Exhibit 4.10
THIRD AMENDMENT
THIS THIRD AMENDMENT dated as of June 11, 2001 (this "AMENDMENT")
amends the Second Amended and Restated Credit Agreement dated as of August 9,
1999 (as previously amended, the "CREDIT AGREEMENT") among RAYOVAC CORPORATION
(the "COMPANY"), various financial institutions and BANK OF AMERICA, N.A., as
Administrative Agent (in such capacity, the "ADMINISTRATIVE AGENT"). Unless
otherwise defined herein, capitalized terms used herein have the respective
meanings assigned thereto in the Credit Agreement.
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth below,
NOW, THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
SECTION 1 AMENDMENTS. Effective on (and subject to the occurrence of)
the Amendment Effective Date (as defined below), the Credit Agreement shall be
amended as set forth below.
1.1 AMENDMENTS TO DEFINITIONS.
(a) The first sentence of the definition of "EBITDA" is amended by
deleting the words "and Restructuring Charges for such period" and substituting
the following therefor:
", Restructuring Charges, any non-cash charges related to the write-off
of fees associated with the issuance of the Senior Subordinated Notes and (i)
for the Computation Period ending June 30, 2001, up to $15,000,000 of non-cash
charges and (ii) for the Computation Period ending September 30, 2001, up to
$12,000,000 of non-cash charges."
(b) The definition of "Expected Equity Offering" is amended by deleting
the amount "$75,000,000" therein and substituting the amount "$60,000,000"
therefor.
1.2 AMENDMENTS TO SECTION 2.8(A). Section 2.8(a) shall be amended by
(a) deleting the text "(including the Expected Equity Offering and any other
public offering, but excluding" in clause (iii) and substituting the following
therefor: "(excluding (x) the Expected Equity Offering so long as it is
completed prior to December 31, 2001 and (y)"; and (b) deleting the paragraph
which begins "All prepayments" immediately following clause (iv) thereof and
substituting the following therefor:
"(v) On December 31, 2001, in an amount equal to the positive
remainder, if any, of (x) the Net Cash Proceeds of the Expected Equity
Offering minus (y) the amount paid (including principal and premium, if
any, but excluding accrued interest) to purchase or redeem Senior
Subordinated Notes after completion of the Expected Equity Offering.
All prepayments of Term Loans pursuant to this SUBSECTION
2.8(A) shall be applied to the remaining installments of the Term Loans
(x) in inverse order of maturity, in the case of prepayments pursuant
to CLAUSES (I) and (II) and (y) PRO RATA, in the case of prepayments
pursuant to CLAUSES (III), (IV) and (V).
1.3 ELIMINATION OF SECTION 5.2(D). Section 5.2(d) shall be deleted in
its entirety.
1.4 AMENDMENT TO SECTION 8.4(C). Section 8.4(c) shall be amended by
deleting the amount "$20,000,000" therein and substituting the amount
"$40,000,000" therefor.
1.5 AMENDMENT TO SECTION 8.13. Section 8.13 shall be amended by (x)
deleting the word "and" immediately following the text set forth in subsection
(c) therein, (y) replacing the period immediately following the text set forth
in subsection (d) therein with "; and" and (z) adding the following subsection
(e):
"(e) prior to December 31, 2001, but only so long as no Event
of Default or Unmatured Event of Default has occurred and is continuing
at the time of such purchase or redemption or would result therefrom,
the Company may apply Net Cash Proceeds of the Expected Equity Offering
toward the purchase or redemption of Senior Subordinated Notes."
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Administrative Agent and the Lenders that (a) the
representations and warranties made in Section 6 of the Credit Agreement are
true and correct on and as of the Amendment Effective Date with the same effect
as if made on and as of such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they were true and
correct as of such earlier date); and (b) no Event of Default or Unmatured Event
of Default exists or will result from the execution and delivery of this
Amendment.
SECTION 3 EFFECTIVENESS. The amendments set forth in SECTION 1 above
shall become effective, as of the day and year first above written, on the date
(the "AMENDMENT EFFECTIVE DATE") on which the Administrative Agent has received
(a) counterparts of this Amendment executed by the Company and the Required
Lenders (or, in the case of any party from which the Administrative Agent has
not received a counterpart hereof, facsimile confirmation of the execution of a
counterpart hereof by such party), (b) a Confirmation, substantially in the form
of EXHIBIT A, executed by the Company and each Subsidiary (other than any
Foreign Subsidiary or Dormant Subsidiary) and (c) for the account of each Lender
that has executed and delivered a counterpart hereof to the Administrative Agent
by 5:00 p.m. (Eastern time) on June 11, 2001, an amendment fee in an amount
equal to 0.05% of such Lender's Commitment on the Amendment Effective Date.
