SECOND SUPPLEMENTAL INDENTURE By and Among PRESTIGE BRANDS, INC., PRESTIGE BRANDS HOLDINGS, INC., DENTAL CONCEPTS LLC AND PRESTIGE INTERNATIONAL HOLDINGS, LLC Dated as of December 19, 2006 A SUPPLEMENT TO THE INDENTURE Dated as of April 6, 2004
By
and
Among
PRESTIGE
BRANDS, INC.,
U.S.
BANK NATIONAL ASSOCIATION, AS TRUSTEE,
DENTAL
CONCEPTS LLC
AND
PRESTIGE
INTERNATIONAL HOLDINGS, LLC
Dated
as
of
December
19, 2006
A
SUPPLEMENT TO THE INDENTURE
Dated
as
of April 6, 2004
THIS
SECOND SUPPLEMENTAL INDENTURE
(the
“Second Supplement”) is dated as of December 19, 2006, and made and entered into
by and among PRESTIGE
BRANDS, INC.,
a Delaware corporation (the “Company”), U.S.
BANK NATIONAL ASSOCIATION,
a national banking association, as trustee (the “Trustee”), PRESTIGE
BRANDS HOLDINGS, INC.,
a Delaware corporation (the “Holding Company”), DENTAL
CONCEPTS LLC,
a Delaware limited liability company (“Dental Concepts”), and PRESTIGE
INTERNATIONAL HOLDINGS, LLC,
a Delaware limited liability company (“PIH”). Each of the Holding Company,
Dental Concepts and PIH has executed this Second Supplement for the purposes
set
forth in Section
1.3
hereof.
This Second Supplement supplements and amends the Indenture, dated as of April
6, 2004 (the “Indenture”), by and among the Company, the Trustee and the
Guarantors that are parties thereto, as supplemented and amended by the
Supplemental Indenture, dated as of October 6, 2004 (the “First Supplement”), by
and among the Company, the Trustee and Vetco, Inc., a New York corporation,
which provided for the issuance of the Company’s 9¼% Senior Subordinated Notes
Due 2012 (the “Notes”). As used herein, the term “Existing Indenture” shall mean
the Indenture, as supplemented and amended by the First Supplement, and the
term
“Amended Indenture” shall mean the Indenture, as supplemented and amended by the
First Supplement, this Second Supplement and as otherwise supplemented and
amended from time to time. Except where specified herein, all capitalized terms
not defined herein shall have the meanings ascribed to them in the Amended
Indenture. References in this Second Supplement to the exhibits to and the
specific sections and articles of the Existing Indenture shall refer to the
exhibits to and the numbered sections and articles of the Indenture, as
supplemented and amended by the First Supplement, and references in this Second
Supplement to the exhibits to and the specific sections and articles of the
Amended Indenture shall refer to the exhibits to and the numbered sections
and
articles of the Indenture, as supplemented and amended by the First Supplement,
this Second Supplement and as otherwise supplemented and amended from time
to
time.
W
I T N E S S E T H :
WHEREAS,
Section 9.01 of the Existing Indenture provides, among other things, that the
Company and the Trustee may amend or supplement the Existing Indenture (i)
to
make any change that does not adversely affect the legal rights under the
Existing Indenture of any Holder of the Notes, (ii) to conform the text of
the
Existing Indenture or the Notes to any provision of the “Description of the
Notes” section of the offering memorandum, dated as of March 30, 2004 (the
“Memorandum”), relating to the sale of the Initial Notes, to the extent that
such provision was intended to be a verbatim recitation of a provision of the
Existing Indenture or the Notes, and (iii) to add additional Guarantees or
additional obligors with respect to the Notes; and
WHEREAS,
as a result of a restructuring of the corporate organization that includes
the
Company, the Company and Prestige Brands International, LLC, a Delaware limited
liability company (the “Parent”), are now Subsidiaries of the Holding Company,
which is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act; and
WHEREAS,
Section 4.03 of the Existing Indenture presently requires that the Parent file
with the Commission and provide the Trustee and Holders of Notes with such
annual reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a
U.S.
entity subject to such Sections (collectively, the “SEC Reports”), even though
the Parent is not otherwise required to do so; and
WHEREAS,
the SEC Reports of the Parent and the Holding Company are substantially the
same; and
WHEREAS,
the Company has requested that the Trustee execute this Second Supplement to
amend Section 4.03 of the Existing Indenture to eliminate the requirement under
the Existing Indenture for the Parent to submit the SEC Reports to the
Commission and the Trustee and the Holders and to require the Holding Company
to
submit the SEC Reports to the Commission and the Trustee and the Holders in
lieu
of the Parent, subject to the terms of this Second Supplement; and
WHEREAS,
each of the Holding Company, Dental Concepts and PIH has agreed to become a
Guarantor of the Notes; and
WHEREAS,
the Company and the Trustee also have agreed, pursuant to Section 9.01(l) of
the
Existing Indenture, to amend the Existing Indenture to provide certain
definitions that were omitted from the Existing Indenture but were included
in
the Memorandum;
NOW,
THEREFORE,
in consideration of the premises herein, the Company covenants and agrees with
the Trustee, for the equal and proportionate benefit of the respective Holders
from time to time, as follows:
ARTICLE
I
SUPPLEMENTS
AND AMENDMENTS
Section
1.1 Amendment
to Section 1.01.
