Exhibit 10.1
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇ dated as of May 9, 2006 (this "Amendment No.
3") to the Fourth Amended and Restated Credit Agreement dated as of February 7,
2005, (as so amended and supplemented, and as otherwise amended, supplemented
and modified to the date hereof, the "Credit Agreement"), among Spectrum Brands,
Inc., formerly known as Rayovac Corporation, a Wisconsin corporation (the "U.S.
Borrower"), Varta Consumer Batteries GmbH & Co. KGaA, a German partnership
limited by shares (the "Euro Borrower"), Rayovac Europe Limited, a limited
liability company (the "UK Borrower" and, with the Euro Borrower, each a
"Subsidiary Borrower" and collectively, the "Subsidiary Borrowers" and the
Subsidiary Borrowers, with the U.S. Borrower, each a "Borrower" and
collectively, the "Borrowers"), each lender from time to time party thereto
(collectively, the "Lenders" and individually, a "Lender"), Citicorp North
America, Inc., as Syndication Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as
Co-Documentation Agent and Managing Agent, LaSalle Bank National Association, as
Co-Documentation Agent and Bank of America, N.A., as Administrative Agent (the
"Administrative Agent"), Swing Line Lender (the "Swing Line Lender") and L/C
Issuer (the "L/C Issuer"). Capitalized terms not otherwise defined in this
Amendment No. 3 have the same meanings as specified in the Credit Agreement.
PRELIMINARY STATEMENTS:
The U.S. Borrower has requested that the Lenders amend the
Credit Agreement as set forth below, and the Lenders party hereto have so
agreed, on the terms and subject to the conditions set forth below.
NOW, THEREFORE, it is hereby agreed as follows:
SECTION 1. Amendments. The Credit Agreement is, effective as
of the Amendment No. 3 Effective Date (as hereinafter defined), amended as
follows:
(a) Section 1.01 of the Credit Agreement is amended as
follows:
(i) by amending and restating the definition of
"Applicable Rate" in its entirety to read as follows:
" "Applicable Rate" means (a) in respect of the Term
Loans, a percentage per annum as set forth in the table below
determined by reference to the Consolidated Leverage Ratio as set forth
in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(a):
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Eurocurrency Rate Term
Pricing Consolidated Loans (other than Euro Euro Term Base Rate
Level Leverage Ratio Term Loans) Loans Term Loans
--------------------------------------------------------------------------------------------------------------
1 Less than 5.50:1 2.50 2.75 1.50
or equal to
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2 Greater than 5.50:1 3.00 3.00 2.00;
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and (b) in respect of the Revolving Credit Facilities, a percentage per
annum as set forth in the table below determined by reference to the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section
6.02(a):
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Eurocurrency Rate Base Rate
Pricing Consolidated Commitment Revolving Credit Loans Revolving Credit
Level Leverage Ratio Fee and Letters of Credit Loans
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1 Less than 3.50:1 0.50 1.75 0.75
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2 Greater than 3.50:1 but less than 4.00:1 0.50 2.00 1.00
or equal to
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3 Less than 5.50:1 but Greater than 4.00:1 0.50 2.25 1.25
or equal to or equal to
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4 Greater than 5.50:1 0.50 3.00 2.00.
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Any increase or decrease in the Applicable Rate resulting
from a change in the Consolidated Leverage Ratio shall become effective
as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a);
provided, however, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then Pricing Level 2 (in the
case of Term Loans) and pricing level 4 (in the case of the Revolving
Credit Facilities) shall apply from and as of the first Business Day
after the date on which such Compliance Certificate was required to
have been delivered until the date such Compliance Certificate is
delivered.";
(ii) by amending the definition of "Dollar Letter of
Credit Sublimit" to replace the figure "$50,000,000" where it
appears in the first sentence thereof with the figure
"$75,000,000"; and
(iii) by amending the definition of "Interest Period" to
insert, after the phrase "one, two, three or six months
thereafter" the following parenthetical: "(or, in the case of
a Eurodollar Borrowing of Revolving Credit Loans, if selected
by the applicable Borrower in the relevant Committed Loan
Notice, seven days)".
