EXHIBIT 10.4
AMENDMENT NO. 3 TO THE
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 23, 2003
AMENDMENT NO. 3 TO THE THIRD AMENDED AND RESTATED CREDIT
AGREEMENT among Rayovac Corporation, a Wisconsin corporation (the "Company"),
the banks, financial institutions and other institutional lenders parties to the
Credit Agreement referred to below (collectively, the "Lenders") and Bank of
America, N.A., as administrative agent (the "Administrative Agent") for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The Company, Varta Geratebatterie GmbH (the
"Subsidiary Borrower" and together with the company, the "Borrower"), the
Lenders and the Administrative Agent have entered into a Third Amended and
Restated Credit Agreement dated as of October 1, 2002 (such Credit Agreement,
(as amended, supplemented or otherwise modified through the date hereof, the
"Credit Agreement"). Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Credit Agreement.
(2) The Lenders signatory hereto are, on the terms and
conditions stated below, willing to grant the request of the Company and the
Company, and such Lenders have agreed to amend the Credit Agreement as
hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 4, hereby amended as follows:
(a) The Preliminary Statements to the Credit Agreement are
amended by (i) replacing the figure "$100,000,000" with the figure
"$120,000,000", (ii) replacing the figure "(euro)50,000,000" the first time it
appears therein with the figure "(euro)40,000,000" and (iii) replacing the
figure "$300,000,000" with the figure "$350,000,000",
(b) Section 1.1 is amended by inserting the following
definitions in alphabetical order:
"Amendment No. 3 means Amendment No. 3 to the Credit Agreement
dated as of September 23, 2003, among the Company, the Lenders party
thereto and the Administrative Agent.
Amendment No. 3 Effective Date has the meaning specified in
Amendment No. 3.
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Average Dollar Equivalent means, on any date, in relation to
any Indebtedness outstanding on such date denominated in Euros, the
amount of Dollars which could be purchased with the amount of such
Indebtedness at the average of the foreign exchange spot rates of the
Administrative Agent on the last day of each of the twelve calendar
months preceding such date.
Bridge Facility means a senior subordinated unsecured bridge
facility in form and substance reasonably acceptable to the
Administrative Agent, entered into by the Company, the ROV Guarantors
and certain financial institutions and institutional lenders named
therein pursuant to which the Company will borrow up to $350 million
solely to finance the Remington Acquisition and the Remington
Financing.
First Tranche U.S. Term Loan B - see subsection 2.1(e).
First Tranche U.S. Term Loan B Commitment means, as to any
Lender, the commitment of each such Lender to make a First Tranche U.S.
Term Loan B pursuant to subsection 2.1(e). The amount of each Lender's
First Tranche U.S. Term Loan B Commitment is set forth across from such
Lender's name on Schedule 2.1.
German Pledge Agreement means any of the German Share Pledge
Agreements, the Account Pledge Agreement, as well as any other
Collateral Document governed by German law and providing for a pledge
(Pfandrecht) in favor of the Administrative Agent for the benefit of
itself, the Lenders and/or the Qualified Foreign Lenders as security
for the liabilities of the Company, the Subsidiary Borrower or any
Guarantor under any Loan Document.
IRP means Investors/RP, L.L.C., a Delaware limited liability
company.
Permanent Securities means the issuance and sale of senior
subordinated unsecured notes or any other securities by the Company,
any of its Subsidiaries, or the Remington Companies on terms and
conditions reasonably acceptable to the Administrative Agent solely for
the purpose of either financing the Remington Acquisition and the
Remington Financing or refinancing all or a portion of the loans under
the Bridge Facility.
Razor means Vestar Razor Corp., a Delaware corporation.
Remington means Remington Products Company, L.L.C., a Delaware
limited liability company.
Remington Acquisition means the acquisition of (i) all of the
membership interests in Remington owned by RPI, (ii) all of the issued
and outstanding capital stock of each of ▇▇▇▇▇▇ and Razor and (iii) all
of the economic interests in Remington that are owned by IRP, pursuant
to the Remington Acquisition Agreement.
Remington Acquisition Agreement means that certain Purchase
Agreement dated as of August 21, 2003 between, among others, RPI,
Vestar Equity Partners, L.P. and IRP, as sellers (the "Remington
Sellers"), and the Company, as purchaser.
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Remington Acquisition Commitment Date means August 21, 2003.
Remington Acquisition Information means all information in
connection with any aspect of the Remington Acquisition Transactions
and all financial projections concerning the Company, its Subsidiaries,
Remington or any of its Subsidiaries, that was made available to the
Lead Arranger or any of the Lenders by the Company, its Subsidiaries,
any of their representatives, or on their behalf, prior to the
Remington Acquisition Commitment Date.
Remington Acquisition Transactions means the Remington
Acquisition, the Remington Financing, the Bridge Facility, the
Permanent Securities and Amendment No. 3.
Remington Companies means ▇▇▇▇▇▇, Razor, Remington and their
Subsidiaries.
Remington Company Pledge Agreement means a Pledge Agreement,
substantially in the form of Exhibit G, between each Remington Company
that is a Domestic Subsidiary and the Administrative Agent.
