FOURTH SUPPLEMENTAL INDENTURE By and Among PRESTIGE BRANDS, INC., as Issuer THE GUARANTORS PARTY HERETO AND Dated as of March 24, 2010 A SUPPLEMENT TO THE INDENTURE Dated as of April 6, 2004
Exhibit 4.9
By and
Among
PRESTIGE
BRANDS, INC., as Issuer
THE
GUARANTORS PARTY HERETO
AND
U.S.
BANK NATIONAL ASSOCIATION, AS TRUSTEE,
Dated as
of
March 24,
2010
A
SUPPLEMENT TO THE INDENTURE
Dated as
of April 6, 2004
THIS FOURTH SUPPLEMENTAL
INDENTURE (the “Fourth Supplement”) is dated as of March 24, 2010, and
made and entered into by and among PRESTIGE BRANDS, INC., a
Delaware corporation (the “Company”), the Guarantors party hereto and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee (the “Trustee”).
This Fourth 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”),
the Second Supplemental Indenture dated as of December 19, 2006 (the “Second
Supplement”) and the Third Supplemental Indenture dated as of February 22, 2008
(the “Third Supplement”), 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, the Second Supplement and the Third Supplement, and the
term “Amended Indenture” shall mean the Indenture, as supplemented and amended
by the First Supplement, the Second Supplement, the Third Supplement and this
Fourth 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
Fourth 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, the Second Supplement, and the Third Supplement and references in
this Fourth 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, the Second Supplement, the Third Supplement, this Fourth Supplement
and as otherwise supplemented and amended from time to time.
W
I T N E S S E T H :
WHEREAS, the Company has
offered to purchase any and all of the Notes (the “Offer”) and has solicited
consents (the “Solicitation”) to certain amendments to the Existing Indenture
pursuant to the Company’s Offer to Purchase and Consent Solicitation Statement
dated March 10, 2010; and
WHEREAS, Section 9.02 of the
Existing Indenture provides that the Company, when authorized by a Board
Resolution, and the Trustee may amend or supplement the Existing Indenture with
the consent of the Holders of at least a majority in aggregate principal amount
of the Notes;
WHEREAS, in accordance with
Section 9.02 of the Existing Indenture, the Company has obtained the consent to
the proposed amendments to the Existing Indenture from the Holders of at least a
majority in the aggregate principal amount of the Notes; and
WHEREAS, the Company is
authorized to enter into this Fourth Supplement by a Board Resolution and the
Trustee has received an Opinion of Counsel and an Officer’s Certificate stating
that the execution of this Fourth Supplement is permitted by the Existing
Indenture and otherwise satisfying the requirements of Section 9.06 of the
Indenture;
NOW, THEREFORE, in
consideration of the premises herein, it is mutually covenanted and agreed, for
the equal and proportionate benefit of the respective Holders from time to time,
as follows:
ARTICLE
I
SUPPLEMENTS
AND AMENDMENTS
At such
time as the Company delivers written notice to the Trustee and The Depository
Trust Company, in its capacity as the depository for the Notes with respect to
the Offer that the Notes representing at least a majority in the aggregate
principal amount of the Notes have been validly tendered and not validly
withdrawn pursuant to the Offer and accepted for purchase:
Section
1.1 Amendment to Definition of
Asset Sale. The definition of “Asset Sale” in Section 1.01 of
the Existing Indenture shall be amended by deleting the text of such definition
in its entirety and replacing it with the following text:
“‘Asset Sale’ means any sale,
lease, transfer, issuance or other disposition (or series of related sales,
leases, transfers, issuances or dispositions) by the Parent, the Company or any
of their respective Restricted Subsidiaries, including any disposition by means
of a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a “disposition”), of
(a) any
shares of Capital Stock of a Restricted Subsidiary (other than directors’
qualifying shares), or
(b) any
other Property of the Parent or any Restricted Subsidiary outside of the
ordinary course of business of the Parent or such Restricted
Subsidiary,
other
than, in the case of clause (a) or (b) above,
(1)
any disposition by a Restricted Subsidiary to the Parent or by the Parent or a
Restricted Subsidiary to a Wholly-Owned Restricted Subsidiary;
(2)
any disposition that constitutes a Permitted Investment or Restricted Payment
permitted by Section 4.10 as such Section was in effect immediately prior to the
effective date of the amendments described herein;
(3)
any disposition effected in compliance with Section 5.01(a) as such Section was
in effect immediately prior to the effective date of the amendments described
herein;
(4)
any disposition in a single transaction or a series of related transactions of
Property for aggregate consideration of less than
$1.0 million;
(5)
the disposition of cash or Cash Equivalents;
-2-
(6)
the disposition of accounts receivable and related assets (including contract
rights) to a Securitization Subsidiary in connection with a Permitted
Receivables Financing;
(7)
any foreclosure upon any assets of the Parent, the Company or any of their
respective Restricted Subsidiaries in connection with the exercise of remedies
by a secured lender pursuant to the terms of Debt otherwise permitted to be
incurred under this Indenture; and
(8)
the sale of the Capital Stock, Debt or other securities of an Unrestricted
Subsidiary.”
