EXHIBIT 4.7
COMPANY PLEDGE AGREEMENT
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This COMPANY PLEDGE AGREEMENT (this "Agreement"), dated as of September 12,
1996, is between RAYOVAC CORPORATION, a Wisconsin corporation (the "Pledgor"),
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, in its capacity as
administrative agent for the Lenders referred to below (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement dated as of even date herewith
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among the Pledgor, various financial institutions (such financial
institutions, together with their respective successors and assigns,
collectively the "Lenders" and individually each a "Lender"), the Administrative
Agent and DLJ Capital Funding, Inc., as documentation agent, the Lenders have
agreed to make available to the Pledgor term loans and a revolving credit
facility with a letter of credit subfacility;
WHEREAS, the obligations of the Pledgor are to be secured pursuant to this
Agreement;
WHEREAS, it is a condition precedent to the making of loans and the
issuance of letters of credit under the Credit Agreement that the Pledgor
execute and deliver this Agreement;
NOW, THEREFORE, for and in consideration of any loan, advance or other
financial accommodation heretofore or hereafter made to the Pledgor under or in
connection with the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. When used herein, the following terms have the following
meanings (such meanings to be applicable to both the singular and plural forms
of such terms):
Collateral - see Section 2.
Default means the occurrence of: (a) any Unmatured Event of Default under
subsections 9.1(f) or (g) of the Credit Agreement; or (b) any Event of
Default.
Issuer means the issuer of any of the shares of stock or other securities
representing all or any of the Collateral.
Lender Party means each Lender under and as defined in the Credit Agreement
and any Affiliate of such Lender which is a party to a Swap Contract with
the Pledgor.
Liabilities means all obligations (monetary or otherwise) of the Pledgor
under the Credit Agreement, any Note, any other Loan Document to which it
is a party or any other document or instrument signed by the Company
(including any Swap Contract entered into with any Lender Party) executed
in connection therewith, howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or
due or to become due.
Terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
2. Pledge. As security for the payment of all Liabilities, the Pledgor
hereby pledges to the Administrative Agent for the benefit of the Lender
Parties, and grants to the Administrative Agent for the benefit of the Lender
Parties a continuing security interest in, all of the following:
A. All of the shares of stock, notes and other securities described in
Schedule I hereto, all of the certificates and/or instruments representing
such shares of stock, notes and other securities, and all cash, interest,
securities, dividends, distributions, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares or other
securities;
B. All additional shares of stock of any of the Issuers listed in Schedule
I hereto at any time and
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from time to time acquired by the Pledgor in any manner, all of the
certificates representing such additional shares, and all cash, interest,
securities, dividends, distributions, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares;
C. All other property hereafter delivered to the Administrative Agent in
substitution for or in addition to any of the foregoing, all certificates
and instruments representing or evidencing such property, and all cash,
interest, securities, dividends, distributions, rights and other property
at any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof; and
D. All proceeds of any of the foregoing.
All of the foregoing are herein collectively called the "Collateral".
Notwithstanding the foregoing, as to each Issuer that is a Foreign Subsidiary or
ROV Holding, not more than 65% of the issued and outstanding shares of capital
stock of such Issuer shall be "Collateral".
The Pledgor agrees to deliver to the Administrative Agent, promptly upon
receipt and in due form for transfer (i.e., duly endorsed in blank or
accompanied by stock or bond powers duly executed in blank), all Collateral
(other than payments which the Pledgor is entitled to receive and retain
pursuant to Section 5 hereof) which may at any time or from time to time be in
or come into the possession or control of the Pledgor; and prior to the delivery
thereof to the Administrative Agent, such Collateral shall be held by the
Pledgor separate and apart from its other property and in express trust for the
Administrative Agent.