Remington Financing means the repayment by the Company or the
Remington Companies of all Indebtedness of the Remington Companies
(other than any Indebtedness permitted to be outstanding hereunder) and
the termination of all commitments to make extensions of credit
existing on or prior to the Amendment No. 3 Effective Date.
Remington Material Adverse Effect means (i) a material adverse
effect on business, operations, assets, liabilities (actual or
contingent), results of operations, condition (financial or otherwise)
or prospects of the Remington Companies, taken as a whole, (ii) an
adverse effect on the ability of any Remington Company that is a
Guarantor to perform its obligations under the applicable loan
documentation, (iii) an impairment of the rights and remedies of the
Lenders under the Loan Documents as they relate to the Remington
Companies or (iv) a purported adverse effect on Amendment No. 3 or any
other aspect of the Remington Acquisition Transactions as they relate
to the Remington Companies.
Remington U.K. Charge means a Deed of Charge and Memorandum of
Deposit, substantially in the form of Exhibit H-1, between Remington
and the Administrative Agent.
▇▇▇▇▇▇/▇▇▇▇▇ Acquisitions means the acquisition of one or more
of the Subsidiary Borrower's leased facilities located in Ellwangen,
Germany and Dischingen, Germany, currently owned by ▇▇▇▇▇
Grundstucksverwaltungsgesellschaft mbH & Co. Vermietungs-KG, Mannheim
and ▇▇▇▇▇▇ Grundstucksvermietungsgesellschaft mbH & Co. Object
Dischingen KG, Dusseldorf, respectively, or the equity interests of one
or both such entities, for an aggregate purchase price not to exceed
(euro)20,000,000.
RPI means RPI Corp., a Delaware corporation.
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Second Tranche U.S. Term Loan B - see subsection 2.1(e).
Second Tranche U.S. Term Loan B Commitment means, as to any
Lender, the commitment of each such Lender to make a Second Tranche
U.S. Term Loan B pursuant to subsection 2.1(e). The amount of each
Lender's Second Tranche U.S. Term Loan B Commitment is set forth across
from such Lender's name on Schedule 2.1."
▇▇▇▇▇▇ means Vestar ▇▇▇▇▇▇ Corp., a Delaware corporation.
(c) The following definitions in Section 1.01 of the Credit
Agreement are amended in their entirety to read as follows:
"Restructuring Charges means restructuring charges of (i) not
more than $42,500,000 identified to the Administrative Agent in writing
prior to November 15, 2003 and taken by the Company prior to September
30, 2003, of which not more than $24,000,000 shall be cash
restructuring charges and not more than $21,000,000 shall be non-cash
restructuring charges, and (ii) not more than $35,000,000 identified to
the Administrative Agent in writing prior to November 15, 2005 and
taken by the Company prior to September 30, 2005, of which not more
than $25,000,000 shall be cash restructuring charges and not more than
$10,000,000 shall be non-cash restructuring charges.
U.S. Term Loan B Commitment means, as to each Lender, such
Lender's First Tranche U.S. Term Loan B Commitment and Second Tranche
U.S. Term Loan B Commitment, as applicable."
(d) The definition of "Euro Revolving Commitment Amount" in
Section 1.01 of the Credit Agreement is amended by replacing the figure
"(euro)50,000,000" with the figure "(euro)40,000,000".
(e) The definition of "Excess Cash Flow" in Section 1.01 of
the Credit Agreement is amended by deleting the parenthetical in subsection
(b)(ii) thereof.
(f) The definition of "Funded Debt" in Section 1.01 of the
Credit Agreement is amended by inserting the following at the end thereof:
"minus the Dollar Equivalent of any Indebtedness denominated
in Euros plus the Average Dollar Equivalent of any Indebtedness denominated in
Euros."
(g) The definition of "German Entities" in Section 1.01 of the
Credit Agreement is amended by inserting the phrase "and Remington Products
GmbH" at the end thereof.
(h) The definition of "U.S. Revolving Commitment Amount" in
Section 1.01 of the Credit Agreement is amended by replacing the figure
"$100,000,000" with the figure "$120,000,000".
(i) Section 2.1(e) of the Credit Agreement is amended in its
entirety to read as follows:
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"(e) The U.S. Term Loan B Facility. (i) Each Lender
severally agrees, on the terms and conditions set forth herein, to make
a single loan to the Company (each such loan, a "First Tranche U.S.
Term Loan B") on the Effective Date in the amount of such Lender's
First Tranche U.S. Term Loan B Commitment. Amounts borrowed as First
Tranche U.S. Term Loans B which are repaid or prepaid by the Company
may not be reborrowed. The First Tranche U.S. Term Loan B Commitments
shall expire concurrently with the making of the First Tranche U.S.
Term Loans B on the Effective Date.
