DEBT ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT
THIS DEBT ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT ("Agreement") is
made as of April 1, 2000, by and among XXXXXXX PURINA COMPANY, a Missouri
corporation ("Xxxxxxx"), ENERGIZER HOLDINGS, INC., a Missouri corporation
("Energizer") and BANK ONE, NA, individually and in its capacity as agent for
the "Lenders" (as defined below).
W I T N E S S E T H:
WHEREAS, Xxxxxxx is the borrower under that certain 5-Year Revolving Credit
Agreement dated as of March 30, 2000 by and among Xxxxxxx, the financial
institutions from time to time parties thereto as Lenders (the "5-Year
Lenders"), Bank One, N.A., as the Administrative Agent (the "Administrative
Agent"), Bank of America, N.A., as "Syndication Agent", and Wachovia Bank, N.A.,
as "Documentation Agent" (collectively, the "Agents") (such 5-Year Credit
Agreement, as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "5-Year Credit Agreement").
WHEREAS, Xxxxxxx is the borrower under that certain 364-Day Credit Agreement
dated as of March 30, 2000 by and among Xxxxxxx, the financial institutions
from time to time parties thereto as Lenders (the "364-Day Lenders"), the
Administrative Agent, the Syndication Agent and the Documentation Agent (such
364-Day Credit Agreement, as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "364-Day Credit Agreement"; together
with the 5-Year Credit Agreement, the "Syndicated Agreements").
WHEREAS, Xxxxxxx is the borrower under that certain letter agreement dated as of
March 30, 2000 by and between Xxxxxxx and Bank One, NA (the "Bridge Lender")
(such letter agreement, as the same may be amended, restated supplemented or
otherwise modified from time to time, the "Bridge Agreement"; together with the
Syndicated Agreements, the "Credit Agreements").
WHEREAS, Energizer is a wholly owned subsidiary of Xxxxxxx.
WHEREAS, effective April 1, 2000, Xxxxxxx will distribute all of the shares of
Energizer's capital stock to Xxxxxxx'x shareholders, following which all of
Energizer's shares will be held by Xxxxxxx'x shareholders (the "Spin-Off
Transaction").
WHEREAS, in connection with the consummation of the Spin-Off Transaction,
Xxxxxxx desires to assign to Energizer and Energizer desires to assume all of
the indebtedness, obligations and liabilities of Xxxxxxx under the Credit
Agreements.
WHEREAS, the 5-Year Lenders, the 364-Day Lenders and the Bridge Lender
(collectively, the "Lenders") have consented to the assignment by Xxxxxxx to
Energizer under and subject to the terms and conditions contained in this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto Xxxxxxx, Energizer and
Bank One, NA, on behalf of the itself, the Agents and the Lenders hereby agree
as follows:
1. Assignment of Rights. As of the "Effective Date" (as defined in Section 8
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below), Xxxxxxx hereby assigns all of its rights, duties and obligations under
the Credit Agreements to Energizer, including, without limitation, the right to
obtain Loans and Letters of Credit under the Syndicated Agreements, all on the
terms and subject to the conditions set forth in the Credit Agreements. Each of
the parties to this Agreement acknowledges and agrees that from and after the
Effective Date, Xxxxxxx shall cease to have any rights under the Credit
Agreements as the "Borrower" thereunder and shall cease to be a party to any of
the Credit Agreements or the other documents, instruments and agreements
executed in connection therewith. From and after the Effective Date, all
references in the Credit Agreements to the "Borrower" shall mean and be a
reference to Energizer.