Section
1.2 Amendment to Definition of
Debt. The definition of “Debt” in Section 1.01 of the Existing
Indenture shall be amended by deleting the final paragraph of such definition in
its entirety and replacing it with the following:
“The amount of Debt of any
Person at any date shall be the outstanding balance, or the accreted value of
such Debt in the case of Debt issued with original issue discount, at such date
of all unconditional obligations as described above and the maximum liability,
upon the occurrence of the contingency giving rise to the obligation, of any
contingent obligations at such date. The amount of Debt represented by a Hedging
Obligation shall be equal to:
(1) zero
if such Hedging Obligation is:
(A) Debt
of the Parent or any Restricted Subsidiary under Interest Rate Agreements
entered into for the purpose of fixing, hedging or swapping interest rate risk
in the ordinary course of the financial management of the Parent or such
Restricted Subsidiary and not for speculative purposes;
(B) Debt
of the Parent or any Restricted Subsidiary under Currency Exchange Protection
Agreements entered into for the purpose of fixing, hedging or swapping currency
exchange rate risks directly related to transactions entered into by the Parent
or such Restricted Subsidiary in the ordinary course of business and not for
speculative purposes; or.
(C) Debt
of the Parent or any Restricted Subsidiary under Commodity Price Protection
Agreements entered into in the ordinary course of the financial management of
the Parent or such Restricted Subsidiary and not for speculative purposes;
or
(2) the
notional amount of such Hedging Obligation if not Incurred pursuant to the
foregoing clause (1).”
Section
1.3 Amendment to Section
3.01. Section 3.01 of the Existing Indenture shall be amended
by deleting the text in its entirety and replacing with the following
text:
-3-
“Section
3.01. Notices to
Trustee.
If the
Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it shall furnish to the Trustee, at least 3 Business Days
but not more than 60 days before a redemption date (or such shorter period
as allowed by the Trustee), an Officers’ Certificate setting forth (a) the
applicable section of this Indenture pursuant to which the redemption shall
occur, (b) the redemption date, (c) the principal amount of Notes to be redeemed
and (d) the redemption price.”
Section
1.4 Amendment to Section
3.03. Section 3.03 of the Existing Indenture shall be amended
by deleting the first paragraph of Section 3.03 of the Existing Indenture in its
entirety and replacing it with the following text:
“At least
3 Business Days but not more than 60 days prior to a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at such Holder’s
registered address appearing in the Security Register.”
Section
1.5 Amendment to Section
4.03 Section 4.03 of the Existing Indenture shall be amended
by deleting the text in its entirety and replacing with the following
text:
“Section
4.03. Reports.
Prestige
Brands Holdings, Inc. will comply with the provisions of TIA Section
314(a).”
Section
1.6 Amendment to Section
4.04. Section 4.04 of the Existing Indenture shall be amended
by deleting the text in its entirety and replacing with the following
text:
“Section
4.04. Compliance
Certificate.
(a) The
Company shall deliver to the Trustee not less often than annually, an Officer’s
Certificate stating that as to each such Officer’s knowledge, the Company has
complied with, and is not in default in the performance of observance of, the
conditions and covenants under this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto).
(b) The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers’ Certificate of any event
that with the giving of notice and/or the lapse of time would become an Event of
Default, its status and what action the Company is taking or proposes to take
with respect thereto.”