(ii) Each Lender severally agrees, on the terms and
conditions set forth herein, to make a single loan to the Company (each
such loan, a "Second Tranche U.S. Term Loan B, and together with the
First Tranche U.S. Term Loans B, the "U.S. Term Loans B") on the
Amendment No. 3 Effective Date in the amount of such Lender's Second
Tranche U.S. Term Loan B Commitment. Amounts borrowed as Second Tranche
U.S. Term Loans B which are repaid or prepaid by the Company may not be
reborrowed. The Second Tranche U.S. Term Loan B Commitments shall
expire concurrently with the making of the Second Tranche U.S. Term
Loans B on the Amendment No. 3 Effective Date."
(j) Section 2.8(a) of the Credit Agreement is amended by:
(i) Deleting the letter "(k)" in the third line
of subsection (iv) thereof and substituting for such letter
the letter "(l)", and
(ii) Adding to the end thereof a new subsection
(vi) to read as follows:
"(vi) Within 5 Business Days after the receipt of any Net
Cash Proceeds from the sale of the former Rayovac production facility
in Mexico City, in an amount required by the provisions of Section
8.2(i) hereof.".
(k) A new Section 5.1A of the Credit Agreement is
inserted in proper numerical order to read as follows:
"5.1A Conditions to Extensions of Credit on Amendment No. 3
Effective Date. The obligation of each Lender to make any Second Tranche U.S.
Term Loan B to be made by it is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date:
(a) Resolutions and Incumbency.
(i) Copies of resolutions of the board of
directors (or other governing body) of each Remington Company
that is a Guarantor authorizing the transactions contemplated
hereby, certified as of the Amendment No. 3 Effective Date by
the Secretary or an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or an
Assistant Secretary or director of each Remington Company that
is a Guarantor certifying the names and true
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signatures of the officers of such Person authorized to
execute, deliver and perform the Loan Documents to be
delivered by it hereunder.
(b) Organization Documents; Good Standing. Each
of the following documents:
(i) for each Remington Company that is a
Guarantor, the articles or certificate of incorporation and
the bylaws of such Person, as the case may be, as in effect on
the Amendment No. 3 Effective Date, certified by the Secretary
or Treasurer of such Person, as of the Amendment No. 3
Effective Date; and
(ii) a good standing certificate, if applicable,
for each Remington Company that is a Guarantor, from the
Secretary of State (or similar applicable Governmental
Authority) of the jurisdiction of its organization.
(c) Legal Opinions.
(i) An opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
substantially in the form of Exhibit I-2.
(ii) An opinion of special English counsel to the
Company as to the Remington U.K. Charge.
(d) Payment of Fees. Evidence of payment by the
Borrowers of all accrued and unpaid fees, costs and expenses to the
extent then due and payable on the Amendment No. 3 Effective Date,
together with Attorney Costs of the Administrative Agent and the
Arrangers to the extent invoiced prior to or on the Amendment No. 3
Effective Date, plus such additional amounts of Attorney Costs as shall
constitute the Administrative Agent's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings
(it being understood that such estimate shall not thereafter preclude
final settling of accounts between the Company and the Administrative
Agent), including any such costs, fees and expenses arising under or
referenced in Section 2.11 or 11.4.
(e) Certificate. A certificate signed by a
Responsible Officer, dated as of the Amendment No. 3 Effective Date
stating that no Event of Default or Unmatured Event of Default exists
or will result from the making of the Second Tranche U.S. Term Loan B
under Section 9.1(a) or Section 9.1(c) (in the case of Section 9.1(c),
solely to the extent that such Event of Default or Unmatured Event of
Default arises from (i) a violation of Section 8.2, 8.3, 8.4, 8.8 or
8.14 or (ii) an action taken by the Borrowers or the Guarantors that
violates Section 8.1 or 8.5).
(f) Guaranties. An ROV Guaranty executed by each
Remington Company that is a Domestic Subsidiary.
(g) Real Property. (i) With respect to each
parcel of real property owned by any Remington Company and listed on
Schedule 5.1A(g), (A) a duly executed Mortgage (collectively, the
"Remington Mortgages") providing for a fully perfected first
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mortgage Lien, in favor of the Administrative Agent for the benefit of
the Administrative Agent and the Lenders, in all right, title and
interest of each Remington Company to the real property subject to such
Mortgage, superior in right to any Lien (other than Permitted Liens),
existing or future, which any Remington Company or any creditors
thereof or purchasers therefrom, or any other Person, may have against
such real property as well as evidence that all filing and recording
taxes and fees have been paid, together with a certificate of insurance
confirming that the insurance required to be maintained with respect to
such real property by this Agreement, any Mortgage, or any other Loan
Document is in full force and effect, (B) a fully-paid ALTA (or other
form acceptable to the Administrative Agent) mortgagee policy of title
insurance or a binder issued by a title insurance company satisfactory
to the Administrative Agent insuring (or undertaking to insure, in the
case of a binder) that the Mortgage creates and constitutes a valid
first mortgage Lien against such real property in favor of the
Administrative Agent, subject only to exceptions acceptable to the
Administrative Agent, with such endorsements and affirmative insurance
as the Administrative Agent may reasonably request, (C) copies of all
documents of record concerning such parcel as shown on the policy or
binder referred to above, (D) ALTA/ACSM form surveys for which all
necessary fees (where applicable) have been paid, and dated as of a
date acceptable to the Administrative Agent, certified to the
Administrative Agent and the issuer of the Remington Mortgages in a
manner satisfactory to the Administrative Agent by a land surveyor duly
registered and licensed in the state in which the property described in
such surveys is located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces, rights of
way, building set-back lines and other dimensional regulations and the
absence of encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and other defects
acceptable to the Administrative Agent, (E) such other consents,
agreements and confirmations of third parties as the Administrative
Agent may deem necessary or desirable and evidence that all other
actions that the Administrative Agent may deem necessary or desirable
in order to create valid first and subsisting Liens on the property
described in the Remington Mortgages has been taken, (F) favorable
opinions of local counsel for the Company in the state where the real
property described in the Remington Mortgages is located, with respect
to the enforceability and perfection of such Mortgages covering any
such real property and any related fixture filings, in form and
substance satisfactory to the Administrative Agent, and (G) the
favorable opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to
the valid existence, corporate power and authority of the Remington
Company party to the Remington Mortgages in the granting of such
Mortgages, in form and substance satisfactory to the Administrative
Agent. (ii) If the requirements of clause (i) hereof have not been
satisfied, evidence satisfactory to the Administrative Agent that the
Company has used commercially reasonable efforts to satisfy such
requirements.