(iv) by inserting the following additional defined terms
in the appropriate alphabetical position:
"Amendment No. 3" means Amendment No. 3 to this Agreement,
dated as of May __, 2006 among the Borrowers, the
Administrative Agent, and the Lenders party thereto.
"Maximum Leverage Ratio" means 5.50:1.00.
"Specified Default" means (a) any failure by a Loan Party
to perform or observe any term, covenant or agreement
contained in Section 6.01(a) or (b) or (b) with respect to any
Loan Party or any of it Subsidiaries (other than a Dormant
Subsidiary): (i) any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person,
or (ii) any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its property
is instituted without the consent of such Person or (iii) in
the case of the UK Borrower or any of its Subsidiaries (other
than Dormant Subsidiaries), any corporate action, legal
proceedings or other procedure or step is taken in relation
to:
(A) the suspension of payments, a moratorium of
any indebtedness, winding up, dissolution, administration
or reorganisation (by way of voluntary arrangement scheme
of arrangement or otherwise) of the UK Borrower or any
such Subsidiary other than a solvent liquidation or
reorganization;
(B) a composition, compromise, assignment or
arrangement with any creditor of the UK Borrower or any
such Subsidiary;
(C) the appointment of a liquidator (other than
in respect of a solvent liquidation of the UK Borrower or
any such Subsidiary) receiver, administrative receiver,
administrator, compulsory manager or other similar officer
in respect of the UK Borrower or any such Subsidiary or
any of its assets; or
(D) enforcement of any Lien over any assets of
the UK Borrower or any such Subsidiary;
(E) any winding up petition presented by a
creditor.
"U.S. Loan Party" means any Loan Party organized under the
laws of the United States, any State thereof or the District
of Columbia.
(b) Section 2.02(a) of the Credit Agreement is amended as
follows:
(i) by inserting at the end of the first clause (i)
thereof the following parenthetical: "(or, in the case of a
borrowing of Eurodollar Rate Loans that are Revolving Credit
Loans, 1:00 p.m. one Business Day prior to the requested date
of such Borrower of Eurodollar Rate Loans)"; and
(ii) by (A) replacing the figure "$5,000,000" where it
appears therein with the figure "$2,500,000" and (B) replacing
the figure "$1,000,000" where it appears therein with the
figure "$500,000".
(c) Section 2.06 of the Credit Agreement is amended as
follows:
(i) clause (a) of such Section is amended by substituting
for the phrase "the Swing Line Lender agrees" where it appears
in the second line thereof the phrase "the Swing Line Lender
may, if it elects to do so in its sole and absolute
discretion,";
(ii) clause (b) of such Section is amended by substituting
for the phrase "the Swing Line Lender agrees" where it appears
in the second line thereof the phrase "the Swing Line Lender
may, if it elects to do so in its sole and absolute
discretion,";
(iii) clause (c) of such Section is amended by
substituting for the phrase "the Swing Line Lender agrees"
where it appears in the second line thereof the phrase "the
Swing Line Lender may, if it elects to do so in its sole and
absolute discretion,"; and
(iv) clause (d) of such Section is amended by substituting
for the phrase "subject to the terms and conditions hereof,
the Swing Line Lender will" where it appears in the fifth from
last line thereof the phrase "subject to the terms and
conditions hereof, the Swing Line Lender may, if it elects to
do so in its sole and absolute discretion,".
