ENERGIZER HOLDINGS, INC. Senior Notes $80,000,000 5.99% Senior Notes, Series 2006-A, due June 30, 2009 $140,000,000 6.05% Senior Notes, Series 2006-B, due June 30, 2011 $140,000,000 6.13% Senior Notes, Series 2006-C, due June 30, 2014 $140,000,000...
EXECUTION
COPY
ENERGIZER
HOLDINGS,
INC.
$500,000,000
Senior
Notes
$80,000,000
5.99%
Senior Notes, Series 2006-A, due June 30, 2009
$140,000,000
6.05%
Senior Notes, Series 2006-B, due June 30, 2011
$140,000,000
6.13%
Senior Notes, Series 2006-C, due June 30, 2014
$140,000,000
6.24%
Senior Notes, Series 2006-D, due June 30, 2016
_________
_________
Dated
as of July 6,
2006
Series
2006-A PPN:
29266R H@ 0
Series
2006-B PPN:
29266R H# 8
Series
2006-C PPN:
29266R J* 0
Series
2006-D PPN:
29266R J@ 8
TABLE
OF
CONTENTS
SectionPage
| 1. | AUTHORIZATION OF NOTES. |
|
1.1.
|
The
Notes.
|
|
1.2.
|
Additional
Interest.
|
2. SALE
AND PURCHASE
OF NOTES.
3. CLOSING.
4. CONDITIONS
TO
CLOSING.
|
4.1.
|
Representations
and Warranties.
|
|
4.2.
|
Performance;
No Default.
|
|
4.3.
|
Compliance
Certificates.
|
|
4.4.
|
Opinions
of
Counsel.
|
|
4.5.
|
Purchase
Permitted By Applicable Law, etc.
|
|
4.6.
|
Sale
of Other
Notes.
|
|
4.7.
|
Payment
of
Special Counsel Fees.
|
|
4.8.
|
Private
Placement Numbers.
|
|
4.9.
|
Changes
in
Corporate Structure.
|
4.10. Subsidiary
Guaranty.
4.11. Proceedings
and
Documents.
5. REPRESENTATIONS
AND
WARRANTIES OF THE COMPANY.
|
5.1.
|
Organization;
Power and Authority.
|
|
5.2.
|
Authorization,
etc.
|
|
5.3.
|
Disclosure.
|
|
5.4.
|
Organization
and Ownership of Shares of Subsidiaries.
|
|
5.5.
|
Financial
Statements.
|
|
5.6.
|
Compliance
with Laws, Other Instruments, etc.
|
|
5.7.
|
Governmental
Authorizations, etc.
|
|
5.8.
|
Litigation;
Observance of Statutes and Orders.
|
|
5.9.
|
Taxes.
|
| 5.10. | Title to Property; Leases |
| 5.11. | Licenses, Permits, etc. |
| 5.12. | Compliance with ERISA. |
| 5.13. | Private Offering by the Company |
| 5.14. | Use of Proceeds; Margin Regulations |
| 5.15. | Existing Indebtedness. |
| 5.16. | Foreign Assets Control Regulations, Anti-Terrorism Order, etc . |
| 5.17. | Status under Certain Statutes. |
| 5.18. | Solvency of Subsidiary Guarantors |
| 5.19. | Environmental Matters. |
6. REPRESENTATIONS
OF
THE PURCHASERS.
|
6.1.
|
Purchase
for
Investment.
|
|
6.2.
|
Source
of
Funds.
|
7. INFORMATION
AS TO
COMPANY.
|
7.1.
|
Financial
and
Business Information.
|
|
7.2.
|
Officer’s
Certificate.
|
|
7.3.
|
Inspection.
|
8. PREPAYMENT
OF THE
NOTES.
|
8.1.
|
No
Scheduled
Prepayments.
|
|
8.2.
|
Optional
Prepayments with Make-Whole Amount.
|
|
8.3.
|
Allocation
of
Partial Prepayments.
|
|
8.4.
|
Maturity;
Surrender, etc.
|
|
8.5.
|
Purchase
of
Notes.
|
|
8.6.
|
Make-Whole
Amount.
|
9. AFFIRMATIVE
COVENANTS.
|
9.1.
|
Compliance
with Law.
|
|
9.2.
|
Insurance.
|
|
9.3.
|
Maintenance
of Properties.
|
|
9.4.
|
Payment
of
Taxes and Claims.
|
|
9.5.
|
Corporate
Existence, etc.
|
10. NEGATIVE
COVENANTS.
10.1. Consolidated
Indebtedness; Indebtedness of Restricted Subsidiaries.
10.2. Liens.
10.3. Sale
of
Assets.
10.4. Mergers,
Consolidations, etc.
10.5. Disposition
of
Stock of Restricted Subsidiaries.
10.6. Designation
of
Restricted and Unrestricted Subsidiaries.
10.7. Restricted
Subsidiary Guaranties.
10.8. Nature
of
Business.
10.9. Transactions
with
Affiliates.
11. EVENTS
OF
DEFAULT.
12. REMEDIES
ON
DEFAULT, ETC.
12.1. Acceleration.
12.2. Other
Remedies.
12.3. Rescission.
12.4. No
Waivers or
Election of Remedies, Expenses, etc.
13.
REGISTRATION;
EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration
of
Notes.
13.2. Transfer
and
Exchange of Notes.
13.3. Replacement
of
Notes.
14. PAYMENTS
ON
NOTES.
14.1. Place
of
Payment.
14.2. Home
Office
Payment.
15. EXPENSES,
ETC.
15.1. Transaction
Expenses.
15.2. Survival.
16. SURVIVAL
OF
REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
17. AMENDMENT
AND
WAIVER.
17.1. Requirements.
17.2. Solicitation
of
Holders of Notes.
17.3. Binding
Effect,
etc.
17.4. Notes
held by
Company, etc.
18. NOTICES.
19. REPRODUCTION
OF
DOCUMENTS.
20. CONFIDENTIAL
INFORMATION.
21. SUBSTITUTION
OF
PURCHASER.
22. RELEASE
OF
SUBSIDIARY GUARANTOR.
23. MISCELLANEOUS.
23.1. Successors
and
Assigns.
23.2. Payments
Due on
Non-Business Days.
23.3. Severability.
23.4. Construction.
23.5. Counterparts.
23.6. Governing
Law.
SCHEDULE
A -- Information
Relating to Purchasers
SCHEDULE
B -- Defined
Terms
SCHEDULE
B-1 -- Investments
SCHEDULE
4.9 -- Changes
in
Corporate Structure
SCHEDULE
5.3 -- Disclosure
Materials
SCHEDULE
5.4 -- Subsidiaries
of the
Company and Ownership of Subsidiary Stock
SCHEDULE
5.5 -- Financial
Statements
SCHEDULE
5.11 -- Licenses,
Permits,
etc.
SCHEDULE
5.14 -- Use
of
Proceeds
SCHEDULE
5.15 -- Indebtedness
SCHEDULE
10.2 -- Liens
EXHIBIT
1
(a) -- Form
of Series
2006-A Note
EXHIBIT
1
(b) -- Form
of Series
2006-B Note
EXHIBIT
1
(c) -- Form
of Series
2006-C Note
EXHIBIT
1
(d) -- Form
of Series
2006-D Note
EXHIBIT
1
(e) -- Form
of Subsidiary
Guaranty
EXHIBIT
4.4(a)--Form
of Opinion of
Counsel for the Company and the Subsidiary Guarantors
EXHIBIT
4.4(b) -- Form
of Opinion of
Special Counsel for the Purchasers
i
ENERGIZER
HOLDINGS,
INC.
000
Xxxxxxxxx
Xxxxxxxxxx Xxxxx
St.
Louis, MO
63141
(000)
000-0000
Fax:
(000)
000-0000
$500,000,000
Senior
Notes
$80,000,000
5.99%
Senior Notes, Series 2006-A, due June 30, 2009
$140,000,000
6.05%
Senior Notes, Series 2006-B, due June 30, 2011
$140,000,000
6.13%
Senior Notes, Series 2006-C, due June 30, 2014
$140,000,000
6.24%
Senior Notes, Series 2006-D, due June 30, 2016
Dated
as of July 6,
2006
TO
EACH OF THE
PURCHASERS LISTED IN
THE
ATTACHED
SCHEDULE A:
Ladies
and
Gentlemen:
ENERGIZER
HOLDINGS,
INC., a Missouri corporation (the “Company”), agrees with you as
follows:
| 1. |
AUTHORIZATION
OF NOTES.
|
| 1.1. |
The
Notes.
|
The
Company has
authorized the issue and sale of $500,000,000 aggregate principal amount of
its
Senior Notes consisting of (i) $80,000,000 aggregate principal amount of its
5.99% Senior Notes, Series 2006-A, due June 30, 2009 (the “Series 2006-A
Notes”); (ii) $140,000,000 aggregate principal amount of its 6.05% Senior
Notes, Series 2006-B, due June 30, 2011 (the “Series 2006-B Notes”); (iii)
$140,000,000 aggregate principal amount of its 6.13% Senior Notes, Series
2006-C, due June 30, 2014 (the “Series 2006-C Notes”); and (iv) $140,000,000
aggregate principal amount of its 6.24% Senior Notes, Series 2006-D, due June
30, 2016 (the “Series 2006-D Notes” and, together with the Series 2006-A Notes,
the Series 2006-B Notes and the Series 2006-C Notes, the “Notes,” such term to
include any such Notes issued in substitution therefor pursuant to Section
13 of
this Agreement). The Notes will be substantially in the forms set out in
Exhibits 1(a), 1(b), 1(c) and 1(d), with such changes therefrom, if any, as
may
be approved by the purchasers of such Notes, or series thereof, and the Company.
Certain capitalized terms used in this Agreement are defined in Schedule B;
references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a
Schedule or an Exhibit attached to this Agreement. Subject to Section 22, the
Notes will be guaranteed by each Subsidiary that is now or in the future becomes
a signatory to the Bank Guarantees (individually, a “Subsidiary Guarantor” and
collectively, the “Subsidiary Guarantors”) pursuant to a guaranty substantially
in the form of Exhibit 1(e) (the “Subsidiary Guaranty”).
| 1.2. |
Additional
Interest.
|
If
the Debt to
EBITDA Ratio at any time exceeds 3.5 to 1.00, as evidenced by an Officer’s
Certificate delivered pursuant to Section 7.2(a), the interest rate payable
on
each series of Notes shall be increased by 0.75%, commencing on the first day
of
the first fiscal quarter following the fiscal quarter in respect of which such
Certificate was delivered and continuing until the Company has provided an
Officer’s Certificate pursuant to Section 7.2(a) demonstrating that, as of the
end of the fiscal quarter in respect of which such Certificate is delivered,
the
Debt to EBITDA Ratio is not more than 3.5 to 1.0. Following delivery of an
Officer’s Certificate demonstrating that the Debt to EBITDA Ratio did not exceed
3.5 to 1.0, the additional 0.75% interest shall cease to accrue or be payable
for any fiscal quarter subsequent to the fiscal quarter in respect of which
such
Certificate is delivered.
| 2. |
SALE
AND PURCHASE OF NOTES.
|
Subject
to the
terms and conditions of this Agreement, the Company will issue and sell to
you
and each of the other purchasers named in Schedule A (the “Other Purchasers”),
and you and the Other Purchasers will purchase from the Company, at the Closing
provided for in Section 3, Notes of the series and in the principal amount
specified opposite your name in Schedule A at the purchase price of 100% of
the
principal amount thereof. Your obligation hereunder and the obligations of
the
Other Purchasers are several and not joint obligations and you shall have no
liability to any Person for the performance or non-performance by any Other
Purchaser hereunder.
| 3. |
CLOSING.
|
The
sale and
purchase of the Notes to be purchased by you and the Other Purchasers shall
occur at the offices of Xxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, at 9:00 a.m., Chicago time, at a
closing (the “Closing”) on July 6, 2006 or on such other Business Day thereafter
on or prior to July 15, 2006 as may be agreed upon by the Company and you
and the Other Purchasers. At the Closing the Company will deliver to you the
Notes to be purchased by you in the form of a single Note (or such greater
number of Notes in denominations of at least $250,000 as you may request) dated
the date of the Closing and registered in your name (or in the name of your
nominee), against delivery by you to the Company or its order of immediately
available funds in the amount of the purchase price therefor by wire transfer
of
immediately available funds for the account of the Company to account number
00000-00000 at Bank of America, San Francisco, California, ABA
No. 000-000-000. If at the Closing the Company fails to tender such Notes
to you as provided above in this Section 3, or any of the conditions specified
in Section 4 shall not have been fulfilled to your satisfaction, you shall,
at
your election, be relieved of all further obligations under this Agreement,
without thereby waiving any rights you may have by reason of such failure or
such nonfulfillment.
| 4. |
CONDITIONS
TO CLOSING.
|
Your
obligation to
purchase and pay for the Notes to be sold to you at the Closing is subject
to
the fulfillment to your satisfaction, prior to or at the Closing, of the
following conditions:
| 4.1. |
Representations
and Warranties.
|
The
representations
and warranties of the Company in this Agreement shall be correct when made
and
correct in all material respects at the time of the Closing.
| 4.2. |
Performance;
No Default.
|
The
Company shall
have performed and complied with all agreements and conditions contained in
this
Agreement required to be performed or complied with by it prior to or at the
Closing and after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Schedule 5.14) no Default
or Event of Default shall have occurred and be continuing.
| 4.3. |
Compliance
Certificates.
|
(a) Officer’s
Certificate.
The Company shall
have delivered to you an Officer’s Certificate, dated the date of the Closing,
certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have
been
fulfilled.
(b) Secretary’s
Certificate.
The Company shall
have delivered to you a certificate certifying as to the resolutions attached
thereto and other corporate proceedings relating to the authorization, execution
and delivery of the Notes and the Agreement.
| 4.4. |
Opinions
of Counsel.
|
You
shall have
received opinions in form and substance satisfactory to you, dated the date
of
the Closing (a) from Xxxxx Xxxx LLP, counsel for the Company and the Subsidiary
Guarantors, covering the matters set forth in Exhibit 4.4(a) and covering such
other matters incident to the transactions contemplated hereby as you or your
counsel may reasonably request (and the Company instructs its counsel to deliver
such opinion to you) and (b) from Xxxxx & Xxxxxxx LLP, your special
counsel in connection with such transactions, substantially in the form set
forth in Exhibit 4.4(b) and covering such other matters incident to such
transactions as you may reasonably request.
| 4.5. |
Purchase
Permitted By Applicable Law,
etc.
|
On
the date of the
Closing your purchase of Notes shall (i) be permitted by the laws and
regulations of each jurisdiction to which you are subject, without recourse
to
provisions (such as Section 1405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction as to the
character of the particular investment, (ii) not violate any applicable law
or regulation (including Regulation U, T or X of the Board of Governors of
the
Federal Reserve System) and (iii) not subject you to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law
or
regulation was not in effect on the date hereof. If requested by you, you shall
have received an Officer’s Certificate certifying as to such matters of fact as
you may reasonably specify to enable you to determine whether such purchase
is
so permitted.
| 4.6. |
Sale
of Other Notes.
|
Contemporaneously
with the Closing, the Company shall sell to the Other Purchasers and the Other
Purchasers shall purchase the Notes to be purchased by them at the Closing
as
specified in Schedule A.
| 4.7. |
Payment
of Special Counsel Fees.
|
Without
limiting
the provisions of Section 15.1, the Company shall have paid on or before
the Closing the fees, charges and disbursements of your special counsel referred
to in Section 4.4, to the extent reflected in a statement of such counsel
rendered to the Company at least one Business Day prior to the
Closing.
| 4.8. |
Private
Placement Numbers.
|
Private
Placement
Numbers issued by Standard & Poor’s CUSIP Service Bureau (in cooperation
with the Securities Valuation Office of the National Association of Insurance
Commissioners) shall have been obtained by Xxxxx & Xxxxxxx LLP for each
series of the Notes.
| 4.9. |
Changes
in Corporate Structure.
|
Except
as specified
in Schedule 4.9, the Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and shall not
have
succeeded to all or any substantial part of the liabilities of any other entity,
at any time following the date of the most recent financial statements referred
to in Schedule 5.5.
| 4.10. |
Subsidiary
Guaranty.
|
Each
Subsidiary
Guarantor shall have executed and delivered the Subsidiary Guaranty in favor
of
you and the Other Purchasers and you shall have received a copy of a fully
executed counterpart thereof.
| 4.11. |
Proceedings
and Documents.
|
All
corporate and
other proceedings in connection with the transactions contemplated by this
Agreement and all documents and instruments incident to such transactions shall
be satisfactory to you and your special counsel, and you and your special
counsel shall have received all such counterpart originals or certified or
other
copies of such documents as you or they may reasonably request.
| 5. |
REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY.
|
The
Company
represents and warrants to you that:
| 5.1. |
Organization;
Power and Authority.
|
The
Company is a
corporation duly organized, validly existing and in good standing under the
laws
of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
| 5.2. |
Authorization,
etc.
|
This
Agreement and
the Notes have been duly authorized by all necessary corporate action on the
part of the Company, and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with
its
terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law).