(h) Collateral Documents. Fully executed
originals of each of the following: (i) a supplement to the Security
Agreement, executed by each Remington Company that is a Domestic
Subsidiary; (ii) the Remington Company Pledge Agreement; and (iii) the
Remington U.K. Charge; together with, in each case, evidence that all
necessary deliveries, registrations and filings have been (or
substantially currently will be) made to perfect the Liens granted
thereunder.
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(i) Other Documents. Such other approvals,
opinions, documents or materials, including, without limitation,
updated schedules to the Credit Agreement, as the Administrative Agent
or any Lender may reasonably request.
(j) Remington Acquisition Information. All of
the Remington Acquisition Information shall be complete and correct in
all material respects, and no changes, occurrences or developments
shall have occurred, and no information shall have been received or
discovered by the Lead Arranger of the Lenders, regarding the Company,
any of its Subsidiaries, Remington or any of its Subsidiaries or the
Remington Acquisition Transactions after the Remington Acquisition
Commitment Date that either individually or in the aggregate could
reasonably be excepted to have a Remington Material Adverse Effect.
(k) Concurrent Transactions. (i) The
Administrative Agent shall have received satisfactory evidence of
receipt by the Company of not more than $350 million cash proceeds from
advances made under the Bridge Facility or the issuance by the Company
of Permanent Securities, (ii) the Remington Acquisition shall have been
consummated in accordance with the terms of the Remington Acquisition
Agreement and in compliance with applicable law and regulatory
approvals, (iii) the Remington Financing shall have been consummated
simultaneously with the Remington Acquisition and (iv) the Remington
Acquisition Agreement and other agreements, instruments and documents
relating to the Remington Acquisition Transactions shall not have been
altered, amended or otherwise changed or supplemented from the form
previously delivered to the Administrative Agent in any material
respect or in a manner adverse to the Lenders or any condition therein
waived without the prior written consent of the Lenders.
(l) No Remington Material Adverse Effect. There
shall have been no change, occurrence or development in Remington since
July 26, 2003 that could reasonably be expected to have a Remington
Material Adverse Effect.
(m) Ownership Interests. The Lenders shall have
received reasonably satisfactory evidence that (i) at least 90% of the
capital stock and other equity or economic interests ("OWNERSHIP
INTERESTS") in Remington shall be owned by the Company or one or more
of the Company's Subsidiaries, in each case free and clear of any lien,
charge or encumbrance not permitted under this Agreement.
(n) Consents and Approvals. All governmental,
shareholder and third party consents and approvals required by the
Remington Acquisition Agreement for the consummation of the Remington
Acquisition and expiration of all waiting periods applicable to such
consents (including, without limitation, the expiration or termination
of the requisite waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1975) without any action being taken by any
authority that could restrain, prevent or impose any material adverse
conditions on the Remington Acquisition or that seeks or threatens any
of the foregoing, and no law or regulation shall be applicable that in
the judgment of the Lead Arranger could have a Remington Material
Adverse Effect shall have been received.
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(o) Litigation; Restraining Orders. Except as
specifically disclosed on Schedule I to Amendment No. 3, there shall
not be any action, suit, investigation or proceeding pending or, to the
knowledge of any of the Company or any of its Subsidiaries or any of
the Remington Companies, threatened in any court or before any
arbitrator or governmental authority that could reasonably be expected
to have a Remington Material Adverse Effect.
(p) Margin Regulations. All loans made by the
Lenders to the Borrowers or any of their affiliates shall be in full
compliance with the Federal Reserve's Margin Regulations.
