SUPPLEMENTAL INDENTURE
SUPPLEMENTAL
INDENTURE (this “Supplemental
Indenture”), dated
as
of October 6, 2004, among
Vetco, Inc., a New
York
corporation (the“Guaranteeing
Subsidiary”),
a
subsidiary of Prestige
Brands, Inc. (or its permitted
successor) (the “Company”),
the
Company and
U.S.
Bank, National Association,
as trustee under the indenture referred to below (the
“Trustee”).
WITNESSETH
WHEREAS,
the Company has heretofore
executed and delivered to the Trustee
an indenture (the “Indenture”),
dated
as
of April 6,
2004
providing for the
issuance of 9.25%Senior Subordinated
Notes due 2012 (the
“Notes”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company’s Obligations under the Notes and the Indenture
on the terms and conditions set forth herein
(the “Subsidiary
Guarantee”); and
WHEREAS, pursuant
to Section 9.01 of the Indenture, the Trustee is
authorized
to execute and deliver this Supplemental Indenture.
NOW
THEREFORE,
in consideration of the
foregoing and for other good and valuable consideration, the receipt of which
is
hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Notes
as follows:
1. CAPITALIZED
TERMS. Capitalized
terms used herein without definition shall have the meanings assigned to
them in
the Indenture.
2. AGREEMENT
TO GUARANTEE.
The
Guaranteeing Subsidiary hereby agrees as follows:
(a)
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Along
with all Guarantors named in the Indenture, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered
by
the Trustee
and to the Trustee and its successors and assigns, the Notes or
the
obligations of
the
Company hereunder or thereunder,
that:
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(i) the
principal of,
and
premium and Liquidated Damages, if
any,
and interest on
the
Notes
will be promptly paid in full
when
due,
whether at maturity, by acceleration, redemption or otherwise, and interest
on
the
overdue principal
of
and
interest on
the
Notes, if any,
if
lawful,
and
all
other
obligations of
the
Company to the Holders or
the
Trustee
hereunder or thereunder will be
promptly
paid in full or
performed,
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 same will 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 or otherwise. Failing payment when due of any amount
so guaranteed or any
performance
so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same
immediately.
(b)
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The
obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture,
the
absence of any action to enforce the same, any waiver or consent
by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce
the
same or any other circumstance which might otherwise constitute a
legal or
equitable discharge or defense of a
Guarantor.
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(c)
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The
following is hereby waived: diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy
of
the Company, any right to require a proceeding first against the
Company,
protest, notice and all demands
whatsoever.
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(d)
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This
Subsidiary Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture,
and the Guaranteeing Subsidiary accepts all obligations of a Guarantor
under the Indenture.
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(e)
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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 by either to the Trustee or such Holder,
this
Subsidiary Guarantee, to the extent theretofore discharged, shall
be
reinstated in full force and
effect.
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(f)
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The
Guaranteeing Subsidiary 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.
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(g)
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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 Article 6 of
the Indenture for the purposes of this Subsidiary 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 Article 6 of the Indenture, such obligations (whether
or not
due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Subsidiary
Guarantee.
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(h)
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The
Guarantors 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 Subsidiary
Guarantee.
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2
(i)
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Pursuant
to Section 10.02 of the Indenture, after giving effect to any maximum
amount and all other contingent and fixed liabilities that are relevant
under any applicable Bankruptcy or fraudulent conveyance laws, and
after
giving effect to any collections from, rights to receive contribution
from
or payments made by or on behalf of any other Guarantor in respect
of the
obligations of such other Guarantor under Article 10 of the Indenture,
this new Subsidiary Guarantee shall be limited to the maximum amount
permissible such that the obligations of such Guarantor under this
Subsidiary Guarantee will not constitute a fraudulent transfer or
conveyance.
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3. EXECUTION
AND DELIVERY. Each Guaranteeing Subsidiary agrees that the Subsidiary Guarantees
shall remain in full force and
effect notwithstanding
any failure to endorse on each Note a notation of such Subsidiary
Guarantee.