Section
1.01 of the Existing Indenture is hereby amended, pursuant to Section 9.01(l)
of
the Existing Indenture, as follows:
(a) The
following definition is hereby inserted between the definitions of “HOLDER” and
“IAI GLOBAL NOTE” as set forth therein:
“HOLDINGS”
means Prestige Products Holdings, Inc., a Delaware corporation, and any
successor entity (the owner of 100% of the outstanding common stock of the
Company) and not any of its Subsidiaries.
(b) The
following definition is hereby inserted between the definitions of “OPINION OF
COUNSEL” and “PARTICIPANT” as set forth therein:
“PARENT”
means Prestige Brands International, LLC, a Delaware limited liability company,
and any successor entity (the owner of 100% of the outstanding common stock
of
Holdings) and not any of its Subsidiaries.
2
Section
1.2 Amendment
to Section 4.03.
Section
4.03 of the Existing Indenture is hereby deleted and the following is hereby
inserted in lieu therefor:
SECTION
4.03 REPORTS.
Notwithstanding
that the Parent may not be subject to the reporting requirements of Section
13
or 15(d) of the Exchange Act, the Parent shall file with the Commission and
provide the Trustee and Holders of Notes with such annual reports and such
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. entity subject to such
Sections, such information, documents and reports to be so filed with the
Commission and provided at the times specified for the filing of such
information, documents and reports under such Sections; provided,
however,
that
the Parent shall not be so obligated to file such information, documents and
reports with the Commission (i) prior to the completion of the Registered
Exchange Offer and, in any event, if the Commission does not permit such
filings, and (ii) as long as (A) the Parent is a wholly-owned Subsidiary of
a
Guarantor that files with the Commission, and provides the Trustee and Holders
of Notes with, such annual reports and such information, documents and other
reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. entity subject to such Sections and (B) such annual
reports, information, documents and other reports so filed by such Guarantor
are
substantially the same as such annual reports, information, documents and other
reports of the Parent would be if they were to be so prepared, filed and
provided.
Section
1.3 Guarantees.
Each of
the Holding Company, Dental Concepts and PIH (each of which are referred to
individually as an “Additional Guarantor” and collectively as the “Additional
Guarantors”) hereby executes this Second Supplement for the purpose of providing
a Guarantee of the Notes and agrees as follows:
(a) Subject
to this Section
1.3,
each
Additional Guarantor hereby unconditionally guarantees to each Holder of a
Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns: (i) the due and punctual payment of the principal of, premium,
if
any, and interest on the Notes, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on the overdue principal of and premium, if any,
and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee under the Amended Indenture, the Registration Rights Agreement or any
other agreement with or for the benefit of the Holders or the Trustee, all
in
accordance with the terms hereof and thereof; and (ii) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that the same shall be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration pursuant to Section 6.02 of the Amended Indenture, redemption
or
otherwise. Failing payment when due of any
3
amount
so
guaranteed or any performance so guaranteed for whatever reason, each Additional
Guarantor shall be jointly and severally obligated with all other Guarantors
to
pay the same immediately. Each Additional Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection. Each Additional
Guarantor hereby agrees that its obligations with regard to its Guarantee
shall
be joint and several with all other Guarantors, unconditional, irrespective
of
the validity or enforceability of the Notes or the obligations of the Company
under the Amended Indenture, the absence of any action to enforce the same,
the
recovery of any judgment against the Company or any other obligor with respect
to the Amended Indenture, the Notes or the Obligations of the Company under
the
Amended Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of an Additional Guarantor. Each
Additional Guarantor further, to the extent permitted by law, waives and
relinquishes all claims, rights and remedies accorded by applicable law to
guarantors and agrees not to assert or take advantage of any such claims,
rights
or remedies, including but not limited to:
(i) any
right
to require any of the Trustee, the Holders or the Company (each a “Benefited
Party”), as a condition of payment or performance by such Additional Guarantor,
to (1) proceed against the Company, any other guarantor (including any other
Guarantor) of the Obligations under the Guarantees or any other Person, (2)
proceed against or exhaust any security held from the Company, any such other
guarantor or any other Person, (3) proceed against or have resort to any balance
of any deposit account or credit on the books of any Benefited Party in favor
of
the Company or any other Person, or (4) pursue any other remedy in the power
of
any Benefited Party whatsoever;
(ii) any
defense arising by reason of the incapacity, lack of authority or any disability
or other defense of the Company including any defense based on or arising out
of
the lack of validity or the unenforceability of the Obligations under the
Guarantees or any agreement or instrument relating thereto or by reason of
the
cessation of the liability of the Company from any cause other than payment
in
full of the Obligations under the Guarantees;
(iii) any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal;
(iv) any
defense based upon any Benefited Party’s errors or omissions in the