(d) Section 2.07(a)(i) of the Credit Agreement is amended as
follows:
(i) by (A) substituting for the figure "CAD5,000,000"
where it appears in clause (B) thereof the figure CAD500,000
and (B) substituting for the figure "CAD500,000" where it
appears in clause (B) thereof the figure "CAD100,000";
(ii) by inserting immediately after the phrase "or a whole
multiple of U.S.$500,000 in excess thereof in the case of
Loans denominated in Dollars" where it appears in clause (B)
thereof the phrase "(or, in the case of Revolving Credit
Loans, U.S.$1,000,000 or a whole multiple of U.S.$100,000 in
excess thereof)";
(iii) by inserting immediately after the phrase "or a
whole multiple of (euro)500,000 in excess thereof in the case
of Loans denominated in Euros" where it appears in clause (B)
thereof the phrase "(or, in the case of Euro Revolving Credit
Loans, (euro)1,000,000 or a whole multiple of (euro)100,000 in
excess thereof)";
(iv) by inserting immediately after the phrase "or a whole
multiple of (pound)500,000 in excess thereof in the case of
Loans denominated in Pounds Sterling" where it appears in
clause (B) thereof the phrase "(or, in the case of UK
Revolving Credit Loans, (pound)500,000 or a whole multiple of
(pound)100,000 in excess thereof)"; and
(v) by inserting after the phrase "amounts required
pursuant to Section 3.05" in the fifth from last line thereof
the following: "and, in any event, shall, in the case of any
Eurocurrency Rate Loan that is a Revolving Credit Loan, not be
made earlier than seven days after the date of the initial
Borrowing of such Loan".
(e) Section 2.07(a)(i) is amended by substituting for the
phrase "the first anniversary of the Amendment No. 2 Effective Date"
where it appears in subclause (d) thereof the date "September 30,
2007".
(f) Section 2.07(b)(i) of the Credit Agreement is amended by
(i) replacing the figure "50%" where it appears in subclause (i)
thereof with the figure "75%", (ii) replacing the ratio "3.75:1" where
it appears in subclause (i) thereof with the phrase "the Maximum
Leverage Ratio", (iii) replacing the figure "25%" where it appears in
subclause (ii) thereof with the figure "50%" and (vi) replacing the
ratio "3.75:1" where it appears in subclause (ii) thereof with the
phrase "the Maximum Leverage Ratio".
(g) Section 2.07(b)(ii) of the Credit Agreement is amended by
inserting immediately before clause (A) thereof the following: "(x) if
at the time of receipt of such Net Cash Proceeds, the Consolidated
Leverage Ratio is higher than or equal to the Maximum Leverage Ratio,
within 180 days following receipt of such Net Cash Proceeds, the U.S.
Borrower or such Subsidiary shall have consummated the purchase of such
operating assets (as certified by the U.S. Borrower in writing to the
Administrative Agent)" or (y) if at the time of receipt of such Net
Cash Proceeds, the Consolidated Leverage Ratio is lower than the
Maximum Leverage Ratio".
(h) (i) Schedule 5.18 to this Amendment is hereby appended as
Schedule 5.18 to the Credit Agreement and (ii) a new Section 5.18 is
added to the Credit Agreement, to read as follows:
"5.18 Deposit, Securities and Other Accounts. (a) Schedule
5.18 set forth a complete and accurate list as of May 23, 2006 of all
U.S. and foreign deposit accounts and securities accounts of each U.S.
Loan Party (other than accounts the balances in which do not aggregate
to more than $1,000,000).
(b) The balance in all commodities accounts of the U.S. Loan
Parties does not exceed $1,000,000 in the aggregate."
(i) Section 6.12(a)(v) of the Credit Agreement is amended by
inserting after the phrase "within 30 days after the reasonable request
therefor by the Administrative Agent" the following parenthetical: "(or
such longer period as the Administrative Agent may agree in its
reasonable discretion)".
(j) A new Section 6.20 and a new Section 6.21 are added to the
Credit Agreement, to read as follows:
6.20 Account Control Agreements; Supplements to Schedule
5.18. (a) Each U.S. Loan Party shall, at all times from and after June
8, 2006 (or such later date as the Administrative Agent may agree to in
its sole and absolute discretion), maintain all of its deposit accounts
and securities accounts in existence as of June 8, 2006 (other than
accounts the balances in which do not aggregate to more than
$1,000,000) only with financial institutions that have executed and
delivered control agreements or other documents or instruments that are
effective, under applicable law, to perfect the Collateral Agent's
security interest in each such account.