SECTION 4 MISCELLANEOUS.
4.1 CONTINUING EFFECTIVENESS, ETC. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Amendment Effective Date, all references in
the Credit Agreement and each other Loan Document to the "Credit Agreement" or
similar terms shall refer to the Credit Agreement as amended hereby.
4.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
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4.3 GOVERNING LAW. This Amendment shall be a contract made under and
governed by the internal laws of the State of New York.
4.4 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon the
Company, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the
Lenders and the Administrative Agent and the successors and assigns of the
Lenders and the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly-authorized officers as of the day and year
first above written.
RAYOVAC CORPORATION
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
BANK OF AMERICA, N.A., as Administrative
Agent
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
BANK OF AMERICA, N.A., as Issuing Lender,
Swingline Lender and a Lender
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
BANK LEUMI USA
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
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THE BANK OF NEW YORK
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
THE BANK OF NOVA SCOTIA
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
BNP PARIBAS
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
COMERICA BANK
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
BANK ONE, NA (Main Office Chicago)
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
FIRSTAR BANK, N.A.
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
FLEET NATIONAL BANK
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
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HARRIS TRUST AND SAVINGS BANK
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
LASALLE BANK NATIONAL ASSOCIATION
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
M&I MARSHALL & ILSLEY BANK
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
NATIONAL CITY BANK
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
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THE NORTHERN TRUST COMPANY
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
THE ROYAL BANK OF SCOTLAND PLC
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
ST. FRANCIS BANK, F.S.B.
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
SUNTRUST BANK
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
U.S. BANK NATIONAL ASSOCIATION
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
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EXHIBIT A
CONFIRMATION
Dated as of June 11, 2001
To: Bank of America, N.A., as
Administrative Agent, and the
Lenders which are parties to the
Credit Agreement referred to below
Please refer to (a) the Second Amended and Restated Credit Agreement
dated as of August 9, 1999 (as amended, the "CREDIT AGREEMENT") among Rayovac
Corporation (the "COMPANY"), various financial institutions (the "LENDERS") and
Bank of America, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT"); (b)
the Security Agreement dated as of September 12, 1996 among the Company, ROV
Holding, Inc., Rovcal, Inc. and the Administrative Agent; (c) the Trademark
Security Agreement dated as of September 12, 1996 executed by the Company in
favor of the Administrative Agent; (d) the Patent Security Agreement dated as of
September 12, 1996 executed by the Company in favor of the Administrative Agent;
(e) the Copyright Security Agreement dated as of September 12, 1996 executed by
the Company in favor of the Administrative Agent; (f) the Guaranty dated as of
September 12, 1996 executed by ROV Holding, Inc. and Rovcal, Inc. in favor of
the Lenders and the Administrative Agent; (g) the Company Pledge Agreement dated
as of September 12, 1996 between the Company and the Administrative Agent; (h)
the Deed of Charge and Memorandum of Deposit dated September 12, 1996 between
ROV Holding, Inc. and the Administrative Agent; (i) the Share Pledge Agreement
dated as of November 11, 1996 executed by ROV Holding, Inc. in favor of the
Administrative Agent; (j) the Deed of Charge and Memorandum of Deposit dated as
of November 11, 1996 between ROV Holding, Inc. and the Administrative Agent; (k)
the Deed of Pledge dated as of November 11, 1996 between ROV Holding, Inc. and
the Administrative Agent; (l) the Charge Over Shares dated August 9, 1999
between ROV Holding, Inc. and the Administrative Agent; and (m) the Third
Amendment dated as of June 11, 2001, amending the Credit Agreement (the "THIRD
AMENDMENT"). Each of the documents referred to in items (b) through (l) above is
called a "CREDIT DOCUMENT". Capitalized terms used but not defined herein shall
have the meanings set forth in the Credit Agreement.
Each of the undersigned (a) confirms to the Lenders and the
Administrative Agent that, after giving effect to the Third Amendment, each
Credit Document to which such undersigned is a party continues in full force and
effect and is the legal, valid and binding obligation of such undersigned,
enforceable against such undersigned in accordance with its terms; and (b)
agrees that each reference in each Credit Document to the "Credit Agreement" or
any similar term shall, after the date hereof, be deemed to be a reference to
the Credit Agreement as amended by the Third Amendment.
RAYOVAC CORPORATION
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
ROV HOLDING, INC.
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
ROVCAL, INC.
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
Accepted and Agreed
as of June __, 2001
BANK OF AMERICA, N.A.,
as Administrative Agent
By: _______________________________________
Name: _____________________________________
Title:_____________________________________
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