
and after the Transfer Date, to Trustee and all promissory notes or
other instruments evidencing the Pledged Indebtedness shall be
endorsed by Pledgors, as applicable.
5.
Representations and
Warranties . Each Pledgor
represents and warrants to Trustee that:
(a)
Such Pledgor is,
and at the time of delivery of the Pledged Shares to Agent and, on
or after the Transfer Date, to the Trustee, will be, the sole
holder of record and the sole beneficial owner of such Pledged
Collateral pledged by such Pledgor free and clear of any Lien
thereon or affecting the title thereto, except for any Lien created
by this Agreement and Permitted Prior Liens; such Pledgor is and at
the time of delivery of the Pledged Indebtedness to Agent and, on
and after the Transfer Date, Trustee, will be, the sole owner of
such Pledged Collateral free and clear of any Lien thereon or
affecting title thereto, except for any Lien created by this
Agreement and Permitted Prior Liens;
(b)
All of the
Pledged Shares have been duly authorized, validly issued and are
fully paid and non-assessable; and the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by,
and is the legal, valid and binding obligations of, the Company or
the Pledged Entities which are Guarantors or Subsidiaries thereof,
and no such Pledged Entity is in default thereunder;
(c)
Such Pledgor has
the right and requisite authority to pledge, assign, transfer,
deposit and set over the Pledged Collateral pledged by such Pledgor
to Agent, and, on and after the Transfer Date, Trustee as provided
herein and in accordance with the Intercreditor Provisions of the
Indenture;
(d)
None of the
Pledged Shares or Pledged Indebtedness has been issued or
transferred in violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e)
As of the date
hereof, all of the Pledged Shares are presently owned by such
Pledgor, and are presently represented by the certificates listed
on Part A of Schedule I hereto. As of the date
hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged
Shares;
(f)
No consent,
approval, authorization or other order or other action by, and no
notice to or filing with, any Governmental Authority or any other
Person is required (i) for the pledge by such Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by such Pledgor, or (ii)
for the exercise by Trustee of the voting or other rights provided
for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement, except as otherwise provided
in the Intercreditor Provisions of the Indenture and as may be
required in connection with such disposition by laws affecting the
offering and sale of securities generally or local law in the case
of stock of Foreign Pledged Entities;
(g)
The pledge and
assignment of the Pledged Collateral pursuant to this Agreement
will create a valid second priority Lien on the Pledged Collateral
and the delivery of the Pledged Collateral to the Trustee on the
Transfer Date will create a first
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priority
perfected security interest in favor of the Trustee for the benefit
of the Secured Parties in the Pledged Collateral and the proceeds
thereof, securing the payment of the Secured Obligations, subject
to no other Lien other than Permitted Prior Liens;
(h)
This Agreement
has been duly authorized, executed and delivered by such Pledgor
and constitutes a legal, valid and binding obligation of such
Pledgor enforceable against such Pledgor in accordance with its
terms;
(i)
The Pledged
Shares constitute (i) 100% of the issued and outstanding shares of
Stock of each Domestic Pledged Entity owned by such Pledgor, and
(ii) 65% of the issued and outstanding shares of Stock of each
Foreign Pledged Entity owned directly by such Pledgor;
and
(j)
Except as
disclosed on Part B of Schedule I , none of the Pledged
Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Credit Agreement Obligations and the
Notes) or subject to the terms of an indenture.
The representations and warranties
set forth in this Section 5 shall survive the execution
and delivery of this Agreement.
6.