2. Assumption of Obligations. As of the Effective Date, Energizer hereby
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assumes, as its direct and primary obligation, all rights, duties and
obligations of Xxxxxxx under the Credit Agreements, including, without
limitation the payment and performance obligations and all other liabilities
and obligations of Xxxxxxx under the Credit Agreements consisting, among other
things, of the obligation to repay all loans made to Xxxxxxx prior to the
Effective Date under the Credit Agreements, to pay interest and fees with
respect to all such liabilities and obligations, and indemnification obligations
related thereto (collectively the "Assumed Obligations") and hereby agrees to
make all payments required under the Credit Agreements as in effect from time to
time and to discharge the Assumed Obligations as they become due or are declared
due. Each of the parties hereto acknowledges that from and after the Effective
Date, Xxxxxxx has assigned to Energizer all of the rights of Xxxxxxx under the
Credit Agreements, including, without limitation, the right to obtain Loans and
Letters of Credit and other financial accommodations, all on the terms and
subject to the conditions set forth in the Credit Agreements. From and after
the Effective Date, Energizer agrees to perform and discharge all of the Assumed
Obligations, including, without limitation, performance and observance of all of
the covenants and conditions of the Credit Agreements to be performed or
observed by Xxxxxxx thereunder or in connection therewith, and to be bound in
all respects by the terms of the Credit Agreements as they relate to Xxxxxxx as
if Energizer were an original signatory thereto.
3. Release from Duties. In consideration of the assumption by Energizer, from
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and after the Effective Date, Bank One, NA on behalf of itself, the Agents and
the other Lenders confirms that Xxxxxxx shall be discharged from all of its
duties and obligations as Borrower under the Credit Agreements and the other
documents, instruments and agreements entered into in connection therewith and
that from and after the Effective Date, Xxxxxxx shall have no further
obligations or liabilities thereunder to the Lenders or the Agents.
4. Xxxxxxx Representations and Warranties. To induce Energizer and Bank One,
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NA to consent to Energizer's assumption of the Assumed Obligations and the
release of Xxxxxxx as set forth above, Xxxxxxx hereby represents and warrants to
Bank One, NA, the Lenders and the Agents that, as of the date hereof and as of
the Effective Date:
(a) Xxxxxxx (i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization; (ii) is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have or is reasonably likely to have a material adverse
effect on the business, condition (financial or otherwise), operations,
performance, properties or prospects of Xxxxxxx and its subsidiaries, taken as a
whole, and (iii) has all requisite corporate power and authority to enter into
the transactions contemplated by this Agreement.
(b) Xxxxxxx has the requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(c) Xxxxxxx has taken all necessary corporate action to authorize the
execution and delivery of, and the performance of its obligations under, this
Agreement.
(d) This Agreement has been duly executed and delivered and constitutes the
legal, valid and binding obligation of Xxxxxxx enforceable against Xxxxxxx in
accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles, including concepts of
reasonableness, materiality, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or other equitable
remedies (whether enforcement is sought in equity or at law)).
5. Energizer Representations and Warranties. To induce Bank One, NA to
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enter into this Agreement and to induce the Lenders and Agents to consent to
Energizer's assumption of the Assumed Obligations and to hereafter make and
extend Loans and other financial accommodations to or for the account of
Energizer under the Credit Agreements, Energizer hereby represents and warrants
to the Lenders and the Agents that, as of the date hereof and as of the
Effective Date:
a) Energizer (i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization; (ii) is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have or is reasonably likely to have a Material Adverse
Effect; and (iii) has all requisite corporate power and authority to own,
operate and encumber its property and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement.
(b) Energizer has the equisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement, and to perform its
obligations under the Credit Agreements, and all other agreements, instruments
and documents executed and delivered or to be executed and delivered by it
pursuant hereto or in connection herewith.
(c) Energizer has taken all necessary corporate action to authorize the
execution and delivery of, and the performance of its obligations under, this
Agreement and all other agreements, instruments and documents executed and
delivered by Energizer pursuant hereto or in connection herewith.