The
Subsidiary
Guaranty has been duly authorized by all necessary corporate action on the
part
of each Subsidiary Guarantor and upon execution and delivery thereof will
constitute the legal, valid and binding obligation of each Subsidiary Guarantor,
enforceable against each Subsidiary Guarantor in accordance with its terms,
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
| 5.3. |
Disclosure.
|
The
Company,
through its agent, Banc of America Securities LLC, has delivered to you and
each
Other Purchaser a copy of a Private Placement Memorandum, dated June 2006
and the supplemental financial information referred to therein (the
“Memorandum”), relating to the transactions contemplated hereby. Except as
disclosed in Schedule 5.3, this Agreement, the Memorandum, the documents,
certificates or other writings identified in Schedule 5.3 and the financial
statements listed in Schedule 5.5, taken as a whole, do not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in light of the circumstances
under which they were made. Except as disclosed in the Memorandum or as
expressly described in Schedule 5.3, or in one of the documents, certificates
or
other writings identified therein, or in the financial statements listed in
Schedule 5.5, since September 30, 2005, there has been no change in the
financial condition, operations, business or properties of the Company or any
Subsidiary except changes that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
| 5.4. |
Organization
and Ownership of Shares of
Subsidiaries.
|
(a) Schedule
5.4 is
(except as noted therein) a complete and correct list of the Company’s
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the
jurisdiction of its organization, and the percentage of shares of each class
of
its capital stock or similar equity interests outstanding owned by the Company
and each other Subsidiary.
(b)
All of the
outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its
Subsidiaries have been validly issued, are fully paid and nonassessable and
are
owned by the Company or another Subsidiary free and clear of any Lien (except
as
otherwise disclosed in Schedule 5.4).
(c) Each
Subsidiary
identified in Schedule 5.4 is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation
or
other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. Each such
Subsidiary has the corporate or other power and authority to own or hold under
lease the properties it purports to own or hold under lease and to transact
the
business it transacts and proposes to transact.
| 5.5. |
Financial
Statements.
|
The
Company has
delivered to you and each Other Purchaser copies of the financial statements
of
the Company and its Subsidiaries listed on Schedule 5.5. All of said financial
statements (including in each case the related schedules and notes) fairly
present in all material respects the consolidated financial condition of the
Company and its Subsidiaries as of the respective dates specified in such
Schedule and the consolidated results of their operations and cash flows for
the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments).
| 5.6. |
Compliance
with Laws, Other Instruments,
etc.
|
The
execution,
delivery and performance by the Company of this Agreement and the Notes will
not
(i) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Company
or
any Restricted Subsidiary under, any Material agreement, or corporate charter
or
By-Laws, to which the Company or any Restricted Subsidiary is bound or by which
the Company or any Restricted Subsidiary or any of their respective properties
may be bound or affected, (ii) conflict with or result in a breach of any of
the
terms, conditions or provisions of any order, judgment, decree, or ruling of
any
court, arbitrator or Governmental Authority applicable to the Company or any
Restricted Subsidiary or (iii) violate any provision of any statute or other
rule or regulation of any Governmental Authority applicable to the Company
or
any Restricted Subsidiary.
The
execution,
delivery and performance by each Subsidiary Guarantor of the Subsidiary Guaranty
will not (i) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of
such
Subsidiary Guarantor under, any agreement, or corporate charter or by-laws,
to
which such Subsidiary Guarantor is bound or by which such Subsidiary Guarantor
or any of its properties may be bound or affected, (ii) conflict with or result
in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to such Subsidiary Guarantor or (iii) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable
to
such Subsidiary Guarantor.
| 5.7. |
Governmental
Authorizations, etc.
|
No
consent,
approval or authorization of, or registration, filing or declaration with,
any
Governmental Authority is required in connection with the execution, delivery
or
performance by the Company of this Agreement or the Notes or the execution,
delivery or performance by each Subsidiary Guarantor of the Subsidiary Guaranty,
except for a filing by the Company with the Securities and Exchange Commission
on Form 8-K.
| 5.8. |
Litigation;
Observance of Statutes and
Orders.
|
Except
as disclosed
in the Memorandum, there are no actions, suits or proceedings pending or, to
the
knowledge of the Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, would reasonably be expected to have
a
Material Adverse Effect.
Neither
the Company
nor any Subsidiary is in default under any order, judgment, decree or ruling
of
any court, arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including Environmental Laws
and
the USA Patriot Act) of any Governmental Authority, which default or violation,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
| 5.9. |
Taxes.
|
The
Company and its
Subsidiaries have filed all income tax returns that are required to have been
filed in any jurisdiction, and have paid all taxes, to the extent such taxes
are
payable by them, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (i) the amount of which is not individually or in the aggregate
Material or (ii) the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which the Company or a Subsidiary, as the case may be, has
established adequate reserves in accordance with GAAP. The federal income tax
liabilities of the Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to and including
the
fiscal year ended September 30, 2002.
| 5.10. |
Title
to Property; Leases.
|
The
Company and its
Subsidiaries have good and sufficient title to their respective Material
properties, including all such properties reflected in the most recent audited
balance sheet referred to in Section 5.5 or purported to have been acquired
by
the Company or any Subsidiary after said date (except as sold or otherwise
disposed of in the ordinary course of business), in each case free and clear
of
Liens prohibited by this Agreement, except for those defects in title and Liens
that, individually or in the aggregate, would not have a Material Adverse
Effect. All Material leases are valid and subsisting and are in full force
and
effect in all material respects.
| 5.11. |
Licenses,
Permits, etc.
|
Except
as disclosed
in Schedule 5.11, the Company and its Subsidiaries own or possess all licenses,
permits, franchises, authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that are Material, without known
conflict with the rights of others, except for those conflicts that,
individually or in the aggregate, would not have a Material Adverse
Effect.
| 5.12. |
Compliance
with ERISA.
|
(a) The
Company and
each ERISA Affiliate have operated and administered each Plan in compliance
with
all applicable laws except for such instances of noncompliance as have not
resulted in and would not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate has incurred any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax provisions
of
the Code relating to employee benefit plans (as defined in Section 3 of ERISA),
and no event, transaction or condition has occurred or exists that would
reasonably be expected to result in the incurrence of any such liability by
the
Company or any ERISA Affiliate, or in the imposition of any Lien on any of
the
rights, properties or assets of the Company or any ERISA Affiliate, in either
case pursuant to Title I or IV of ERISA or to such penalty or excise tax
provisions or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the aggregate
Material.
(b) The
present value
of the aggregate benefit liabilities under each of the Plans (other than
Multiemployer Plans) that is a defined benefit pension plan qualified under
Code
Section 401(a), determined as of the end of such Plan’s most recently ended plan
year on the basis of the actuarial assumptions specified for funding purposes
in
such Plan’s most recent actuarial valuation report, did not exceed the aggregate
current value of the assets of such Plan allocable to such benefit liabilities.
The term “benefit liabilities” has the meaning specified in Section 4001 of
ERISA and the terms “current value” and “present value” have the meaning
specified in Section 3 of ERISA.
(c) The
Company and its
ERISA Affiliates have not incurred withdrawal liabilities (and are not subject
to contingent withdrawal liabilities) under Section 4201 or 4204 of ERISA
in respect of Multiemployer Plans that individually or in the aggregate are
Material.
(d) The
expected
postretirement benefit obligation (determined as of the last day of the
Company’s most recently ended fiscal year in accordance with Financial
Accounting Standards Board Statement No. 106, without regard to liabilities
attributable to continuation coverage mandated by Section 4980B of the Code)
of
the Company and its Subsidiaries is not Material or has been disclosed in the
most recent audited consolidated financial statements of the Company and its
Subsidiaries.
(e) The
execution and
delivery of this Agreement and the issuance and sale of the Notes hereunder
will
not involve any transaction that is subject to the prohibitions of
Section 406 of ERISA or in connection with which a tax would be imposed
pursuant to Section 4975(c)(1)(A)-(D) of the Code. The representation by
the Company in the first sentence of this Section 5.12(e) is made in reliance
upon and subject to the accuracy of your representation in Section 6.2 as to
the
sources of the funds used to pay the purchase price of the Notes to be purchased
by you.
| 5.13. |
Private
Offering by the Company.
|
Neither
the Company
nor anyone acting on its behalf has offered the Notes, the Subsidiary Guaranty
or any similar securities for sale to, or solicited any offer to buy any of
the
same from, or otherwise approached or negotiated in respect thereof with, any
Person other than you, the Other Purchasers and not more than 16 other
Institutional Investors, each of which has been offered the Notes at a private
sale for investment. Neither the Company nor anyone acting on its behalf has
taken, or will take, any action that would subject the issuance or sale of
the
Notes or the execution and delivery of the Subsidiary Guaranty to the
registration requirements of Section 5 of the Securities Act.
| 5.14. |
Use
of Proceeds; Margin
Regulations.
|
The
Company will
apply the proceeds of the sale of the Notes for general corporate purposes,
including repayment of Indebtedness as set forth in Schedule 5.14. No part
of
the proceeds from the sale of the Notes will be used, directly or indirectly,
for the purpose of buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System (12 CFR
221), or for the purpose of buying or carrying or trading in any securities
under such circumstances as to involve the Company in a violation of Regulation
X of said Board (12 CFR 224) or to involve any broker or dealer in a violation
of Regulation T of said Board (12 CFR 220). Margin stock does not constitute
more than 5% of the value of the consolidated assets of the Company and its
Subsidiaries and the Company does not have any present intention that margin
stock will constitute more than 5% of the value of such assets. As used in
this
Section, the terms “margin stock” and “purpose of buying or carrying” shall have
the meanings assigned to them in said Regulation U.
| 5.15. |
Existing
Indebtedness.
|
Except
as described
therein, Schedule 5.15 sets forth a complete and correct list of all outstanding
Indebtedness of the Company and its Subsidiaries as of March 31, 2006 (except
as
otherwise indicated), since which date there has been no Material change in
the
amounts, interest rates, sinking funds, installment payments or maturities
of
the Indebtedness of the Company or its Subsidiaries. Neither the Company nor
any
Restricted Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Indebtedness of
the
Company or such Restricted Subsidiary that is outstanding in an aggregate
principal amount in excess of $5,000,000 and no event or condition exists with
respect to any Indebtedness of the Company or any Restricted Subsidiary that
is
outstanding in an aggregate principal amount in excess of $5,000,000 and that
would permit (or that with notice or the lapse of time, or both, would permit)
one or more Persons to cause such Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of
payment.
| 5.16. |
Foreign
Assets Control Regulations, Anti-Terrorism Order, etc
.
|
Neither
the sale of
the Notes by the Company hereunder nor its use of the proceeds thereof will
violate (a) the Trading with the Enemy Act, as amended, (b) any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto or (c) to the knowledge of the Company, the
Anti-Terrorism Order. Without limiting the foregoing, neither the Company nor
any Subsidiary (i) is a blocked person described in Section 1 of the
Anti-Terrorism Order or (ii) engages in any dealings or transactions, or is
otherwise associated, with any such person.
| 5.17. |
Status
under Certain Statutes.
|
Neither
the Company
nor any Restricted Subsidiary is subject to regulation under the Investment
Company Act of 1940, as amended, the Interstate Commerce Act, as amended by
the
ICC Termination Act, as amended, or the Federal Power Act, as
amended.
| 5.18. |
Solvency
of Subsidiary Guarantors.
|
After
giving effect
to the transactions contemplated herein, (i) the present fair salable value
of the assets of each Subsidiary Guarantor is in excess of the amount that
will
be required to pay its probable liability on its existing debts as said debts
become absolute and matured, (ii) each Subsidiary Guarantor has received
reasonably equivalent value for executing and delivering the Subsidiary
Guaranty, (iii) the property remaining in the hands of each Subsidiary
Guarantor is not an unreasonably small capital, and (iv) each Subsidiary
Guarantor is able to pay its debts as they mature.
| 5.19. |
Environmental
Matters.
|
Neither
the Company
nor any Subsidiary has knowledge of any claim or has received any notice of
any
claim, and no proceeding has been instituted raising any claim against the
Company or any of its Subsidiaries or any of their respective real properties
now or formerly owned, leased or operated by any of them or other assets,
alleging any damage to the environment or violation of any Environmental Laws,
except, in each case, such as could not reasonably be expected to result in
a
Material Adverse Effect. Except as otherwise disclosed to you in
writing,
(a) neither
the Company
nor any Subsidiary has knowledge of any facts which would give rise to any
claim, public or private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them or to other
assets or their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect;
(b) neither
the Company
nor any of its Subsidiaries has stored any Hazardous Materials on real
properties now or formerly owned, leased or operated by any of them and has
not
disposed of any Hazardous Materials in a manner contrary to any Environmental
Laws in each case in any manner that could reasonably be expected to result
in a
Material Adverse Effect; and
(c) all
buildings on
all real properties now owned, leased or operated by the Company or any of
its
Subsidiaries are in compliance with applicable Environmental Laws, except where
failure to comply could not reasonably be expected to result in a Material
Adverse Effect.
| 6. |
REPRESENTATIONS
OF THE PURCHASERS.
|
| 6.1. |
Purchase
for Investment.
|
You
represent that
you are purchasing the Notes for your own account or for one or more separate
accounts maintained by you or for the account of one or more pension or trust
funds and not with a view to the distribution thereof, provided that the
disposition of your or their property shall at all times be within your or
their
control. You understand that the Notes have not been registered under the
Securities Act and may be resold only if registered pursuant to the provisions
of the Securities Act or if an exemption from registration is available, except
under circumstances where neither such registration nor such an exemption is
required by law, and that the Company is not required to register the
Notes.
| 6.2. |
Source
of Funds.
|
You
represent that
at least one of the following statements is an accurate representation as to
each source of funds (a “Source”) to be used by you to pay the purchase price of
the Notes to be purchased by you hereunder:
(a) the
Source is an
“insurance company general account” (as the term is defined in the United States
Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect
of which the reserves and liabilities (as defined by the annual statement for
life insurance companies approved by the National Association of Insurance
Commissioners (the “NAIC Annual Statement”)) for the general account contract(s)
held by or on behalf of any employee benefit plan together with the amount
of
the reserves and liabilities for the general account contract(s) held by or
on
behalf of any other employee benefit plans maintained by the same employer
(or
affiliate thereof as defined in PTE 95-60) or by the same employee organization
in the general account do not exceed 10% of the total reserves and liabilities
of the general account (exclusive of separate account liabilities) plus surplus
as set forth in the NAIC Annual Statement filed with such Purchaser’s state of
domicile; or
(b) the
Source is a
separate account that is maintained solely in connection with such Purchaser’s
fixed contractual obligations under which the amounts payable, or credited,
to
any employee benefit plan (or its related trust) that has any interest in such
separate account (or to any participant or beneficiary of such plan (including
any annuitant)) are not affected in any manner by the investment performance
of
the separate account; or
(c) the
Source is
either (i) an insurance company pooled separate account, within the meaning
of
PTE 90-1 (issued January 29, 1990), or (ii) a bank collective investment fund,
within the meaning of PTE 91-38 (issued July 12, 1991) and, except as you have
disclosed to the Company in writing pursuant to this paragraph (c), no employee
benefit plan or group of plans maintained by the same employer or employee
organization beneficially owns more than 10% of all assets allocated to such
pooled separate account or collective investment fund; or
(d) the
Source
constitutes assets of an “investment fund” (within the meaning of Part V of PTE
84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset
manager” or “QPAM” (within the meaning of Part V of the QPAM Exemption), no
employee benefit plan’s assets that are included in such investment fund, when
combined with the assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within the meaning of
Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee
organization and managed by such QPAM, exceed 20% of the total client assets
managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption
are satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of “control” in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity of
such QPAM and (ii) the names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to the Company in writing
pursuant to this clause (d); or
(e) the
Source
constitutes assets of a “plan(s)” (within the meaning of Section IV of PTE 96-23
(the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM”
(within the meaning of Part IV of the INHAM exemption), the conditions of Part
I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor
a
person controlling or controlled by the INHAM (applying the definition of
“control” in Section IV(h) of the INHAM Exemption) owns a 5% or more interest in
the Company and (i) the identity of such INHAM and (ii) the name(s) of the
employee benefit plan(s) whose assets constitute the Source have been disclosed
to the Company in writing pursuant to this clause (e); or
(f) the
Source is a
governmental plan; or
(g) the
Source is one
or more employee benefit plans, or a separate account or trust fund comprised
of
one or more employee benefit plans, each of which has been identified to the
Company in writing pursuant to this paragraph (g); or
(h) the
Source does not
include assets of any employee benefit plan, other than a plan exempt from
the
coverage of ERISA.