(b) (i) Within 30 days after the creation or acquisition
by any U.S. Loan Party of any new deposit or securities account (other
than accounts the balances in which do not aggregate, when taken
together with all other deposit and securities accounts as to which the
provisions of this Section 6.20 have not been complied with, to more
than $1,000,000), such Loan Party shall deliver to the Administrative
Agent a supplement to Schedule 5.18 listing such accounts (including
the institution with which such account is maintained and the account
number) and (ii) within 30 days after such creation or acquisition (or
such later date as the Administrative Agent may agree to in its sole
and absolute discretion), cause such account to be subject to a control
agreement or other document or instrument that is effective, under
applicable law, to perfect the Collateral Agent's security interest in
such account.
6.21. Guarantor Consent; Corporate Authorizations. On or
before June 8, 2006 (or such later date as the Administrative Agent may
agree in its sole and absolute discretion), deliver to the
Administrative Agent (a) the "Consent" referred to in Section 3(a)(ii)
of Amendment No. 3, duly executed by each non-U.S. Loan Party and (b)
all items of the types referred to in Sections 3(d) and 3(e) of
Amendment No. 3 with respect to each Loan Party other than the U.S.
Borrower.
(k) Section 7.03 of the Credit Agreement is amended as
follows:
(i) by inserting at the end of the second parenthetical in
clause (c) thereof the following: "and excluding Investments
in foreign Subsidiaries the proceeds of which are used by the
relevant foreign Subsidiary, substantially simultaneously, to
consummate a Permitted Acquisition";
(ii) by (A) inserting at the beginning of clause (h)
thereof the phrase "so long as, both before and after giving
effect thereto, the Consolidated Leverage Ratio is less than
or equal to the Maximum Leverage Ratio," (B) substituting for
the phrase "Event of Default" where it appears in subclause
(iv)(A) of such clause (h), the phrase "Specified Default or
Event of Default" and (C) adding to the end of such clause (h)
the following proviso: "provided, further that at any time
that the Consolidated Leverage Ratio exceeds the Maximum
Leverage Ratio, the U.S. Borrower shall nevertheless be
permitted to make Investments otherwise meeting the criteria
of this clause (h) so long as the total cash and non-cash
consideration paid by or on behalf of the U.S. Borrower and
its subsidiaries does not exceed (x) $25,000,000 in the
aggregate in any fiscal year for all types of cash and
non-cash consideration other than capital stock of the U.S.
Borrower and (y) $50,000,000 in the aggregate for all types of
consideration paid for any single such Investment;
(iii) by (A) inserting at the beginning of clause (i)
thereof the phrase "so long as, both before and after giving
effect thereto, the Consolidated Leverage Ratio is less than
or equal to the Maximum Leverage Ratio," and (B) substituting
for the phrase "Event of Default" where it appears in
subclause (iii)(A) of such clause (i), the phrase "Specified
Default or Event of Default";
(iv) by inserting (A) at the beginning of clause (j)
thereof the phrase "so long as, both before and after giving
effect thereto, no Specified Default or Event of Default shall
have occurred and be continuing," and (B) immediately after
the phrase "other Investments" the following: "(other than the
purchase or other acquisition of all of the Equity Interests
in, or all or substantially all of the property and assets
constituting a line of business, a business unit or a division
of any Person)";
(l) Section 7.05 of the Credit Agreement is amended by (i)
deleting the word "and" from the end of clause (n) thereof; (ii)
substituting for the period at the end of clause (o) thereof the
following: "; and" and (iii) adding to the end of such Section a new
clause (p) to read as follows: "(p) Dispositions of accounts receivable
pursuant to retailer-mandated factoring programs in an aggregate amount
not to exceed $15,000,000."