(q) Satisfactory Financial Statements. The Lead
Arranger and the Lenders shall have received: (A) unaudited
consolidated financial statements of the Company and its Subsidiaries
and the Remington Companies for any interim quarterly periods that have
ended since the most recent of the audited financial statements
received by the Lead Arranger and the Lenders, and pro forma financial
statements as to the Company and its Subsidiaries and the Remington
Companies giving effect to the Remington Acquisition Transactions for
the most recently completed fiscal year and the period commencing with
the end of the most recently completed fiscal year and ending with the
most recently completed quarter, which in each case, (1) shall not be
materially inconsistent with the Remington Acquisition Information, and
(2) shall meet the requirements of Regulation S-X under the Securities
Act, and all other accounting rules and regulations of the SEC
promulgated thereunder applicable to a registration statement under
such Act on Form S-1; (B) forecasts prepared by management of the
Company and its Subsidiaries and the Remington Companies, each in form
reasonably satisfactory to the Lead Arranger and the Lenders, of
balance sheets, income statements and cash flow statements for each
year commencing with the first fiscal year following the Amendment No.
3 Effective Date for the term of the Facilities; and (C) evidence
satisfactory to the Lead Arranger that the pro forma financial
statements delivered pursuant to clause (A) above and the forecasts
delivered pursuant to clause (B) above were prepared in good faith on
the basis of the assumptions stated therein, which assumptions are fair
in light of the then existing conditions, and the chief financial
officer of the Company shall have provided the Lenders a written
certification to that effect."
(l) Section 5.2 of the Credit Agreement is amended by
inserting the following parenthetical immediately after the word "Loan"
contained in the first sentence thereof: "(other than the Second Tranche U.S.
Term Loans B)".
(m) Section 7.13 of the Credit Agreement is amended by:
(i) Adding the following phrase to the end of
subsection (a)(i)(B) thereof: " provided, further, that,
except as may be required pursuant to clause (d) below, no
Person shall be required to pledge the capital stock of any
Foreign Subsidiary of Remington, other than Remington Consumer
Products Limited;" and
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(ii) Inserting the following phrase at the end of
the parenthetical contained in the fourth and eighth lines of
subsection (a)(i)(C) thereof: "and, except as may be required
pursuant to clause (d) below, Remington Products GmbH" and
(iii) Adding to the end thereof a new subsection
(d) to read as follows:
"(d) Notwithstanding the foregoing provisions of this Section
7.13, if, at any time, Remington Consumer Products (Ireland) Limited,
Remington Products, Inc., Remington Products GmbH, Remington Products
Australia Pty Ltd. and Remington Products New Zealand Ltd.
(collectively, the "Remington Immaterial Foreign Subsidiaries"), hold
assets that have a fair market value of at least $40,000,000 in the
aggregate, or the Dollar Equivalent thereof, or have net income in any
fiscal year of at least $3,000,000 in the aggregate, or the Dollar
Equivalent thereof, and (i) the stock of any Remington Immaterial
Foreign Subsidiary has not previously been so pledged, the Company
shall promptly (A) pledge or cause to be pledged, pursuant to
documentation in form and substance satisfactory to the Administrative
Agent, 66% of the stock of such Remington Immaterial Foreign Subsidiary
to the Administrative Agent (so long as such Remington Immaterial
Foreign Subsidiary is not owned by a Foreign Subsidiary), (B) in
connection with such pledge, deliver or cause to be delivered to the
Administrative Agent such certificates and opinions of counsel as may
be requested by the Administrative Agent, and (C) deliver or cause to
be delivered to the Administrative Agent the stock certificates (if
any) to be pledged thereunder, together with undated stock powers duly
executed in blank, and (ii) any Remington Immaterial Foreign Subsidiary
has not previously delivered a KGaA Guaranty to the Administrative
Agent, the Company shall cause such Remington Immaterial Foreign
Subsidiary to execute and deliver a KGaA Guaranty, together with such
certificates and opinions of counsel in connection with such KGaA
Guaranty as may be requested by the Administrative Agent."
(n) A new Section 7.18 of the Credit Agreement is
inserted in proper numerical order as follows:
"7.18 Amendment No. 3 Documents. Within 45 days after the
Amendment No. 3 Effective Date, the Company will deliver to the Administrative
Agent the documents required by Section 5.1A(g)(i), if not previously delivered
on the Amendment No. 3 Effective Date.".
(o) Section 8.1(i) of the Credit Agreement is amended by:
(i) Inserting after the words "ordinary course
of business," in the second line thereof the parenthetical
"(including, without limitation, any property acquired
pursuant to the ▇▇▇▇▇▇/▇▇▇▇▇ Acquisitions)" and
(ii) Replacing the figure "$8,000,000" contained
therein with the phrase "the sum of (x) $10,000,000 plus (y)
the aggregate principal amount of any Indebtedness incurred
for the purposes of consummating the ▇▇▇▇▇▇/▇▇▇▇▇
Acquisitions".