As
used in this
Section 6.2, the terms “employee benefit plan”, “governmental plan” and
“separate account” shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
| 7. |
INFORMATION
AS TO COMPANY.
|
| 7.1. |
Financial
and Business Information.
|
The
Company will
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly
Statements
-- within 60 days
after the end of each quarterly fiscal period in each fiscal year of the Company
(other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of
(i) a
consolidated
balance sheet of the Company and its Subsidiaries as at the end of such quarter,
and
(ii) consolidated
statements of earnings and stockholders’ equity of the Company and its
Subsidiaries for such quarter and (in the case of the second and third quarters)
for the portion of the fiscal year ending with such quarter, and
(iii) consolidated
statements of cash flows of the Company and its Subsidiaries for such quarter
or
(in the case of the second and third quarters) for the portion of the fiscal
year ending with such quarter,
setting
forth in
each case in comparative form the figures for the corresponding periods in
the
previous fiscal year, all in reasonable detail, prepared in accordance with
GAAP
applicable to quarterly financial statements generally, and certified by a
Senior Financial Officer as fairly presenting, in all material respects, the
financial condition of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified above
of
copies of the Company’s Quarterly Report on Form 10-Q prepared in compliance
with the requirements therefor and filed with the Securities and Exchange
Commission shall be deemed to satisfy the requirements of this Section
7.1(a);
(b) Annual
Statements
-- within 105 days
after the end of each fiscal year of the Company, duplicate copies
of
(i) a
consolidated
balance sheet of the Company and its Subsidiaries, as at the end of such year,
and
(ii) consolidated
statements of income, changes in stockholders’ equity and cash flows of the
Company and its Subsidiaries, for such year,
setting
forth in
each case in comparative form the figures for the previous fiscal year, all
in
reasonable detail, prepared in accordance with GAAP, and accompanied by an
opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial condition of the
companies being reported upon and their results of operations and cash flows
and
have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, provided
that
the delivery within the time period specified above of the Company’s Annual
Report on Form 10-K for such fiscal year (together with the Company’s annual
report to shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor and filed
with the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b);
(c) Unrestricted
Subsidiaries
-- if, at the time
of delivery of any financial statements pursuant to Section 7.1(a) or (b),
Unrestricted Subsidiaries account for more than 10% of (i) the consolidated
total assets of the Company and its Subsidiaries reflected in the balance sheet
included in such financial statements or (ii) the consolidated revenues of
the
Company and its Subsidiaries reflected in the consolidated statement of income
included in such financial statements, an unaudited balance sheet for all
Unrestricted Subsidiaries taken as whole as at the end of the fiscal period
included in such financial statements and the related unaudited statements
of
income, stockholders’ equity and cash flows for such Unrestricted Subsidiaries
for such period, together with consolidating statements reflecting all
eliminations or adjustments necessary to reconcile such group financial
statements to the consolidated financial statements of the Company and its
Subsidiaries;
(d) SEC
and Other
Reports
-- promptly upon
their becoming available, one copy of (i) each financial statement, report,
notice or proxy statement sent by the Company or any Restricted Subsidiary
to
public securities holders generally, and (ii) each regular or periodic
report, each registration statement (other than a Registration Statement on
Form
S-8) that shall have become effective (without exhibits except as expressly
requested by such holder), and each final prospectus and all amendments (other
than one relating sole to employee benefit plans) thereto filed by the Company
or any Restricted Subsidiary with the Securities and Exchange
Commission;
(e) Notice
of
Default or Event of Default
-- promptly, and
in any event within five Business Days after a Responsible Officer obtains
actual knowledge of the existence of any Default or Event of Default, a written
notice specifying the nature and period of existence thereof and what action
the
Company is taking or proposes to take with respect thereto;
(f) ERISA
Matters
-- promptly, and
in any event within five days after a Responsible Officer becoming aware of
any
of the following, a written notice setting forth the nature thereof and the
action, if any, that the Company or an XXXXX Xxxxxxxxx proposes to take with
respect thereto:
(i) with
respect to any
Plan, any reportable event, as defined in Section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not been waived pursuant
to
such regulations as in effect on the date hereof; or
(ii) the
taking by the
PBGC of steps to institute, or the threatening by the PBGC of the institution
of, proceedings under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the receipt by the Company
or any ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii) any
event,
transaction or condition that would result in the incurrence of any liability
by
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit plans,
or in the imposition of any Lien on any of the rights, properties or assets
of
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien, taken together
with
any other such liabilities or Liens then existing, would reasonably be expected
to have a Material Adverse Effect; and
(g) Requested
Information
-- with reasonable
promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company
or
any of its Subsidiaries or relating to the ability of the Company to perform
its
obligations hereunder and under the Notes as from time to time may be reasonably
requested by any such holder of Notes.
| 7.2. |
Officer’s
Certificate.
|
Each
set of
financial statements delivered to a holder of Notes pursuant to
Section 7.1(a) or (b) shall be accompanied by a certificate of a Senior
Financial Officer setting forth:
(a) Covenant
Compliance
-- the information
(including detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of Section 10.1 through
Section 10.9, inclusive, during the quarterly or annual period covered by
the statements then being furnished (including with respect to each such
Section, where applicable, the calculations of the maximum or minimum amount,
ratio or percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then in
existence); and
(b) Event
of
Default
-- a statement
that such officer has reviewed the relevant terms hereof and has made, or caused
to be made, under his or her supervision, a review of the transactions and
conditions of the Company and its Restricted Subsidiaries from the beginning
of
the quarterly or annual period covered by the statements then being furnished
to
the date of the certificate and that such review shall not have disclosed the
existence during such period of any condition or event that constitutes a
Default or an Event of Default or, if any such condition or event existed or
exists (including any such event or condition resulting from the failure of
the
Company or any Restricted Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof and what action the
Company shall have taken or proposes to take with respect thereto.
| 7.3. |
Inspection.
|
The
Company will
permit the representatives of each holder of Notes that is an Institutional
Investor:
(a) No
Default
-- if no Default
or Event of Default then exists, at the expense of such holder and upon
reasonable prior notice to the Company, to visit the principal executive office
of the Company, to discuss the affairs, finances and accounts of the Company
and
its Subsidiaries with the Company’s officers, and, with the consent of the
Company (which consent will not be unreasonably withheld), to visit the other
offices and properties of the Company and each Restricted Subsidiary, all at
such reasonable times and as often as may be reasonably requested in writing;
and
(b) Default
-- if a Default or
Event of Default then exists, at the expense of the Company, to visit and
inspect any of the offices or properties of the Company or any Subsidiary,
to
examine all their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective
affairs, finances, and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said
accountants to discuss the affairs, finances and accounts of the Company and
its
Subsidiaries), all at such times and as often as may be requested.
| 8. |
PREPAYMENT
OF THE NOTES.
|
| 8.1. |
No
Scheduled Prepayments.
|
No
regularly
scheduled prepayments are due on the Notes prior to their stated
maturity.
| 8.2. |
Optional
Prepayments with Make-Whole
Amount.
|
The
Company may, at
its option, upon notice as provided below, prepay at any time all, or from
time
to time any part of, the Notes of any series, in an amount not less than
$1,000,000 in the aggregate in the case of a partial prepayment, at 100% of
the
principal amount so prepaid, plus the Make-Whole Amount determined for the
prepayment date with respect to such principal amount. The Company will give
each holder of Notes of the series to be prepaid written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than
60 days prior to the date fixed for such prepayment. Each such notice shall
specify such date, the aggregate principal amount of the Notes of such series
to
be prepaid on such date, the principal amount of each Note of such series held
by such holder to be prepaid (determined in accordance with Section 8.3), and
the interest to be paid on the prepayment date with respect to such principal
amount being prepaid, and shall be accompanied by a certificate of a Senior
Financial Officer as to the estimated Make-Whole Amount due in connection with
such prepayment (calculated as if the date of such notice were the date of
the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes
of
the series to be prepaid a certificate of a Senior Financial Officer specifying
the calculation of such Make-Whole Amount as of the specified prepayment
date.
| 8.3. |
Allocation
of Partial Prepayments.
|
In
the case of each
partial prepayment of the Notes of a series, the principal amount of the Notes
of such series to be prepaid shall be allocated among all of the Notes of such
series at the time outstanding in proportion, as nearly as practicable, to
the
respective unpaid principal amounts thereof not theretofore called for
prepayment.
| 8.4. |
Maturity;
Surrender, etc.
|
In
the case of each
prepayment of Notes pursuant to this Section 8, the principal amount of each
Note to be prepaid shall mature and become due and payable on the date fixed
for
such prepayment, together with interest on such principal amount accrued to
such
date and the applicable Make-Whole Amount, if any. From and after such date,
unless the Company shall fail to pay such principal amount when so due and
payable, together with the interest and Make-Whole Amount, if any, as aforesaid,
interest on such principal amount shall cease to accrue. Any Note paid or
prepaid in full shall be surrendered to the Company and canceled and shall
not
be reissued, and no Note shall be issued in lieu of any prepaid principal amount
of any Note.
| 8.5. |
Purchase
of Notes.
|
The
Company will
not and will not permit any Affiliate to purchase, redeem, prepay or otherwise
acquire, directly or indirectly, any of the outstanding Notes of any series
except (a) upon the payment or prepayment of the Notes of a series in accordance
with the terms of this Agreement and the Notes or (b) pursuant to an offer
to
purchase made by the Company or an Affiliate pro rata to the holders of all
Notes of a series at the time outstanding upon the same terms and conditions.
Any such offer shall provide each holder with sufficient information to enable
it to make an informed decision with respect to such offer, and shall remain
open for at least 30 Business Days. If the holders of more than 25% of the
principal amount of the Notes of a series then outstanding accept such offer,
the Company shall promptly notify the remaining holders of such fact and the
expiration date for the acceptance by holders of Notes of such series of such
offer shall be extended by the number of days necessary to give each such
remaining holder at least ten Business Days from its receipt of such notice
to
accept such offer. The Company will promptly cancel all Notes acquired by it
or
any Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant
to any provision of this Agreement and no Notes may be issued in substitution
or
exchange for any such Notes.
| 8.6. |
Make-Whole
Amount.
|
The
term
“Make-Whole
Amount”
means, with
respect to any Note, an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the Called Principal
of such Note over the amount of such Called Principal, provided that the
Make-Whole Amount may in no event be less than zero. For the purposes of
determining the Make-Whole Amount, the following terms have the following
meanings:
“Called
Principal”
means, with
respect to any Note, the principal of such Note that is to be prepaid pursuant
to Section 8.2 or has become or is declared to be immediately due and
payable pursuant to Section 12.1, as the context requires.
“Discounted
Value”
means, with
respect to the Called Principal of any Note, the amount obtained by discounting
all Remaining Scheduled Payments with respect to such Called Principal from
their respective scheduled due dates to the Settlement Date with respect to
such
Called Principal, in accordance with accepted financial practice and at a
discount factor (applied on the same periodic basis as that on which interest
on
the Notes is payable) equal to the Reinvestment Yield with respect to such
Called Principal.
“Reinvestment
Yield” means,
with respect
to the Called Principal of any Note, .50% over the yield to maturity implied
by
(i) the yields reported as of 10:00 a.m. (New York City time) on the second
Business Day preceding the Settlement Date with respect to such Called
Principal, on the display designated as “Page PX1” (or such other display as may
replace Page PX1 on Bloomberg Financial Markets (“Bloomberg”) or, if Page PX1
(or its successor screen on Bloomberg) is unavailable, the Telerate Access
Service screen which corresponds most closely to Page PX1 for the most recently
issued actively traded on-the-run U.S. Treasury securities having a maturity
equal to the Remaining Average Life of such Called Principal as of such
Settlement Date, or (ii) if such yields are not reported as of such time or
the
yields reported as of such time are not ascertainable (including by way of
interpolation), the Treasury Constant Maturity Series Yields reported, for
the
latest day for which such yields have been so reported as of the second Business
Day preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such Called Principal as of
such
Settlement Date. Such implied yield will be determined, if necessary, by (a)
converting U.S. Treasury bill quotations to bond equivalent yields in accordance
with accepted financial practice and (b) interpolating linearly between (1)
the
actively traded U.S. Treasury security with the maturity closest to and greater
than such Remaining Average Life and (2) the actively traded U.S. Treasury
security with the maturity closest to and less than such Remaining Average
Life.
The Reinvestment Yield shall be rounded to the number of decimal places as
appears in the interest rate of the applicable Note.
“Remaining
Average Life”
means, with
respect to any Called Principal, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called Principal into (ii)
the
sum of the products obtained by multiplying (a) the principal component of
each
Remaining Scheduled Payment with respect to such Called Principal by (b) the
number of years (calculated to the nearest one-twelfth year) that will elapse
between the Settlement Date with respect to such Called Principal and the
scheduled due date of such Remaining Scheduled Payment.
“Remaining
Scheduled Payments”
means, with
respect to the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due after the Settlement Date
with
respect to such Called Principal if no payment of such Called Principal were
made prior to its scheduled due date, provided that if such Settlement Date
is
not a date on which interest payments are due to be made under the terms of
the
Notes, then the amount of the next succeeding scheduled interest payment will
be
reduced by the amount of interest accrued to such Settlement Date and required
to be paid on such Settlement Date pursuant to Section 8.2 or
12.1.
“Settlement
Date”
means, with
respect to the Called Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to Section 8.2 or has become or is
declared to be immediately due and payable pursuant to Section 12.1, as the
context requires.
| 9. |
AFFIRMATIVE
COVENANTS.
|
The
Company
covenants that so long as any of the Notes are outstanding:
| 9.1. |
Compliance
with Law.
|
The
Company will,
and will cause each Subsidiary to, comply with all laws, ordinances or
governmental rules or regulations to which each of them is subject, including,
without limitation, Environmental Laws, and will obtain and maintain in effect
all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or
to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations would
not, individually or in the aggregate, reasonably be expected to have a
materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Company and its Restricted Subsidiaries
taken as a whole.
| 9.2. |
Insurance.
|
The
Company will,
and will cause each Restricted Subsidiary to, maintain, with financially sound
and reputable insurers, insurance with respect to their respective properties
and businesses against such casualties and contingencies, of such types, on
such
terms and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect thereto) as
is
customary in the case of entities of established reputations engaged in the
same
or a similar business and similarly situated.
| 9.3. |
Maintenance
of Properties.
|
The
Company will
and will cause each Restricted Subsidiary to maintain and keep, or cause to
be
maintained and kept, their respective properties in good repair, working order
and condition (other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times, provided
that
this Section shall not prevent the Company or any Restricted Subsidiary from
discontinuing the operation and the maintenance of any of its properties if
such
discontinuance is desirable in the conduct of its business and the Company
has
concluded that such discontinuance would not, individually or in the aggregate,
reasonably be expected to have a materially adverse effect on the business,
operations, affairs, financial condition, properties or assets of the Company
and its Restricted Subsidiaries taken as a whole.
| 9.4. |
Payment
of Taxes and Claims.
|
The
Company will,
and will cause each Subsidiary to, file all income tax or similar tax returns
required to be filed in any jurisdiction and to pay and discharge all taxes
shown to be due and payable on such returns and all other taxes, assessments,
governmental charges, or levies payable by any of them, to the extent such
taxes
and assessments have become due and payable and before they have become
delinquent, provided that neither the Company nor any Subsidiary need pay any
such tax or assessment or claims if (i) the amount, applicability or validity
thereof is contested by the Company or such Subsidiary on a timely basis in
good
faith and in appropriate proceedings, and the Company or a Subsidiary has
established adequate reserves therefor in accordance with GAAP on the books
of
the Company or such Subsidiary or (ii) the nonpayment of all such taxes and
assessments in the aggregate could not reasonably be expected to have a
materially adverse effect on the business, operations, affairs, financial
condition, properties or assets of the Company and its Subsidiaries taken as
a
whole.
| 9.5. |
Corporate
Existence, etc.
|
The
Company will at
all times preserve and keep in full force and effect its corporate existence.