(m) Section 7.06 of the Credit Agreement is amended by
(i) Replacing, in each of clauses (d), (e), (f) and (h)
thereof, the phrase "So long as no Event of Default shall have
occurred and be continuing or would result therefrom," with
the phrase "So long as no Specified Default or Event of
Default shall have occurred and be continuing or would result
therefrom,"; and
(ii) inserting in clause (e) thereof after the phrase "or
would result therefrom" the following: "and so long as at the
time thereof, before and after giving effect thereto, the
Consolidated Leverage Ratio is lower than the Maximum Leverage
Ratio,"
(n) Section 7.11 of the Credit Agreement is amended as
follows:
(i) clause (a) of such Section is amended by replacing the
table that appears therein with the following:
-------------------------------------------------------- --------------------------
Four Fiscal Quarters Ending Nearest Minimum Consolidated
Interest Coverage Ratio
-------------------------------------------------------- --------------------------
March 31, 2006 through December 31, 2006 1.70:1.00
-------------------------------------------------------- --------------------------
March 31, 2007 through March 31, 2008 1.75:1.00
-------------------------------------------------------- --------------------------
June 30, 2008 through June 30, 2009 2.25:1.00
-------------------------------------------------------- --------------------------
September 30, 2009 and each fiscal quarter thereafter 2.50:1.00
-------------------------------------------------------- --------------------------
(ii) clause (b) of such Section is amended by replacing
the table that appears therein with the following:
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Four Fiscal Quarters Ending Nearest Maximum Consolidated
Leverage Ratio
-------------------------------------------------------------- ------------------------
March 31, 2006 through June 30, 2006 7.95:1.00
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September 30, 2006 7.75:1.00
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December 31, 2006 through March 31, 2007 7.50:1.00
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June 30, 2007 7.00:1.00
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September 30, 2007 6.50:1.00
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December 31, 2007 6.25:1.00
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March 31, 2008 6.00:1.00
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June 30, 2008 5.75:1.00
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September 30, 2008 through June 30, 2009 5.50:1.00
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September 30, 2009 through June 30, 2010 4.50:1.00
-------------------------------------------------------------- ------------------------
September 30, 2010 and each fiscal quarter thereafter 4.00:1.00
-------------------------------------------------------------- ------------------------
(o) Section 7.12 of the Credit Agreement is amended by (i)
replacing the figure "$75,000,000" where it appears therein with the
phrase "$65,000,000 (or, if the Consolidated Leverage Ratio as of the
end of the immediately preceding fiscal year is lower than the Maximum
Leverage Ratio, $75,000,000)" and inserting immediately after the
phrase "the next two following fiscal years" where it appears in the
proviso to such Section the following parenthetical: "(or, if the
Consolidated Leverage Ratio as of the end of such fiscal year is higher
than or equal to the Maximum Leverage Ratio, the next following fiscal
year)".
(p) Section 8.01(b) of the Credit Agreement is amended by (i)
substituting for the phrase "Either Borrower" where it appears therein
the phrase "Any Borrower"; (ii) inserting immediately before the phrase
"fails to perform" the following: "(i)"; (iii) inserting, immediately
after the phrase "Section 6.03(a)" the following: ", Section 6.10, "
and (iv) inserting immediately after the phrase "Article VII" the
following: "or (ii) fails to perform or observe any covenant or
agreement contained in any of Section 6.01(a) or (b) and such failure
continues for fifteen (15) days".
(q) Section 10.04(b) is amended by (i) inserting after the
phrase "Each Borrower shall" where it appears in the first line thereof
the phrase ", jointly and severally,"; (ii) replacing the phrase
"either Borrower or any other Loan Party" where it appears in clause
(iv) thereof with the phrase "any Borrower or any other Loan Party";
(iii) replacing the phrase "any of the Borrower's" where it appears in
clause (iv) thereof with the phrase "any Borrower's" and (iv) replacing
the phrase "contribution of the Borrower" where it appears in clause
(z) of the proviso thereto with the phrase "contribution of any
Borrower".
