ENERGIZER HOLDINGS, INC. Senior Notes $50,000,000 4.90% Senior Notes, Series 2005-A, due September 29, 2008 $50,000,000 4.98% Senior Notes, Series 2005-B, due September 29, 2010 $75,000,000 5.09% Senior Notes, Series 2005-C, due September 29, 2012...
EXECUTION
COPY
ENERGIZER
HOLDINGS, INC.
$325,000,000
Senior
Notes
$50,000,000
4.90% Senior Notes, Series 2005-A, due September 29, 2008
$50,000,000
4.98% Senior Notes, Series 2005-B, due September 29, 2010
$75,000,000
5.09% Senior Notes, Series 2005-C, due September 29, 2012
$150,000,000
5.23% Senior Notes, Series 2005-D, due September 29, 2015
_________
_________
Dated
as
of August 1, 2005
Series
2005-A PPN: 29266R G*3
Series
2005-B PPN: 29266R G@ 1
Series
2005-C PPN: 29266R G# 9
Series
2005-D PPN: 29266R H* 2
TABLE
OF
CONTENTS
SectionPage
|
1.1.
|
The
Notes.
|
|
1.2.
|
Additional
Interest.
|
0.XXXX
AND
PURCHASE OF NOTES.
3.CLOSING.
|
4.2.
|
Performance;
No Default.
|
|
4.3.
|
Compliance
Certificates.
|
|
4.4.
|
|
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 |
.
|
5.1.
|
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. |
|
6.2.
|
Source
of Funds.
|
|
7.1.
|
Financial
and Business Information.
|
|
7.2.
|
Officer’s
Certificate.
|
|
7.3.
|
Inspection.
|
|
8.2.
|
Optional
Prepayments with Make-Whole Amount.
|
|
8.4.
|
Maturity;
Surrender, etc.
|
|
8.5.
|
|
8.6.
|
Make-Whole
Amount.
|
|
9.1.
|
Compliance
with Law.
|
|
9.2.
|
Insurance.
|
|
9.3.
|
Maintenance
of Properties.
|
|
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. |
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.
| 23.1. | 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 2005-A Note
EXHIBIT
1
(b) -- Form
of
Series 2005-B Note
EXHIBIT
1
(c) -- Form
of
Series 2005-C Note
EXHIBIT
1
(d) -- Form
of
Series 2005-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
ENERGIZER
HOLDINGS, INC.
000
Xxxxxxxxx Xxxxxxxxxx Xxxxx
St.
Louis, MO 63141
(000)
000-0000
Fax:
(000) 000-0000
$325,000,000
Senior
Notes
$50,000,000
4.90% Senior Notes, Series 2005-A, due September 29, 2008
$50,000,000
4.98% Senior Notes, Series 2005-B, due September 29, 2010
$75,000,000
5.09% Senior Notes, Series 2005-C, due September 29, 2012
$150,000,000
5.23% Senior Notes, Series 2005-D, due September 29, 2015
Dated
as
of August 1, 2005
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:
The
Company has authorized the issue and sale of $325,000,000 aggregate principal
amount of its Senior Notes consisting of (i) $50,000,000 aggregate principal
amount of its 4.90% Senior Notes, Series 2005-A, due September 29, 2008 (the
“Series 2005-A Notes”); (ii) $50,000,000 aggregate principal amount of its
4.98% Senior Notes, Series 2005-B, due September 29, 2010 (the “Series 2005-B
Notes”); (iii) $75,000,000 aggregate principal amount of its 5.09% Senior Notes,
Series 2005-C, due September 29, 2012 (the “Series 2005-C Notes”); and (iv)
$150,000,000 aggregate principal amount of its 5.23% Senior Notes, Series
2005-D, due September 29, 2015 (the “Series 2005-D Notes”) and, together with
the Series 2005-A Notes, the Series 2005-B Notes and the Series 2005-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”).
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.
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.
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 September 29, 2005 or on such other Business Day
thereafter on or prior to October 15, 2005 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. 000000000. 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.
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:
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.
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.
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.
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.
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.
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, without limitation, 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.
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.
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.
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.
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.
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.
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.
The
Company represents and warrants to you that:
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.
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).
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
August 2005 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, 2004, 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.
Organization
and Ownership of Shares of Subsidiaries.
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.
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).
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.
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).
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.
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
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.
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, 1995.
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.
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.
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.
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.
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.
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.
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.
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 18 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.
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.
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 June 30,
2005
(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.
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 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.
Neither
the Company nor any Restricted Subsidiary is subject to regulation under the
Investment Company Act of 1940, as amended, the Public Utility Holding Company
Act of 1935, as amended, the Interstate Commerce Act, as amended by the ICC
Termination Act, as amended, or the Federal Power Act, as amended.
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.
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,
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;
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
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.
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.
