EXHIBIT 4.2
RAYOVAC CORPORATION
8 1/2% SENIOR SUBORDINATED NOTES DUE 2013
________________________________
THIRD SUPPLEMENTAL INDENTURE
Dated as of February 7, 2005
to
INDENTURE
Dated as of September 30, 2003
_________________________________
U.S. BANK
NATIONAL ASSOCIATION,
as Trustee
________________________________
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of February 7, 2005 among Rayovac Corporation, a Wisconsin corporation, (the
"Company"), the Guarantors (as defined in the Indenture referred to herein),
the Rayovac subsidiaries listed in Exhibit A hereto (each, a "Guaranteeing
Subsidiary" and, together, the "Guaranteeing Subsidiaries"), and U.S. Bank
National Association, as Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an indenture, dated as of September 30, 2003, as
supplemented by the Supplemental Indenture dated as of October 24, 2003 and the
Second Supplemental Indenture dated as of January 20, 2005 (the "Indenture"),
providing for the issuance of the Company's 8 1/2% Senior Subordinated Notes
due 2013 (the "Notes"); and
WHEREAS, the Indenture provides that if the Company acquires
additional Domestic Subsidiaries on or after the Issue Date, each such
subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiary shall unconditionally guarantee all of the
Company's obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "Note Guarantee"); and
WHEREAS, in connection with the Company's acquisition of all of the
equity interests of United Industries Corporation (the "Acquisition"), the
Company has acquired each of the Guaranteeing Subsidiaries; and
WHEREAS, also in connection with the Acquisition, the separate
corporate existence of Lindbergh Corporation, a former subsidiary of the
Company, has ceased; and
WHEREAS, the Trustee, the Company and the Guarantors wish to cure
certain errors relating to certain cross-references in the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiaries, the Guarantors and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
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2. Guarantors. Pursuant to Section 9.01 of the Indenture, the Company,
the Guarantors and the Trustee hereby amend the definition of the term
"Guarantors" set forth in the Indenture by (a) adding to Schedule I to the
Indenture those entities listed in Exhibit A hereto and (b) deleting from such
Schedule I "Lindbergh Corporation." For purposes of clarification, Schedule I
to the Indenture shall be identical to Schedule I-A attached hereto.
3. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby agree
as follows:
(a) Along with all other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of the Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful (subject in all cases to any
applicable grace period provided in the Indenture), and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, the same shall be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent by
any Holder of the Notes with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance that might otherwise constitute a legal
or equitable discharge or defense of a guarantor.
(c) Subject to Section 6.06 of the Indenture and to the extent
permitted by applicable law, each Guarantor hereby waives: diligence
presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever.
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(d) Subject to Section 6.06 of the Indenture and to the extent
permitted by applicable law, this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes
and the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or any custodian, trustee,
liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6
of the Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Note Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after giving effect to
any maximum amount and any other contingent and fixed liabilities of the
Guarantor that are relevant under any applicable Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable, and after
giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 11 of the Indenture, the
Trustee, the Holders and the Guarantor irrevocably agree that the
obligation of such Guarantor shall result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance.
4. Subordination. The Obligations of each Guaranteeing Subsidiary
under its Note Guarantee pursuant to this Supplemental Indenture shall be
junior and subordinated to the Senior Debt of such Guaranteeing Subsidiary on
the same basis as the Notes are junior and subordinated to the Senior Debt of
the Company. For the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by each
Guaranteeing Subsidiary only at such time as they may
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receive and/or retain payments in respect of the Notes pursuant to the
Indenture, including Article 10 thereof.
5. Execution and Delivery. The Guaranteeing Subsidiaries agree that
the Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
6. Guaranteeing Subsidiaries May Consolidate, Etc., on Certain Terms.
Except as otherwise provided in Section 11.05 of the Indenture, a Guarantor may
not sell or otherwise dispose of all or substantially all of its assets, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person unless:
(a) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(b) either:
(i) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger is a corporation, organized or existing under
(i) the laws of the United States, any state thereof or the District
of Columbia or (ii) the laws of the same jurisdiction as that
Guarantor and, in each case, assumes all the obligations of that
Guarantor under the Indenture, its Note Guarantee and the Registration
Rights Agreement pursuant to a supplemental indenture satisfactory to
the Trustee; or
(ii) in the case of a Subsidiary Guarantor, such sale or other
disposition (A) complies with Section 4.10 of the Indenture, including
the application of the Net Proceeds therefrom and (B) is to a Person
that is not a Restricted Subsidiary of the Company.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all
of the obligations and conditions of the Indenture to be performed by a
Guarantor, such successor Person shall succeed to and be substituted for a
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Note Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Note Guarantees theretofore
and thereafter issued in accordance with the terms of the Indenture as though
all of such Note Guarantees had been issued at the date of the execution
hereof.