3. Warranties; Further Assurances. The Pledgor warrants to the
Administrative Agent and each Lender that: (a) the Pledgor is (or at the time of
any future delivery, pledge, assignment or transfer thereof will be) the legal,
beneficial and equitable owner of the Collateral free and clear of all Liens
of every description whatsoever other than the security interest created
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hereunder; (b) the pledge and delivery of the Collateral pursuant to this
Agreement will create a valid, perfected, first priority security interest in
the Collateral in favor of the Administrative Agent, free of any adverse claims;
(c) all shares of stock referred to in Schedule I hereto are duly authorized,
validly issued, fully paid and non-assessable; (d) as to each Issuer whose name
appears in Schedule I hereto, the Collateral represents on the date hereof all
of the total shares of capital stock issued and outstanding of such Issuer (or,
as to any Issuer that is a Foreign Subsidiary or ROV Holding, 65% of the total
shares of capital stock issued and outstanding of such Issuer); (e) each note
pledged hereunder has been duly authorized, executed, endorsed, issued and
delivered, is the legal, valid and binding obligation of the issuer thereof, and
is not in default; and (f) the information contained in Schedule I hereto is
true and accurate in all respects.
So long as any of the Liabilities shall be outstanding or any Commitment
shall exist on the part of the Administrative Agent or any Lender Party with
respect to the making of any Loans, the issuance of any Letters of Credit or the
creation of any other Liabilities, the Pledgor: (i) shall not, without the
express prior written consent of the Administrative Agent, sell, assign,
exchange, pledge or otherwise transfer, encumber, or grant any option, warrant
or other right to purchase, or otherwise diminish or impair any of its rights
in, to or under any of the Collateral; (ii) shall execute such Uniform
Commercial Code financing statements and other documents (and pay the costs of
filing and recording or re-filing and re-recording the same in all public
offices deemed necessary or appropriate by the Administrative Agent) and do such
other acts and things, all as the Administrative Agent may from time to time
reasonably request, to establish and maintain a valid, perfected, first priority
security interest in the Collateral (free of all other Liens, claims and rights
of third parties whatsoever) to secure the performance and payment of the
Liabilities; (iii) shall execute and deliver to the Administrative Agent such
documents and instruments relating to the Collateral, satisfactory in form and
substance to the Administrative Agent, as the Administrative Agent may
reasonably request; (iv) shall continue to own and keep pledged to the
Administrative Agent, 100% of the issued and outstanding shares of capital stock
of each Issuer
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(or, as to each Issuer that is a Foreign Subsidiary or ROV Holding, 65% of the
issued and outstanding shares of capital stock of such Issuer); and (v) shall
furnish the Administrative Agent or any Lender Party such information concerning
the Collateral as the Administrative Agent or such Lender Party may from time to
time reasonably request, and will permit the Administrative Agent or any Lender
Party or any designee of the Administrative Agent or any Lender Party, from time
to time at reasonable times and on reasonable notice (or at any time without
notice during the existence of a Default), to inspect, audit and make copies of
and extracts from all records and all other papers in the possession of the
Pledgor which pertain to the Collateral, and will, upon request of the
Administrative Agent at any time when a Default has occurred and is continuing,
deliver to the Administrative Agent all of such records and papers.
Pledgor additionally represents and warrants to the Administrative Agent
and each Lender Party that (i) it is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) the execution and delivery by it of this Agreement and the
performance by it of its obligations hereunder are within the corporate powers
of the Pledgor, have been duly authorized by all necessary corporate action
(including any necessary shareholder action), and do not and will not contravene
the terms of any of the Organization Documents of the Pledgor, conflict with or
result in a breach or contravention of, or the creation of any Lien under, any
document evidencing any Contractual Obligation to which the Pledgor is a party
or any order, injunction, writ or decree of any Governmental Authority to which
the Pledgor or any of its properties are subject, or violate any Requirement of
Law; (iii) 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 execution, delivery or performance by, or
enforcement against, the Pledgor of this Agreement; and (iv) this Agreement
constitutes the legal, valid and binding obligation of the Pledgor, enforceable
against the Pledgor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
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4. Holding in Name of Administrative Agent, etc. The Administrative Agent
may from time to time after the occurrence and during the continuance of a
Default, without notice to the Pledgor, take all or any of the following actions
(a) transfer all or any part of the Collateral into the name of the
Administrative Agent or any nominee or sub-agent for the Administrative Agent,
with or without disclosing that such Collateral is subject to the Lien and
security interest hereunder, (b) appoint one or more sub-agents or nominees for
the purpose of retaining physical possession of the Collateral, (c) notify the
parties obligated on any of the Collateral to make payment to the Administrative
Agent of any amounts due or to become due thereunder, (d) endorse any checks,
drafts or other writings in the name of the Pledgor to allow collection of the
Collateral, (e) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof, or
compromise or renew for any period (whether or not longer than the original
period) any obligations of any nature of any party with respect thereto and (f)
take control of any proceeds of the Collateral.
