GUARANTY
GUARANTY,
dated
as
of April
6,
2004,
by
Prestige Brands International, LLC, a
Delaware limited liability company (the
“Parent”),
and
each of the other entities listed on the signature pages hereof or that becomes
a party hereto pursuant to Section 23
(Additional
Guarantors)
hereof
(collectively, together with the Parent, the “Guarantors”
and
each, individually, a “Guarantor”
and
each Guarantor other than Prestige Products Holdings, Inc., the Parent and
other
than any other Person that is the beneficial owner of all of the Stock of the
Borrower (as defined below), a “Subsidiary
Guarantor”),
in
favor of each Collateral Agent, and each other Agent, Lender, Issuer and each
other holder of an Obligation (as each such term is defined in the Credit
Agreement referred to below) (each, a “Guarantied
Party”
and,
collectively, the “Guarantied
Parties”).
WITNESSETH:
WHEREAS,
pursuant
to the Credit Agreement dated as of April 6, 2004 (together with all appendices,
exhibits and schedules thereto and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”;
capitalized terms defined therein and used herein having the meanings given
to
them in the Credit Agreement) among Prestige
Brands, Inc.
(the
“Borrower”),
the
Parent, the Lenders and Issuers party thereto, Citicorp North America, Inc.,
as
agent for the Lenders and Issuers and collateral agent for the First-Priority
Secured Parties, and as collateral agent for the Tranche C Secured Parties,
Bank
of America, N.A. as syndication agent for the Lenders and Issuers, and Xxxxxxx
Xxxxx Capital, a division of Xxxxxxx Xxxxx Business Financial Services Inc.,
as
documentation agent for the Lenders and Issuers, the Lenders and Issuers have
severally agreed to make extensions of credit to the Borrower upon the terms
and
subject to the conditions set forth therein;
WHEREAS,
Parent
is
the sole shareholder of Prestige Products Holdings, Inc., a Delaware
corporation, which in turn is the sole shareholder of the Borrower, and each
Subsidiary Guarantor is a direct or indirect Subsidiary of the
Parent;
WHEREAS,
each
Guarantor will receive substantial direct and indirect benefits from the making
of the Loans, the issuance of the Letters of Credit and the granting of the
other financial accommodations to the Borrower under the Credit Agreement;
and
WHEREAS,
a
condition precedent to the obligation of the Lenders and the Issuers to make
their respective extensions of credit to the Borrower under the Credit Agreement
is that the Guarantors shall have executed and delivered this Guaranty for
the
benefit of the Guarantied Parties;
NOW,
THEREFORE,
in
consideration of the premises set forth above, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
Section 1 Guaranty
(a) To
induce
the Lenders to make the Loans and the Issuers to issue Letters of Credit, each
Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as
primary obligor and not merely as surety, the full and punctual payment when
due, whether at stated maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise in accordance herewith or any other Loan Document,
of
all the Obligations, whether or not from
PRESTIGE
BRANDS, INC.
time
to
time reduced or extinguished or hereafter increased or incurred, whether
or not
recovery may be or hereafter may become barred by any statute of limitations,
whether or not enforceable as against the Borrower, whether now or hereafter
existing, and whether due or to become due, including principal, interest
(including interest at the contract rate applicable upon default accrued
or
accruing after the commencement of any proceeding under the Bankruptcy Code,
whether or not such interest is an allowed claim in such proceeding), fees
and
costs of collection. This Guaranty constitutes a guaranty of payment and
not of
collection.
(b) Each
Guarantor further agrees that, if (i) any payment made by Borrower or any
other person and applied to the Obligations is at any time annulled, avoided,
set aside, rescinded, invalidated, declared to be fraudulent or preferential
or
otherwise required to be refunded or repaid or (ii) the proceeds of
Collateral are required to be returned by any Guarantied Party to the Borrower,
its estate, trustee, receiver or any other party, including any Guarantor,
under
any bankruptcy law, equitable cause or any other Requirement of Law, then,
to
the extent of such payment or repayment, any such Guarantor’s liability
hereunder (and any Lien or other Collateral securing such liability) shall
be
and remain in full force and effect, as fully as if such payment had never
been
made. If, prior to any of the foregoing, this Guaranty shall have been cancelled
or surrendered (and if any Lien or other Collateral securing such Guarantor’s
liability hereunder shall have been released or terminated by virtue of such
cancellation or surrender), this Guaranty (and such Lien or other Collateral)
shall be reinstated in full force and effect, and such prior cancellation or
surrender shall not diminish, release, discharge, impair or otherwise affect
the
obligations of any such Guarantor in respect of the amount of such payment
(or
any Lien or other Collateral securing such obligation).