Subject to Sections 10.3 and 10.4, the Company will at all times preserve and
keep in full force and effect the corporate existence of each of its Restricted
Subsidiaries (unless merged into the Company or a Wholly-Owned Restricted
Subsidiary) and all rights and franchises of the Company and its Restricted
Subsidiaries unless, in the good faith judgment of the Company, the termination
of or failure to preserve and keep in full force and effect a particular
corporate existence, right or franchise could not, individually or in the
aggregate, have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Company and its
Restricted Subsidiaries taken as a whole.
| 10. |
NEGATIVE
COVENANTS.
|
The
Company
covenants that so long as any of the Notes are outstanding:
| 10.1. |
Consolidated
Indebtedness; Indebtedness of Restricted
Subsidiaries.
|
The
Company will
not permit:
(a) the
Debt to EBITDA
Ratio to be greater than 3.5 to 1.0 at any time; provided that, for any period
of not more than four successive fiscal quarters, such ratio may be greater
than
3.5 to 1.0, but in no event greater than 4.0 to 1.0, if the Company pays the
additional interest provided for in Section 1.2; and
(b) any
Restricted
Subsidiary to incur any Indebtedness if, after giving effect thereto and to
the
application of the proceeds therefrom, Priority Debt outstanding would exceed
25% of Consolidated Total Capitalization. For purposes of this Section 10.1(b),
any unsecured Indebtedness of a Restricted Subsidiary that is a Subsidiary
Guarantor shall be deemed to have been incurred by such Subsidiary at the time
it ceases to be a Subsidiary Guarantor.
| 10.2. |
Liens.
|
The
Company will
not, and will not permit any Restricted Subsidiary to, permit to exist, create,
assume or incur, directly or indirectly, any Lien on its properties or assets,
whether now owned or hereafter acquired, except:
(a) Liens
existing on
property or assets of the Company or any Restricted Subsidiary as of the date
of
this Agreement that are described in Schedule 10.2;
(b) Liens
for taxes,
assessments or governmental charges not then due and delinquent or the
nonpayment of which is permitted by Section 9.4;
(c) encumbrances
in the
nature of leases, subleases, zoning restrictions, easements, rights of way
and
other rights and restrictions of record on the use of real property and defects
in title arising or incurred in the ordinary course of business, which,
individually and in the aggregate, do not materially impair the use or value
of
the property or assets subject thereto or which relate only to assets that
in
the aggregate are not material;
(d) Liens
incidental to
the conduct of business or the ownership of properties and assets (including
landlords’, lessors’, carriers’, warehousemen’s, mechanics’, materialmen’s and
other similar liens) and Liens to secure the performance of bids, tenders,
leases or trade contracts, or to secure statutory obligations (including
obligations under workers compensation, unemployment insurance and other social
security legislation), surety or appeal bonds or other Liens of like general
nature incurred in the ordinary course of business and not in connection with
the borrowing of money;
(e) any
attachment or
judgment Lien, unless the judgment it secures has not, within 60 days after
the
entry thereof, been discharged or execution thereof stayed pending appeal,
or
has not been discharged within 60 days after the expiration of any such
stay;
(f) Liens
securing
Indebtedness of a Restricted Subsidiary to the Company or to another Restricted
Subsidiary and Liens securing Indebtedness of the Company to a Restricted
Subsidiary;
(g) Liens
(i) existing
on property at the time of its acquisition by the Company or a Restricted
Subsidiary and not created in contemplation thereof, whether or not the
Indebtedness secured by such Lien is assumed by the Company or a Restricted
Subsidiary; or (ii) on property created contemporaneously with its acquisition
or within 180 days of the acquisition or completion of construction thereof
to
secure or provide for all or a portion of the purchase price or cost of
construction of such property after the date of Closing; or (iii) existing
on
property of a Person at the time such Person is merged or consolidated with,
or
becomes a Restricted Subsidiary of, or all or substantially all of its assets
are acquired by, the Company or a Restricted Subsidiary and not created in
contemplation thereof; provided that in the case of clauses (i), (ii) and (iii)
such Liens do not extend to additional property of the Company or any Restricted
Subsidiary (other than property that is an improvement to or is acquired for
specific use in connection with the subject property) and, in the case of clause
(ii) only, that the aggregate principal amount of Indebtedness secured by each
such Lien does not exceed the lesser of the fair market value (determined in
good faith by one or more officers of the Company to whom authority to enter
into such transaction has been delegated by the board of directors of the
Company) or cost of acquisition or construction of the property subject
thereto;
(h) Liens
incurred in
connection with Asset Securitization Transactions;
(i) Liens
resulting
from extensions, renewals or replacements of Liens permitted by paragraphs
(a),
(f), (g) and (h), provided that (i) there is no increase in the principal amount
or decrease in maturity of the Indebtedness secured thereby at the time of
such
extension, renewal or replacement, (ii) any new Lien attaches only to the same
property theretofore subject to such earlier Lien and (iii) immediately after
such extension, renewal or replacement no Default or Event of Default would
exist; and
(j) Liens
securing
Indebtedness not otherwise permitted by paragraphs (a) through (i) above,
provided that, at the time of creation, assumption or incurrence thereof and
immediately after giving effect thereto and to the application of the proceeds
therefrom, Priority Debt outstanding does not exceed 25% of Consolidated Total
Capitalization.
| 10.3. |
Sale
of Assets.
|
Except
as permitted
by Section 10.4, the Company will not, and will not permit any Restricted
Subsidiary to, sell, lease, transfer or otherwise dispose of, including by
way
of merger (collectively a “Disposition”), any assets, including capital stock of
Restricted Subsidiaries, in one or a series of transactions, to any Person,
other than (a) Dispositions in the ordinary course of business, (b) Dispositions
by the Company to a Restricted Subsidiary or by a Restricted Subsidiary to
the
Company or another Restricted Subsidiary or (c) Dispositions not otherwise
permitted by clauses (a) or (b) of this Section 10.3, provided that the
aggregate net book value of all assets so disposed of in any fiscal year
pursuant to this Section 10.3(c) does not exceed 15% of Consolidated Total
Assets as of the end of the immediately preceding fiscal year. Notwithstanding
the foregoing, the Company may, or may permit any Restricted Subsidiary to,
make
a Disposition (including the sale of receivables in an Asset Securitization
Transaction) and the assets subject to such Disposition shall not be subject
to
or included in the foregoing limitation and computation contained in clause
(c)
of the preceding sentence to the extent that (i) such assets were acquired
or constructed not more than 180 days prior to the date of Closing and are
leased back by the Company or any Restricted Subsidiary, as lessee, within
180
days of the acquisition or construction thereof, or (ii) the net proceeds
from such Disposition are within one year of such Disposition
(A) reinvested in productive assets by the Company or a Restricted
Subsidiary or (B) applied to the payment or prepayment of any outstanding
Indebtedness of the Company or any Restricted Subsidiary that is not
subordinated to the Notes. Any prepayment of Notes pursuant to this
Section 10.3 shall be in accordance with Sections 8.2 and 8.3 without
regard to the minimum prepayment requirements of Section 8.2.
| 10.4. |
Mergers,
Consolidations, etc.
|
The
Company will
not, and will not permit any Restricted Subsidiary to, consolidate with or
merge
with any other Person or convey, transfer, sell or lease all or substantially
all of its assets in a single transaction or series of transactions to any
Person except that:
(a) the
Company may
consolidate or merge with any other Person or convey, transfer, sell or lease
all or substantially all of its assets in a single transaction or series of
transactions to any Person, provided that:
(i) the
successor
formed by such consolidation or the survivor of such merger or the Person that
acquires by conveyance, transfer, sale or lease all or substantially all of
the
assets of the Company as an entirety, as the case may be, is a solvent
corporation organized and existing under the laws of the United States or any
state thereof (including the District of Columbia), and, if the Company is
not
such corporation, such corporation (y) shall have executed and delivered to
each
holder of any Notes its assumption of the due and punctual performance and
observance of each covenant and condition of this Agreement and the Notes and
(z) shall have caused to be delivered to each holder of any Notes an opinion
of
independent counsel reasonably satisfactory to the Required Holders, to the
effect that all agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the terms hereof;
and
(ii) immediately
before
and after giving effect to such transaction, no Default or Event of Default
shall exist; and
(b) Any
Restricted
Subsidiary may (x) merge into the Company (provided that the Company is the
surviving corporation) or another Wholly-Owned Restricted Subsidiary or
(y) sell, transfer or lease all or any part of its assets to the Company or
another Wholly-Owned Restricted Subsidiary, or (z) merge or consolidate
with, or sell, transfer or lease all or substantially all of its assets to,
any
Person in a transaction that is permitted by Section 10.3 or, as a result of
which, such Person becomes a Restricted Subsidiary; provided in each instance
set forth in clauses (x) through (z) that, immediately before and after giving
effect thereto, there shall exist no Default or Event of Default;
No
such conveyance,
transfer, sale or lease of all or substantially all of the assets of the Company
shall have the effect of releasing the Company or any successor corporation
that
shall theretofore have become such in the manner prescribed in this
Section 10.4 from its liability under this Agreement or the
Notes.
| 10.5. |
Disposition
of Stock of Restricted
Subsidiaries.
|
The
Company (i)
will not permit any Restricted Subsidiary to issue its capital stock, or any
warrants, rights or options to purchase, or securities convertible into or
exchangeable for, such capital stock, to any Person other than the Company
or
another Restricted Subsidiary (other than directors’ qualifying shares, shares
satisfying local ownership requirements or shares for any similar statutory
purposes) and (ii) will not, and will not permit any Restricted Subsidiary
to,
sell, transfer or otherwise dispose of any shares of capital stock of a
Restricted Subsidiary if such sale would be prohibited by Section 10.3. If
a
Restricted Subsidiary at any time ceases to be such as a result of a sale or
issuance of its capital stock, any Liens on property of the Company or any
other
Restricted Subsidiary securing Indebtedness owed to such Restricted Subsidiary,
which is not contemporaneously repaid, together with such Indebtedness, shall
be
deemed to have been incurred by the Company or such other Restricted Subsidiary,
as the case may be, at the time such Restricted Subsidiary ceases to be a
Restricted Subsidiary.
| 10.6. |
Designation
of Restricted and Unrestricted
Subsidiaries.
|
The
Company may
designate any Restricted Subsidiary as an Unrestricted Subsidiary and any
Unrestricted Subsidiary as a Restricted Subsidiary; provided that, (a) if such
Subsidiary initially is designated a Restricted Subsidiary, then such Restricted
Subsidiary may be subsequently designated as an Unrestricted Subsidiary and
such
Unrestricted Subsidiary may be subsequently designated as a Restricted
Subsidiary, but no further changes in designation may be made, (b) if such
Subsidiary initially is designated an Unrestricted Subsidiary, then such
Unrestricted Subsidiary may be subsequently designated as a Restricted
Subsidiary and such Restricted Subsidiary may be subsequently designated as
an
Unrestricted Subsidiary, but no further changes in designation may be made,
(c)
immediately before and after designation of a Restricted Subsidiary as an
Unrestricted Subsidiary there exists no Default or Event of Default and (d)
a
Subsidiary Guarantor may not be designated an Unrestricted Subsidiary. If a
Restricted Subsidiary at any time ceases to be such as a result of a
redesignation, any Liens on property of the Company or any other Restricted
Subsidiary securing Indebtedness owed to such Restricted Subsidiary that is
not
contemporaneously repaid, together with such Indebtedness, shall be deemed
to
have been incurred by the Company or such other Restricted Subsidiary, as the
case may be, at the time such Restricted Subsidiary ceases to be a Restricted
Subsidiary.
| 10.7. |
Restricted
Subsidiary Guaranties.
|
The
Company will
not permit any Restricted Subsidiary to become a party to the Bank Guarantees
or
to directly or indirectly guarantee any of the Company’s obligations under the
Credit Agreement unless such Restricted Subsidiary is, or concurrently therewith
becomes, a party to the Subsidiary Guaranty.
| 10.8. |
Nature
of Business.
|
The
Company will
not, and will not permit any Restricted Subsidiary to, engage in any business
if, as a result, the general nature of the business in which the Company and
its
Restricted Subsidiaries, taken as a whole, would then be engaged would be
substantially changed from the general nature of the business in which the
Company and its Restricted Subsidiaries, taken as a whole, are engaged on the
date of this Agreement as described in the Memorandum; provided, that the
foregoing shall not be deemed to prohibit acquisitions by the Company or its
Restricted Subsidiaries as long as the acquired companies are consumer products
companies or other companies operating in businesses similar to or related
to
the current and future businesses conducted by the Company and its Subsidiaries,
as well as suppliers to or distributors of products similar to those of the
Company and its Subsidiaries.
| 10.9. |
Transactions
with Affiliates.
|
The
Company will
not and will not permit any Restricted Subsidiary to enter into directly or
indirectly any Material transaction or Material group of related transactions
(including without limitation the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Restricted Subsidiary), except upon fair
and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than would be obtainable in a comparable arm’s-length transaction with a Person
not an Affiliate.
| 11. |
EVENTS
OF DEFAULT.
|
An
“Event
of
Default” shall exist if any of the following conditions or events shall occur
and be continuing:
(a) the
Company
defaults in the payment of any principal or Make-Whole Amount, if any, on any
Note when the same becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise; or
(b) the
Company
defaults in the payment of any interest on any Note for more than five Business
Days after the same becomes due and payable; or
(c) the
Company
defaults in the performance of or compliance with any term contained in or
Sections 10.1 through 10.9; or
(d) the
Company
defaults in the performance of or compliance with any term contained herein
(other than those referred to in paragraphs (a), (b) and (c) of this
Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge of such
default and (ii) the Company receiving written notice of such default from
any holder of a Note; or
(e) any
representation
or warranty made in writing by or on behalf of the Company or by any officer
of
the Company in this Agreement or in any writing furnished in connection with
the
transactions contemplated hereby proves to have been false or incorrect in
any
material respect on the date as of which made; or
(f) (i)
the Company or
any Significant Restricted Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Indebtedness that is outstanding in an
aggregate principal amount in excess of $30,000,000 beyond any period of grace
provided with respect thereto, or (ii) the Company or any Significant Restricted
Subsidiary is in default in the performance of or compliance with any term
of
any evidence of any Indebtedness that is outstanding in an aggregate principal
amount in excess of $30,000,000 or of any mortgage, indenture or other agreement
relating thereto or any other condition exists, and as a consequence of such
default or condition such Indebtedness has become, or has been declared, due
and
payable before its stated maturity or before its regularly scheduled dates
of
payment; or
(g) the
Company or any
Significant Restricted Subsidiary (i) is generally not paying, or admits in
writing its inability to pay, its debts as they become due, (ii) files, or
consents by answer or otherwise to the filing against it of, a petition for
relief or reorganization or arrangement or any other petition in bankruptcy,
for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, (v) is adjudicated as insolvent or to be liquidated, or
(vi) takes corporate action for the purpose of any of the foregoing;
or
(h) a
court or
governmental authority of competent jurisdiction enters an order appointing,
without consent by the Company or any Significant Restricted Subsidiary, a
custodian, receiver, trustee or other officer with similar powers with respect
to it or with respect to any substantial part of its property, or constituting
an order for relief or approving a petition for relief or reorganization or
any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution,
winding-up or liquidation of the Company or any Significant Restricted
Subsidiary, or any such petition shall be filed against the Company or any
Significant Restricted Subsidiary and such petition shall not be dismissed
within 60 days; or
(i) a
final judgment or
judgments for the payment of money aggregating in excess of $30,000,000 are
rendered against one or more of the Company and its Significant Restricted
Subsidiaries, which judgments are not, within 60 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not discharged within 60
days after the expiration of such stay; or
(j) if
(i) any
Plan shall fail to satisfy the minimum funding standards of ERISA or the Code
for any plan year or part thereof or a waiver of such standards or extension
of
any amortization period is sought or granted under Section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under ERISA Section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the Company or any ERISA
Affiliate that a Plan may become a subject of any such proceedings,
(iii) the aggregate “amount of unfunded benefit liabilities” (within the
meaning of Section 4001(a)(18) of ERISA) under all Plans determined in
accordance with Title IV of ERISA, shall exceed $30,000,000, (iv) the
Company or any ERISA Affiliate shall have incurred or is reasonably expected
to
incur any liability pursuant to Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee benefit plans, (v) the Company
or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the
Company or any Subsidiary establishes or amends any employee welfare benefit
plan that provides post-employment welfare benefits in a manner that would
increase the liability of the Company or any Subsidiary thereunder; and any
such
event or events described in clauses (i) through (vi) above, either individually
or together with any other such event or events, would reasonably be expected
to
have a Material Adverse Effect; or
(k) any
Subsidiary
Guarantor that is a Significant Restricted Subsidiary defaults in the
performance of or compliance with any term contained in the Subsidiary
Guaranty or the Subsidiary Guaranty ceases to be in full force and effect as
a
result of acts taken by the Company or any Subsidiary Guarantor, except as
provided in Section 22, or is declared to be null and void in whole or in
material part by a court or other governmental or regulatory authority having
jurisdiction or the validity or enforceability thereof shall be contested by
any
of the Company or any Subsidiary Guarantor or any of them renounces any of
the
same or denies that it has any or further liability thereunder.
As
used in Section
11(j), the terms “employee benefit plan” and “employee welfare benefit plan”
shall have the respective meanings assigned to such terms in Section 3 of
ERISA.
| 12. |
REMEDIES
ON DEFAULT, ETC.
|
| 12.1. |
Acceleration.
|
(a) If
an Event of
Default with respect to the Company described in paragraph (g) or (h) of
Section 11 (other than an Event of Default described in clause (i) of
paragraph (g) or described in clause (vi) of paragraph (g) by virtue
of the fact that such clause encompasses clause (i) of paragraph (g)) has
occurred, all the Notes then outstanding shall automatically become immediately
due and payable.