4. GUARANTEEING
SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) |
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The
Guaranteeing Subsidiary may not sell or otherwise dispose of all
substantially all of its assets to, or consolidate with or merge
with or
into (whether or not such Guarantor is the surviving Person) another
Person, other than the Company or another Guarantor
unless:
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(i) | immediately after giving effect to such transaction, no Default or Event of Default exists; and | ||
(ii) |
either (A) subject to Sections 10.04 and 10,05 of the Indenture,
the
Person acquiring the property in any such sale or disposition
or the
Person formed by or surviving any such consolidation or merger
unconditionally assumes all, the obligations of that
Guarantor, pursuant
to a supplemental indenture in form and substance reasonably satisfactory
to the Trustee, under the Notes,
the Indenture and the Subsidiary Guarantee on the terms set forth
herein
or therein; or (B) the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable
provisions
of the Indenture, including without limitation, Section 4.12
thereof.
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(b) |
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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
the Subsidiary Guarantee endorsed upon the Notes and the due and
punctual
performance of all of the covenants and conditions of the Indenture
to be
performed by the Guarantor, such successor Person shall succeed to
and be
substituted for the Guarantor with the same effect as if it had been
named
herein as a Guarantor. Such successor Person thereupon may cause
to be
signed any or all of the Subsidiary Guarantees to be endorsed upon
all of
the Notes issuable under the Indenture which theretofore shall not
have
been signed by the Company and delivered to the Trustee. All the
Subsidiary Guarantees so issued shall in all respects have the same
legal
rank and benefit under the Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with
the
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terms
of
the Indenture as though all of such Subsidiary Guarantees had been issued at
the
date of the execution hereof:
(c) |
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Except
as set forth in Articles 4 and 5 and Section 10.05 of Article 10
of the
Indenture, and notwithstanding clauses (a) and (b) above, nothing
contained in the Indenture or in any of the Notes shell prevent any
consolidation or merger of a Guarantor with or into the Company or
another
Guarantor, or shall prevent any sale or conveyance of the property
of a
Guarantor as an entirety or substantially as an entirety to the Company
or
another Guarantor.
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5. RELEASES.
(a) |
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In
the event of any sale or other disposition of all or substantially
all of
the assets of any Guarantor, by way of merger, consolidation or otherwise,
or a sale or other disposition of all of the capital stock of any
Guarantor, in each case to a Person that is not (either before or
after
giving effect to such transaction) a Restricted Subsidiary of the
Company,
then such Guarantor (in the event of a sale or other disposition,
by way
of merger, consolidation or otherwise, of all of the capital stock
of such
Guarantor) or the corporation acquiring the property (in the event
of a
sale or other disposition of all or substantial1y all of the assets
of
such Guarantor) will be released and relieved of any obligations
under its
Subsidiary Guarantee; provided
that the Net Proceeds of such sale or other disposition are applied
in
accordance with the applicable provisions of the Indenture, including
without limitation Section 4.12 of the Indenture. Upon delivery by
the
Company to the Trustee of an Officers’ Certificate and an Opinion of
Counsel to the effect that such sale or other disposition was made
by the
Company in accordance with the provisions of the Indenture, including
without limitation Section 4.12 of the Indenture, the Trustee shal1
execute any documents reasonably required in order to evidence the
release
of any Guarantor from its obligations under its Subsidiary
Guarantee.
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(b) | Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture as provided in Article 10 of the Indenture. |
6. NO
RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Notes, this
Indenture the Subsidiary Guarantees, or for any claim based on, in respect
of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives arid releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver may not
be
effective to waive liabilities under the federal securities laws.
7. NEW
YORK
LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OP NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF
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CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
8. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental Indenture.
Each
signed copy shall be an original, but all of them
together
represent the same
agreement
9. EFFECT
OF
HEADINGS. The Section headings herein are for convenience only and shall not
affect the construction hereof.
10. THE
TRUSTEE. The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Supplemental
Indenture
or for or in respect of the recitals contained herein, all of which recitals
are
made solely by the Guaranteeing Subsidiary and the Company.
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be only executed and attested, all as of the date first above
written.
VETCO, INC. | ||
By: /s/ Xxxxx X. Xxxxxxxx | ||
Name: Xxxxx X. Xxxxxxxx | ||
Title: Vice President | ||
PRESTIGE BRANDS, INC. | ||
By: /s/ Xxxxx X. Xxxx | ||
Name: Xxxxx X. Xxxx | ||
Title: President | ||
U.S. BANK, NATIONAL ASSOCIATION, | ||
as Trustee | ||
By: /s/ Xxxxxxxx Xxxxxxx | ||
Authorized Signatory |