(p) Section 8.2 of the Credit Agreement is amended by:
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(i) Replacing the figure "$10,000,000" contained
in clause (c) thereof with the figure "$15,000,000",
(ii) Deleting the word "and" at the end of clause
(g) thereof,
(iii) Replacing the figure "$5,000,000" contained
in clause (h) thereof with the figure "$10,000,000" and
replacing the period at the end of such clause (h) with ";
and", and
(iv) Adding to the end thereof a new subsection
(i) to read as follows:
"(i) the sale of the former Rayovac
production facility in Mexico City provided that (A) at the
time of such sale, no Event of Default or Unmatured Event of
Default shall exist or will result from such sale, (B) at
least 75% of the consideration received by the Company or such
Subsidiary from such sale is in cash or Cash or Cash
Equivalent Investments and (C) any Net Cash Proceeds in excess
of $12,500,000 received by or on behalf of the Company or any
Subsidiary in respect of such sale shall be applied by the
Company within 5 Business Days of receipt to prepay an
aggregate principal amount of the Term Loans equal to 100% of
the Net Cash Proceeds in excess of $12,500,000 so received.
Any such prepayment shall be applied to the Term Loans on a
pro rata basis (using the Dollar Equivalent of each Euro
installment to determine the pro rata application)."
(q) Section 8.3 of the Credit Agreement is amended by
deleting the words "or (j)" contained therein and substituting the words ", (j)
or (m)" therefor.
(r) Section 8.4 of the Credit Agreement is amended by:
(i) Replacing subsection (i) thereof in its
entirety with the following: "(i) investments incurred in
order to consummate the VARTA Acquisition, including, without
limitation, the Transformation and the VARTA Exchange;"
(ii) Deleting the word "and" at the end of clause
(k) thereof,
(iii) Replacing the period at the end of clause
(l) thereof with a semicolon, and
(iv) Adding to the end thereof new subsections
(m) and (n) to read as follows:
"(m) the Remington Acquisition; and
(n) the ▇▇▇▇▇▇/▇▇▇▇▇ Acquisitions."
(s) Section 8.5 of the Credit Agreement is amended by:
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(i) Inserting (A) after the words "aggregate
amount" in the second line of clause (d) thereof the
parenthetical "(other than Indebtedness permitted by
subsection (f) below)" and (B) after the words "subsection
(e)" in the fourth line of clause (d) thereof the words "or
(f)",
(ii) Replacing the figure "$5,000,000" contained
in clause (d) thereof with the figure "$10,000,000",
(iii) Replacing clause (e) thereof in its entirety
with the following: "(e) Indebtedness of Subsidiaries to the
Company or Wholly-Owned Subsidiaries, provided that (i) any
such Indebtedness incurred by the Company or any Domestic
Subsidiary on or following the Amendment No. 3 Effective Date
must be unsecured and expressly subordinated to the prior
payment in full in cash of all obligations hereunder and under
the Loan Documents and (ii) any such Indebtedness owed to the
Company or any Domestic Subsidiary, unless incurred by the
Company or any Domestic Subsidiary, and incurred on or
following the Amendment No. 3 Effective Date must be evidenced
by an unsubordinated promissory note that has been pledged and
assigned as required by the Security Agreement;",
(iv) Deleting the word "and" at the end of clause
(j) thereof,
(v) Replacing the period at the end of clause
(k) thereof with "; and",
(vi) Adding immediately before the last sentence
thereof a new subsection (l) to read as follows:
"(l) the Bridge Facility in an amount up
to $350 million to finance the Remington Acquisition and the
Permanent Securities.", and
(vii) Deleting the last sentence thereof.
(t) Section 8.8 of the Credit Agreement is amended by:
(i) Deleting the word "and" at the end of clause
(e) thereof,
(ii) Replacing the period at the end of clause
(f) thereof with "; and", and
(iii) Adding to the end thereof a new subsection
(g) to read as follows:
"(g) Guaranty Obligations arising under
the Bridge Facility and the Permanent Securities."
(u) Section 8.11 of the Credit Agreement is amended by
deleting the table contained therein in its entirety and substituting the
following table therefor:
13
Period Ending Ratio
------------- -----
12/31/02 - 6/30/05 2.25 : 1.0
9/30/05 - 6/30/06 3.00 : 1.0
Thereafter 3.50 : 1.0
(v) Section 8.12 of the Credit Agreement is amended by
deleting the table contained therein in its entirety and substituting the
following table therefor:
Period Ending Ratio
------------- -----
12/31/02 - 12/31/03 5.25 : 1.0
3/31/04 - 6/30/04 5.00 : 1.0
9/30/04 - 6/30/05 4.75 : 1.0
9/30/05 - 6/30/06 4.50 : 1.0
9/30/06 - 6/30/07 3.75 : 1.0
Thereafter 3.50 : 1.0
(w) Section 8.13 of the Credit Agreement is amended by
deleting the table contained therein in its entirety and substituting the
following table therefor:
Period Ending Ratio
------------- -----
12/31/02 - 9/30/05 1.25 : 1.0
Thereafter 1.40 : 1.0
(x) Section 8.14 of the Credit Agreement is amended by:
(i) Deleting the word "and" at the end of clause
(d) thereof,
(ii) Replacing the period at the end of clause
(e) thereof with a semicolon, and
(iii) Adding to the end thereof new subsections
(f), (g) and (h) to read as follows:
14
"(f) the Company and any Subsidiary may make any
distributions required to consummate the VARTA Acquisition,
including the Transformation and the VARTA Exchange;
(g) consideration in an amount up to $10,000,000
paid in connection with an Acquisition permitted under Section
8.4(j), in the form of Distributions by the Subsidiary
acquired pursuant to such Acquisition to the minority owner(s)
of such Subsidiary, provided that the aggregate amount of any
such Distributions in connection with such Acquisition will
count against the monetary baskets set forth in Section
8.4(j), to the extent the Company is relying on Section 8.4(j)
in consummating such Acquisition; and
(h) the Company may prepay the Bridge Facility
with the proceeds of the Permanent Securities."