(b) If
any other Event
of Default has occurred and is continuing, any holder or holders of a majority
or more in principal amount of the Notes at the time outstanding may at any
time
at its or their option, by notice or notices to the Company, declare all the
Notes then outstanding to be immediately due and payable.
(c) If
any Event of
Default described in paragraph (a) or (b) of Section 11 has occurred and is
continuing, any holder or holders of Notes at the time outstanding affected
by
such Event of Default may at any time, at its or their option, by notice or
notices to the Company, declare all the Notes held by it or them to be
immediately due and payable.
Upon
any Notes
becoming due and payable under this Section 12.1, whether automatically or
by declaration, such Notes will forthwith mature and the entire unpaid principal
amount of such Notes, plus (w) all accrued and unpaid interest thereon and
(x)
any applicable Make-Whole Amount determined in respect of such principal amount
(to the full extent permitted by applicable law), shall all be immediately
due
and payable, in each and every case without presentment, demand, protest or
further notice, all of which are hereby waived. The Company acknowledges, and
the parties hereto agree, that each holder of a Note has the right to maintain
its investment in the Notes free from repayment by the Company (except as herein
specifically provided for) and that the provision for payment of a Make-Whole
Amount by the Company in the event any Notes are prepaid or are accelerated
as a
result of an Event of Default is intended to provide compensation for the
deprivation of such right under such circumstances.
| 12.2. |
Other
Remedies.
|
If
any Default or
Event of Default has occurred and is continuing, and irrespective of whether
any
Notes have become or have been declared immediately due and payable under
Section 12.1, the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law, suit in
equity or other appropriate proceeding, whether for the specific performance
of
any agreement contained herein or in any Note, or for an injunction against
a
violation of any of the terms hereof or thereof, or in aid of the exercise
of
any power granted hereby or thereby or by law or otherwise.
| 12.3. |
Rescission.
|
At
any time after
any Notes have been declared due and payable pursuant to clause (b) or (c)
of
Section 12.1, the holders of more than 67% in principal amount of the Notes
then
outstanding, by written notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid all overdue
interest on the Notes, all principal of and any Make-Whole Amount on any Notes
that are due and payable and are unpaid other than by reason of such
declaration, and all interest on such overdue principal and any Make-Whole
Amount and (to the extent permitted by applicable law) any overdue interest
in
respect of the Notes, at the Default Rate, (b) all Events of Default and
Defaults, other than non-payment of amounts that have become due solely by
reason of such declaration, have been cured or have been waived pursuant to
Section 17, and (c) no judgment or decree has been entered for the
payment of any monies due pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect any subsequent Event
of Default or Default or impair any right consequent thereon.
| 12.4. |
No
Waivers or Election of Remedies, Expenses,
etc.
|
No
course of
dealing and no delay on the part of any holder of any Note in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such holder’s rights, powers or remedies. No right, power or remedy conferred by
this Agreement or by any Note upon any holder thereof shall be exclusive of
any
other right, power or remedy referred to herein or therein or now or hereafter
available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 15, the Company will pay to the holder
of each Note on demand such further amount as shall be sufficient to cover
all
costs and expenses of such holder incurred in any enforcement or collection
under this Section 12, including, without limitation, reasonable attorneys’
fees, expenses and disbursements.
| 13. |
REGISTRATION;
EXCHANGE; SUBSTITUTION OF
NOTES.
|
| 13.1. |
Registration
of Notes.
|
The
Company shall
keep at its principal executive office a register for the registration and
registration of transfers of Notes. The name and address of each holder of
one
or more Notes, each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior to due
presentment for registration of transfer, the Person in whose name any Note
shall be registered shall be deemed and treated as the owner and holder thereof
for all purposes hereof, and the Company shall not be affected by any notice
or
knowledge to the contrary. The Company shall give to any holder of a Note that
is an Institutional Investor, promptly upon request therefor, a complete and
correct copy of the names and addresses of all registered holders of
Notes.
| 13.2. |
Transfer
and Exchange of Notes.
|
Upon
surrender of
any Note at the principal executive office of the Company for registration
of
transfer or exchange (and in the case of a surrender for registration of
transfer, duly endorsed or accompanied by a written instrument of transfer
duly
executed by the registered holder of such Note or his attorney duly authorized
in writing and accompanied by the address for notices of each transferee of
such
Note or part thereof), the Company shall execute and deliver, at the Company’s
expense (except as provided below), one or more new Notes (as requested by
the
holder thereof) of the same series in exchange therefor, in an aggregate
principal amount equal to the unpaid principal amount of the surrendered Note.
Each such new Note shall be payable to such Person as such holder may request
and shall be substantially in the form of Note established for such series.
Each
such new Note shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $250,000, provided that if necessary
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $250,000. Any transferee,
by its acceptance of a Note registered in its name (or the name of its nominee),
shall be deemed to have made the representation set forth in Section
6.2.
| 13.3. |
Replacement
of Notes.
|
Upon
receipt by the
Company of evidence reasonably satisfactory to it of the ownership of and the
loss, theft, destruction or mutilation of any Note (which evidence shall be,
in
the case of an Institutional Investor, notice from such Institutional Investor
of such ownership and such loss, theft, destruction or mutilation),
and
(a) in
the case of
loss, theft or destruction, of indemnity reasonably satisfactory to it (provided
that if the holder of such Note is, or is a nominee for, an original Purchaser
or another Institutional Investor holder of a Note with a minimum net worth
of
at least $50,000,000, such Person’s own unsecured agreement of indemnity shall
be deemed to be satisfactory), or
(b) in
the case of
mutilation, upon surrender and cancellation thereof,
the
Company at its
own expense shall execute and deliver, in lieu thereof, a new Note of the same
series, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note or dated the date
of
such lost, stolen, destroyed or mutilated Note if no interest shall have been
paid thereon.
| 14. |
PAYMENTS
ON NOTES.
|
| 14.1. |
Place
of Payment.
|
Subject
to Section
14.2, payments of principal, Make-Whole Amount, if any, and interest becoming
due and payable on the Notes shall be made in Chicago, Illinois at the principal
office of Bank of America in such jurisdiction. The Company may at any time,
by
notice to each holder of a Note, change the place of payment of the Notes so
long as such place of payment shall be either the principal office of the
Company in such jurisdiction or the principal office of a bank or trust company
in such jurisdiction.
| 14.2. |
Home
Office Payment.
|
So
long as you or
your nominee shall be the holder of any Note, and notwithstanding anything
contained in Section 14.1 or in such Note to the contrary, the Company will
pay
all sums becoming due on such Note for principal, Make-Whole Amount, if any,
and
interest by the method and at the address specified for such purpose below
your
name in Schedule A, or by such other method or at such other address as you
shall have from time to time specified to the Company in writing for such
purpose, without the presentation or surrender of such Note or the making of
any
notation thereon, except that upon written request of the Company made
concurrently with or reasonably promptly after payment or prepayment in full
of
any Note, you shall surrender such Note for cancellation, reasonably promptly
after any such request, to the Company at its principal executive office or
at
the place of payment most recently designated by the Company pursuant to Section
14.1. Prior to any sale or other disposition of any Note held by you or your
nominee you will, at your election, either endorse thereon the amount of
principal paid thereon and the last date to which interest has been paid thereon
or surrender such Note to the Company in exchange for a new Note or Notes
pursuant to Section 13.2. The Company will afford the benefits of this
Section 14.2 to any Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement and that has made
the same agreement relating to such Note as you have made in this Section
14.2.
| 15. |
EXPENSES,
ETC.
|
| 15.1. |
Transaction
Expenses.
|
Whether
or not the
transactions contemplated hereby are consummated, the Company will pay all
costs
and expenses (including reasonable attorneys’ fees of one special counsel for
you and the Other Purchasers collectively and, if reasonably required, local
or
other counsel) incurred by you and each Other Purchaser or holder of a Note
in
connection with such transactions and in connection with any amendments, waivers
or consents under or in respect of this Agreement or the Notes (whether or
not
such amendment, waiver or consent becomes effective), including, without
limitation: (a) the reasonable costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights under
this Agreement or the Notes or in responding to any subpoena or other legal
process or informal investigative demand issued in connection with this
Agreement or the Notes, or by reason of being a holder of any Note, and (b)
the
costs and expenses, including financial advisors’ fees, incurred in connection
with the insolvency or bankruptcy of the Company or any Subsidiary or in
connection with any work-out or restructuring of the transactions contemplated
hereby and by the Notes. The Company will pay, and will save you and each other
holder of a Note harmless from, all claims in respect of any fees, costs or
expenses, if any, of brokers and finders (other than those retained by
you).
| 15.2. |
Survival.
|
The
obligations of
the Company under this Section 15 will survive the payment or transfer of
any Note, the enforcement, amendment or waiver of any provision of this
Agreement or the Notes, and the termination of this Agreement.
| 16. |
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
|
All
representations
and warranties contained herein shall survive the execution and delivery of
this
Agreement and the Notes, the purchase or transfer by you of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied
upon
by any subsequent holder of a Note, regardless of any investigation made at
any
time by or on behalf of you or any other holder of a Note. All statements
contained in any certificate or other instrument delivered by or on behalf
of
the Company pursuant to this Agreement shall be deemed representations and
warranties of the Company under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement and
understanding between you and the Company and supersede all prior agreements
and
understandings relating to the subject matter hereof.
| 17. |
AMENDMENT
AND WAIVER.
|
| 17.1. |
Requirements.
|
This
Agreement, the
Notes and the Subsidiary Guaranty may be amended, and the observance of any
term
hereof or of the Notes may be waived (either retroactively or prospectively),
with (and only with) the written consent of the Company and the Required
Holders, except that (a) no amendment or waiver of any of the provisions of
Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used
therein), will be effective as to you unless consented to by you in writing,
and
(b) no such amendment or waiver may, without the written consent of the holder
of each Note at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the
rate
or change the time of payment or method of computation of interest or of
Make-Whole Amount on, the Notes, (ii) change the percentage of the
principal amount of the Notes the holders of which are required to consent
to
any such amendment or waiver, or (iii) amend any of Sections 8, 11(a),
11(b), 12, 17 or 20.
| 17.2. |
Solicitation
of Holders of Notes.
|
(a) Solicitation.
The Company will
provide each holder of the Notes (irrespective of the amount of Notes then
owned
by it) with sufficient information, sufficiently far in advance of the date
a
decision is required, to enable such holder to make an informed and considered
decision with respect to any proposed amendment, waiver or consent in respect
of
any of the provisions hereof or of the Notes. The Company will deliver executed
or true and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 17 to each holder of outstanding
Notes promptly following the date on which it is executed and delivered by,
or
receives the consent or approval of, the requisite holders of
Notes.
(b) Payment.
The Company will
not directly or indirectly pay or cause to be paid any remuneration, whether
by
way of supplemental or additional interest, fee or otherwise, or grant any
security, to any holder of Notes as consideration for or as an inducement to
the
entering into by any holder of Notes of any waiver or amendment of any of the
terms and provisions hereof unless such remuneration is concurrently paid,
or
security is concurrently granted, on the same terms, ratably to each holder
of
Notes then outstanding even if such holder did not consent to such waiver or
amendment.
(c) Consent
in
Contemplation of Transfer.
Any consent made
pursuant to this Section 17 by a holder of Notes that has transferred or has
agreed to transfer its Notes to the Company, any Subsidiary or any Affiliate
of
the Company and has provided or has agreed to provide such written consent
as a
condition to such transfer shall be void and of no force or effect except solely
as to such holder, and any amendments effected or waivers granted or to be
effected or granted that would not have been or would not be so effected or
granted but for such consent (and the consents of other holders of Notes that
were acquired under the same or similar conditions) shall be void and of no
force or effect except solely as to such holder.
| 17.3. |
Binding
Effect, etc.
|
Any
amendment or
waiver consented to as provided in this Section 17 applies equally to all
holders of Notes and is binding upon them and upon each future holder of any
Note and upon the Company without regard to whether such Note has been marked
to
indicate such amendment or waiver. No such amendment or waiver will extend
to or
affect any obligation, covenant, agreement, Default or Event of Default not
expressly amended or waived or impair any right consequent thereon. No course
of
dealing between the Company and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver
of
any rights of any holder of such Note. As used herein, the term “this Agreement”
or “the Agreement” and references thereto shall mean this Agreement as it may
from time to time be amended or supplemented.
| 17.4. |
Notes
held by Company, etc.
|
Solely
for the
purpose of determining whether the holders of the requisite percentage of the
aggregate principal amount of Notes then outstanding approved or consented
to
any amendment, waiver or consent to be given under this Agreement or the Notes,
or have directed the taking of any action provided herein or in the Notes to
be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not
to
be outstanding.
| 18. |
NOTICES.
|
All
notices and
communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice
by
a recognized overnight delivery service (charges prepaid), or (b) by
registered or certified mail with return receipt requested (postage prepaid),
or
(c) by a recognized overnight delivery service (with charges prepaid). Any
such notice must be sent:
(i) if
to you or your
nominee, to you or it at the address specified for such communications in
Schedule A, or at such other address as you or it shall have specified to the
Company in writing,
(ii) if
to any other
holder of any Note, to such holder at such address as such other holder shall
have specified to the Company in writing, or
(iii) if
to the Company
or to a Guarantor, to the Company at its address set forth at the beginning
hereof to the attention of the Office of the Treasurer, or at such other address
as the Company shall have specified to the holder of each Note in
writing.
Notices
under this
Section 18 will be deemed given only when actually received.
| 19. |
REPRODUCTION
OF DOCUMENTS.
|
This
Agreement and
all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications that may hereafter be executed,
(b) documents received by you at the Closing (except the Notes themselves),
and (c) financial statements, certificates and other information previously
or hereafter furnished to you, may be reproduced by you by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar
process and you may destroy any original document so reproduced. The Company
agrees and stipulates that, to the extent permitted by applicable law, any
such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction
of
such reproduction shall likewise be admissible in evidence. This Section 19
shall not prohibit the Company or any other holder of Notes from contesting
any
such reproduction to the same extent that it would contest the original, or
from
introducing evidence to demonstrate the inaccuracy of any such
reproduction.
| 20. |
CONFIDENTIAL
INFORMATION.
|
For
the purposes of
this Section 20, “Confidential Information” means information delivered to you
by or on behalf of the Company or any Subsidiary in connection with the
transactions contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or otherwise
adequately identified in writing when received by you as being confidential
information of the Company or such Subsidiary, provided that such term does
not
include information that (a) was publicly known or otherwise known to you
prior to the time of such disclosure, (b) subsequently becomes publicly
known through no act or omission by you or any Person acting on your behalf,
(c) otherwise becomes known to you other than through disclosure by the
Company or any Subsidiary or (d) constitutes financial statements delivered
to
you under Section 7.1 that are otherwise publicly available. You will maintain
the confidentiality of such Confidential Information in accordance with
procedures adopted by you in good faith to protect confidential information
of
third parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, trustees officers,
employees, agents, attorneys and Affiliates (to the extent such disclosure
reasonably relates to the administration of the investment represented by your
Notes), (ii) your financial advisors and other professional advisors who agree
to hold confidential the Confidential Information substantially in accordance
with the terms of this Section 20, (iii) any other holder of any Note,
(iv) any Institutional Investor to which you sell or offer to sell such
Note or any part thereof or any participation therein (if such Person has agreed
in writing prior to its receipt of such Confidential Information to be bound
by
the provisions of this Section 20), (v) any Person from which you
offer to purchase any security of the Company (if such Person has agreed in
writing prior to its receipt of such Confidential Information to be bound by
the
provisions of this Section 20), (vi) any federal or state regulatory
authority having jurisdiction over you, (vii) the National Association of
Insurance Commissioners or any similar organization, or any nationally
recognized rating agency that requires access to information about your
investment portfolio or (viii) any other Person to which such delivery or
disclosure may be necessary or appropriate (w) to effect compliance with
any law, rule, regulation or order applicable to you, (x) in response to
any subpoena or other legal process, (y) in connection with any litigation
to which you are a party or (z) if an Event of Default has occurred and is
continuing, to the extent you may reasonably determine such delivery and
disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under your Notes and this Agreement.