Section 2 Limitation
of Guaranty
Any
term
or provision of this Guaranty or any other Loan Document to the contrary
notwithstanding, the maximum aggregate amount of the Obligations for which
any
Subsidiary Guarantor shall be liable shall not exceed the maximum amount for
which such Subsidiary Guarantor can be liable without rendering this Guaranty
or
any other Loan Document, as it relates to such Subsidiary Guarantor, subject
to
avoidance under applicable law relating to fraudulent conveyance or fraudulent
transfer (including Section 548 of the Bankruptcy Code or any applicable
provisions of comparable state law) (collectively, “Fraudulent
Transfer Laws”),
in
each case after giving effect (a) to all other liabilities of such Subsidiary
Guarantor, contingent or otherwise, that are relevant under such Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Subsidiary Guarantor in respect of intercompany Indebtedness to the Borrower
to
the extent that such Indebtedness would be discharged in an amount equal to
the
amount paid by such Subsidiary Guarantor hereunder) and (b) to the value as
assets of such Subsidiary Guarantor (as determined under the applicable
provisions of such Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights held by such Subsidiary
Guarantor pursuant to (i) applicable Requirements of Law,
(ii) Section 3 (Contribution)
of this
Guaranty or (iii) any other Contractual Obligations providing for an
equitable allocation among such Subsidiary Guarantor and other Subsidiaries
or
Affiliates of the Borrower of obligations arising under this Guaranty or other
guaranties of the Obligations by such parties.
Section 3 Contribution
To
the
extent that any Subsidiary Guarantor shall be required hereunder to pay a
portion of the Obligations exceeding the greater of (a) the amount of the
economic benefit actually received by such Subsidiary Guarantor from the
Revolving Loans and the Term Loans
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GUARANTY
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and
(b) the amount such Subsidiary Guarantor would otherwise have paid if such
Subsidiary Guarantor had paid the aggregate amount of the Obligations (excluding
the amount thereof repaid by the Borrower and Parent) in the same proportion
as
such Subsidiary Guarantor’s net worth at the date enforcement is sought
hereunder bears to the aggregate net worth of all the Subsidiary Guarantors
at
the date enforcement is sought hereunder, then such Guarantor shall be
reimbursed by such other Subsidiary Guarantors for the amount of such excess,
pro rata, based on the respective net worths of such other Subsidiary Guarantors
at the date enforcement hereunder is sought.
Section 4 Authorization;
Other Agreements
The
Guarantied Parties are hereby authorized, without notice to, or demand upon,
any
Guarantor, which notice and demand requirements each are expressly waived hereby
(to the extent permitted by law), and without discharging or otherwise affecting
the obligations of any Guarantor hereunder (which obligations shall remain
absolute and unconditional notwithstanding any such action or omission to act),
from time to time, to do each of the following:
(a) supplement,
renew, extend, accelerate or otherwise change the time for payment of, or other
terms relating to, the Obligations, or any part of them, or otherwise modify,
amend or change the terms of any promissory note or other agreement, document
or
instrument (including the other Loan Documents) now or hereafter executed by
the
Borrower and delivered to the Guarantied Parties or any of them, including
any
increase or decrease of principal or the rate of interest thereon;
(b) waive
or
otherwise consent to noncompliance with any provision of any instrument
evidencing the Obligations, or any part thereof, or any other instrument or
agreement in respect of the Obligations (including the other Loan Documents)
now
or hereafter executed by the Borrower and delivered to the Guarantied Parties
or
any of them;
(c) accept
partial payments on the Obligations;
(d) receive,
take and hold additional security or collateral for the payment of the
Obligations or any part of them and exchange, enforce, waive, substitute,
liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise
alter and release any such additional security or collateral;
(e) settle,
release, compromise, collect or otherwise liquidate the Obligations or accept,
substitute, release, exchange or otherwise alter, affect or impair any security
or collateral for the Obligations or any part of them or any other guaranty
therefor, in any manner;
(f) add,
release or substitute any one or more other guarantors, makers or endorsers
of
the Obligations or any part of them and otherwise deal with the Borrower or
any
other guarantor, maker or endorser;
(g) apply
to
the Obligations any payment or recovery (x) from the Borrower, from any
other guarantor, maker or endorser of the Obligations or any part of them or
(y) from any Guarantor in such order as provided herein, in each case
whether such Obligations are secured or unsecured or guaranteed or not
guaranteed by others;
(h) apply
to
the Obligations any payment or recovery from any Guarantor of the Obligations
or
any sum realized from security furnished by such Guarantor upon its
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GUARANTY
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indebtedness
or obligations to the Guarantied Parties or any of them, in each case whether
or
not such indebtedness or obligations relate to the Obligations; and
(i) refund
at
any time any payment received by any Guarantied Party in respect of any
Obligation, and payment to such Guarantied Party of the amount so refunded
shall
be fully guaranteed hereby even though prior thereto this Guaranty shall have
been cancelled or surrendered (or any release or termination of any Collateral
by virtue thereof), and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of any Guarantor
hereunder in respect of the amount so refunded (and any Collateral so released
or terminated shall be reinstated with respect to such
obligations);
even
if
any right of reimbursement or subrogation or other right or remedy of any
Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial, non-judicial
or
other proceeding in respect of the Obligations that impairs any subrogation,
reimbursement or other right of such Guarantor).