SECTION 2. Consent. Notwithstanding the provisions of Section
2.07(a)(i) to the contrary, and subject to the satisfaction of the conditions
set forth in Section 3 of this Amendment, the Dollar Term Lenders and the Euro
Term Lenders hereby consent to the use of up to CAD50,000,000 to prepay Canadian
Term Loans without a corresponding ratable payment of Dollar Term Loans or Euro
Term Loans.
SECTION 3. Conditions of Effectiveness. This Amendment No. 3 shall
become effective as of the date first above written (the "Amendment No. 3
Effective Date") when, and only when, each of the following conditions set forth
in this Section 3(a) shall have been satisfied:
(a) Execution of Counterparts. The Administrative Agent shall
have received counterparts of (i) this Amendment No. 3 executed by (A)
each Borrower, (B) the Administrative Agent and (C) the Required
Lenders and (ii) the consent attached hereto (the "Consent") executed
by each domestic Guarantor.
(b) Amendment Fee. The Administrative Agent shall have
received, for the benefit of each Lender that executes this Amendment
No. 3 by no later than 12 PM (New York City time) on May 8, 2006, an
upfront fee equal to 0.25% of the aggregate Loans and Commitments of
each such Lender under the Credit Agreement as of the date hereof.
(c) Payment of Fees and Expenses. The U.S. Borrower shall
have paid (i) all reasonable fees and expenses (including the
reasonable fees and expenses of Shearman & Sterling LLP) incurred by
the Administrative Agent in connection with the preparation,
negotiation and execution of this Amendment No. 3 or otherwise required
to be paid in connection with this Amendment No. 3, (ii) the fees
required to be paid pursuant to Section 3 hereof and (iii) all other
fees and expenses required to be paid under the Loan Documents and
remaining outstanding on or prior to the date of this Amendment No. 3
(including reasonable fees and expenses of counsel), in each case, for
which the invoice for such fees and expenses shall have been presented
to the U.S. Borrower no later than one Business Day prior to May 9,
2006.
(d) Resolutions. The Administrative Agent shall have received
certified copies of (i) the resolutions of the Board of Directors of
the U.S. Borrower evidencing approval of this Amendment No. 3 and all
matters and transactions contemplated hereby and (ii) all documents
evidencing other necessary corporate action and governmental and other
material third party approvals and consents, if any, with respect to
this Amendment No. 3, the Consent and the matters and transactions
contemplated hereby and thereby.
(e) Certificates. The Administrative Agent shall have
received a certificate of the Secretary or an Assistant Secretary (or
another Responsible Officer) of the U.S. Borrower certifying (i) the
names and true signatures of the officers of such Borrower authorized
to sign this Amendment No. 3 and the other documents to be delivered
hereunder, (ii) that no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body, or any third party to any agreements and instruments
of such Borrower is required for the due execution, delivery or
performance by such Borrower of this Amendment No. 3, (iii) (A) the
representations and warranties contained in Section 5 of this Amendment
No. 3 are true and correct in all material respects and (B) after
giving effect to this Amendment No. 3, the representations and
warranties of each Borrower and each other Loan Party contained in each
of the Loan Documents are true and correct on and as of the Amendment
No. 3 Effective Date (except to the extent that such representations
and warranties specifically refer to an earlier date, in which case
they shall be true and correct as of such earlier date) and (iv) after
giving effect to this Amendment, no Default has occurred and is
continuing or would result from this Amendment or the matters and
transactions contemplated hereby.
(f) Authorizations. All governmental authorizations and all
third party consents and approvals necessary in connection with the
Amendment No. 3 and the transactions contemplated hereby shall have
been obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect; and no Law shall
be applicable in the judgment of the Lenders, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Amendment No. 3 and the transactions contemplated hereby or the rights
of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them.
(g) Legal Details, Etc. All documents executed or submitted
pursuant hereto shall be reasonably satisfactory in form and substance
to the Administrative Agent.