Each
holder of a Note, by its acceptance of a Note, will be deemed to have agreed
to
be bound by and to be entitled to the benefits of this Section 20 as though
it
were a party to this Agreement. On reasonable request by the Company in
connection with the delivery to any holder of a Note of information required
to
be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions
of
this Section 20.
| 21. |
SUBSTITUTION
OF PURCHASER.
|
You
shall have the
right to substitute any one of your Affiliates as the purchaser of the Notes
that you have agreed to purchase hereunder, by written notice to the Company,
which notice shall be signed by both you and such Affiliate, shall contain
such
Affiliate’s agreement to be bound by this Agreement and shall contain a
confirmation by such Affiliate of the accuracy with respect to it of the
representations set forth in Section 6. Upon receipt of such notice, wherever
the word “you” is used in this Agreement (other than in this Section 21), such
word shall be deemed to refer to such Affiliate in lieu of you. In the event
that such Affiliate is so substituted as a purchaser hereunder and such
Affiliate thereafter transfers to you all of the Notes then held by such
Affiliate, upon receipt by the Company of notice of such transfer, wherever
the
word “you” is used in this Agreement (other than in this Section 21), such
word shall no longer be deemed to refer to such Affiliate, but shall refer
to
you, and you shall have all the rights of an original holder of the Notes under
this Agreement.
| 22. |
RELEASE
OF SUBSIDIARY GUARANTOR.
|
You
and each
subsequent holder of a Note agree to release any Subsidiary Guarantor from
the
Subsidiary Guaranty (i) if such Subsidiary Guarantor ceases to be such as a
result of a Disposition permitted by Section 10.3 or (ii) at such time as the
banks party to the Credit Agreement release such Subsidiary from the Bank
Guarantees; provided, however, that you and each subsequent holder will not
be
required to release a Subsidiary Guarantor from the Subsidiary Guaranty upon
such Subsidiary’s release from the Bank Guarantees if (A) a Default or Event of
Default has occurred and is continuing, (B) such Subsidiary Guarantor is to
become a borrower under the Credit Agreement or (C) such release is part of
a plan of financing that contemplates such Subsidiary Guarantor guaranteeing
any
other Indebtedness of the Company. Your obligation to release a Subsidiary
Guarantor from the Subsidiary Guaranty is conditioned upon your prior receipt
of
a certificate from a Senior Financial Officer of the Company stating that none
of the circumstances described in clauses (A), (B) and (C) above are
true.
| 23. |
MISCELLANEOUS.
|
| 23.1. |
Successors
and Assigns.
|
All
covenants and
other agreements contained in this Agreement by or on behalf of any of the
parties hereto bind and inure to the benefit of their respective successors
and
assigns (including, without limitation, any subsequent holder of a Note) whether
so expressed or not.
| 23.2. |
Payments
Due on Non-Business Days.
|
Anything
in this
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or Make-Whole Amount or interest on any Note that is due on a date other
than
a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
| 23.3. |
Severability.
|
Any
provision of
this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
| 23.4. |
Construction.
|
Each
covenant
contained herein shall be construed (absent express provision to the contrary)
as being independent of each other covenant contained herein, so that compliance
with any one covenant shall not (absent such an express contrary provision)
be
deemed to excuse compliance with any other covenant. Where any provision herein
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
| 23.5. |
Counterparts.
|
This
Agreement may
be executed in any number of counterparts, each of which shall be an original
but all of which together shall constitute one instrument. Each counterpart
may
consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
| 23.6. |
Governing
Law.
|
This
Agreement
shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the law of the State of Illinois excluding
choice-of-law principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State.
If
you are in
agreement with the foregoing, please sign the form of agreement on the
accompanying counterpart of this Agreement and return it to the Company,
whereupon the foregoing shall become a binding agreement between you and the
Company.
Very
truly
yours,
ENERGIZER
HOLDINGS,
INC.
By:
________________________
Name:
Title:
6
Schedule
B
SCHEDULE
B
DEFINED
TERMS
As
used herein, the
following terms have the respective meanings set forth below or set forth in
the
Section hereof following such term:
“Adjusted
Consolidated Net Worth” means,
as of any
date, consolidated stockholders’ equity of the Company and its Restricted
Subsidiaries on such date, determined in accordance with GAAP, less the amount
by which outstanding Restricted Investments on such date exceed 10% of
consolidated stockholders’ equity.
“Affiliate”
means,
at any time,
and with respect to any Person, any other Person that at such time directly
or
indirectly through one or more intermediaries Controls, or is Controlled by,
or
is under common Control with, such first Person. As used in this definition,
“Control” means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. Unless
the
context otherwise clearly requires, any reference to an “Affiliate” is a
reference to an Affiliate of the Company.
“Anti-Terrorism
Order” means
Executive
Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001).
“Asset
Securitization Transaction” means
any financing
pursuant to which the Company or any Restricted Subsidiary sells to a special
purpose entity or any other Person, at a price representing the reasonably
equivalent value thereof (determined as of the date of such sale), or grants
a
security interest in, accounts receivable (and related assets), provided that
such financing shall be on customary market terms applicable to asset
securitization transactions and shall be with limited or no recourse to the
Company and such Restricted Subsidiary (other than such special purpose entity
or other Person), except to the extent of normal and customary representations
and warranties (in no event relating to collectibility or ultimate payment
of
receivables) made by the Company or such Restricted Subsidiary, and any other
indicia of recourse substantially comparable to those permitted in asset
securitization transactions generally (in no event relating to collectibility
or
ultimate payment of receivables).
“Bank
Guarantees” means
the
Guarantees of the Subsidiary Guarantors of Indebtedness outstanding under the
Credit Agreement, as such Guarantees or agreements may be amended, restated
or
otherwise modified, and any successors thereto.
“Business
Day” means
(a) for the
purposes of Section 8.6 only, any day other than a Saturday, a Sunday or a
day
on which commercial banks in New York City are required or authorized to be
closed, and (b) for the purposes of any other provision of this Agreement,
any
day other than a Saturday, a Sunday or a day on which commercial banks in
Chicago, Illinois or New York, New York are required or authorized to be
closed.
“Capital
Lease” means,
at any time,
a lease with respect to which the lessee is required concurrently to recognize
the acquisition of an asset and the incurrence of a liability in accordance
with
GAAP.
“Closing”
is
defined in
Section 3.
“Code”
means
the Internal
Revenue Code of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time.
“Company”
means
Energizer
Holdings, Inc., a Missouri corporation.
“Confidential
Information” is
defined in
Section 20.
“Consolidated
Indebtedness” means,
as of any
date, outstanding Indebtedness of the Company and its Restricted Subsidiaries
as
of such date determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Net Income” means,
for any
period, the net income of the Company and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, or as
calculated on a pro forma basis in accordance with Article XI of Securities
and
Exchange Commission Regulation S-X for any period, or portion thereof, where
pro
forma presentation is required pursuant to rules or regulations of the
Securities and Exchange Commission.
“Consolidated
Total Assets” means,
as of any
date, the assets and properties of the Company and its Restricted Subsidiaries
as of such date determined on a consolidated basis in accordance with GAAP,
less
any amount of assets reflected therein to the extent that they have been sold
or
pledged pursuant to an Asset Securitization Transaction, which amount shall
be
deemed to be equal to the amount excluded from the calculation of Indebtedness
pursuant to the last sentence of the definition thereof.
“Consolidated
Total Capitalization” means,
as of any
date, the sum of Consolidated Indebtedness and Adjusted Consolidated Net Worth
as of such date.
“Credit
Agreement” means
the Revolving
Credit Agreement dated as of November 16, 2004 among the Company, the lenders
party thereto, JPMorgan Chase Bank, N.A., as administrative agent, Citibank,
N.A., as documentation agent, and Bank of America, N.A., as syndication agent,
as such agreement may be hereafter amended, restated, supplemented, refinanced,
increased or reduced from time to time, and any successor credit agreement
or
similar facility; provided, that such term shall not include (i) the
Multicurrency Revolving Credit Facility Agreement dated August 24, 2005 among
Energizer Asia Investments Pte. Ltd., a Singapore Subsidiary of the Company,
Energizer Singapore Pte. Ltd., a Singapore Subsidiary of the Company, Sonca
Products Ltd., a Hong Kong Subsidiary of the Company, and Xxxxxx Asia Limited,
a
Hong Kong Subsidiary of the Company, as borrowers, the Company as guarantor,
the
lenders party thereto, Citigroup Global Markets Singapore Pte. Ltd. and Standard
Chartered Bank as arranger, with Citicorp Investment Bank (Singapore) Limited,
as agent, or (ii) any other credit facility of any Subsidiary that is not
organized under the laws of the United States or any state thereof (including
the District of Columbia) or any possession of the United States.
“Debt
to
EBITDA Ratio” means,
as of any
date, the ratio of Consolidated Indebtedness (as of the date of determination)
to EBITDA (for the Company’s then most recently completed four fiscal
quarters).
“Default”
means
an event or
condition the occurrence or existence of which would, with the lapse of time
or
the giving of notice or both, become an Event of Default.
“Default
Rate” means
that rate of
interest that is the greater of (i) 2% per annum above the rate of interest
stated in clause (a) of the first paragraph of the Notes or (ii) 2% over
the rate of interest publicly announced by Bank of America in Chicago, Illinois
as its “base” or “prime” rate.
“Disposition”
is
defined in
Section 10.3. The grant of a security interest by the Company or any Restricted
Subsidiary in accounts receivable (and related assets) that are the subject
of
an Asset Securitization Transaction shall, without duplication, be deemed a
Disposition of such accounts receivable (and related assets) for purposes of
Section 10.3.
“Domestic
Restricted Subsidiary” means
any
Restricted Subsidiary organized under the laws of the United States or any
state
thereof (including the District of Columbia).
“EBITDA”
means,
for any
period, Consolidated Net Income for such period, plus, to the extent deducted
in
calculating Consolidated Net Income, (i) all provisions for federal, state
and
other income taxes, (ii) extraordinary losses, (iii) losses on disposition
of
discontinued operations, (iv) interest expense, (v) depreciation and
amortization expense and (vi) other noncash charges, and minus, to the extent
added in calculating Consolidated Net Income, (x) extraordinary gains, (y)
gains
on disposition of discontinued operations and (z) other noncash
gains.
“Environmental
Laws” means
any and all
federal, state, local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or governmental restrictions relating to pollution and
the
protection of the environment or the release of any materials into the
environment, including but not limited to those related to hazardous substances
or wastes, air emissions and discharges to waste or public systems.
“ERISA”
means
the Employee
Retirement Income Security Act of 1974, as amended from time to time, and the
rules and regulations promulgated thereunder from time to time in effect.
“ERISA
Affiliate” means
any trade or
business (whether or not incorporated) that is treated as a single employer
together with the Company under Section 414 of the Code.
“Event
of
Default” is
defined in
Section 11.
“Exchange
Act” means
the
Securities Exchange Act of 1934, as amended.
“GAAP”
means
generally
accepted accounting principles as in effect from time to time in the United
States of America.
“Governmental
Authority” means
(a) the
government
of
(i) the
United States
of America or any state or other political subdivision thereof, or
(ii) any
jurisdiction in
which the Company or any Subsidiary conducts all or any part of its business,
or
which asserts jurisdiction over any properties of the Company or any Subsidiary,
or
(b) any
entity
exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.
“Guaranty”
means,
with respect
to any Person, any obligation (except the endorsement in the ordinary course
of
business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend or other
obligation of any other Person in any manner, whether directly or indirectly,
including (without limitation) obligations incurred through an agreement,
contingent or otherwise, by such Person:
(c) to
purchase such
indebtedness or obligation or any property constituting security
therefor;
(d) to
advance or
supply funds (i) for the purchase or payment of such indebtedness or obligation,
or (ii) to maintain any working capital or other balance sheet condition or
any
income statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such indebtedness or
obligation;
(e) to
lease properties
or to purchase properties or services primarily for the purpose of assuring
the
owner of such indebtedness or obligation of the ability of any other Person
to
make payment of the indebtedness or obligation; or
(f) otherwise
to assure
the owner of such indebtedness or obligation against loss in respect
thereof.
In
any computation
of the indebtedness or other liabilities of the obligor under any Guaranty,
the
indebtedness or other obligations that are the subject of such Guaranty shall
be
assumed to be direct obligations of such obligor.
“Hazardous
Material” means
any and all
pollutants, toxic or hazardous wastes or any other substances that might pose
a
hazard to health or safety, the removal of which may be required or the
generation, manufacture, refining, production, processing, treatment, storage,
handling, transportation, transfer, use, disposal, release, discharge, spillage,
seepage, or filtration of which is or shall be restricted, prohibited or
penalized by any applicable law (including, without limitation, asbestos, urea
formaldehyde foam insulation and polychlorinated biphenyls).
“holder”
means,
with respect
to any Note, the Person in whose name such Note is registered in the register
maintained by the Company pursuant to Section 13.1.
“Indebtedness”
with
respect to any
Person means, at any time, without duplication,
(a) its
liabilities for
borrowed money;
(b) its
liabilities for
the deferred purchase price of property acquired by such Person (excluding
accounts payable and other accrued liabilities arising in the ordinary course
of
business but including all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such
property);
(c) all
liabilities
appearing on its balance sheet in accordance with GAAP in respect of Capital
Leases;
(d) all
liabilities for
borrowed money secured by any Lien with respect to any property owned by such
Person (whether or not it has assumed or otherwise become liable for such
liabilities); and
(e) any
Guaranty of
such Person with respect to liabilities of a type described in any of clauses
(a) through (d) hereof.
Notwithstanding
the
foregoing, there shall be excluded from the Indebtedness of any Person any
obligations of such Person under an Asset Securitization Transaction regardless
of whether such obligations would be reflected as Indebtedness on a balance
sheet of such Person.
“INHAM
Exemption” is
defined in
Section 6.2(e).
“Institutional
Investor” means
(a) any
original purchaser of a Note and (b) any bank, trust company, savings and
loan association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer, or any other
similar financial institution or entity, regardless of legal form.
“Investments”
means
all
investments made, in cash or by delivery of property, directly or indirectly,
by
any Person, in any other Person, whether by acquisition of shares of capital
stock, indebtedness or other obligations or securities or by loan, advance,
capital contribution or otherwise.
“Lien”
means,
with respect
to any Person, any mortgage, lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title
retention agreement or Capital Lease, upon or with respect to any property
or
asset of such Person (including in the case of stock, stockholder agreements,
voting trust agreements and all similar arrangements).
“Make-Whole
Amount” is
defined in
Section 8.6.
“Material”
means
material in
relation to the business, operations, affairs, financial condition, assets
or
properties of the Company and its Restricted Subsidiaries taken as a
whole.
“Material
Adverse Effect” means
a material
adverse effect on (a) the business, operations, affairs, financial condition,
assets or properties of the Company and its Restricted Subsidiaries taken as
a
whole, or (b) the ability of the Company to perform its obligations under this
Agreement and the Notes, or (c) the ability of any Subsidiary Guarantor to
perform its obligations under the Subsidiary Guaranty, or (d) the validity
or
enforceability of this Agreement, the Notes or the Subsidiary
Guaranty.
“Memorandum”
is
defined in
Section 5.3.
“Multiemployer
Plan” means
any Plan that
is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of
ERISA).
“Notes”
is
defined in
Section 1.1.
“Officer’s
Certificate” means
a certificate
of a Senior Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
“Other
Purchasers” is
defined in
Section 2.
“PBGC”
means
the Pension
Benefit Guaranty Corporation referred to and defined in ERISA or any successor
thereto.
“Person”
means
an
individual, partnership, corporation, limited liability company, association,
trust, unincorporated organization, or a government or agency or political
subdivision thereof.
“Plan”
means
an “employee
benefit plan” (as defined in Section 3(3) of ERISA) that is or, within the
preceding five years, has been established or maintained, or to which
contributions are or, within the preceding five years, have been made or
required to be made, by the Company or any ERISA Affiliate or with respect
to
which the Company or any ERISA Affiliate may have any liability.
“Priority
Debt” means,
as of any
date, the sum (without duplication) of (a) Indebtedness of Restricted
Subsidiaries that are not Subsidiary Guarantors on such date (other than
Indebtedness owed to the Company or another Restricted Subsidiary), (b)
Indebtedness of the Company guaranteed by any Restricted Subsidiary that
is not
a Subsidiary Guarantor and (c) Indebtedness of the Company and its Domestic
Restricted Subsidiaries secured by Liens not otherwise permitted by
Sections 10.2(a) through (i) on such date. For the avoidance of doubt,
Indebtedness outstanding under the Multicurrency Revolving Credit Facility
Agreement dated August 24, 2005 among Energizer
Asia
Investments Pte. Ltd., a Singapore Subsidiary of the Company, Energizer
Singapore
Pte. Ltd., a Singapore Subsidiary of the Company, Sonca Products Ltd., a
Hong
Kong Subsidiary of the Company, and Xxxxxx Asia Limited, a Hong Kong Subsidiary
of the Company, as borrowers, the Company as guarantor, the lenders party
thereto, Citigroup Global Markets Singapore Pte. Ltd. and Standard Chartered
Bank as arranger, with Citicorp Investment Bank (Singapore) Limited, as agent,
shall be deemed to constitute Priority Debt.
“property”
or
“properties”
means,
unless
otherwise specifically limited, real or personal property of any kind, tangible
or intangible, xxxxxx or inchoate.
“Purchaser”
means
each
purchaser listed in Schedule A.