Section 5 Guaranty
Absolute and Unconditional
Each
Guarantor hereby waives any defense (other than payment in full) of a surety
or
guarantor or any other obligor on any obligations arising in connection with
or
in respect of any of the following and hereby agrees that its obligations under
this Guaranty are absolute and unconditional and shall not be discharged or
otherwise affected as a result of any of the following:
(a) the
invalidity or unenforceability of any of the Borrower’s obligations under the
Credit Agreement or any other Loan Document or any other agreement or instrument
relating thereto, or any security for, or other guaranty of the Obligations
or
any part of them, or the lack of perfection or continuing perfection or failure
of priority of any security for the Obligations or any part of
them;
(b) the
absence of any attempt to collect the Obligations or any part of them from
the
Borrower or other action to enforce the same;
(c) failure
by any Guarantied Party to take any steps to perfect and maintain any Lien
on,
or to preserve any rights to, any Collateral;
(d) any
Guarantied Party’s election, in any proceeding instituted under chapter 11 of
the Bankruptcy Code, of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(e) any
borrowing or grant of a Lien by the Borrower, as debtor-in-possession, or
extension of credit, under Section 364 of the Bankruptcy Code;
(f) the
disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of any Guarantied Party’s claim (or claims) for repayment of the
Obligations ;
(g) any
use
of cash collateral under Section 363 of the Bankruptcy Code;
(h) any
agreement or stipulation as to the provision of adequate protection in any
bankruptcy proceeding;
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GUARANTY
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(i) the
avoidance of any Lien in favor of the Guarantied Parties or any of them for
any
reason;
(j) any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against the Borrower,
any
Guarantor or any of the Borrower’s other Subsidiaries, including any discharge
of, or bar or stay against collecting, any Obligation (or any part of them
or
interest thereon) in or as a result of any such proceeding;
(k) failure
by any Guarantied Party to file or enforce a claim against the Borrower or
its
estate in any bankruptcy or insolvency case or proceeding;
(l) any
action taken by any Guarantied Party if such action is authorized
hereby;
(m) any
election following the occurrence of an Event of Default by any Guarantied
Party
to proceed separately against the personal property Collateral in accordance
with such Guarantied Party’s rights under the UCC or, if the Collateral consists
of both personal and real property, to proceed against such personal and real
property in accordance with such Guarantied Party’s rights with respect to such
real property; or
(n) any
other
circumstance that might otherwise constitute a legal or equitable discharge
or
defense of a surety or guarantor or any other obligor on any obligations, other
than the payment in full of the Obligations.
Section 6 Waivers
Each
Guarantor hereby waives diligence, promptness, presentment, demand for payment
or performance and protest and notice of protest, notice of acceptance and
any
other notice in respect of the Obligations or any part of them, and any defense
arising by reason of any disability or other defense of the Borrower. Each
Guarantor shall not, until the Obligations are irrevocably paid in full and
all
Commitments have been terminated, assert any claim or counterclaim it may have
against the Borrower or set off any of its obligations to the Borrower against
any obligations of the Borrower to it. In connection with the foregoing, each
Guarantor covenants that its obligations hereunder shall not be discharged,
except by complete performance.