administration of the Obligations under the Guarantees, except behavior which
amounts to bad faith;
(v)(1) any
principles or provisions of law, statutory or otherwise, which are or might
be
in conflict with the terms of the Guarantees and any legal or equitable
discharge of such Additional Guarantor’s obligations hereunder, (2)
4
(vi) notices,
demands, presentations, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of the Guarantees,
notices of Default under the Notes or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Obligations
under the Guarantees or any agreement related thereto, and notices of any
extension of credit to the Company and any right to consent to any
thereof;
(vii) to
the
extent permitted under applicable law, the benefits of any “One Action” rule;
and
(viii) any
defenses or benefits that may be derived from or afforded by law which limit
the
liability of or exonerate guarantors or sureties, or which may conflict with
the
terms of the Guarantees. Except to the extent expressly provided in this Second
Supplement and the Amended Indenture, including Sections 8.02, 8.03 and 10.05
of
the Amended Indenture and Section
1.3(f)
hereof,
each Additional Guarantor hereby covenants that its Guarantee shall not be
discharged except by complete performance of the obligations contained in its
Guarantee, this Second Supplement and the Amended Indenture.
If
any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid to either the Trustee or such Holder, each Additional Guarantor’s
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Additional Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Additional Guarantor further agrees that, as between
the
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Section 6.02 of the Amended Indenture for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby and (y) in
the
event of any declaration of acceleration of such obligations as provided in
Section 6.02 of the Amended Indenture, such obligations (whether or not due
and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Guarantees. An Additional Guarantor shall have the right to
seek
contribution from any non-paying Guarantor so long as the exercise of such
right
does not impair the rights of the Holders under the Guarantees. The other
Guarantors’ shares of such
5
contribution
payment will be computed based on the proportion that the net worth of the
relevant Guarantor represents relative to the aggregate net worth of all of
the
Guarantors combined.
(b) Each
Additional Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Guarantee of
such
Additional Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and each Additional Guarantor hereby irrevocably agree that each
Additional Guarantor’s liability shall be that amount from time to time equal to
the aggregate liability of such Additional Guarantor under its Guarantee, but
shall be limited to the lesser of (i) the aggregate amount of the Company’s
obligations under the Notes and the Amended Indenture or (ii) the amount, if
any, which would not have (1) rendered the Additional Guarantor “insolvent” (as
such term is defined in Bankruptcy Law and in the Debtor and Creditor Law of
the
State of New York) or (2) left it with unreasonably small capital at the time
its Guarantee with respect to the Notes was entered into, after giving effect
to
the incurrence of existing Debt immediately before such time; provided,
however,
it
shall be a presumption in any lawsuit or proceeding in which an Additional
Guarantor is a party that the amount guaranteed pursuant to its Guarantee with
respect to the Notes is the amount described in clause (i) of this Section
1.3(b)
unless
any creditor, or representative of creditors of the Additional Guarantor, or
debtor in possession or trustee in bankruptcy of the Additional Guarantor,
otherwise proves in a lawsuit that the aggregate liability of the Additional
Guarantor is limited to the amount described in clause (ii) of this Section
1.3(b).
(c) In
making
any determination as to the solvency or sufficiency of capital of an Additional
Guarantor in accordance with Section
1.3(b)
hereof
and this Section
1.3(c),
the
right of each Additional Guarantor to contribution from other Guarantors and
any
other rights such Additional Guarantor may have, contractual or otherwise,
shall
be taken into account.
(d) To
evidence its Guarantee set forth in Section
1.3(a)
hereof,
each Additional Guarantor hereby agrees that a notation of such Guarantee in
substantially the form included in Exhibit E attached to the Amended Indenture
shall be endorsed by an Officer of such Additional Guarantor on each Note
authenticated and delivered by the Trustee and that this Second Supplement
shall
be executed on behalf of such Additional Guarantor by its President, Chief
Financial Officer, Treasurer or one of its Vice Presidents. Each Additional
Guarantor hereby agrees that its Guarantee set forth in Section
1.3(a)
hereof
shall remain in full force and effect notwithstanding any failure to endorse
on
each Note a notation of such Guarantee. If an Officer whose signature is on
this
Second Supplement or on a Guarantee no longer holds that office at the time
the
6
(e) Except
as
otherwise provided in Section
1.3(f)
hereof,
no Additional Guarantor may consolidate with or merge with or into (whether
or
not such Additional Guarantor is the Surviving Person) another Person whether
or
not affiliated with such Additional Guarantor unless:
(i) subject
to Section
1.3(f)
hereof,
the Person formed by or surviving any such consolidation or merger (if other
than a Guarantor or the Company) unconditionally assumes all the obligations
of
such Additional Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Amended Indenture,
its Guarantee and any Registration Rights Agreements on the terms set forth
herein or therein; and
(ii) the
Additional Guarantor complies with the requirements of Article 5 of the Amended
Indenture.