Section
1.7 Amendment to Section
4.12. Section 4.12 of the Existing Indenture shall be amended
by deleting the text in its entirety and replacing with the following
text:
-4-
“Section
4.12. Asset
Sales.
(a) The
Net Available Cash (or any portion thereof) from Asset Sales may be applied by
the Parent, the Company or a Restricted Subsidiary, to the extent the Parent,
the Company or such Restricted Subsidiary elects (or is required by the terms of
any Debt):
(i) to
Repay Senior Debt of the Company or any Restricted Subsidiary (excluding, in any
such case, any Debt owed to the Parent, the Company or an Affiliate of the
Parent or the Company); or
(ii) to
reinvest in Additional Assets (including by means of an Investment in Additional
Assets by a Restricted Subsidiary with Net Available Cash received by the
Parent, the Company or Restricted Subsidiary).
(b) Pending
the final application of any such Net Available Cash, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Available Cash in any manner that is not prohibited by this
Indenture.
(c) Any
Net Available Cash from an Asset Sale not applied in accordance with the
preceding paragraph within 365 days from the date of the receipt of such
Net Available Cash or that is not segregated from the general funds of the
Company for investment in identified Additional Assets in respect of a project
that shall have been commenced, and for which binding contractual commitments
have been entered into, prior to the end of such 365-day period and that shall
not have been completed or abandoned shall constitute “Excess Proceeds;” provided, however, that the
amount of any Net Available Cash that ceases to be so segregated as contemplated
above and any Net Available Cash that is segregated in respect of a project that
is abandoned or completed shall also constitute “Excess Proceeds” at the time
any such Net Available Cash ceases to be so segregated or at the time the
relevant project is so abandoned or completed, as applicable; provided, further, however, that the
amount of any Net Available Cash that continues to be segregated for investment
in identified Additional Assets and that is not actually so invested within
twelve months from the date of the receipt of such Net Available Cash shall also
constitute “Excess Proceeds.”
When the
aggregate amount of Excess Proceeds exceeds $10.0 million (taking into
account income earned on such Excess Proceeds, if any), the Company will be
required to make an offer to repurchase (the “Prepayment Offer”) the Notes
within five Business Days after the Company becomes obligated to do so, which
offer shall be in the amount of the Allocable Excess Proceeds (rounded to the
nearest $1,000), on a pro
rata basis according to principal amount, at a purchase price equal to
100% of the principal amount thereof, plus accrued and unpaid interest,
including Special Interest, if any, to the repurchase date (subject to the right
of holders of record on the relevant record date to receive interest due on the
relevant interest payment date), in accordance
-5-
| with the procedures (including prorating in the event of oversubscription) set forth in Section 3.09. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all holders of Notes have been given the opportunity to tender their Notes for repurchase in accordance with this Indenture, the Parent, the Company or such Restricted Subsidiary may use such remaining amount for any purpose permitted by this Indenture, and the amount of Excess Proceeds will be reset to zero. |
The term
“Allocable Excess Proceeds” shall mean the product of:
(a) the
Excess Proceeds and
(b) a
fraction,
(1) the
numerator of which is the aggregate principal amount of the Notes outstanding on
the date of the Prepayment Offer, and
(2) the
denominator of which is the sum of the aggregate principal amount of the Notes
outstanding on the date of the Prepayment Offer and the aggregate principal
amount of other Debt of the Company outstanding on the date of the Prepayment
Offer that is pari
passu in right of payment with the Notes and subject to terms and
conditions in respect of Asset Sales similar in all material respects to this
Section 4.12 and requiring the Company to make an offer to repurchase such Debt
at substantially the same time as the Prepayment Offer.
(d) The
Company shall comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to this Section 4.12. To the
extent that the provisions of any securities laws or regulations conflict with
provisions of this Section 4.12, the Company shall comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Section 4.12 by virtue thereof.”
Section
1.8 Amendment to Section
4.17. Section 4.17 of the Existing Indenture shall be amended
by deleting the text in its entirety and replacing with the following
text:
“Section
4.17. Designation of Restricted
and Unrestricted Subsidiaries.
