EXHIBIT 10.21
AMENDMENT NO. 5 TO THE
CREDIT AGREEMENT
DATED AS OF JUNE 25, 2004
AMENDMENT NO. 5 TO THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "AMENDMENT") among Rayovac Corporation, a Wisconsin corporation (the
"COMPANY"), the banks, financial institutions and other institutional lenders
parties to the Credit Agreement referred to below and signatory hereto
(collectively, the "LENDERS") and Bank of America, N.A., as administrative agent
(the "ADMINISTRATIVE AGENT") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Company, VARTA Consumer Batteries GmbH & Co. KGaA
(formerly known as 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 Company has requested that the Lenders amend the Credit
Agreement in certain respects as set forth below.
(3) 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 2 hereof, hereby amended as follows:
(a) SECTION 1.1 is amended as follows:
(i) By deleting the definition of "WHOLLY-OWNED SUBSIDIARY"
in its entirety and inserting the following definition in replacement
therefor:
"WHOLLY-OWNED SUBSIDIARY means (i) the Subsidiary
Borrower and (ii) any Person in which (other than director's
qualifying shares or similar shares owned by other Persons due
to native ownership requirements) 100% of the capital stock or
other equity interests of each class is owned beneficially and
of record by the Company or by one or more Wholly-Owned
Subsidiaries, PROVIDED that references herein to "Wholly-Owned
Subsidiaries" shall in any event include Microlite S.A. and/or
Ningbo
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Baowang Battery Company so long as at least 80% of each class
of capital stock or other equity interests of Microlite S.A.
and Ningbo Baowang Battery Company, respectively, is owned
beneficially and of record by the Company or by one or more
Wholly-Owned Subsidiaries."
(ii) By adding the following new definitions in the
appropriate alphabetical order:
"AMENDMENT NO. 5 means Amendment No. 5 to the Credit
Agreement, dated as of June 25, 2004, among the Company, the
Lenders party thereto and the Administrative Agent.
80% SUBSIDIARY means any Foreign Subsidiary in which
(other than director's qualifying shares or similar shares
owned by other Persons due to native ownership requirements)
80% of the capital stock or other equity interests of each
class is owned beneficially and of record by the Company or by
one or more Wholly-Owned Subsidiaries."
(b) SECTION 8.1 is amended by (i) deleting the word "and" at the
end of SUBSECTION (o) thereof, (ii) deleting the punctuation xxxx "." at the end
of SUBSECTION (p) thereof and inserting "; and" in replacement therefor and
(iii) adding the following new SUBSECTION (q):
"(q) Liens on property of any Foreign Subsidiary (other than
the Subsidiary Borrower) securing Indebtedness of such Foreign
Subsidiary permitted under the provisions of SECTION 8.5."
(c) SECTION 8.2 is amended as follows:
(i) By deleting the phrase "or transfers by any Wholly-Owned
Subsidiary" in SUBSECTION (d) thereof and inserting the parenthetical
"or transfers by any Subsidiary" in replacement therefor.
(ii) By deleting the word "and" at the end of SUBSECTION (h)
thereof.
(iii) By deleting the punctuation xxxx "." at the end of
SUBSECTION (i) thereof and inserting "; and" in replacement therefor.
(iv) By adding the following new SUBSECTION (j):
"(j) the non-recourse sale of accounts receivable by
any Foreign Subsidiary (other than the Subsidiary Borrower) in
the ordinary course of business."
(d) SECTION 8.4 is amended by deleting SUBSECTION (c) thereof and
inserting the following in replacement therefor:
"(c) investments by the Company in its Wholly-Owned
Subsidiaries or 80% Subsidiaries or by any Subsidiary in any
Wholly-Owned Subsidiary or 80%
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Subsidiary, in the form of contributions to capital or loans or
advances; PROVIDED that, immediately before and after giving effect to
such investment, no Event of Default or Unmatured Event of Default
shall have occurred and be continuing and the aggregate amount
invested by the Company and its Subsidiaries (other than Foreign
Subsidiaries) in Foreign Subsidiaries after the Effective Date
(excluding investments in Cayman Finance Co. which constitute Guaranty
Obligations) shall not exceed $100,000,000;
(e) SECTION 8.5 is amended as follows:
(i) By (A) deleting the word "and" at the end of SUBSECTION
(k) thereof, (B) deleting the punctuation xxxx "." at the end of
SUBSECTION (l) thereof and inserting "; and" in replacement therefor
and (C) adding the following new SUBSECTION (m):
"(m) Indebtedness incurred by the Subsidiary Borrower
in connection with leases for the Subsidiary Borrower's leased
facilities located in Ellwangen, Germany and Dischingen,
Germany."
(ii) By deleting the parenthetical "(other than Indebtedness
permitted by SUBSECTION (f) below)" in SUBSECTION (d) thereof and
inserting the parenthetical "(other than Indebtedness permitted by
SUBSECTION (f) or (m) below)" in replacement therefor.
(iii) By deleting the figure "$30,000,000" in SUBSECTION (d)
thereof and inserting the figure "$100,000,000" in replacement
therefor.
(iv) By deleting the proviso in SUBSECTION (d) thereof and
inserting the following new proviso in replacement therefor:
(v) "(PROVIDED the aggregate amount of Indebtedness of the
Subsidiary Borrower, other than Indebtedness hereunder or permitted by
SUBSECTION (e), (f) or (m) below, shall not exceed $10,000,000)".
(vi) By deleting SUBSECTION (e) thereof and inserting the
following new proviso in replacement therefor:
"(e) Indebtedness of Subsidiaries to the Company,
Wholly-Owned Subsidiaries or 80% 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;".
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(f) SECTION 8.8 is amended by deleting SUBSECTION (d) thereof and
inserting the following in replacement therefor:
"(d) Guaranty Obligations by the Company relating to
Indebtedness of Wholly-Owned Subsidiaries or 80% Subsidiaries which is
permitted hereunder;".
(g) SECTION 8.10(c) is amended by (i) deleting the word "and" at
the end of SUBSECTION (c) thereof, (ii) deleting the punctuation xxxx "." at the
end of SUBSECTION (d) thereof and inserting "; and" in replacement therefor and
(iii) adding the following new SUBSECTION (e):
"(e) capital leases entered into by any Subsidiary; PROVIDED
that (i) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from the incurrence of the
obligations contemplated thereby and (ii) such capital leases are
otherwise permitted under the provisions of SECTION 8.5."
(h) SECTION 8.14 is amended by:
(i) Deleting SUBSECTION (a) thereof and inserting the
following in replacement therefor:
"(a) any Subsidiary may declare and pay dividends to the
Company or a Subsidiary;";
(ii) Deleting the word "and" at the end of SUBSECTION (g)
thereof;
(iii) Deleting the punctuation xxxx "." at the end of
SUBSECTION (h) thereof and inserting "; and" in replacement therefor;
and
(iv) Adding the following new SUBSECTION (i):
"(i) any 80% Subsidiary may declare and pay dividends for any
fiscal year in an aggregate amount not to exceed the amount of such
80% Subsidiary's earnings during such fiscal year to its shareholders
on a pro rata basis.".
(i) SECTION 8.17 is amended in its entirety to read as follows:
"8.17 CAPITAL EXPENDITURES. The Company shall not permit the
aggregate amount of all Capital Expenditures made by the Company and
its Subsidiaries in any fiscal year to exceed an amount equal to:
(a) For the fiscal years ending September 30, 2002
and September 30, 2003, $35,000,000;
(b) For the fiscal year ending September 30, 2004,
the sum of (i) $35,000,000 and (ii) an amount equal to the
greater of (x) $35,000,000
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MINUS the actual amount of Capital Expenditures in the fiscal
year ending September 30, 2003 and (y) $0;
(c) For the fiscal year ending September 30, 2005,
$50,000,000;
(d) For the fiscal year ending September 30, 2006 and
each fiscal year thereafter, the sum of (i) $50,000,000 and
(ii) an amount equal to the greater of (x) $50,000,000 MINUS
the actual amount of Capital Expenditures in the immediately
preceding fiscal year and (y) $0;
PROVIDED that in no event shall Indebtedness incurred in connection
with the Xxxxxx/Xxxxx Acquisitions be considered Capital Expenditures
for purposes of this SECTION 8.17."
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective when, and only when, and as of the date (the "AMENDMENT NO. 5
EFFECTIVE DATE") on which, (a) the Administrative Agent shall have received (x)
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) counterparts of the Consent appended hereto (the "CONSENT"),
executed by each Guarantor (other than the Company), 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, and
(b) the Administrative Agent shall have received all fees due and payable in
connection with this Amendment No. 5 and 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).
SECTION 3. 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.
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(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.
SECTION 4. 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 5. 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
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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 6. 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 7. 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/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Title: EVP and CFO
VARTA CONSUMER BATTERIES GMBH &
CO. KGAA
By /s/ Xxxx Xxxxx
------------------------------------------
Title: CEO
By /s/ Andreas Rouve
------------------------------------------
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
By
------------------------------------------
Title:
Agreed as of the date first above written
----------------------------------------------
[Please type or print name of Lender Party]
By
------------------------------------------
Title:
CONSENT
Dated as of June 25, 2004
Each of the undersigned, as Guarantors under, as applicable (i) the
Guaranty dated as of October 1, 2002, (ii) the Restated Guaranty dated as of
October 1, 2002 or (iii) any other guaranty issued by any Person of the
Obligations of the Company or the Subsidiary Borrower, in each case
(collectively, the "GUARANTY") in favor of the Administrative Agent and the
Lenders parties to the Credit Agreement referred to in the foregoing Amendment,
hereby consents to such Amendment and hereby confirms and agrees that (a)
notwithstanding the effectiveness of such Amendment, the Guaranty is, and shall
continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, except that, on and after the effectiveness of such Amendment,
each reference in the 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 such Amendment, and (b) each of the Collateral
Documents to which such Guarantor is a party and all of the Collateral described
therein do, and shall continue to, secure the payment of all of the obligations
to be secured thereunder.
ROV HOLDING, INC.
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
ROV INTERNATIONAL FINANCE COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
RAYOVAC EUROPE GMBH
By /s Xxxx Xxxxx
------------------------------------------
Title: Managing Director
By /s/ Andreas Rouve
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Title: Managing Director
ROV GERMAN GENERAL PARTNER GMBH
By /s/ Xxxx Xxxxx
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Title: Managing Director
By /s/ Andreas Rouve
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Title: Managing Director
ROV GERMAN LIMITED GMBH
By /s/ Xxxx Xxxxx
------------------------------------------
Title: Managing Director
By /s/ Andreas Rouve
------------------------------------------
Title: Managing Director
RAYOVAC (UK) LTD.
By /s/ Xxxx Xxxxx
------------------------------------------
Title: Director
ROVCAL, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President & Treasurer