Covenants
. Each
Pledgor covenants and agrees that until the Termination
Date:
(a)
Without the prior
written consent of Trustee, such Pledgor will not sell, assign,
transfer, pledge, or otherwise encumber any of its rights in or to
the Pledged Collateral, or any unpaid dividends, interest or other
distributions or payments with respect to the Pledged Collateral or
grant a Lien (other than Permitted Prior Liens) in the Pledged
Collateral, unless otherwise expressly permitted by the
Indenture;
(b)
Such Pledgor
will, at its expense, promptly execute, acknowledge and deliver all
such instruments and take all such actions, as Trustee from time to
time may reasonably request in order to ensure to Trustee for the
ratable benefit of the Secured Parties the benefits of the Liens in
and to the Pledged Collateral intended to be created by this
Agreement, including the filing of any necessary Code financing
statements, which may be filed by Trustee without the signature of
such Pledgor, and will cooperate with Trustee, at such
Pledgor’s expense, in obtaining all necessary approvals and
making all necessary filings under federal, state, local or foreign
law in connection with such Liens or any sale or transfer of the
Pledged Collateral;
(c)
Except as
provided in the Intercreditor Provisions of the Indenture, such
Pledgor has and will defend the title to the Pledged Collateral and
the Liens of Trustee in the Pledged Collateral against the claim of
any Person and will maintain and preserve such Liens;
and
(d)
Such Pledgor
will, upon obtaining ownership of any additional Stock of a Pledged
Entity or promissory notes or instruments (other than promissory
notes and instruments the fair market value of which does not
exceed $250,000 in the aggregate), which Stock, notes or
instruments are not already Pledged Collateral, promptly (and
in
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any event within
three (3) Business Days) deliver to Trustee a Pledge Amendment,
duly executed by such Pledgor, in substantially the form of
Schedule II hereto (a “ Pledge Amendment
”) in respect of any such additional Stock, notes or
instruments, pursuant to which such Pledgor shall pledge to Trustee
(subject to Section 2 hereof) all of such additional
Stock, notes and instruments. Such Pledgor hereby authorizes
Trustee to attach each Pledge Amendment to this Agreement and
agrees that all Pledged Shares and Pledged Indebtedness listed on
any Pledge Amendment delivered to Trustee shall for all purposes
hereunder be considered Pledged Collateral.
7.
Pledgor’s
Rights . As long as no Event
of Default shall have occurred and be continuing and until written
notice shall be given to such Pledgor in accordance with
Section 8(a) hereof:
(a)
Such Pledgor
shall have the right, from time to time, to vote and give consents
with respect to the Pledged Collateral, or any part thereof for all
purposes not inconsistent with the provisions of this Agreement,
the Indenture or any Note Security Document; provided ,
however , that no vote shall be cast, and no consent shall
be given or action taken, which would have the effect of impairing
in any material respect the position or interest of Trustee in
respect of the Pledged Collateral or which would authorize, effect
or consent to (unless and to the extent expressly permitted by the
Indenture):
(i)
the dissolution
or liquidation, in whole or in part, of a Pledged
Entity;
(ii)
the consolidation
or merger of a Pledged Entity with any other Person;
(iii)
the sale,
disposition or encumbrance of all or substantially all of the
assets of a Pledged Entity, except for Liens in favor of Trustee
and Permitted Prior Liens;
(iv)
any change in the
authorized number of shares, the stated capital or the authorized
share capital of a Pledged Entity or the issuance of any additional
shares of its Stock unless pledged pursuant to
Section 6(d) hereof; or
(v)
the alteration of
the voting rights with respect to the Stock of a Pledged Entity in
a manner which is materially adverse to the Trustee or which has a
material adverse effect on the rights or remedies of the
Trustee;
(b)
the Trustee shall
execute and deliver to such Pledgor or cause to be executed and
delivered to such Pledgor, all such proxies, power of attorney and
other instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to exercise the voting and/or
consensual rights it is entitled to exercise pursuant to clause (a)
above;
(c)
(i)
Such Pledgor
shall be entitled, from time to time, to collect and receive for
its own use all cash dividends and principal and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the
extent not in violation of the Indenture
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other
than any and all: (A) dividends
and interest paid or payable other than in cash in respect of any
Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange
for, any Pledged Collateral; and (B) dividends and other
distributions paid or payable in cash in respect of any Pledged
Shares in connection with a partial or to
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