(a) The
Board of Directors of the Company may designate any of its Subsidiaries to be an
Unrestricted Subsidiary if the Parent or a Restricted Subsidiary, as the case
may be, is permitted to make such Investment in such Subsidiary and such
Subsidiary:
-6-
(i) does
not own any Capital Stock or Debt of, or own or hold any Lien on any Property
of, the Parent or any Restricted Subsidiary;
(ii) has
no Debt other than Non-Recourse Debt; provided, however, that the Parent or a
Restricted Subsidiary may loan, advance, extend credit to, or guarantee the Debt
of an Unrestricted Subsidiary at any time at or after such Subsidiary is
designated as an Unrestricted Subsidiary;
(iii) except
as would be permitted by Section 4.14 as such Section was in effect immediately
prior to the effective date of the amendments described herein, is not party to
any agreement, contract, arrangement or understanding with the Parent or any
Restricted Subsidiaries unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable, taken as a whole, to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Parent or the
Company;
(iv) is
a Person with respect to which neither the Parent nor any Restricted
Subsidiaries has any direct or indirect obligation (A) to subscribe for
additional Capital Stock or (B) to maintain or preserve such Person’s financial
condition or to cause such Person to achieve any specified levels of operating
results; and
(v) has
not Guaranteed or otherwise directly or indirectly provided credit support in
the form of Debt for any Debt of the Parent or its Restricted
Subsidiaries.
(b) Unless
so designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Parent will be classified as a Restricted Subsidiary; provided, however, that such Subsidiary
shall not be designated a Restricted Subsidiary and shall be automatically
classified as an Unrestricted Subsidiary if either of the requirements set forth
in subparagraphs (i) and (ii) of clause (d) below will not be satisfied after
giving pro forma effect to such classification or if such Person is a Subsidiary
of an Unrestricted Subsidiary.
(c) Except
as provided in the first sentence of clause (b), no Restricted Subsidiary may be
redesignated as an Unrestricted Subsidiary, and neither the Parent nor any
Restricted Subsidiary shall at any time be directly or indirectly liable for any
Debt that provides that the holder thereof may (with the passage of time or
notice or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity upon the occurrence of a
default with respect to any Debt, Lien or other obligation of any Unrestricted
Subsidiary (including any right to take enforcement action against such
Unrestricted Subsidiary).
-7-
| Upon designation of a Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this Section 4.17, such Restricted Subsidiary shall, by execution and delivery of a supplemental indenture in form satisfactory to the Trustee, be released from any Guarantee previously made by such Restricted Subsidiary. |
(d) The
Board of Directors of the Company may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary if, immediately after giving pro forma effect to such
designation no Default or Event of Default shall have occurred and be continuing
or would result therefrom.
Any such
designation or redesignation by the Board of Directors will be evidenced to the
Trustee by filing with the Trustee a Board Resolution giving effect to such
designation or redesignation and an Officers’ Certificate that:
(i) certifies
that such designation or redesignation complies with the foregoing provisions,
and
(ii) gives
the effective date of such designation or redesignation;
such
filing with the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such designation or redesignation is made (or,
in the case of a designation or redesignation made during the last fiscal
quarter of the Company’s fiscal year, within 90 days after the end of such
fiscal year).”
Section
1.9 Amendments to Certain Other
Covenants. The following Sections of the Existing Indenture,
and any corresponding provision in the Notes, shall be deleted in their entirety
and replaced with “Intentionally Omitted,” and all references made thereto
throughout the Existing Indenture and the Notes shall be deleted in their
entirety:
| (a) | Section 4.05 | Taxes. | |
| (b) | Section 4.06 | Stay, Extension and Usury Laws. | |
| (c) | Section 4.07 | Corporate Existence. | |
| (d) | Section 4.09 | Incurrence of Additional Debt. | |
| (e) | Section 4.10 | Restricted Payments. | |
| (f) | Section 4.11 | Liens | |
| (g) | Section 4.13 | Restrictions on Distributions from Restricted Subsidiaries. | |
| (h) | Section 4.14 | Affiliate Transactions. | |
| (i) | Section 4.15 | Issuance or Sale of Capital Stock of Restricted Subsidiaries. | |
| (j) | Section 4.16 | Limitation on Layered Debt. | |
| (k) | Section 5.01 | Merger, Consolidation and Sale of Assets. |
Section
1.10 Amendments to Events of
Default. Clauses (c), (d), (e) and (f) of Section 6.01 of the
Existing Indenture and any corresponding provisions in the Notes, shall be
deleted in their entirety and replaced with “Intentionally Omitted,” and all
references made thereto throughout
-8-
the
Existing Indenture and the Notes shall be deleted in their
entirety.