“QPAM
Exemption” is
defined in
Section 6.2(d).
“Required
Holders” means,
at any time,
the holders of at least a majority in principal amount of the Notes at the
time
outstanding (exclusive of Notes then owned by the Company or any of its
Affiliates).
“Responsible
Officer” means
any Senior
Financial Officer and any other officer of the Company with responsibility
for
the administration of the relevant portion of this agreement.
“Restricted
Investments” means
all
Investments of the Company and its Restricted Subsidiaries, other
than:
(a) property
or assets
to be used or consumed in the ordinary course of business;
(b) current
assets
arising from the sale of goods or services in the ordinary course of
business;
(c) Investments
in
Restricted Subsidiaries or in any Person which, as a result thereof, becomes
a
Restricted Subsidiary;
(d) Investments
existing as of the date of this Agreement that are listed in the attached
Schedule B-1;
(e) Investments
in
treasury stock;
(f) Investments
in:
(i) obligations,
maturing within one year from the date of acquisition, of or fully guaranteed
by
the United States of America or an agency thereof;
(ii) state
or municipal
securities, maturing within one year from the date of acquisition, that are
rated in one of the top two rating classifications by at least one nationally
recognized rating agency;
(iii) certificates
of
deposit or banker’s acceptances maturing within one year from the date of
acquisition of or issued by Bank of America or other commercial banks whose
long-term unsecured debt obligations (or the long-term unsecured debt
obligations of the bank holding company owning all of the capital stock of
such
bank) are rated in one of the top three rating classifications by at least
one
nationally recognized rating agency;
(iv) commercial
paper
maturing within 270 days from the date of issuance that, at the time of
acquisition, is rated in one of the top two rating classifications by at least
one credit rating agency of recognized national standing;
(v) repurchase
agreements, having a term of not more than 90 days and fully collateralized
with
obligations of the type described in clause (i), with a bank satisfying the
requirements of clause (iii); and
(vi) money
market
instrument programs that are properly classified as current assets in accordance
with GAAP.
“Restricted
Subsidiary” means
any
Subsidiary (a) of which at least a majority of the voting securities are owned
by the Company and/or one or more Wholly-Owned Restricted Subsidiaries and
(b)
that the Company has not designated an Unrestricted Subsidiary by notice in
writing given to the holders of the Notes.
“Securities
Act” means
the
Securities Act of 1933, as amended from time to time.
“Senior
Financial Officer” means
the chief
financial officer, principal accounting officer, treasurer or comptroller of
the
Company.
“Series
2006-A Notes” is
defined in
Section 1.1.
“Series
2006-B Notes” is
defined in
Section 1.1.
“Series
2006-C Notes” is
defined in
Section 1.1.
“Series
2006-D Notes” is
defined in
Section 1.1.
“Significant
Restricted Subsidiary” means,
as of the
date of determination, any Subsidiary Guarantor and any other Restricted
Subsidiary the assets or revenues of which account for (i) more than 15% of
the
Consolidated Total Assets of the Company and its Restricted Subsidiaries at
the
end of the most recently ended fiscal period or (ii) more than 15% of the
consolidated revenues of the Company and its Restricted Subsidiaries for the
most recently completed four fiscal quarters.
“Source”
is
defined in
Section 6.2.
“Subsidiary”
means,
as to any
Person, any corporation, association or other business entity in which such
Person or one or more of its Subsidiaries or such Person and one or more of
its
Subsidiaries owns sufficient equity or voting interests to enable it or them
(as
a group) ordinarily, in the absence of contingencies, to elect a majority of
the
directors (or Persons performing similar functions) of such entity, and any
partnership, limited liability company or joint venture if more than a 50%
interest in the profits or capital thereof is owned by such Person or one or
more of its Subsidiaries or such Person and one or more of its Subsidiaries
(unless such partnership can and does ordinarily take major business actions
without the prior approval of such Person or one or more of its Subsidiaries).
Unless the context otherwise clearly requires, any reference to a “Subsidiary”
is a reference to a Subsidiary of the Company.
“Subsidiary
Guarantor” is
defined in
Section 1.1.
“Subsidiary
Guaranty” is
defined in
Section 1.1.
“this
Agreement” or
“the
Agreement” is
defined in
Section 17.3.
“Unrestricted
Subsidiary” means
any
Subsidiary of the Company that has been so designated by notice in writing
given
to the holders of the Notes.
“USA
Patriot Act” means
Public Law
107-56 of the United States of America, United and Strengthening America by
Providing Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT)
Act
of 2001.
“Wholly-Owned
Restricted Subsidiary” means,
at any time,
any Restricted Subsidiary 100% of all of the equity interests (except directors’
qualifying shares) and voting interests of which are owned by any one or more
of
the Company and the Company’s other Wholly-Owned Restricted Subsidiaries at such
time.
Schedule
B
EXHIBIT
1(a)
[FORM
OF
SERIES
2006-A NOTE]
ENERGIZER
HOLDINGS,
INC.
5.99%
Senior Note,
Series 2006-A, due June 30, 2009
No.
RA-[ ] [Date]
$[_______] PPN:
29266R H@
0
FOR
VALUE RECEIVED,
the undersigned, ENERGIZER HOLDINGS, INC. (herein called the “Company”), a
corporation organized and existing under the laws of the State of Missouri,
promises to pay to [ ], or
registered assigns, the principal sum of
$[ ] on June
30, 2009, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of 5.99% per
annum from the date hereof, payable semiannually, on June 30 and December 31
in
each year, commencing with the June 30 or December 31 next succeeding the date
hereof until the principal hereof shall have become due and payable, and
(b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 7.99% or (ii) 2% over the
rate of interest publicly announced by Bank of America from time to time in
Chicago, Illinois as its “base” or “prime” rate. Under the circumstances
described in the Note Purchase Agreement, additional interest may be payable
on
the unpaid principal amount of this Note.
Payments
of
principal of, interest on and any Make-Whole Amount with respect to this Note
are to be made in lawful money of the United States of America at the principal
office of Bank of America in Chicago, Illinois or at such other place as the
Company shall have designated by written notice to the holder of this Note
as
provided in the Note Purchase Agreement referred to below.
This
Note is one of
a series of Senior Notes (herein called the “Notes”) issued pursuant to a Note
Purchase Agreement, dated as of July 6, 2006 as from time to time amended and
supplemented, the “Note Purchase Agreement”), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and (ii) to have made the representation set forth in Section
6.2 of the Note Purchase Agreement.
This
Note is a
registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by
a
written instrument of transfer duly executed, by the registered holder hereof
or
such holder’s attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the Company
will not be affected by any notice to the contrary.
This
Note is
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement but not
otherwise.
If
an Event of
Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
Payment
of the
principal of, and interest and Make-Whole Amount, if any, on this Note, and
all
other amounts due under the Note Purchase Agreement, is guaranteed pursuant
to
the terms of a Guaranty dated as of July 6, 2006 of certain Subsidiaries of
the
Company.
This
Note shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of Illinois excluding choice-of-law
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such State.
ENERGIZER
HOLDINGS,
INC.
By:
Name:
Title:
Exhibit
1(a)
EXHIBIT
1(b)
[FORM
OF
SERIES
2006-B NOTE]
ENERGIZER
HOLDINGS,
INC.
6.05%
Senior Note,
Series 2006-B, due June 30, 2011
No.
RB-[ ] [Date]
$[_______] PPN:
29266R H#
8
FOR
VALUE RECEIVED,
the undersigned, ENERGIZER HOLDINGS, INC. (herein called the “Company”), a
corporation organized and existing under the laws of the State of Missouri,
promises to pay to [ ], or
registered assigns, the principal sum of
$[ ] on June
30, 2011, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of 6.05% per
annum from the date hereof, payable semiannually, on June 30 and December 31
in
each year, commencing with the June 30 or December 31 next succeeding the date
hereof until the principal hereof shall have become due and payable, and
(b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.05% or (ii) 2% over the
rate of interest publicly announced by Bank of America from time to time in
Chicago, Illinois as its “base” or “prime” rate. Under the circumstances
described in the Note Purchase Agreement, additional interest may be payable
on
the unpaid principal amount of this Note.
Payments
of
principal of, interest on and any Make-Whole Amount with respect to this Note
are to be made in lawful money of the United States of America at the principal
office of Bank of America in Chicago, Illinois or at such other place as the
Company shall have designated by written notice to the holder of this Note
as
provided in the Note Purchase Agreement referred to below.
This
Note is one of
a series of Senior Notes (herein called the “Notes”) issued pursuant to a Note
Purchase Agreement, dated as of July 6, 2006 as from time to time amended and
supplemented, the “Note Purchase Agreement”), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and (ii) to have made the representation set forth in Section
6.2 of the Note Purchase Agreement.
This
Note is a
registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by
a
written instrument of transfer duly executed, by the registered holder hereof
or
such holder’s attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the Company
will not be affected by any notice to the contrary.
This
Note is
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement but not
otherwise.
If
an Event of
Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
Payment
of the
principal of, and interest and Make-Whole Amount, if any, on this Note, and
all
other amounts due under the Note Purchase Agreement, is guaranteed pursuant
to
the terms of a Guaranty dated as of July 6, 2006 of certain Subsidiaries of
the
Company.
This
Note shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of Illinois excluding choice-of-law
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such State.
ENERGIZER
HOLDINGS,
INC.
By:
Name:
Title:
Exhibit
1(b)
EXHIBIT
1(c)
[FORM
OF
SERIES
2006-C NOTE]
ENERGIZER
HOLDINGS,
INC.
6.13%
Senior Note,
Series 2006-C, due June 30, 2014
No.
RC-[ ] [Date]
$[_______] PPN:
29266R J*
0
FOR
VALUE RECEIVED,
the undersigned, ENERGIZER HOLDINGS, INC. (herein called the “Company”), a
corporation organized and existing under the laws of the State of Missouri,
promises to pay to [ ], or
registered assigns, the principal sum of
$[ ] on June
30, 2014, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of 6.13% per
annum from the date hereof, payable semiannually, on June 30 and December 31
in
each year, commencing with the June 30 or December 31 next succeeding the date
hereof until the principal hereof shall have become due and payable, and
(b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.13% or (ii) 2% over the
rate of interest publicly announced by Bank of America from time to time in
Chicago, Illinois as its “base” or “prime” rate. Under the circumstances
described in the Note Purchase Agreement, additional interest may be payable
on
the unpaid principal amount of this Note.
Payments
of
principal of, interest on and any Make-Whole Amount with respect to this Note
are to be made in lawful money of the United States of America at the principal
office of Bank of America in Chicago, Illinois or at such other place as the
Company shall have designated by written notice to the holder of this Note
as
provided in the Note Purchase Agreement referred to below.
This
Note is one of
a series of Senior Notes (herein called the “Notes”) issued pursuant to a Note
Purchase Agreement, dated as of July 6, 2006 as from time to time amended and
supplemented, the “Note Purchase Agreement”), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and (ii) to have made the representation set forth in Section
6.2 of the Note Purchase Agreement.
This
Note is a
registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by
a
written instrument of transfer duly executed, by the registered holder hereof
or
such holder’s attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the Company
will not be affected by any notice to the contrary.
This
Note is
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement but not
otherwise.
If
an Event of
Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
Payment
of the
principal of, and interest and Make-Whole Amount, if any, on this Note, and
all
other amounts due under the Note Purchase Agreement, is guaranteed pursuant
to
the terms of a Guaranty dated as of July 6, 2006 of certain Subsidiaries of
the
Company.
This
Note shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of Illinois excluding choice-of-law
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such State.
ENERGIZER
HOLDINGS,
INC.
By:
Name:
Title:
Exhibit
1(c)
EXHIBIT
1(d)
[FORM
OF
SERIES
2006-D NOTE]
ENERGIZER
HOLDINGS,
INC.
6.24%
Senior Note,
Series 2006-D, due June 30, 2016
No.
RD-[ ] [Date]
$[_______] PPN:
29266R J@
8
FOR
VALUE RECEIVED,
the undersigned, ENERGIZER HOLDINGS, INC. (herein called the “Company”), a
corporation organized and existing under the laws of the State of Missouri,
promises to pay to [ ], or
registered assigns, the principal sum of
$[ ] on June
30, 2016, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of 6.24% per
annum from the date hereof, payable semiannually, on June 30 and December 31
in
each year, commencing with the June 30 or December 31 next succeeding the date
hereof until the principal hereof shall have become due and payable, and
(b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreement referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.24% or (ii) 2% over the
rate of interest publicly announced by Bank of America from time to time in
Chicago, Illinois as its “base” or “prime” rate. Under the circumstances
described in the Note Purchase Agreement, additional interest may be payable
on
the unpaid principal amount of this Note.
Payments
of
principal of, interest on and any Make-Whole Amount with respect to this Note
are to be made in lawful money of the United States of America at the principal
office of Bank of America in Chicago, Illinois or at such other place as the
Company shall have designated by written notice to the holder of this Note
as
provided in the Note Purchase Agreement referred to below.
This
Note is one of
a series of Senior Notes (herein called the “Notes”) issued pursuant to a Note
Purchase Agreement, dated as of July 6, 2006 as from time to time amended and
supplemented, the “Note Purchase Agreement”), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and (ii) to have made the representation set forth in Section
6.2 of the Note Purchase Agreement.
This
Note is a
registered Note and, as provided in the Note Purchase Agreement, upon surrender
of this Note for registration of transfer, duly endorsed, or accompanied by
a
written instrument of transfer duly executed, by the registered holder hereof
or
such holder’s attorney duly authorized in writing, a new Note for a like
principal amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of transfer, the Company
may treat the person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment and for all other purposes, and the Company
will not be affected by any notice to the contrary.
This
Note is
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement but not
otherwise.
If
an Event of
Default, as defined in the Note Purchase Agreement, occurs and is continuing,
the principal of this Note may be declared or otherwise become due and payable
in the manner, at the price (including any applicable Make-Whole Amount) and
with the effect provided in the Note Purchase Agreement.
Payment
of the
principal of, and interest and Make-Whole Amount, if any, on this Note, and
all
other amounts due under the Note Purchase Agreement, is guaranteed pursuant
to
the terms of a Guaranty dated as of July 6, 2006 of certain Subsidiaries of
the
Company.
This
Note shall be
construed and enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of Illinois excluding choice-of-law
principles of the law of such State that would require the application of the
laws of a jurisdiction other than such State.
ENERGIZER
HOLDINGS,
INC.
By:
Name:
Title:
Exhibit
1(d)
EXHIBIT
1(e)
[FORM
OF
SUBSIDIARY GUARANTY]
THIS
GUARANTY (this
“Guaranty”) dated as of July 6, 2006 is made by the undersigned (each, a
“Guarantor”), in favor of the holders from time to time of the Notes hereinafter
referred to, including each purchaser named in the Note Purchase Agreement
hereinafter referred to, and their respective successors and assigns
(collectively, the “Holders” and each individually, a “Holder”).
W
I T N E S S E
T H:
WHEREAS,
ENERGIZER
HOLDINGS, INC., a Missouri corporation (the “Company”), and the initial Holders
have entered into a Note Purchase Agreement dated as of July 6, 2006 (the Note
Purchase Agreement as amended, supplemented, restated or otherwise modified
from
time to time in accordance with its terms and in effect, the “Note Purchase
Agreement”);
WHEREAS,
the Note
Purchase Agreement provides for the issuance by the Company of $500,000,000
aggregate principal amount of Notes (as defined in the Note Purchase
Agreement);
WHEREAS,
the
Company owns all of the issued and outstanding capital stock of each Guarantor
and, by virtue of such ownership and otherwise, each Guarantor will derive
substantial benefits from the purchase by the Holders of the Company’s Notes;
WHEREAS,
it is a
condition precedent to the obligation of the Holders to purchase the Notes
that
each Guarantor shall have executed and delivered this Guaranty to the Holders;
and
WHEREAS,
each
Guarantor desires to execute and deliver this Guaranty to satisfy the conditions
described in the preceding paragraph;
NOW,
THEREFORE, in
consideration of the premises and other benefits to each Guarantor, and of
the
purchase of the Company’s Notes by the Holders, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, each
Guarantor makes this Guaranty as follows:
SECTION
1. Definitions.
Any capitalized
terms not otherwise herein defined shall have the meanings attributed to them
in
the Note Purchase Agreement.