(y) Section 8.17 of the Credit Agreement is amended by
inserting before the period at the end thereof the phrase "not to include any
Indebtedness incurred in connection with the ▇▇▇▇▇▇/▇▇▇▇▇ Acquisitions".
(z) Section 11.23 of the Credit Agreement is amended in
its entirety to read as follows:
"11.23 Parallel Debt. Without prejudice to the provisions of
any other Loan Document and for the purpose of ensuring and preserving
the validity and continuity of the security rights granted and to be
granted by each Pledgor (as defined in the Netherlands Share Pledge
Agreements and/or in the German Pledge Agreements) under or pursuant to
the Netherlands Share Pledge Agreements and/or the German Pledge
Agreements, each Lender, on behalf of itself and its Affiliates, and
the other parties hereto acknowledge and consent to each Pledgor's
undertaking to pay to Bank of America, in its own capacity, amounts (i)
equal to the amounts due from time to time by such Pledgor to the
Lenders and their Affiliates in respect of all moneys owed by such
Pledgor to the Lenders and their Affiliates under the Guaranties and
(ii) due and payable at the same time as the corresponding amounts of
such moneys under the Guaranties are or shall be due and payable (such
payment undertaking and the obligations and liabilities resulting
therefrom, the "Parallel Debt"). Each Lender, on behalf of itself and
its Affiliates, and the other parties hereto agree that the Parallel
Debt is a claim of Bank of America which is independent and separate
from, and without prejudice to, the claims of the Lenders and their
Affiliates, if applicable, in respect of the moneys owed by each
Pledgor under the Guaranties, and is not a claim which is held jointly
with the Lenders and their Affiliates provided that to the extent any
amounts are paid to Bank of America under the Parallel Debt or that
Bank of America otherwise receives moneys in payment of the Parallel
Debt, the total amount due and payable in respect of the moneys owed by
each Pledgor under the Guaranties shall be decreased as if said amounts
were received directly in payment of the outstanding moneys under the
Guaranties. Bank of America, acting in its own capacity, hereby agrees
to transfer to such account as may be specified by the Administrative
Agent, for the benefit of the Lenders and their Affiliates all proceeds
that it receives in connection with any enforcement action taken under
or
15
pursuant to the Netherlands Share Pledge Agreements and/or the
German Pledge Agreements."
(aa) Schedule 2.1 to the Credit Agreement is, effective
only for dates of determination subsequent to the Amendment No. 3 Effective
Date, amended in its entirety and replaced with Schedule 2.1 attached hereto.
(bb) Schedule 2.9(e) to the Credit Agreement is amended in
its entirety and replaced with Schedule 2.9(e) attached hereto.
(cc) A new Schedule 5.1A(g), in the form attached hereto,
is inserted into the Credit Agreement in proper numerical order.
(dd) Section II of Exhibit C to the Credit Agreement is
amended as follows:
(i) Deleting the word "Acquisition" from clause A(10)
thereof;
(ii) Deleting clauses A(11), A(12) and A(13) thereof;
(iii) Replacing the phrase "through (12), minus Item (13)"
contained in clause A(14) thereof with the phrase "and (10)";
(iv) Replacing the figures "14" and "15" contained in
clause A(15) thereof with the figures (11) and (12), respectively;
(v) Renumbering clauses A(14), A(15), A(16) and A(17)
thereof as clauses A(11), A(12), A(13) and A(14), respectively; and
(vi) Replacing the phrase "Item A(14)" in each place it
appears therein with the phrase "Item A(11)".
(ee) A new Exhibit I-2, in the form attached hereto, is
inserted into the Credit Agreement in proper numerical order.
(ff) A new Exhibit J-2, in the form attached hereto, is
inserted into the Credit Agreement in proper numerical order.
SECTION 2. Consent. Notwithstanding anything to the contrary
set forth in this Agreement or the other Loan Documents, the Company and its
Subsidiaries may enter into corporate restructuring transactions intended to
improve the administrative, operational and/or tax efficiency of the corporate
structure of the Company and its Subsidiaries (including, without limitation,
asset and stock transfers, mergers, liquidations, dissolutions, capital
contributions, and other business combinations), so long as (a) immediately
before and after giving effect to any such corporate restructuring transaction,
no Event of Default has occurred and is continuing, (b) there is no party to the
transactions other than the Company and its Subsidiaries, (c) the Company and
its Subsidiaries promptly deliver any and all documents requested by the
Administrative Agent under Section 7.13 of the Credit Agreement in connection
with such transactions and (d) the Administrative Agent consents in writing
thereto.