Section 7 Reliance
Each
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of the Borrower and any endorser and other guarantor of
all
or any part of the Obligations, and of all other circumstances bearing upon
the
risk of nonpayment of the Obligations, or any part thereof, that diligent
inquiry would reveal, and each Guarantor hereby agrees that no Guarantied Party
shall have any duty to advise any Guarantor of information known to it regarding
such condition or any such circumstances. In the event any Guarantied Party,
in
its sole discretion, undertakes at any time or from time to time to provide
any
such information to any Guarantor, such Guarantied Party shall be under no
obligation (a) to undertake any investigation not a part of its regular
business routine, (b) to disclose any information that such Guarantied
Party, pursuant to accepted or reasonable commercial finance or banking
practices, wishes to maintain confidential or (c) to make any other or
future disclosures of such information or any other information to any
Guarantor.
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GUARANTY
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Section 8 Non-Enforcement
of Subrogation and Contribution Rights
Until
the
Obligations have been irrevocably paid in full and all Commitments have been
terminated, the Guarantors shall not enforce or otherwise exercise any right
of
subrogation to any of the rights of the Guarantied Parties or any part of them
against the Borrower or any right of reimbursement or contribution or similar
right against the Borrower by reason of this Agreement or by any payment made
by
any Guarantor in respect of the Obligations.
Section 9 Subordination
Each
Guarantor hereby agrees that any Indebtedness of the Borrower now or hereafter
owing to any Guarantor, whether heretofore, now or hereafter created (the
“Guarantor
Subordinated Debt”),
is
hereby subordinated to all of the Obligations and that, except as permitted
under Section 8.6
(Prepayment
and Cancellation of Indebtedness)
of the
Credit Agreement, the Guarantor Subordinated Debt shall not be paid in whole
or
in part until the Obligations have been paid in full and this Guaranty is
terminated and of no further force or effect. No Guarantor shall accept any
payment of or on account of any Guarantor Subordinated Debt at any time in
contravention of the foregoing. Upon the occurrence and during the continuance
of an Event of Default, the Borrower shall pay to the Administrative Agent
any
payment of all or any part of the Guarantor Subordinated Debt and any amount
so
paid to the Administrative Agent shall be applied to payment of the Obligations
as provided in Section 3
(Enforcement; Application of Proceeds of Collateral and Other Payments)
of
the
Intercreditor Agreement. Each payment on the Guarantor Subordinated Debt
received in violation of any of the provisions hereof shall be deemed to have
been received by such Guarantor as trustee for the Guarantied Parties and shall
be paid over to the Administrative Agent immediately on account of the
Obligations, but without otherwise affecting in any manner such Guarantor’s
liability hereof. Each Guarantor agrees to file all claims against the Borrower
in any bankruptcy or other proceeding in which the filing of claims is required
by law in respect of any Guarantor Subordinated Debt, and the Administrative
Agent shall be entitled to all of such Guarantor’s rights thereunder. If for any
reason a Guarantor fails to file such claim at least ten Business Days prior
to
the last date on which such claim should be filed, such Guarantor hereby
irrevocably appoints the Administrative Agent as its true and lawful
attorney-in-fact and is hereby authorized to act as attorney-in-fact in such
Guarantor’s name to file such claim or, in the Administrative Agent’s
discretion, to assign such claim to and cause proof of claim to be filed in
the
name of the Administrative Agent or its nominee. In all such cases, whether
in
administration, bankruptcy or otherwise, the person or persons authorized to
pay
such claim shall pay to the Administrative Agent the full amount payable on
the
claim in the proceeding, and, to the full extent necessary for that purpose,
each Guarantor hereby assigns to the Administrative Agent all of such
Guarantor’s rights to any payments or distributions to which such Guarantor
otherwise would be entitled. If the amount so paid is greater than such
Guarantor’s liability hereunder, the Administrative Agent shall pay the excess
amount to the party entitled thereto. In addition, each Guarantor hereby
irrevocably appoints the Administrative Agent as its attorney-in-fact to
exercise all of such Guarantor’s voting rights in connection with any bankruptcy
proceeding or any plan for the reorganization of the Borrower.
Section 10 Default;
Remedies
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GUARANTY
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The
obligations of each Guarantor hereunder are independent of and separate from
the
Obligations. If any Obligation is not paid when due, or upon any Event of
Default hereunder or upon any default by the Borrower as provided in any other
instrument or document evidencing all or any part of the Obligations, the
Administrative Agent may, at its sole election, proceed directly and at once,
without notice, against any Guarantor to collect and recover the full amount
or
any portion of the Obligations then due, without first proceeding against the
Borrower or any other guarantor of the Obligations, or against any Collateral
under the Loan Documents or joining the Borrower or any other guarantor in
any
proceeding against any Guarantor. At any time after maturity of the Obligations,
the Administrative Agent may (unless the Obligations have been irrevocably
paid
in full), without notice to any Guarantor and regardless of the acceptance
of
any Collateral for the payment hereof, appropriate and apply toward the payment
of the Obligations (a) any indebtedness due or to become due from any
Guarantied Party to such Guarantor and (b) any moneys, credits or other
property belonging to such Guarantor at any time held by or coming into the
possession of any Guarantied Party or any of its respective
Affiliates.
Section 11 Irrevocability
This
Guaranty shall be irrevocable as to the Obligations (or any part thereof) until
the Commitments have been terminated and all monetary Obligations then
outstanding have been paid in full, at which time this Guaranty shall
automatically terminate and be cancelled. Upon such termination or cancellation
and at the written request of any Guarantor or its successors or assigns, and
at
the cost and expense of such Guarantor or its successors or assigns, the
Administrative Agent shall execute in a timely manner a satisfaction of this
Guaranty and such instruments, documents or agreements as are necessary or
desirable to evidence the termination of this Guaranty.
Section 12 Setoff
Upon
the
occurrence and during the continuance of an Event of Default, each Guarantied
Party and each Affiliate of a Guarantied Party may, without notice to any
Guarantor and regardless of the acceptance of any security or collateral for
the
payment hereof, appropriate and apply toward the payment of all or any part
of
the Obligations (a) any indebtedness due or to become due from such
Guarantied Party or Affiliate to such Guarantor and (b) any moneys, credits
or other property belonging to such Guarantor, at any time held by, or coming
into, the possession of such Guarantied Party or Affiliate.
Section 13 No
Marshalling
Each
Guarantor consents and agrees that no Guarantied Party or Person acting for
or
on behalf of any Guarantied Party shall be under any obligation to marshal
any
assets in favor of any Guarantor or against or in payment of any or all of
the
Obligations.
Section 14 Enforcement;
Amendments; Waivers
No
delay
on the part of any Guarantied Party in the exercise of any right or remedy
arising under this Guaranty, the Credit Agreement, any other Loan Document
or
otherwise with respect to all or any part of the Obligations, the Collateral
or
any other guaranty of or security for all or any part of the Obligations shall
operate as a waiver thereof, and no single or partial exercise by any such
Person of any such right or remedy shall preclude any further exercise thereof.
No modification or waiver of any provision of this Guaranty shall be binding
upon any Guarantied Party, except as expressly set forth in a writing duly
signed and delivered by
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the
party
making such modification or waiver. Failure by any Guarantied Party at any
time
or times hereafter to require strict performance by the Borrower, any Guarantor,
any other guarantor of all or any part of the Obligations or any other Person
of
any provision, warranty, term or condition contained in any Loan Document
now or
at any time hereafter executed by any such Persons and delivered to any
Guarantied Party shall not waive, affect or diminish any right of any Guarantied
Party at any time or times hereafter to demand strict performance thereof
and
such right shall not be deemed to have been waived by any act or knowledge
of
any Guarantied Party, or its respective agents, officers or employees, unless
such waiver is contained in an instrument in writing, directed and delivered
to
the Borrower or such Guarantor, as applicable, specifying such waiver, and
is
signed by the party or parties necessary to give such waiver under the Credit
Agreement. No waiver of any Event of Default by any Guarantied Party shall
operate as a waiver of any other Event of Default or the same Event of Default
on a future occasion, and no action by any Guarantied Party permitted hereunder
shall in any way affect or impair any Guarantied Party’s rights and remedies or
the obligations of any Guarantor under this Guaranty. Any final, non-appealable
determination by a court of competent jurisdiction of the amount of any
principal or interest owing by the Borrower to a Guarantied Party shall be
conclusive and binding on each Guarantor irrespective of whether such Guarantor
was a party to the suit or action in which such determination was
made.
Section 15 Successors
and Assigns
This
Guaranty shall be binding upon each Guarantor and upon the successors and
assigns of such Guarantors and shall inure to the benefit of the Guarantied
Parties and their respective successors and assigns; all references herein
to
the Borrower and to the Guarantors shall be deemed to include their respective
successors and assigns. The successors and assigns of the Guarantors and the
Borrower shall include, without limitation, their respective receivers, trustees
and debtors-in-possession. All references to the singular shall be deemed to
include the plural where the context so requires.
Section 16 Representations
and Warranties; Covenants
Each
Guarantor hereby (a) represents and warrants that the representations and
warranties as to such Guarantor made by the Borrower in Article IV
(Representations and Warranties)
of the
Credit Agreement are true and correct on each date as required by Section 3.2(b)(i)
(Conditions Precedent to Each Loan and Letter of Credit)
of the
Credit Agreement and (b) agrees to take, or refrain from taking, as the
case may be, each action necessary to be taken or not taken, as the case may
be,
so that no Default or Event of Default is caused by the failure to take such
action or to refrain from taking such action by such Guarantor.
Section 17 Governing
Law
This
Guaranty and the rights and obligations of the parties hereto shall be governed
by, and construed and interpreted in accordance with, the law of the State
of
New York.
Section 18 Submission
to Jurisdiction; Service of Process
(a) Any
legal
action or proceeding with respect to this Guaranty, and any other Loan Document,
may be brought in the courts of the State of New York or of the United States
of
America for the Southern District of New York, and, by execution and delivery
of
this Agreement, each Guarantor hereby accepts for itself and in respect of
its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereto hereby irrevocably
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GUARANTY
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waive
any
objection, including any objection to the laying of venue or based on the
grounds of forum non conveniens,
that
any of them may now or hereafter have to the bringing of any such action
or
proceeding in such respective jurisdictions.
(b) Each
Guarantor hereby irrevocably consents to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
brought in the United States of America arising out of or in connection with
this Guaranty or any other Loan Document by the mailing (by registered or
certified mail, postage prepaid) or delivering of a copy of such process to
such
Guarantor care of the Borrower at the Borrower’s address specified in
Section 11.8 (Notices,
Etc.)
of the
Credit Agreement. Each such Guarantor agrees that a final judgment in any such
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.
(c) Nothing
contained in this Section 18 (Submission
to Jurisdiction; Service of Process)
shall
affect the right of the Administrative Agent or any other Guarantied Party
to
serve process in any other manner permitted by law or commence legal proceedings
or otherwise proceed against a Guarantor in any other jurisdiction.
(d) If
for
the purposes of obtaining judgment in any court it is necessary to convert
a sum
due hereunder in Dollars into another currency, the parties hereto agree, to
the
fullest extent they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase Dollars with such other currency at the spot rate of
exchange quoted by the Administrative Agent at 11:00 a.m. (New York time)
on the Business Day preceding that on which final judgment is given, for the
purchase of Dollars, for delivery two Business Days thereafter.
Section 19 Certain
Terms
The
following rules of interpretation shall apply to this Guaranty: (a) the
terms “herein,”
“hereof,”
“hereto”
and
“hereunder”
and
similar terms refer to this Guaranty as a whole and not to any particular
Article, Section, subsection or clause in this Guaranty, (b) unless
otherwise indicated, references herein to an Exhibit, Article, Section,
subsection or clause refer to the appropriate Exhibit to, or Article, Section,
subsection or clause in this Guaranty
and
(c) the
term “including”
means
“including
without limitation”
except
when used in the computation of time periods.
Section 20 Waiver
of Jury Trial
Each
of the Administrative Agent, the other Guarantied Parties and each Guarantor
irrevocably waives trial by jury in any action or proceeding with respect to
this Guaranty and any other Loan Document.
Section 21 Notices
Any
notice or other communication herein required or permitted shall be given as
provided in Section 11.8
(Notices, Etc.) of
the
Credit Agreement and, in the case of any Guarantor, to such Guarantor in care
of
the Borrower.
Section 22 Severability
9
GUARANTY
PRESTIGE
BRANDS, INC.
Wherever
possible, each provision of this Guaranty shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this
Guaranty.
Section 23 Additional
Guarantors
Each
of
the Guarantors agrees that, if, pursuant to Section
7.11(b) (Additional Collateral and Guaranties) of
the
Credit Agreement, the Borrower shall be required to cause any of their
respective Subsidiaries that is not a Guarantor to become a Guarantor hereunder,
or if for any reason the Borrower or the Parent desires any such Subsidiary
to
become a Guarantor hereunder, such Subsidiary shall execute and deliver to
the
Administrative Agent a Guaranty Supplement in substantially the form of
Exhibit A
(Guaranty Supplement) attached
hereto and shall thereafter for all purposes be a party hereto and have the
same
rights, benefits and obligations as a Guarantor party hereto on the Closing
Date.
Section 24 Collateral
Each
Guarantor hereby acknowledges and agrees that its obligations under this
Guaranty are secured pursuant to the terms and provisions of the Collateral
Documents executed by it in favor of the Administrative Agent, for the benefit
of the Secured Parties, and covenants that it shall not grant any Lien (other
than Liens permitted under Section
8.2 (Liens, Etc.)
of the
Credit Agreement) with respect to its Property in favor, or for the benefit,
of
any Person other than the Administrative Agent, for the benefit of the Secured
Parties.
Section 25 Costs
and Expenses
Each
Guarantor agrees to pay or reimburse the Administrative Agent and each of the
other Guarantied Parties upon demand for all reasonable out-of-pocket costs
and
expenses, including reasonable attorneys’ fees (including allocated costs of
internal counsel and costs of settlement), incurred by the Administrative Agent
or such other Guarantied Parties in enforcing this Guaranty or any security
therefor or exercising or enforcing any other right or remedy available in
connection herewith or therewith.
Section 26 Waiver
of Consequential Damages
Each
Guarantor,
to
the maximum extent not prohibited by law, hereby irrevocably and unconditionally
waives, releases and agrees not to xxx upon any claim, whether or not accrued
and whether or not suspected to exist in its favor, for any special,
consequential or punitive damages (including, without limitation, any loss
or
profits, business or anticipated savings) in respect of this Guaranty or any
other Loan Document. Each Guarantor also agrees to be bound by the provision
of
Section 11.5 (Limitation of Liability) of the Credit Agreement.
Section 27 Entire
Agreement
This
Guaranty, taken together with all of the other Loan Documents executed and
delivered by the Guarantors, represents the entire agreement and understanding
of the parties hereto and supersedes all prior understandings, written and
oral,
relating to the subject matter hereof.
10
GUARANTY
PRESTIGE
BRANDS, INC.
Section 28 Termination
This
Guaranty (other than the reinstatement provisions of Section
1(b) (Guaranty),
Section
18 (Submission to Jurisdiction; Service of Process),
Section
20 (Waiver of Jury Trial),
Section
25 (Costs and Expenses),
and
Section
26 (Waiver of Consequential Damages))
shall
terminate upon the “payment in full” (as defined in the Credit Agreement) of the
“Secured Obligations” (as defined in the Credit Agreement).
[Signature
Pages Follow]
11
GUARANTY
PRESTIGE
BRANDS, INC.
In
witness whereof,
this
Guaranty has been duly executed by the Guarantors as of the day and year first
set forth above.
| PRESTIGE BRANDS INTERNATIONAL LLC | ||
| As Parent | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, CFO and Vice President | ||
| PRESTIGE PRODUCTS HOLDINGS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| Subsidiary Guarantors: | ||
| XXXXXX BAY HOLDINGS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| MEDTECH HOLDINGS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| MEDTECH PRODUCTS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| PECOS PHARMACEUTICAL, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
|
|
GUARANTY
PRESTIGE
BRANDS, INC.
|
|
| PRESTIGE ACQUISITION HOLDINGS, LLC | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| PRESTIGE BRANDS FINANCIAL CORPORATION | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| PRESTIGE BRANDS HOLDINGS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| PRESTIGE BRANDS INTERNATIONAL, LLC | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| PRESTIGE HOUSEHOLD BRANDS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| PRESTIGE HOUSEHOLD HOLDINGS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| PRESTIGE PERSONAL CARE, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President |
|
GUARANTY
PRESTIGE
BRANDS, INC.
|
||
| PRESTIGE PERSONAL CARE HOLDINGS, INC. | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| THE COMET PRODUCTS CORPORATION | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| THE CUTEX COMPANY | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| THE DENOREX COMPANY | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President | ||
| THE SPIC AND SPAN COMPANY | ||
| By: /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Secretary, Treasurer and Vice President |
GUARANTY
PRESTIGE
BRANDS, INC.
Acknowledged
and Agreed
as
of the
date first above written:
CITICORP
NORTH AMERICA, INC.
as
Administrative Agent
By:
/s/ Xxxxxx X. Xxxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Vice President
