EXHIBIT 4.16
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture, dated as of March 6, 1998, by and between
Drypers Corporation, a corporation organized and existing under the laws of
the State of Delaware (the "Company"), having its principal offices at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and Bankers Trust Company, as
trustee ("Trustee"), having its principal corporate trust office at Four
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
Whereas, the Company has heretofore executed and delivered to the Trustee
that certain Indenture dated as of June 15, 1997, by and between the Company
and the Trustee pursuant to which the 10 1/4% Senior Notes due 2007 and the
10 1/4% Series B Senior Notes due 2007 (collectively, the "Notes"), in the
original aggregate principal amount of $115,000,000, were issued (the
"Indenture") (capitalized terms used herein shall have the respective meanings
ascribed thereto in the Indenture unless herein defined or the context shall
otherwise require);
Whereas, Section 902 of the Indenture provides that the Company and Trustee
may, from time to time, with the consent of the holders of a majority in
principal amount of the Outstanding Notes, enter into one or more supplemental
indentures to provide for, among other things, the amendments to the Indenture
set forth below;
Whereas, the Holders of at least a majority in principal amount of the
Outstanding Notes have consented to the amendments to the Indenture set forth
below;
Whereas, the Company has been duly authorized by its Board of Directors to
enter into, execute and deliver this First Supplemental Indenture;
Whereas, the Company has complied with all conditions contained in the
Indenture with respect to the amendments to the Indenture set forth below;
Now Therefore, in order to comply with the provisions of the Indenture and
for and in consideration of the premises and the covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Trustee
agree as follows:
ARTICLE ONE
Amendments
The following sections of the Indenture are hereby amended as follows:
Section 1. Section 101 of the Indenture is amended by adding the following
definitions:
"Existing Notes" means the $115,000,000 aggregate principal amount of
10 1/4% Senior Notes of the Company issued on June 24, 1997, other than any
Exchange Notes.
"New Notes" means the 10 1/4% Senior Notes of the Company issued at any
time after the Issuance Date (other than any Exchange Notes and any Notes
issued in exchange for Existing Notes pursuant to Section 305 under this
Indenture).
Section 2. Section 101 of the Indenture is amended by replacing in their
entirety the following definitions:
"Closing Date" means June 24, 1997.
"Initial Notes" means the Existing Notes and the New Notes.
"Initial Purchasers" means, as applicable, any initial purchasers of
Notes in any offering of Notes pursuant to one or more exemptions from
registration under the Securities Act.
"Registration Rights Agreement" means, as applicable, (i) the
Registration Rights Agreement, dated as of June 24, 1997, among the
Company, Prudential Securities Incorporated and Credit Suisse First Boston
Corporation, relating to the Existing Notes, and (ii) any similar agreement
that the Company may enter into in relation to a particular issuance of New
Notes.
Section 3. Section 2.01 of the Indenture is hereby amended to add a new
second paragraph thereof as follows:
Any New Notes shall be in substantially the form set forth in this
Article, except that (i) the date on which interest thereon begins to
accrue may be changed, (ii) the date of the Registration Rights Agreement
applicable to a particular issuance of New Notes may be inserted, (iii) the
provisions relating to an increase in the stated rate of interest thereon
may be changed and (iv) the first paragraph of the reverse side of such New
Notes may be changed to state that an unlimited principal amount of Notes
may be issued under the Indenture, all as determined by the officers
executing such New Notes, as evidenced by their execution of such New
Notes.
Section 4. The initial two paragraphs of Section 3.01 are hereby amended in
their entirety to read as follows:
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is unlimited. Subject to Article 10 of this
Indenture, the Company may, from time to time, issue New Notes. Except as
otherwise provided in Section 2.01, the New Notes will have terms and
conditions that are identical to the Existing Notes, and any New Notes will
be part of the same issue as, and will vote on all matters with, the
Existing Notes.
The Initial Notes shall be known and designated as the "10 1/4% Senior
Notes due 2007" and the Exchange Notes shall be known and designated as the
"10 1/4% Series B Senior Notes due 2007," in each case, of the Company. The
Stated Maturity of the Notes shall be June 15, 2007. The Existing Notes
(and any Exchange Notes issued in respect thereof) shall bear interest at
the rate of 10 1/4% per annum from June 24, 1997, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
payable on December 15, 1997 and semiannually thereafter on June 15 and
December 15 in each year, until the principal thereof is paid in full and
to the Person in whose name the Existing Note (or any Predecessor Note) is
registered at the close of business on the relevant Regular Record Date
next preceding such Interest Payment Date. The New Notes (and any Exchange
Notes issued in respect thereof) shall bear interest at the rate of 10 1/4%
per annum from the respective dates of original issuance, or from the most
recent Interest Payment Date to which interest has been paid or duly
provided for, payable semiannually thereafter on June 15 and December 15 in
each year, until the principal thereof is paid in full and to the Person in
whose name the New Note (or any Predecessor Note) is registered at the
close of business on the relevant Regular Record Date next preceding such
Interest Payment Date. Interest shall be computed on the basis of a 360-day
year comprised of twelve 30-day months, until the principal thereof is paid
or duly provided for. Interest on any overdue principal, interest (to the
extent lawful) or premium, if any, shall be payable on demand.