Section
1.11 Effects of
Amendments. All references made to a provision of the Existing
Indenture or the Notes deleted pursuant to the amendments set forth in Sections
1.1 through 1.10 of this Article I shall be deleted in their entirety from the
Existing Indenture and the Notes, and any definitions used exclusively in the
provisions of the Existing Indenture deleted pursuant to the amendments set
forth in Sections 1.1 through 1.10 of this Article I shall be deleted in their
entirety from the Existing Indenture. The applicable provisions of
the Notes, including, without limitation, Section 12 thereof, shall be deemed
amended to reflect the amendments to the corresponding provisions of the
Existing Indenture that are amended pursuant to Sections 1.1 through 1.10 of
this Article I.
ARTICLE
II
MISCELLANEOUS
PROVISIONS
Section
2.1 Execution as Supplemental
Indenture. This Fourth Supplement is executed and shall be construed as
an indenture supplement to the Existing Indenture.
Section
2.2 Successors. This
Fourth 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.
Section
2.4 Governing Law. This
Fourth 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 Fourth Supplement may be executed in any number of
counterparts (which may be transmitted by telecopy or as delivered by email in
pdf format), 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 Severability. In
the event that any provisions of this Fourth Supplement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hall not in any way be affected or impaired
thereby.
Section
2.7 Trust Indenture
Act. If any provisions hereof limit, qualify, or conflict with
any provisions of the TIA required under the TIA to be part of and govern this
Fourth Supplement or the Amended Indenture, the provision of the TIA shall
control. If any provision hereof modifies or excludes any provision
of the TIA that pursuant to the TIA may be so modified or excluded, the
provisions of the TIA as so modified or excluded hereby shall
apply.
Section
2.8 The Trustee. The
Trustee accepts the supplements and amendments to the Existing Indenture
effected by this Fourth Supplement.
Section
2.9 Effectiveness. This
Fourth Supplement shall become effective upon execution by the Company, the
Guarantors party hereto, and the Trustee, provided, however, that
-9-
the
amendments and modifications set forth in Article I hereof shall not become
effective until such time as the Company delivers written notice to the Trustee
and The Depository Trust Company, in its capacity as the depository for the
Notes with respect to the Offer that the Notes representing at least a majority
in the aggregate principal amount of the Notes have been validly tendered and
not validly withdrawn pursuant to the Offer and accepted for
purchase.
[SIGNATURES
APPEAR ON NEXT PAGE]
-10-
IN WITNESS WHEREOF, the
parties hereto have caused this Fourth Supplement to be duly executed as of the
day and year first above written.
| PRESTIGE BRANDS, INC. | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | |
|
Name: Xxxxx
X. Xxxxxxxx
|
|||
| Title: Chief Financial Officer | |||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | |||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | ||
| Name: Xxxxxxx X. Xxxxxxxxxx | |||
| Title: Vice President | |||
| GUARANTORS: | |||
| PRESTIGE BRANDS HOLDINGS, INC. | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | |||
| Title: Chief Financial Officer | |||
| MEDTECH HOLDINGS, INC. | |||
| MEDTECH PRODUCTS INC. | |||
| PRESTIGE SERVICES CORP. | |||
| PRESTIGE BRANDS HOLDINGS, INC. | |||
| PRESTIGE BRANDS INTERNATIONAL, INC. | |||
| PRESTIGE PERSONAL CARE, INC. | |||
| PRESTIGE PERSONAL CARE HOLDINGS, INC. | |||
| THE CUTEX COMPANY | |||
| THE DENOREX COMPANY | |||
| THE SPIC AND SPAN COMPANY | |||
| By: | /s/ Xxxxx X. Xxxxxxxx | ||
| Name: Xxxxx X. Xxxxxxxx | |||
| Title: Chief Financial Officer | |||