SECTION 4. Effect on Credit Agreement. (a) On and after the
effectiveness of this Amendment No. 3, 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 No. 3. The execution, delivery
and effectiveness of this Amendment No. 3 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. For the avoidance of doubt,
notwithstanding any amendment to the Credit Agreement effected hereby, any
action taken by the Company prior to the Amendment No. 3 Effective Date which
was in compliance with the terms of the Credit Agreement prior to the
effectiveness hereof and at the time of such action shall not be considered to
contravene any provision of the Credit Agreement as amended by this Amendment
No. 3.
(b) Each party hereto hereby acknowledges and consents to the
amendment to the Credit Agreement and the terms and provisions thereof
on the terms set forth in this Amendment No. 3. Each party hereto
hereby reaffirms the covenants and agreements contained in each Loan
Document and confirms that each Loan Document, as specifically amended
by Amendment No. 3 in the case of the Credit Agreement, is and shall
continue to be in full force and effect and the same are hereby
ratified and confirmed in all respects, except that upon the
effectiveness of this Agreement, all references contained therein to
the "Credit Agreement" shall mean the Credit Agreement as amended by
Amendment No. 3.
SECTION 5. Representations and Warranties. The U.S. Borrower represents
and warrants as follows:
(a) The execution, delivery and performance by each Loan Party
of this Amendment No. 3 and any other documents, instruments and
agreements in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, are within such Loan
Party's corporate or other organizational powers, have been duly
authorized by all necessary corporate or other organizational action,
and do not and will not (i) contravene the terms of any of such
Person's Organization Documents; (ii) conflict with or result in any
breach or contravention of, or require any payment (other than the
payment required to be made pursuant to this Amendment No. 3) to be
made under (A) any Contractual Obligation to which such Person is a
party or affecting such Person or the properties of such Person or any
of its Subsidiaries or (B) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which such Person or
its property is subject; (iii) violate any Law; or (iv) result in the
creation of any Lien other than a Lien expressly permitted under
Section 7.01 of the Credit Agreement.
(b) No approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental Authority or
any other Person is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan
Party of this Amendment No. 3 or any other Loan Document, or for the
consummation of the transactions contemplated hereby.
(c) This Amendment No. 3 and the Consent have been duly
executed and delivered by each Loan Party that is party hereto. This
Amendment No. 3 constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of
such Loan Party, enforceable against each Loan Party that is party
thereto in accordance with its terms.
SECTION 6. Payment of Fees. The U.S. Borrower agrees to pay on demand
all reasonable fees, costs and expenses (including, without limitation, as
separately agreed to in writing) of the Administrative Agent in connection with
the preparation, execution, delivery and administration, modification and
amendment of this Amendment No. 3 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 10.04 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment No. 3 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 one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment No. 3 by telecopier or electronic pdf shall be effective as delivery
of a manually executed counterpart of this Amendment No. 3.
SECTION 8. Governing Law; Jurisdiction. (a) This Amendment No. 3 shall
be governed by, and construed in accordance with, the laws of the State of New
York.
(b) THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT NO. 3, THE
CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AMENDMENT NO. 3, THE CREDIT AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY
LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AMENDMENT NO. 3 OR ANY OTHER LOAN DOCUMENT AGAINST A BORROWER
OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
IN WITNESS WHEREOF, the undersigned have caused this Amendment
No. 3 to be executed and delivered by their duly authorized officer as
of the date first above written.