Section 5. The second sentence of the third paragraph of Section 303 of the
Indenture is hereby amended in its entirety to read as follows:
On Company Order, the Trustee shall authenticate for original issue
Exchange Notes; provided that such Exchange Notes shall be issuable only
upon the valid surrender for cancellation of Initial Notes of a like
principal amount in accordance with an Exchange Offer pursuant to a
Registration Rights Agreement.
2
Section 6. Section 1009(b)(iv) of the Indenture is hereby amended in its
entirety to read as follows:
(iv) Debt represented by the Existing Notes, the Subsidiary Guarantees
and any Exchange Notes.
Section 7. Section 1009(b)(vii) of the Indenture is amended in its entirety
to read as follows:
(vii) Debt of the Company or any Restricted Subsidiary under purchase
money mortgages or secured by purchase money security interests so long as
(x) such Debt is not secured by any property or assets of the Company or
any Restricted Subsidiary other than the property and assets so acquired
and (y) such Debt is created prior to, at the time of or within six months
after the later of the acquisition, the completion of construction or the
commencement of full operation of the related property; provided that the
aggregate amount of Debt under this clause (vii) does not exceed $2,000,000
at any one time outstanding.
Section 8. Clause (v) of the second paragraph of Section 1017 is amended in
its entirety to read as follows:
(v) Liens upon real or personal property or any other asset acquired or
constructed after the date of the supplemental indenture pursuant to which
this clause (v) was first amended; provided that (a) any such Lien is
created solely for the purpose of securing Capitalized Lease Obligations or
other Debt incurred in accordance with Section 1009, (1) to finance the
cost (including the cost of improvements) of property or assets so acquired
or constructed, and such Lien is created prior to, at the time of or within
six months after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or
assets or (2) as Hedging Obligations relating solely to the Debt described
in clause (1) of this clause (v), (b) the principal amount of the Debt
secured by such Lien as of the time incurred does not exceed 100% of such
cost and (c) any such Lien does not extend to any property or assets of the
Company or any Restricted Subsidiary other than the property or assets so
acquired or constructed.
Section 9. The fourth paragraph of the reverse side of the Note and the
fourth paragraph of Section 205 of the Indenture are amended in their entirety
to read as follows:
In addition, at any time or from time to time prior to June 15, 2000, the
Company may at its option redeem Notes with the net proceeds of one or more
Equity Offerings at a redemption price equal to 110.25% of the principal
amount thereof, together with accrued interest, if any, to the Redemption
Date (subject to the rights of Holders of record on the relevant record
date to receive interest due on an interest payment date); provided that,
immediately after giving effect to any such redemption, an aggregate
principal amount of Notes at least equal to the sum of (i) $75,000,000 and
(ii) 65% of the aggregate principal amount of New Notes theretofore issued
hereunder remains Outstanding. Any such redemption must be made within 90
days of the related Equity Offering.
ARTICLE TWO
Miscellaneous
Section 1. Except as expressly supplemented by this First Supplemental
Indenture, the Indenture and the Notes issued thereunder are in all respects
ratified and confirmed and all of the rights, remedies, terms, conditions,
covenants and agreements of the Indenture and Notes issued thereunder shall
remain in full force and effect.
Section 2. This First Supplemental Indenture is executed as and shall
constitute an indenture supplemental to the Indenture and shall be construed
in connection with and as part of the Indenture. This First Supplemental
Indenture shall be governed by and construed in accordance with the laws of
the jurisdiction that governs the Indenture and its construction.
Section 3. This First Supplemental Indenture may be executed in any number
of counterparts, each of which shall be deemed to be an original for all
purposes; but such counterparts shall together be deemed to constitute but one
and the same instrument.
3
Section 4. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First
Supplemental Indenture may refer to the Indenture without making specific
reference to this First Supplemental Indenture, but nevertheless all such
references shall include this First Supplemental Indenture unless the context
otherwise requires.
Section 5. This First Supplemental Indenture shall be deemed to have become
effective upon the date first above written.
Section 6. In the event of a conflict between the terms of this First
Supplemental Indenture and the Indenture, this First Supplemental Indenture
shall control.
In Witness Whereof, the parties have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
ATTEST: Drypers Corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: _________________________________
_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
ATTEST: Chairman & Co-CEO
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bankers Trust Company
_______________________________
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
By: _________________________________
▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Treasurer
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇(▇)
(S)
COUNTY OF ▇▇▇▇▇▇(S)
This instrument was acknowledged before me on March 6, 1998, by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, the Chairman & Co-CEO of Drypers Corporation, a Delaware corporation,
on behalf of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Notary Public in and for
the State of Texas
My Commission expires:
12-10-2001
-------------------------------
[SEAL]
TRUSTEE
STATE OF NEW YORK (S)
(S)
COUNTY OF NEW YORK(S)
This instrument was acknowledged before me on March 6, 1998, by ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, an Assistant Treasurer of Bankers Trust Company, in its capacity as
trustee.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Notary Public in and for
the State of New York
My Commission expires:
2-22-2000
-------------------------------
[SEAL]
5