SECTION
2. Guaranty.
Each Guarantor,
jointly and severally with each other Guarantor, unconditionally and irrevocably
guarantees to the Holders the due, prompt and complete payment by the Company
of
the principal of, Make-Whole Amount, if any, and interest on, and each other
amount due under, the Notes or the Note Purchase Agreement, when and as the
same
shall become due and payable (whether at stated maturity or by required or
optional prepayment or by declaration or otherwise) in accordance with the
terms
of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase
Agreement being sometimes hereinafter collectively referred to as the “Note
Documents” and the amounts payable by the Company under the Note Documents, and
all other monetary obligations of the Company thereunder (including any
attorneys’ fees and expenses), being sometimes collectively hereinafter referred
to as the “Obligations”). This Guaranty is a guaranty of payment and not just of
collectibility and is in no way conditioned or contingent upon any attempt
to
collect from the Company or upon any other event, contingency or circumstance
whatsoever. If for any reason whatsoever the Company shall fail or be unable
duly, punctually and fully to pay such amounts as and when the same shall become
due and payable, each Guarantor, without demand, presentment, protest or notice
of any kind, will forthwith pay or cause to be paid such amounts to the Holders
under the terms of such Note Documents, in lawful money of the United States,
at
the place specified in the Note Purchase Agreement, or perform or comply with
the same or cause the same to be performed or complied with, together with
interest (to the extent provided for under such Note Documents) on any amount
due and owing from the Company. Each Guarantor, promptly after demand, will
pay
to the Holders the reasonable costs and expenses of collecting such amounts
or
otherwise enforcing this Guaranty, including, without limitation, the reasonable
fees and expenses of counsel. Notwithstanding the foregoing, the right of
recovery against each Guarantor under this Guaranty is limited to the extent
it
is judicially determined with respect to any Guarantor that entering into this
Guaranty would violate Section 548 of the United States Bankruptcy Code or
any
comparable provisions of any state law, in which case such Guarantor shall
be
liable under this Guaranty only for amounts aggregating up to the largest amount
that would not render such Guarantor’s obligations hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any state law.
SECTION
3. Guarantor’s
Obligations Unconditional.
The obligations
of each Guarantor under this Guaranty shall be primary, absolute and
unconditional obligations of each Guarantor, shall not be subject to any
counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension,
deferment, reduction or defense based upon any claim each Guarantor or any
other
person may have against the Company or any other person, and to the full extent
permitted by applicable law shall remain in full force and effect without regard
to, and shall not be released, discharged or in any way affected by, any
circumstance or condition whatsoever (whether or not each Guarantor or the
Company shall have any knowledge or notice thereof), including:
(a) any
termination,
amendment or modification of or deletion from or addition or supplement to
or
other change in any of the Note Documents or any other instrument or agreement
applicable to any of the parties to any of the Note Documents;
(b) any
furnishing or
acceptance of any security, or any release of any security, for the Obligations,
or the failure of any security or the failure of any person to perfect any
interest in any collateral;
(c) any
failure,
omission or delay on the part of the Company to conform or comply with any
term
of any of the Note Documents or any other instrument or agreement referred
to in
paragraph (a) above, including, without limitation, failure to give notice
to
any Guarantor of the occurrence of a “Default” or an “Event of Default” under
any Note Document;
(d) any
waiver of the
payment, performance or observance of any of the obligations, conditions,
covenants or agreements contained in any Note Document, or any other waiver,
consent, extension, indulgence, compromise, settlement, release or other action
or inaction under or in respect of any of the Note Documents or any other
instrument or agreement referred to in paragraph (a) above or any obligation
or
liability of the Company, or any exercise or non-exercise of any right, remedy,
power or privilege under or in respect of any such instrument or agreement
or
any such obligation or liability;
(e) any
failure,
omission or delay on the part of any of the Holders to enforce, assert or
exercise any right, power or remedy conferred on such Holder in this Guaranty,
or any such failure, omission or delay on the part of such Holder in connection
with any Note Document, or any other action on the part of such
Holder;
(f) any
voluntary or
involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment,
assignment for the benefit of creditors, composition, receivership,
conservatorship, custodianship, liquidation, marshaling of assets and
liabilities or similar proceedings with respect to the Company, any Guarantor
or
to any other person or any of their respective properties or creditors, or
any
action taken by any trustee or receiver or by any court in any such
proceeding;
(g) any
discharge,
termination, cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the Note Documents or any
other
agreement or instrument referred to in paragraph (a) above or any term
hereof;
(h) any
merger or
consolidation of the Company or any Guarantor into or with any other
corporation, or any sale, lease or transfer of any of the assets of the Company
or any Guarantor to any other person;
(i) any
change in the
ownership of any shares of capital stock of the Company or any change in the
corporate relationship between the Company and any Guarantor, or any termination
of such relationship;
(j) any
release or
discharge, by operation of law, of any Guarantor from the performance or
observance of any obligation, covenant or agreement contained in this Guaranty;
or
(k) any
other
occurrence, circumstance, happening or event whatsoever, whether similar or
dissimilar to the foregoing, whether foreseen or unforeseen, and any other
circumstance which might otherwise constitute a legal or equitable defense
or
discharge of the liabilities of a guarantor or surety or which might otherwise
limit recourse against any Guarantor.
Notwithstanding
any
other provision contained in this Guaranty, each Guarantor’s liability with
respect to the principal amount of the Notes shall be no greater than the
liability of the Company with respect thereto.
SECTION
4. Full
Recourse
Obligations.
The obligations
of each Guarantor set forth herein constitute the full recourse obligations
of
such Guarantor enforceable against it to the full extent of all its assets
and
properties.
SECTION
5. Waiver.
Each Guarantor
unconditionally waives, to the extent permitted by applicable law,
(a) notice of any of the matters referred to in Section 3, (b) notice
to such Guarantor of the incurrence of any of the Obligations, notice to such
Guarantor or the Company of any breach or default by such Company with respect
to any of the Obligations or any other notice that may be required, by statute,
rule of law or otherwise, to preserve any rights of the Holders against such
Guarantor, (c) presentment to or demand of payment from the Company or the
Guarantor with respect to any amount due under any Note Document or protest
for
nonpayment or dishonor, (d) any right to the enforcement, assertion or
exercise by any of the Holders of any right, power, privilege or remedy
conferred in the Note Purchase Agreement or any other Note Document or
otherwise, (e) any requirement of diligence on the part of any of the
Holders, (f) any requirement to exhaust any remedies or to mitigate the
damages resulting from any default under any Note Document, (g) any notice
of any sale, transfer or other disposition by any of the Holders of any right,
title to or interest in the Note Purchase Agreement or in any other Note
Document and (h) any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge, release or defense of a guarantor
or
surety or which might otherwise limit recourse against such
Guarantor.
SECTION
6. Subrogation,
Contribution, Reimbursement or Indemnity.
Until one year
and one day after all Obligations have been indefeasibly paid in full, each
Guarantor agrees not to take any action pursuant to any rights which may have
arisen in connection with this Guaranty to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code, as amended,
including Section 509 thereof, under common law or otherwise) of any of the
Holders against the Company or against any collateral security or guaranty
or
right of offset held by the Holders for the payment of the Obligations. Until
one year and one day after all Obligations have been indefeasibly paid in full,
each Guarantor agrees not to take any action pursuant to any contractual, common
law, statutory or other rights of reimbursement, contribution, exoneration
or
indemnity (or any similar right) from or against the Company which may have
arisen in connection with this Guaranty. So long as the Obligations remain,
if
any amount shall be paid by or on behalf of the Company to any Guarantor on
account of any of the rights waived in this paragraph, such amount shall be
held
by such Guarantor in trust, segregated from other funds of such Guarantor,
and
shall, forthwith upon receipt by such Guarantor, be turned over to the Holders
(duly endorsed by such Guarantor to the Holders, if required), to be applied
against the Obligations, whether matured or unmatured, in such order as the
Holders may determine. The provisions of this paragraph shall survive the term
of this Guaranty and the payment in full of the Obligations.
SECTION
7. Effect
of
Bankruptcy Proceedings, etc.
This Guaranty
shall continue to be effective or be automatically reinstated, as the case
may
be, if at any time payment, in whole or in part, of any of the sums due to
any
of the Holders pursuant to the terms of the Note Purchase Agreement or any
other
Note Document is rescinded or must otherwise be restored or returned by such
Holder upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any other person, or upon or as a result of
the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to the Company or other person or any substantial part
of
its property, or otherwise, all as though such payment had not been made. If
an
event permitting the acceleration of the maturity of the principal amount of
the
Notes shall at any time have occurred and be continuing, and such acceleration
shall at such time be prevented by reason of the pendency against the Company
or
any other person of a case or proceeding under a bankruptcy or insolvency law,
each Guarantor agrees that, for purposes of this Guaranty and its obligations
hereunder, the maturity of the principal amount of the Notes and all other
Obligations shall be deemed to have been accelerated with the same effect as
if
any Holder had accelerated the same in accordance with the terms of the Note
Purchase Agreement or other applicable Note Document, and such Guarantor shall
forthwith pay such principal amount, Make-Whole Amount, if any, and interest
thereon and any other amounts guaranteed hereunder without further notice or
demand.
SECTION
8. Term
of
Agreement.
This Guaranty and
all guaranties, covenants and agreements of each Guarantor contained herein
shall continue in full force and effect and shall not be discharged until such
time as all of the Obligations shall be paid and performed in full and all
of
the agreements of such Guarantor hereunder shall be duly paid and performed
in
full.
SECTION
9. Representations
and Warranties.
Each Guarantor
represents and warrants to each Holder that:
(a) such
Guarantor is a
corporation duly organized, validly existing and in good standing under the
laws
of its jurisdiction of organization and has the corporate power and authority
to
own and operate its property, to lease the property it operates as lessee and
to
conduct the business in which it is currently engaged;
(b) such
Guarantor has
the corporate power and authority and the legal right to execute and deliver,
and to perform its obligations under, this Guaranty, and has taken all necessary
corporate action to authorize its execution, delivery and performance of this
Guaranty;
(c) this
Guaranty
constitutes a legal, valid and binding obligation of such Guarantor enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforcement of creditors’ rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(d) the
execution,
delivery and performance of this Guaranty will not violate any provision of
any
requirement of law or material contractual obligation of such Guarantor and
will
not result in or require the creation or imposition of any Lien on any of the
properties, revenues or assets of the Guarantor pursuant to the provisions
of
any material contractual obligation of such Guarantor or any requirement of
law;
(e) no
consent or
authorization of, filing with, or other act by or in respect of, any arbitrator
or governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Guaranty;
(f) no
litigation,
investigation or proceeding of or before any arbitrator or governmental
authority is pending or, to the knowledge of such Guarantor, threatened by
or
against such Guarantor or any of its properties or revenues (i) with
respect to this Guaranty or any of the transactions contemplated hereby or
(ii) which could reasonably be expected to have a material adverse effect
upon the business, operations or financial condition of such Guarantor and
its
Subsidiaries taken as a whole;
(g) the
execution,
delivery and performance of this Guaranty will not violate any provision of
any
order, judgment, writ, award or decree of any court, arbitrator or Governmental
Authority, domestic or foreign, or of the charter or by-laws of such Guarantor
or of any securities issued by such Guarantor; and
(h) after
giving effect
to the transactions contemplated herein, (i) the present fair salable value
of the assets of such Guarantor is in excess of the amount that will be required
to pay its probable liability on its existing debts as said debts become
absolute and matured, (ii) such Guarantor has received reasonably
equivalent value for executing and delivering this Guaranty, (iii) the
property remaining in the hands of such Guarantor is not an unreasonably small
capital, and (iv) such Guarantor is able to pay its debts as they
mature.
SECTION
10. Notices.
All notices under
the terms and provisions hereof shall be in writing, and shall be delivered
or
sent by telex or telecopy or mailed by first-class mail, postage prepaid,
addressed (a) if to the Company or any Holder at the address set forth in,
the Note Purchase Agreement or (b) if to a Guarantor, in care of the
Company at the Company’s address set forth in the Note Purchase Agreement, or in
each case at such other address as the Company, any Holder or such Guarantor
shall from time to time designate in writing to the other parties. Any notice
so
addressed shall be deemed to be given when actually received.
SECTION
11. Survival.
All warranties,
representations and covenants made by each Guarantor herein or in any
certificate or other instrument delivered by it or on its behalf hereunder
shall
be considered to have been relied upon by the Holders and shall survive the
execution and delivery of this Guaranty, regardless of any investigation made
by
any of the Holders. All statements in any such certificate or other instrument
shall constitute warranties and representations by such Guarantor
hereunder.
SECTION
12. Submission
to
Jurisdiction.
Each Guarantor
irrevocably submits to the jurisdiction of the courts of the State of Illinois
and of the courts of the United States of America having jurisdiction in the
State of Illinois for the purpose of any legal action or proceeding in any
such
court with respect to, or arising out of, this Guaranty, the Note Purchase
Agreement or the Notes, the Security Agreements, the Subsidiary Guaranty or
the
Notes. Each Guarantor consents to process being served in any suit, action
or
proceeding by mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to the address of such Guarantor specified
in
or designated pursuant to the Note Purchase Agreement. Each Guarantor agrees
that such service upon receipt (i) shall be deemed in every respect effective
service of process upon it in any such suit, action or proceeding and (ii)
shall, to the fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to such Obligor.
SECTION
13. Miscellaneous.
Any provision of
this Guaranty which is prohibited or unenforceable in any jurisdiction shall,
as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, each Guarantor hereby waives any provision of
law
that renders any provisions hereof prohibited or unenforceable in any respect.
The terms of this Guaranty shall be binding upon, and inure to the benefit
of,
each Guarantor and the Holders and their respective successors and assigns.
No
term or provision of this Guaranty may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by each Guarantor
and the Holders. The section and paragraph headings in this Guaranty and the
table of contents are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof, and all
references herein to numbered sections, unless otherwise indicated, are to
sections in this Guaranty. This Guaranty shall in all respects be governed
by,
and construed in accordance with, the laws of the State of Illinois, including
all matters of construction, validity and performance.
10
Exhibit
1(e)
IN
WITNESS WHEREOF,
each Guarantor has caused this Guaranty to be duly executed as of the day and
year first above written.
EVEREADY
BATTERY
COMPANY, INC.
By:
Name:
Title:
ENERGIZER
BATTERY
MANUFACTURING,
INC.
By:
Name:
Title:
ENERGIZER
BATTERY,
INC.
By:
Name:
Title:
ENERGIZER
INTERNATIONAL, INC.
By:
Name:
Title:
XXXXXX
MANUFACTURING, INC.
By:
Name:
Title:
10
Exhibit
1(e)
FORM
OF
JOINDER TO SUBSIDIARY GUARANTY
The
undersigned
(the “Guarantor”), joins in the Subsidiary Guaranty dated as of July 6, 2006
from the Guarantors named therein in favor of the Holders, as defined therein,
and agrees to be bound by all of the terms thereof and represents and warrants
to the Holders that:
(a) the
Guarantor is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has the requisite power and authority to own
and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged;
(b) the
Guarantor has
the requisite power and authority and the legal right to execute and deliver
this Joinder to Subsidiary Guaranty (“Joinder”) and to perform its obligations
hereunder and under the Subsidiary Guaranty and has taken all necessary action
to authorize its execution and delivery of this Joinder and its performance
of
the Subsidiary Guaranty;
(c) the
Subsidiary
Guaranty constitutes a legal, valid and binding obligation of the Guarantor
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is considered
in
a proceeding in equity or at law);
(d) the
execution,
delivery and performance of this Joinder will not violate any provision of
any
requirement of law or material contractual obligation of the Guarantor and
will
not result in or require the creation or imposition of any Lien on any of the
properties, revenues or assets of the Guarantor pursuant to the provisions
of
any material contractual obligation of such Guarantor or any requirement of
law;
(e) no
consent or
authorization of, filing with, or other act by or in respect of, any arbitrator
or governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Joinder;
(f) no
litigation,
investigation or proceeding of or before any arbitrator or governmental
authority is pending or, to the knowledge of the Guarantor, threatened by or
against the Guarantor or any of its properties or revenues (i) with respect
to this Joinder, the Subsidiary Guaranty or any of the transactions contemplated
hereby or thereby or (ii) that could reasonably be expected to have a
material adverse effect upon the business, operations or financial condition
of
the Guarantor and its subsidiaries taken as a whole;
(g) the
execution,
delivery and performance of this Joinder will not violate any provision of
any
order, judgment, writ, award or decree of any court, arbitrator or Governmental
Authority, domestic or foreign, or of the charter or by-laws of the Guarantor
or
of any securities issued by the Guarantor; and
(h) after
giving effect
to the transactions contemplated herein, (i) the present fair salable value
of the assets of the Guarantor is in excess of the amount that will be required
to pay its probable liability on its existing debts as said debts become
absolute and matured, (ii) the Guarantor has received reasonably
equivalent value for executing and delivering this Guaranty, (iii) the
property remaining in the hands of the Guarantor is not an unreasonably small
capital, and (iv) the Guarantor is able to pay its debts as they
mature.
Capitalized
Terms
used but not defined herein have the meanings ascribed in the Subsidiary
Guaranty.
IN
WITNESS WHEREOF,
the undersigned has caused this Joinder to Subsidiary Guaranty to be duly
executed as of __________, ____.
[Name
of
Guarantor]
By:
Name:
Title:
Exhibit
1(e)