5. Voting Rights, Dividends, etc. (a) Notwithstanding certain provisions
of Section 4 hereof, so long as the Administrative Agent has not given the
notice referred to in paragraph (b) below:
A. The Pledgor shall be entitled to exercise any and all voting or
consensual rights and powers and stock purchase or subscription rights (but
any such exercise by the Pledgor of stock purchase or subscription rights
may be made only from funds of the Pledgor not constituting part of the
Collateral and only to the extent permitted by the Credit Agreement)
relating or pertaining to the Collateral or any part thereof for any
purpose; provided, however, that the Pledgor agrees that it will not
exercise any such right or power in any manner which would materially
adversely impair the value of the Collateral or any part thereof or violate
any provision of the Credit Agreement or any other Loan Document.
B. The Pledgor shall be entitled to receive and retain any and all
dividends, interest and other
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cash payments payable in respect of the Collateral which are paid in cash
by any Issuer if such dividends, interest and other cash payments are
permitted by the Credit Agreement, but all dividends and distributions in
respect of the Collateral or any part thereof made in shares of stock or
other property or representing any return of capital, whether resulting
from a subdivision, combination or reclassification of Collateral or any
part thereof or received in exchange for Collateral or any part thereof or
as a result of any merger, consolidation, acquisition or other exchange of
assets to which any Issuer may be a party or otherwise or as a result of
any exercise of any stock purchase or subscription right, shall be and
become part of the Collateral hereunder and, if received by the Pledgor,
shall be forthwith delivered to the Administrative Agent in due form for
transfer (i.e., endorsed in blank or accompanied by stock or bond powers
executed in blank) to be held for the purposes of this Agreement.
C. The Administrative Agent shall execute and deliver, or cause to be
executed and delivered, to the Pledgor, all such proxies, powers of
attorney, dividend orders and other instruments as the Pledgor may request
for the purpose of enabling the Pledgor to exercise the rights and powers
which it is entitled to exercise pursuant to clause (A) above and to
receive the dividends, interest and payments which it is authorized to
retain pursuant to clause (B) above.
(b) Upon notice from the Administrative Agent after the occurrence and
during the continuance of a Default, and so long as the same shall be
continuing, all rights and powers which the Pledgor is entitled to exercise
pursuant to Section 5(a)(A) hereof, and all rights of the Pledgor to receive and
retain dividends, interest and payments pursuant to Section 5(a)(B) hereof,
shall forthwith cease, and all such rights and powers shall thereupon become
vested in the Administrative Agent which shall have, during the continuance of
such Default, the sole and exclusive authority to exercise such rights and
powers and to receive such dividends, interest and payments. Any and all money
and other property paid over to or received by the Administrative Agent pursuant
to this
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paragraph (b) shall be retained by the Administrative Agent as additional
Collateral hereunder and applied in accordance with the provisions hereof.