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Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
7. Releases. (a) Any Guarantor shall be released and relieved of any
obligations under its Note Guarantee, (i) in connection with any sale or other
disposition of all or substantially all of the assets of that Guarantor
(including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary of
the Company, if the sale or other disposition of all or substantially all of
the assets of that Guarantor complies with Section 4.10 of the Indenture,
including the application of the Net Proceeds therefrom; (ii) in connection
with any sale of all of the Capital Stock of a Guarantor to a Person that is
not (either before or after giving effect to such transaction) a Restricted
Subsidiary of the Company, if the sale of all such Capital Stock of that
Guarantor complies with Section 4.10 of the Indenture, including the
application of the Net Proceeds therefrom; (iii) if the Company designates any
Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with the terms hereof; or (iv) in connection with any sale of
Capital Stock of a Guarantor to a Person that results in the Guarantor no
longer being a Subsidiary of the Company, if the sale of such Capital Stock of
that Guarantor complies with Section 4.10, including the application of the Net
Proceeds therefrom. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of the
Indenture, including without limitation Section 4.10 hereof, the Trustee shall
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under the Indenture
as provided in Article 10 of the Indenture.
8. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of any Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
the Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws.
9. Correction of Cross-References. In order to correct certain cross-
references in the Indenture:
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(a) The last sentence of subsection (ii) of Section 2.06(b) of the
Indenture is hereby deleted and restated in its entirety to read as follows:
"Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture
and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.06(i) hereof."
(b) The first phrase following subsection (i)(F) of Section 2.06(c) of
the Indenture is hereby deleted and restated in its entirety to read as
follows:
"the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(i) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Certificated Note in the appropriate principal amount."
(c) The first sentence of subsection (iv) of Section 2.06(c) of the
Indenture is hereby deleted and restated in its entirety to read as follows:
"If any Holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for a Certificated Note
or to transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Certificated Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee
shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(i) hereof, and
the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Certificated
Note in the appropriate principal amount."
(d) Third sentence of Section 4.10(d) of the Indenture is hereby
deleted and restated in its entirety to read as follows:
"To the extent that the provisions of any securities laws or
regulations conflict with this Section 4.10 or Section 3.09, the
Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations
under this Section 4.10 or Section 3.09 by virtue of such compliance."
(e) Subsection (iii) of Section 6.01 of the Indenture is hereby
deleted and restated in its entirety to read as follows:
"failure by the Company or any of its Restricted Subsidiaries to
comply with Section 4.10, Section 4.14, Section 4.20(c) or Section
5.01;"
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(f) Section 9.01(f) of the Indenture is hereby deleted and restated in
its entirety to read as follows:
"to comply with the requirements of Section 4.20;"
10. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
11. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
12. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
13. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed and attested, all as of the dates
referenced.
Dated: February 7, 2005
ROV HOLDING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
ROVCAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
UNITED INDUSTRIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Secretary and
General Counsel
▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
WPC BRANDS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
SYLORR PLANT CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
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GROUND ZERO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
NU-GRO US HOLDCO CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary
NU-GRO AMERICA CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
IB NITROGEN INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
NU-GRO TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
UNITED PET GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
10
DB ONLINE, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
SOUTHERN CALIFORNIA FOAM, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
AQ HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
AQUARIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
PERFECTO HOLDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
AQUARIUM SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
11
PERFECTO MANUFACTURING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
JUNGLE TALK INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
PETS `N PEOPLE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary
RAYOVAC CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President -
General Counsel and Secretary
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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Exhibit A
Guaranteeing Subsidiaries
United Industries Corporation
▇▇▇▇▇▇▇ Company
WPC Brands, Inc.
Sylorr Plant Corp.
Ground Zero, Inc.
Nu-Gro US Holdco Corporation
Nu-Gro America Corp.
IB Nitrogen Inc.
Nu-Gro Technologies, Inc.
United Pet Group, Inc.
DB Online, LLC
Southern California Foam, Inc.
AQ Holdings, Inc.
Aquaria, Inc.
Perfecto Holding Corp.
Aquarium Systems, Inc.
Perfecto Manufacturing, Inc.
Jungle Talk International, Inc.
Pets `N People, Inc.
SCHEDULE I-A
GUARANTORS
----------
ROV Holding, Inc.
Rovcal, Inc.
United Industries Corporation
▇▇▇▇▇▇▇ Company
WPC Brands, Inc.
Sylorr Plant Corp.
Ground Zero, Inc.
Nu-Gro US Holdco Corporation
Nu-Gro America Corp.
IB Nitrogen Inc.
Nu-Gro Technologies, Inc.
United Pet Group, Inc.
DB Online, LLC
Southern California Foam, Inc.
AQ Holdings, Inc.
Aquaria, Inc.
Perfecto Holding Corp.
Aquarium Systems, Inc.
Perfecto Manufacturing, Inc.
Jungle Talk International, Inc.
Pets `N People, Inc.