In
case
of any such consolidation, merger, sale or conveyance and upon the assumption
by
the successor Person, by supplemental indenture, executed and delivered to
the
Trustee and satisfactory in form to the Trustee, of such Additional Guarantor’s
Guarantee endorsed upon the Notes and the due and punctual performance of all
of
the covenants and conditions of the Amended Indenture to be performed by the
Additional Guarantor, such successor Person shall succeed to and be substituted
for the Additional Guarantor with the same effect as if it had been named in
the
Amended Indenture as a Guarantor. Such successor Person thereupon may cause
to
be signed any or all of the Guarantees to be endorsed upon all of the Notes
issuable under the Amended Indenture which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Guarantees so issued
shall in all respects have the same legal rank and benefit under the Amended
Indenture as the Guarantees theretofore and thereafter issued in accordance
with
the terms of the Amended Indenture as though all of such Guarantees had been
issued at the date of the execution of the Indenture. Except as set forth in
Articles 4 and 5 of the Amended Indenture, and notwithstanding clauses (i)
and
(ii) of this Section
1.3(e),
nothing
contained in the Amended Indenture or in any of the Notes shall prevent any
consolidation or merger of an Additional Guarantor with or into the Company
or
another Guarantor, or shall prevent any sale or conveyance of the property
of an
Additional Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
(f) In
the
event of a sale or other disposition of all or substantially all of the assets
of an Additional Guarantor, by way of merger, consolidation or otherwise, or
a
sale or other disposition of all of the Capital Stock of any
7
Each
Additional Guarantor shall constitute a Guarantor for purposes of the Amended
Indenture, and the terms of this Section
1.3
shall,
as to each Additional Guarantor, constitute its Guarantee for purposes of the
Amended Indenture. Notwithstanding the foregoing terms of this Section
1.3,
each of
the Additional Guarantors intends by its execution of this Second Supplement
to
provide its Guarantee on the same terms and conditions as the Guarantees of
the
other Guarantors under the Amended Indenture and agrees that this Section
1.3
shall be
construed and enforced in a manner consistent with such intention.
ARTICLE
II
MISCELLANEOUS
PROVISIONS
Section
2.1 Execution
as Supplemental Indenture.
This
Second Supplement is executed and shall be construed as an indenture supplement
to the Existing Indenture.
Section
2.2 Successors.
This
Second Supplement shall be binding upon and inure to the benefit of the parties
hereto, their respective successors and assigns.
Section
2.3 Ratification.
Except
as expressly provided herein, all of the terms and provisions of the Existing
Indenture are and shall remain in full force and effect.
8
Section
2.4 Governing
Law.
This
Second Supplement shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in accordance with
the
laws of said State.
Section
2.5 Counterparts;
Construction.
This
Second Supplement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts together shall constitute one and
the same instrument.
. As
used herein, words in the singular number include the plural and words in the
plural include the singular.
Section
2.6 The
Trustee.
The
Trustee accepts the supplements and amendments to the Existing Indenture
effected by this Second Supplement.
[SIGNATURES
APPEAR ON NEXT PAGE]
9
IN
WITNESS WHEREOF,
the parties hereto have caused this Second Supplement to be duly executed as
of
the day and year first above written.
| PRESTIGE BRANDS, INC. |
| By: /s/ Xxxxx X. Xxxx |
| Name: Xxxxx X. Xxxx |
| Title: President |
| U.S. BANK NATIONAL |
| ASSOCIATION, AS TRUSTEE |
| By: /s/ Xxxxxxx X. Xxxxxxxxxx |
| Name: Xxxxxxx X. Xxxxxxxxxx |
| Title: Vice President |
| PRESTIGE BRANDS HOLDINGS, INC. |
| By: /s/ Xxxxx X. Xxxx |
| Name: Xxxxx X. Xxxx |
| Title: Chief Executive Officer and President |
| DENTAL CONCEPTS LLC |
| By: /s/ Xxxxx X. Xxxx |
| Name: Xxxxx X. Xxxx |
| Title: Chief Executive Officer |
| PRESTIGE INTERNATIONAL |
| HOLDINGS, LLC |
| By: /s/ Xxxxx X. Xxxx |
| Name: Xxxxx X. Xxxx |
| Title: President |
10