(d) This Agreement and all other agreements, instruments or documents executed
and delivered by Energizer pursuant hereto or in connection herewith have been
duly executed and delivered and constitute the legal, valid and binding
obligations of Energizer enforceable against Energizer in accordance with their
terms (except as enforceability may be limited by bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles, including concepts of reasonableness, materiality,
good faith and fair dealing and the possible unavailability of specific
performance, injunctive relief or other equitable remedies (whether enforcement
is sought in equity or at law)).
(e) Set forth on Exhibit A hereto is a certified calculation of the Net Worth
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Condition as of the date hereof and as of the Effective Date after giving effect
to the Spin-Off Transactions.
7. Further Assurances. Energizer hereby agrees to take such further
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action as may be reasonably requested by Bank One, NA, the Agents or any of the
Lenders to effect the provisions of this Agreement, including, without
limitation, executing a supplement to each of the Credit Agreements and the
documents, instruments and agreements executed in connection therewith pursuant
to which Energizer confirms that it has become a party to such Credit Agreements
and other agreements as the "Borrower" thereunder as though it was an original
party thereto.
8. Effectiveness of this Agreement. Notwithstanding anything herein, in the
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Credit Agreements or any of the other documents, instruments and agreements
executed in connection therewith to the contrary, the assignment, assumption and
release set forth in Sections 1, 2 and 3 above shall not be effective until each
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of the following have been satisfied:
(a) This Agreement shall have been executed and delivered by each of the
parties hereto;
(b) The Spin-off Transactions shall have occurred in accordance with the
terms of the Form-10;
(c) Bank One, NA has received a certificate from Energizer's chief financial
officer demonstrating that the Net Worth Condition has been satisfied as of the
effectiveness of and after taking into account all of the Spin-off Transactions
and as of the date of delivery thereof; and
(d) Bank One, NA has received a certificate from Energizer's chief financial
officer that no Default or Unmatured Default has occurred and is continuing
under the Credit Agreements and all conditions to borrowing contained therein
have been and can currently be met by Energizer.
The date upon which all of the conditions to effectiveness shall have been met
is sometimes referred to herein as the "Effective Date."
9. Section Headings. The Section headings contained in this Agreement are
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for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10. CHOICE OF LAW. BANK ONE, NA ACCEPTS THIS AGREEMENT, ON BEHALF OF
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ITSELF, THE AGENTS AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN XXXXXXX, ENERGIZER, BANK ONE, NA OR
ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO
THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
11. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
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(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
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THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. XXXXXXX AND ENERGIZER AGREE THAT BANK ONE, NA, ANY
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AGENT OR ANY LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST XXXXXXX OR ENERGIZER
OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN
PERSONAL JURISDICTION OVER XXXXXXX OR ENERGIZER OR (2) IN ORDER TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF XXXXXXX
AND ENERGIZER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY SECURITY FOR THE OBLIGATIONS
OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON BUT SHALL
ONLY BE PERMITTED TO BRING ANY SUCH PERMISSIVE COUNTERCLAIM IN A PROCEEDING
BROUGHT PURSUANT TO CLAUSE (A). EACH OF XXXXXXX AND ENERGIZER WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. EACH OF XXXXXXX AND ENERGIZER IRREVOCABLY WAIVES ANY OBJECTION
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(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
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RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
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HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
SECTION 11 WITH ITS COUNSEL.
12. Severability. Any provision of this Agreement that is held to be
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inoperative, unenforceable, or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation, enforceability, or
validity of that provision in any other jurisdiction, and to this end the
provisions of this Agreement are declared to be severable.
13. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which shall
together constitute one and the same agreement.
14. Definitions. Capitalized terms not otherwise defined herein shall have
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the meanings ascribed to them in each of the Syndicated Agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officer as of the day
and year first set for above.
XXXXXXX PURINA COMPANY
By:/s/Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
ENERGIZER HOLDINGS, INC.
By:/s/ Xxxxxx X.Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title:Executive Vice President - Finance and
Control
BANK ONE, N.A.,
Individually and on behalf of the Agents
and the Lenders
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title:Vice President