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:
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
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
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
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
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
the
Source is a governmental plan; or
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
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.
The
Company will deliver to each holder of Notes that is an Institutional
Investor:
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,
a
consolidated balance sheet of the Company and its Subsidiaries as at the end
of
such quarter, and
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
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);
Annual
Statements
--
within 105 days after the end of each fiscal year of the Company, duplicate
copies of,
a
consolidated balance sheet of the Company and its Subsidiaries, as at the end
of
such year, and
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);
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;
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;
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;
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 ERISA Affiliate proposes to
take
with respect thereto:
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
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
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
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.
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:
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
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.
The
Company will permit the representatives of each holder of Notes that is an
Institutional Investor:
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
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.
No
regularly scheduled prepayments are due on the Notes prior to their stated
maturity.
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.
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.
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.
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.
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 the “PX-1 Screen”
on the Bloomberg Financial Market Service (or such other display as may replace
the PX-1 Screen on Bloomberg Financial Market Service) for actively traded
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, 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 the Remaining Average Life and (2) the actively traded
U.S.
Treasury security with the maturity closest to and less than the Remaining
Average Life.
“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.
The
Company covenants that so long as any of the Notes are outstanding:
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.
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.
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.
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.
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.
The
Company covenants that so long as any of the Notes are outstanding:
The
Company will not permit:
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
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.
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:
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;
Liens
for
taxes, assessments or governmental charges not then due and delinquent or the
nonpayment of which is permitted by Section 9.4;
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;
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;
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;
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;
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 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;
Liens
incurred in connection with Asset Securitization Transactions;
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
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.
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.
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:
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:
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
immediately
before and after giving effect to such transaction, no Default or Event of
Default shall exist; and
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.
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.
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.
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.
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.
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.
An
“Event
of Default” shall exist if any of the following conditions or events shall occur
and be continuing:
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
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
the
Company defaults in the performance of or compliance with any term contained
in
or Sections 10.1 through 10.9; or
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
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
(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
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
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
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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 $500,000, 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 $500,000.
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.
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
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
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.
PAYMENTS
ON NOTES.
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.
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.
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).
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.
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.
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.
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.
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 or 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.
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.
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.
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.
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:
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,
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
if
to the
Company, 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.
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.
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.
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.
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.
MISCELLANEOUS.
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.
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.
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.
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.
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.
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:
SCHEDULE
B
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
a
transaction in which the Company or any Restricted Subsidiary sells receivables
or other assets to a special purpose entity satisfying the following criteria:
(i) such sale is pursuant to an agreement evidencing the intent of the parties
that for accounting and all other purposes, such sale is to be treated as a
sale
by the Company and a purchase by such special purpose entity (and not as a
lending transaction); (ii) the purchaser receives an opinion of nationally
recognized counsel to the effect that, under, applicable bankruptcy, insolvency
and similar laws (subject to assumptions and qualifications customary for
opinions of such type), such transaction will be treated as a true sale and
not
as a lending transaction and that the assets of such purchasing special purpose
entity will not be consolidated with the assets of the selling entity, the
Company or any Affiliate of the Company; (iii) the parties to such transaction
shall treat such transaction as a sale under FAS 125 and for all other
accounting purposes; (iv) the purchase price shall be an amount that represents
the reasonably equivalent value of the receivables or other assets subject
thereto (determined as of the date of such sale); and (v) such sale shall be
without recourse to the Company or such Restricted Subsidiary, 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 as of the date of such sale and not as
continuing representations and warranties, and any other indicia of recourse
(in
no event relating to collectibility or ultimate payment of receivables)
substantially comparable to those permitted in securitization transactions
generally and consistent with the opinion referred to in clause
(ii).
“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.
“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.
“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
the government of the United States of America or any state or other political
subdivision thereof, or 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 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:
to
purchase such indebtedness or obligation or any property constituting security
therefor;
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;
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
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,
its
liabilities for borrowed money;
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);
all
liabilities appearing on its balance sheet in accordance with GAAP in respect
of
Capital Leases; and
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);
any
Guaranty of such Person with respect to liabilities of a type described in
any
of clauses (a) through (d) hereof.
“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:
property
or assets to be used or consumed in the ordinary course of
business;
current
assets arising from the sale of goods or services in the ordinary course of
business;
Investments
in Restricted Subsidiaries or in any Person which, as a result thereof, becomes
a Restricted Subsidiary;
Investments
existing as of the date of this Agreement that are listed in the attached
Schedule B-1;
Investments
in treasury stock;
Investments
in:
obligations,
maturing within one year from the date of acquisition, of or fully guaranteed
by
the United States of America or an agency thereof;
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;
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;
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;
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
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
2005-A Notes”is
defined in Section 1.1.
“Series
2005-B Notes”is
defined in Section 1.1.
“Series
2005-C Notes”is
defined in Section 1.1.
“Series
2005-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.