December 6, 2004
DLI Holding Corp.
c/x Xxxxx & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Substitute Financing Commitment Letter
Reference is made to that certain AGreement and Plan of Merger (the "Merger
Agreement"), dated as of July 1, 2004, by and among DLI Holding Corp.
("Parent"), DLI Acquisition Corp. ("Sub") and Del Laboratories, Inc. (the
"Company"). Capitalized terms used but not defined in this letter shall have the
respective meanings attributed to them in the Merger Agreement.
Please be advised that subject to the conditions set forth in (a) the Merger
Agreement, (b) the Senior Debt Letter and (c) the Subordinated Debt Letter,
Xxxxx & Company, L.P. ("Xxxxx") has undertaken and hereby undertakes to provide,
or cause to be provided, up to $30,000,000 of additional equity financing to
Parent required for the transactions contemplated by the Merger Agreement, such
equity financing to be in addition to the equity financing contemplated by the
Xxxxx Equity Commitment Letter and to constitute Substitute Financing for the
financing contemplated by the Church & Xxxxxx Letter; provided that such
conditions shall not include any condition relating to the provision of equity
financing by Xxxxx pursuant hereto.
This Letter Agreement will expire upon the earlier of termination of the
Merger Agreement in accordance with its terms and the closing of the Merger.
This Letter Agreement shall be governed in all respects, including validity,
construction, interpretation and effect, by the laws of the State of New York,
without giving effect to its principles or rules of conflict of laws to the
extent such principles or rules would require or permit the application of the
laws of another jurisdiction. Each of the parties hereto agrees that any suit,
action or proceeding instituted against it by any other person with respect to
this Letter Agreement may be instituted, and that any suit, action or proceeding
by it against any other person with respect to this Letter Agreement shall be
instituted, only in the U.S. District Court for the Southern District of New
York
2
or the Supreme Court of the State of New York, County of New York (and the
respective appellate courts) as the party instituting such suit, action or
proceeding may in its sole discretion elect. Each of the parties hereto
consents and submits, for itself and its property, to the jurisdiction of such
courts for the purpose of any such suit, action or proceeding instituted against
it by the other and agrees that a final judgment in any suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Each of the parties
hereto (a) waives any objection which it may now or hereafter have to the laying
of venue or any suit, action or proceeding arising out of or relating to this
Letter Agreement brought in any court specified herein, (b) waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an incovenient forum and (c) agrees not to plead or claim either of
the foregoing. Each of the parties hereto hereby waives that right to trial by
jury in any action or proceeding based upon, arising out of or in any way
connected with this Letter Agreement, or the transactions contemplated hereby.
[Remainder of page left intentionally blank.]
Very truly yours,
XXXXX & COMPANY, L.P.
By: Xxxxx & Companies, Inc.,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Chief
Financial Officer
Acknowledged and agreed as of the date
first above written:
DLI HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