SPECTRUM BRANDS, INC., as the U.S. Borrower
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President and
Chief Financial Officer
VARTA CONSUMER BATTERIES Gmbh RAYOVAC EUROPE LIMITED, as
& Co. KGaA, as the UK Borrower the Euro Borrower
By /s/ Andreas Rouve, ▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------- ---------------------------------
Title: Managing Director Title: Director
BANK OF AMERICA, N.A.,
as Administrative Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President
BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
CONSENT
CONSENT dated as of May 9, 2006 (this "Consent"), to the
foregoing Amendment No. 3 dated as of the date hereof ("Amendment No. 3") hereof
to the Fourth Amended and Restated Credit Agreement dated as of February 7,
2005, as amended, supplemented or otherwise modified to the date hereof (the
"Credit Agreement"), among Spectrum Brands, Inc., formerly known as Rayovac
Corporation, a Wisconsin corporation (the "U.S. Borrower"), Varta Consumer
Batteries GmbH & Co. KGaA, a German partnership limited by shares (the "Euro
Borrower"), Rayovac Europe Limited, a limited liability company (the "UK
Borrower and, with the Euro Borrower, each a "Subsidiary Borrower" and
collectively, the "Subsidiary Borrowers" and the Subsidiary Borrowers, with the
U.S. Borrower, each a "Borrower" and collectively, the "Borrowers"), each lender
from time to time party hereto (collectively, the "Lenders" and individually, a
"Lender"), Citicorp North America, Inc., as Syndication Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Capital Corporation, as Co-Documentation Agent and Managing Agent, LaSalle Bank
National Association, as Co-Documentation Agent and Bank of America, N.A., as
Administrative Agent (the "Administrative Agent"), Swing Line Lender (the "Swing
Line Lender") and L/C Issuer (the "L/C Issuer") . Capitalized terms used in this
Consent without definition shall have the respective meanings provided in the
Credit Agreement.
Each of the UK Borrower, the Euro Borrower and each of the
undersigned Guarantors, as a Guarantor under one or more of the Guaranties in
favor of the Secured Parties, hereby consents to Amendment No. 3 and hereby
confirms and agrees that notwithstanding the effectiveness of Amendment No. 3,
the Guaranties are, and shall continue to be, in full force and effect and each
is hereby ratified and confirmed in all respects, except that, on and after the
effectiveness of Amendment No. 3, each reference in each Guaranty to the "Credit
Agreement", "thereunder", "thereof" or words of like import shall mean and be a
reference to the Credit Agreement, as amended by Amendment No. 3.
IN WITNESS WHEREOF, the undersigned have caused this Consent
to be executed and delivered by their duly authorized officers as of the date
first above written.
ROV INTERNATIONAL
FINANCE COMPANY RAYOVAC EUROPE GmbH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ Andreas Rouve, ▇▇▇▇ ▇▇▇▇▇
--------------------------------- ---------------------------------
Title: Director, Secretary, Title: Managing Director
and Treasurer
ROV GERMAN LIMITED GmbH ROV GERMAN GENERAL
PARTNER GmbH
By /s/ Andreas Rouve, ▇▇▇▇ ▇▇▇▇▇ By /s/ Andreas Rouve, ▇▇▇▇ ▇▇▇▇▇
--------------------------------- ---------------------------------
Title: Managing Director Title: Managing Director
SPECTRUM BRANDS HOLDINGS B.V. SPECTRUM BRANDS EUROPE
GmbH, SULZBACH
By /s/ Ram ▇▇▇▇▇▇ By /s/ Andreas Rouve, ▇▇▇▇ ▇▇▇▇▇
--------------------------------- ---------------------------------
Title: Director Title: Managing Director
TETRA JAPAN K.K.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Representative Director
TETRA HOLDING (US), INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Assistant Secretary
ROVCAL, INC.
ROV HOLDING, INC.
UNITED INDUSTRIES CORPORATION
SPECTRUM NEPTUNE US HOLDCO CORP.
▇▇▇▇▇▇▇ COMPANY
UNITED PET GROUP, INC.
AQUARIUM SYSTEMS, INC.
PERFECTO MANUFACTURING, INC.
SOUTHERN CALIFORNIA FOAM, INC.
AQUARIA, INC.
DB ONLINE, LLC
THE WONDER PROPERTY COMPANY
SOUTHERN WONDER PROPERTY COMPANY
SOUTHERN WONDER COMPANY
JUNGLE LABORATORIES CORPORATION
THE WONDER COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________________
Title: Secretary