6. Remedies. Whenever a Default shall exist, the Administrative Agent may
exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code as in effect in New York or otherwise available to it,
as well as any other rights and remedies provided for herein or otherwise
available to it. Without limiting the foregoing, whenever a Default shall have
occurred and be continuing the Administrative Agent (a) may, to the fullest
extent permitted by applicable law, without notice, advertisement, hearing or
process of law of any kind, (i) sell any or all of the Collateral, free of all
rights and claims of the Pledgor therein and thereto, at any public or private
sale or brokers' board and (ii) bid for and purchase any or all of the
Collateral at any such public sale and (b) shall have the right, for and in the
name, place and stead of the Pledgor, to execute endorsements, assignments,
stock powers and other instruments of conveyance or transfer with respect to all
or any of the Collateral. The Pledgor hereby expressly waives, to the fullest
extent permitted by applicable law, any and all notices, advertisements,
hearings or process of law in connection with the exercise by the Administrative
Agent of any of its rights and remedies during the continuance of a Default. Any
notification of intended disposition of any of the Collateral shall be deemed
reasonably and properly given if given at least ten (10) days before such
disposition. Any proceeds of any of the Collateral may be applied by the
Administrative Agent to the payment of expenses in connection with the
Collateral, including, without limitation, Attorney Costs, and any balance of
such proceeds may be applied by the Administrative Agent toward the payment of
such of the Liabilities, and in such order of application, as the Administrative
Agent may from time to time elect (and, after payment in full of all
Liabilities, any surplus shall be delivered to the Pledgor or as a court of
competent jurisdiction shall direct).
The Administrative Agent is hereby authorized to comply with any limitation
or restriction in connection with any sale of Collateral as it may be advised by
counsel is necessary in order to (a) avoid any violation of applicable law
(including, without limitation, compli-
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ance with such procedures as may restrict the number of prospective bidders and
purchasers, require that prospective bidders and purchasers have certain
qualifications and/or further restrict such prospective bidders or purchasers to
persons or entities who will represent and agree that they are purchasing for
their own account for investment and not with a view to the distribution or
resale of such Collateral) or (b) obtain any required approval of the sale or of
the purchase by any Governmental Authority and the Pledgor agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner and that the Administrative Agent
shall not be liable or accountable to the Pledgor for any discount allowed by
reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction.
7. General. The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equivalent to
that which the Administrative Agent, in its individual capacity, accords its own
property and no failure of the Administrative Agent to preserve or protect any
rights with respect to the Collateral against prior parties shall be deemed of
itself a failure to exercise reasonable care in the custody or preservation of
any Collateral.
No delay on the part of the Administrative Agent in exercising any right,
power or remedy shall operate as a waiver thereof, and no single or partial
exercise of any such right, power or remedy shall preclude any other or further
exercise thereof, or the exercise of any other right, power or remedy. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Agreement shall be effective unless the same shall be in writing and
signed and delivered by the Administrative Agent, and then such amendment,
modification, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
All obligations of the Pledgor and all rights, powers and remedies of the
Administrative Agent and the Lender Parties expressed herein are in addition to
all other rights, powers and remedies possessed by them, including, without
limitation, those provided by applica-
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ble law or in any other written instrument or agreement relating to any of the
Liabilities or any security therefor.
This Agreement shall be construed in accordance with and governed by the
internal laws of the State of New York, except to the extent that the validity
or perfection of the security interest hereunder, or any remedy hereunder, in
respect of any particular Collateral is governed by the laws of a jurisdiction
other than the State of New York. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
This Agreement shall be binding upon the Pledgor and the Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of the Pledgor, each Lender Party, the Administrative Agent and the
successors and assigns of the Administrative Agent.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, and each such counterpart
shall be deemed an original but all such counterparts shall together constitute
but one and the same Agreement.
All notices, requests and other communications hereunder shall be given in
the manners and to the addresses set forth in Section 11.2 of the Credit
Agreement, and shall be effective as set forth therein if given in any such
manner.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as
of the day and year first written above.
RAYOVAC CORPORATION
By:/s/ David A. Jones
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Title: President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
By:/s/ Eric A. Schubert
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Title: Managing Director
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