16
SECTION 3. Conditions of Effectiveness. This Amendment shall
become effective when, and only when, and as of the date (the "Amendment No. 3
Effective Date") on which, (x) the Administrative Agent shall have received
counterparts of this Amendment executed by the Company and Lenders with
aggregate Percentages of 66-2/3% or more or, as to any of the Lenders, advice
satisfactory to the Administrative Agent that such Lender has executed this
Amendment and (y) the Administrative Agent shall have additionally received all
fees due and payable in connection with this Amendment No. 3, payment of all
accrued fees and expenses of the Administrative Agent (including the reasonable
and accrued fees of counsel to the Administrative Agent invoiced on or prior to
the date hereof and all of the following documents, each such document (unless
otherwise specified) dated the date of receipt thereof by the Administrative
Agent (unless otherwise specified) and in sufficient copies for each Lender, in
form and substance satisfactory to the Agent (unless otherwise specified):
(a) Certified copies of (i) the resolutions of
the Board of Directors of (A) the Company approving this Amendment and
the matters contemplated hereby and thereby and (B) each Guarantor
evidencing approval of the Consent and the matters contemplated hereby
and thereby provided that no German entity shall be required to deliver
copies of resolutions unless resolutions are necessary pursuant to its
Organization Documents and (ii) all documents evidencing other
necessary corporate action and governmental approvals, if any, with
respect to this Amendment, the Consent and the matters contemplated
hereby and thereby.
(b) A certificate of the Secretary or an
Assistant Secretary or director of the Company and each Guarantor
certifying the names and true signatures of the officers of the Company
and such Guarantor authorized to sign this Amendment and the Consent
and the other documents to be delivered hereunder and thereunder,
provided that, in lieu of the foregoing, each German Entity shall
deliver a certified copy of its current excerpt of the commercial
register file (Handelsregisterauszug) and a certified copy of the
specimen signature (Unterschriftenprobe) currently filed with the
commercial register of the representative of such Person who will
execute, deliver and perform the Amendment, the Consent and the other
documents to be delivered hereunder and thereunder.
(c) Counterparts of the Consent appended hereto
(the "Consent"), executed by each Guarantor (other than the Company).
(d) A favorable opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Company, ROV Holding Inc., a Delaware
corporation, Rovcal, Inc., a California corporation and each Remington
Company that is a Domestic Subsidiary, as to the matters referred to in
Section 4 and each additional matter as may arise and be requested by
the Administrative Agent.
17
SECTION 4. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company and each Guarantor is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization.
(b) The execution, delivery and performance by
the Company of this Amendment and the Loan Documents, as amended
hereby, to which it is or is to be a party, the execution and delivery
by each Guarantor of the Consent and the Loan Documents to which it is
or is to be a party, and the consummation of the transactions
contemplated hereby are within the Company's and each Guarantor's
corporate powers, have been duly authorized by all necessary corporate
action and do not (i) contravene the Organization Documents of the
Company or any Guarantor, (ii) violate any Requirement of Law, (iii)
conflict with or result in a breach or contravention of, or the
creation of a Lien (except for the Liens created under the Collateral
Documents, as amended hereby) under, any document evidencing any
Contractual Obligation to which the Company or any Guarantor is a party
or any order, injunction, writ or decree of any Governmental Authority
to which either the Company, any Guarantor or any of their properties
is subject.
(c) No approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
due execution, delivery or performance by, or enforcement against,
either the Company of this Amendment or any of the Loan Documents, as
amended hereby, to which it is or is to be a party or any Guarantor of
the Consent or any other Loan Document to which it is a party.
(d) This Amendment has been duly executed and
delivered by the Company. This Amendment and each of the other Loan
Documents, as amended hereby, to which the Company is a party are
legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms. The
Consent and each of the other Loan Documents, as amended hereby, to
which each Guarantor is a party are legal, valid and binding
obligations of such Guarantor, enforceable against such Guarantor in
accordance with their respective terms.
(e) There is no action, suit, investigation,
litigation or proceeding affecting either Borrower or any Subsidiary
(including, without limitation, any Environmental Claim) pending or to
the best knowledge of the Company, threatened, in arbitration or before
any Governmental Authority that would reasonably be expected to have a
Material Adverse Effect. No injunction, writ, temporary restraining
order or other order of any nature has been issued by any court or
other Governmental Authority purporting to enjoin or restrain the
execution, delivery or performance of this Amendment or any other Loan
Document or directing that the transactions provided for herein or
therein not be consummated as herein or therein provided.
18
SECTION 5. Reference to and Effect on the Loan Documents. (a)
On and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 6. Costs, Expenses. The Company agrees to pay on
demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and the other instruments and
documents to be delivered hereunder (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent) in
accordance with the terms of Section 11.4 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
RAYOVAC CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Executive Vice President and Chief
Financial Officer
VARTA GERATEBATTERIE GMBH
By /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Title: CEO
By /s/ Andreas Rouve
---------------------------------------
Title: CFO
BANK OF AMERICA, N.A.
as Administrative Agent and as Lender
By /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Managing Director
Agreed as of the date first above written
_____________________________________________
[Please type or print name of Lender Party
By __________________________________________
Title: