Exhibit 4.12
SECOND SUPPLEMENTAL INDENTURE
RAYOVAC CORPORATION,
THE COMPANY,
ROV HOLDING, INC.,
A GUARANTOR,
ROVCAL, INC.,
A GUARANTOR,
VIDOR BATTERY COMPANY,
A GUARANTOR,
AND
HSBC BANK USA (FORMERLY KNOWN AS MARINE MIDLAND BANK)
THE TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
Dated as of August 6, 1999
Supplemental to the Indenture dated as of October 22, 1996
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$65,000,000
10 1/4% Series B Senior Subordinated Notes due 2006
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SECOND SUPPLEMENTAL INDENTURE, dated as of August 6, 1999,
between Rayovac Corporation, a Wisconsin corporation (the "Company"), ROV
Holding, Inc., a Delaware corporation, Rovcal, Inc., a California Corporation
("Rovcal"), and Vidor Battery Company, a Wisconsin corporation ("Vidor"), each
of ROV Holding Inc., Rovcal and Vidor, a "Guarantor", and HSBC Bank USA
(formerly known as Marine Midland Bank), as Trustee (the "Trustee"), under the
Indenture dated as of October 22, 1996, as supplemented by a First Supplemental
Indenture dated as of February 26, 1999, this Second Supplemental Indenture
being supplemental thereto.
RECITALS OF THE COMPANY
The Indenture was authorized, executed and delivered by the
Company to provide for the issuance by the Company and the guarantee by each of
ROV Holding, Inc., Rovcal and Vidor of the Company's 10 1/4% Series B Senior
Subordinated Notes Due 2006 (the "Notes").
Pursuant to resolutions adopted by an Action by Written
Consent of the Company dated July 20, 1999, of ROV Holding dated July 20, 1999
and of Vidor dated August 3, 1999 and pursuant to resolutions adopted by the
Board of Directors of Rovcal at a meeting held on August 3, 1999, each of the
Company, ROV Holding, Vidor and Rovcal has duly authorized the execution and
delivery of this Second Supplemental Indenture to amend the Indenture as set
forth herein; and all acts necessary to make this Second Supplemental Indenture
a valid agreement of the Company, ROV Holding, Vidor and Rovcal have been
performed.
In accordance with Article 9 of the Indenture, the Company
issued Solicitations of Consents to Amend Certain Provisions of the Indenture,
each dated July 21, 1999, as amended, and obtained the consent of Holders (as
defined in the Indenture) of at least a majority in aggregate principal amount
of the outstanding Notes to amend the Indenture as set forth in Article One
herein.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE
WITNESSETH, that, in consideration of the premises, it is mutually agreed, for
the benefit of each other and for the equal and proportionate benefit of all
Holders of the Notes, as follows:
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ARTICLE ONE
AMENDMENT OF INDENTURE
SECTION 101. DEFINITIONS; RULES OF CONSTRUCTION.
Terms defined in the Indenture and used without other
definition herein have the respective meanings ascribed to them in the
Indenture. The rules of construction set forth in the Indenture likewise govern
this Second Supplemental Indenture.
SECTION 102. AMENDMENTS TO SECTION 1.01 OF THE INDENTURE.
Section 1.01 of the Indenture is hereby amended by:
(1) revising the definition of "Senior Bank Debt" to read as
follows:
""SENIOR BANK DEBT" means all Obligations outstanding under or
in connection with the Credit Agreement as such agreement may be
restated, further amended, supplemented or otherwise modified or
replaced from time to time hereafter, together with any refunding or
replacement of such Indebtedness, up to an aggregate maximum principal
amount outstanding or available at any time of $225.0 million.";
(2) revising clause (i) of the definition of "Permitted
Investments" to read as follows:
"(i) any Investments in the Company or in a Restricted
Subsidiary of the Company which, with respect to any such Restricted
Subsidiary, has a fair market value which does not exceed $1.0 million
in the aggregate, or any Investments in a Restricted Subsidiary that
(A) is a Guarantor or (B) is not a Guarantor but is a Foreign
Subsidiary;";
(3) revising clause (iii) of the definition of "Permitted
Investments" to read as follows:
"(iii) Investments by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment (A) such
Person becomes a Restricted Subsidiary of the Company that (x) is a
Guarantor or (y) is not a Guarantor but is a Foreign Subsidiary or (B)
such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company
that (x) is a Guarantor or (y) is not a Guarantor but is a Foreign
Subsidiary;";
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(4) revising clause (ii) of the definition of "Permitted Liens" to
read as follows:
"(ii) any Lien securing obligations under the Credit Agreement
and any Guarantee thereof, which obligations or Guarantee are permitted
by the terms hereof to be incurred and outstanding;"; and
(5) revising clause (xvii) of the definition of "Permitted Liens"
to read as follows:
(xvii) Liens securing other Indebtedness of the Company and
its Restricted Subsidiaries not expressly permitted by clauses (i)
through (xvi) above; PROVIDED that the aggregate amount of the
Indebtedness of the Company and its Restricted Subsidiaries, that are
not Foreign Subsidiaries, secured by Liens permitted pursuant to this
clause (xvii) does not exceed $3.0 million in the aggregate and that
the aggregate amount of the Indebtedness of the Company's Foreign
Subsidiaries secured by Liens permitted pursuant to this clause (xvii)
does not exceed $20.0 million in the aggregate."
SECTION 103. AMENDMENT TO SECTION 4.09 OF THE INDENTURE.
Section 4.09 of the Indenture is hereby amended by revising
clause (vii) thereof to read as follows:
"(vii) the incurrence by any Foreign Subsidiary of
Indebtedness (including Acquired Debt), which when aggregated with the
principal amount of Indebtedness of all Foreign Subsidiaries then
outstanding and incurred pursuant to this clause (vii), does not exceed
$20.0 million (or the equivalent thereof in any other currency) at any
one time outstanding;".
SECTION 104. AMENDMENT TO SECTION 4.17 OF THE INDENTURE.
Section 4.17 of the Indenture is hereby amended by revising
the last sentence of the first paragraph to read as follows:
"Notwithstanding the foregoing, the Company or any of its
Restricted Subsidiaries may take any of the foregoing actions with
respect to a Restricted Subsidiary, without compliance with this
Section 4.17, if such action is (A) a Permitted Investment or (B) a
Restricted Investment, provided that, in the case of clause (B), the
fair market value of such Investment, without duplication, is or is
deemed a Restricted Payment at the time of such Restricted Investment
that is permitted by, and reduces the amount available for Restricted
Payments under, the first paragraph of Section 4.07 hereof."
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SECTION 105. AMENDMENT TO SECTION 9.04 OF THE INDENTURE.
Section 9.04 of the Indenture is hereby amended by:
(1) inserting a new second paragraph to read as follows:
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to give their
consent or take any other action described above or required or
permitted to be taken pursuant to this Indenture. If a record date is
fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take
any such action, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for
more than 120 days afer such record date."; and
(2) deleting the last sentence of the first paragraph and
replacing it as follows:
"Notwithstanding anything to the contrary in this Section
9.04, no consent to any amendment, supplement or waiver delivered by a
Holder of a Note or any proxy thereof in connection with the Consent
Solicitation of the Company described in the Company's Consent
Solicitation Statement dated July 21, 1999, as amended, may be revoked
by such Holder or any subsequent Holder or proxy thereof".
SECTION 106. EFFECTIVENESS OF AMENDMENTS.
Upon execution and delivery by the Company, ROV Holding,
Rovcal, Vidor and the Trustee, this Second Supplemental Indenture shall become
operative and the amendment of Section 9.04 of the Indenture pursuant to Section
105(2) of this Second Supplemental Indenture shall immediately become effective,
but the amendments to the Indenture pursuant to Sections 102, 103, 104 and
105(1) of this Second Supplemental Indenture shall not become effective until
the Company delivers to the Trustee a written notice executed by an Officer of
the Company (the "Election Notice") of the Company's election to make the
amendments to the Indenture set forth in Sections 102, 103, 104 and 105(1) of
this Second Supplemental Indenture effective, PROVIDED that the amendments to
the Indenture pursuant to Sections 102, 103, 104 and 105(1) of this Second
Supplemental Indenture shall not become effective if the Election Notice is not
delivered to the Trustee on or before October 29, 1999.
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ARTICLE TWO
GUARANTEES
SECTION 201. GUARANTEE BY VIDOR BATTERY COMPANY.
For good and valuable consideration, including, without
limitation, past services provided by the Company to Vidor, the receipt of which
is hereby acknowledged, Vidor hereby guarantees the Company 's Obligations under
the Indenture and the Notes to the same extent and on the same terms and
conditions as the Guarantee given by ROV Holding Inc. under the Indenture and
the Notes. Such Guarantee shall be subordinated in right of payment to any
guarantee by Vidor of Senior Debt and Vidor will be automatically and
unconditionally released and discharged from its obligations under this
Additional Guarantee in the circumstances set forth in Section 4.16 of the
Indenture.
SECTION 202. GUARANTEE BY ROVCAL, INC..
For good and valuable consideration, including, without
limitation, past services provided by the Company to Rovcal, the receipt of
which is hereby acknowledged, Rovcal hereby guarantees the Company 's
Obligations under the Indenture and the Notes to the same extent and on the same
terms and conditions as the Guarantee given by ROV Holding Inc. under the
Indenture and the Notes. Such Guarantee shall be subordinated in right of
payment to any guarantee by Rovcal of Senior Debt and Rovcal will be
automatically and unconditionally released and discharged from its obligations
under this Additional Guarantee in the circumstances set forth in Section 4.16
of the Indenture.
SECTION 203. EFFECTIVENESS OF GUARANTEES.
The Additional Guarantees set forth in Sections 201 and 202 of
this Second Supplemental Indenture shall not become effective until the Company
has delivered the Election Notice to the Trustee.
ARTICLE THREE
MISCELLANEOUS
SECTION 301. SEVERABILITY.
In case any provision in this Second Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SECTION 302. GOVERNING LAW.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SECOND SUPPLEMENTAL
INDENTURE.
SECTION 303. RATIFICATION.
This Second Supplemental Indenture is a supplement to the
Indenture. As supplemented by this Second Supplemental Indenture, the Indenture
is in all respects ratified, approved and confirmed and the Indenture and this
Second Supplemental Indenture shall together constitute one and the same
instrument.
SECTION 304. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 305. THE TRUSTEE.
The Trustee shall not be responsible in any matter whatsoever
for or in respect of the validity or sufficiency of this Second Supplemental
Indenture or for or in respect of the Recitals contained herein, all of which
are made solely by the Company.
IN WITNESS WHEREOF, each of RAYOVAC CORPORATION, ROV HOLDING,
INC., ROVCAL, INC. and VIDOR BATTERY COMPANY have caused this Second
Supplemental Indenture to be signed in its corporate name and acknowledged by
one of its duly authorized officers; and HSBC BANK USA (formerly known as Marine
Midland Bank), as Trustee, has caused this Indenture to be signed and
acknowledged by one of its duly authorized signatories, and its seal to be
affixed hereunto or impressed hereon, duly attested, as of the day and year
first above written.
[Signatures on following page]
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Dated as of August 6, 1999 RAYOVAC CORPORATION
By:
/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Attest:
/s/ Xxxxxxx X. Xxxxxxx
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Dated as of August 6, 1999 ROV HOLDING, INC.
By:
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
Attest:
/s/ Xxxxx X. Xxxxxxxxx
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Dated as of Xxxxxx 0, 0000 XXXXX BATTERY COMPANY
By:
/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: President, Treasurer and Secretary
Attest:
/s/ Xxxxxxx X. Xxxxxxx
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Dated as of August 6, 1999 ROVCAL, Inc.
By:
/s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Attest:
/s/ Xxxxxx X. Xxxxxx
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Dated as of August 6, 1999 HSBC BANK USA (formerly known as
Marine Midland Bank), as Trustee
By:
/s/ Xxxxx X. Xxxxxx
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(SEAL) Name: Xxxxx X. Xxxxxx
Title: Vice President
Attest:
/s/ Xxxxx X. Xxxxx
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