0
Xxxxx 00, 0000
Xxxxxxx Xxxxxx Company
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Chief Financial Officer
Energizer Holdings, Inc.
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Executive Vice President -
Finance and Control
Gentlemen:
Reference is hereby made to the 5-Year Credit Agreement dated as of Xxxxx
00, 0000 xxxxx Xxxxxxx Xxxxxx Company, a corporation organized under the laws
of the State of Missouri ("Xxxxxxx") as the initial borrower prior to the
assignment to and assumption by Energizer Holdings, Inc., a corporation
organized under the laws of the State of Missouri (the "Borrower"), the
financial institutions parties thereto as lenders, Bank One, NA, in its capacity
as administrative agent, Bank of America, N.A., in its capacity as syndication
agent, and Wachovia Bank, N.A., in its capacity as documentation agent (the
"5-Year Credit Agreement"). Capitalized terms used herein and not defined
herein shall have the meanings given to them in the 5-Year Credit Agreement.
In connection with the consummation of the Transactions, Xxxxxxx has
requested a term loan from Bank of America, N.A. (the "Lender") in the
aggregate principal amount of $175,000,000 (the "Term Loan") which would be made
in a single advance on or prior to March 31, 2000 and would mature on the date
which is the earliest of (a) if the Spin-Off and Debt Assumption have not
occurred prior thereto, April 4, 2000; (b) the date of receipt by the Borrower
or any of its Subsidiaries of proceeds from the initial funding under the
$175,000,000 senior notes of the Borrower issued in three series due April 1,
2003, April 1, 2005 and April 1, 2007, respectively (the "Senior Notes"); and
(c) April 10, 2000.
Amounts repaid by Xxxxxxx or the Borrower may not be reborrowed.
The Lender is pleased to agree to make such Term Loan to Xxxxxxx, to be
assigned to and assumed by the Borrower pursuant to the Debt Assumption
Agreement in the form of Exhibit "A" hereto (the "Debt Assumption Agreement"),
subject to the terms and conditions of this letter.
(a) The Term Loan will be evidenced and governed by the Lender's standard
form of master note (the "Note"), a copy of which is attached hereto as Exhibit
"B". The Term Loan or portions thereof ("Loans" under and as defined in the
Note) shall bear interest at a rate equal to the Lender's prime rate of interest
announced by the Lender from time to time minus 2.00%, changing when and as such
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prime rate changes, with interest payable on the Maturity Date, and on demand
thereafter.
(b) Interest and fees will be computed on the basis of actual days
elapsed on a 360-day year basis.
(c) Xxxxxxx will use the proceeds of the Term Loan for general
corporate purposes.
(d) Xxxxxxx and the Borrower will provide the Lender with each of the
following before the Term Loan is funded: (i) an appropriate corporate
resolution, (ii) an incumbency certificate, (iii) an opinion of counsel, (iv) an
officer's certificate from Xxxxxxx certifying that (A) each of the 5-Year Credit
Agreement and the 364-Day Credit Agreement has been executed by all parties
thereto (including Bank of America, N.A.) and all conditions to effectiveness
thereof have been met, (B) the letter agreement between Bank One, N.A. ("Bank
One") and Xxxxxxx providing for a term loan in an amount at least equal to
$60,000,000 by Bank One and all documents related thereto have been executed by
all parties thereto and all conditions to effectiveness thereof have been met,
and (C) there is at least $175,000,000 in aggregate borrowing capacity available
to Xxxxxxx under one or more committed credit facilities, and (v) Xxxxxxx and
the Borrower shall have executed the Debt Assumption Agreement.
(e) The Lender shall have no obligation to make the Term Loan hereunder
(and the Term Loan and all accrued and unpaid interest thereon, at the option of
the Lender, may be declared immediately due and payable without notice) if: (i)
there is any failure by Xxxxxxx or the Borrower to pay any principal, interest,
fees, or other obligations when due under this letter, the Note, or any other
agreement or arrangement with the Lender, (ii) there exists any default under
the Note, or any violation or failure to comply with any provision of this
letter or the Note, (iii) there occurs any material adverse change in the
condition or results of operations of the Borrower and its Subsidiaries, taken
as a whole, since the date of the quarterly financial statements most recently
delivered to the Lender prior to the date of this letter, (iv) any litigation is
pending or threatened against the Borrower or any Subsidiary which might have a
material adverse effect on the financial condition or results of operations of
the Borrower and its Subsidiaries, taken as a whole, or on the ability of
Xxxxxxx or the Borrower to consummate the Transactions; (v) there is a default
under any agreement governing indebtedness of the Borrower or any Subsidiary,
(vi) any petition is filed by or against Xxxxxxx, the Borrower or any Subsidiary
of the Borrower under the Federal Bankruptcy Code or similar state law, (vii)
Xxxxxxx, the Borrower or any Subsidiary of the Borrower becomes insolvent,
howsoever evidenced or (viii) other than as a result of the consummation of the
Spin-Off, Xxxxxxx shall cease to own, directly or indirectly, all of the
outstanding capital stock of the Borrower, (ix) prior to consummation of the
Spin-Off, there is less than $175,000,000 in aggregate borrowing capacity
available to Xxxxxxx under its committed credit facilities, (x) after
consummation of the Spin-Off, there is less than $175,000,000 in aggregate
borrowing capacity available under the 5-Year Credit Agreement and the 364-Day
Credit Agreement, or (xi) there shall have occurred an adverse change in the
market for private placement of senior debt or a disruption of, or an adverse
change in, financial, banking or capital market conditions, in each case as
determined by the Lender. "Subsidiary" means (i) any corporation of which more
than 50% of the outstanding securities having ordinary voting power is owned or
controlled, directly or indirectly, by the Borrower or by one or more of its
Subsidiaries, or (ii) any partnership, association, joint venture or similar
business organization of which more than 50% of the ownership interests having
ordinary voting power are so owned or controlled. The Lender may require a
certificate of compliance with these conditions from the Borrower's Chief
Financial Officer or Treasurer as a condition to making any loan hereunder.
(f) The Lender may make assignments and sell participations in the Term
Loan, and may disclose information pertaining to the Borrower to prospective
assignees and participants. Any such assignment may be made only with the
Borrower's consent (which consent will not unreasonably be withheld).
(g) This letter agreement shall be effective as of the date of this
letter when the Borrower has signed and returned to the Lender a copy of this
letter.
(h) This letter agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same agreement.
(i) THIS LETTER AND THE NOTE SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF TEXAS. BOTH PARTIES HERETO HEREBY WAIVE TRIAL BY JURY
IN THE EVENT THIS LETTER OR THE NOTE BECOMES THE SUBJECT OF A DISPUTE.
Very truly yours,
BANK OF AMERICA, N.A.
By: /s/Xxxxxxx X. Xxxxx
Title: Managing Director
Accepted and agreed:
XXXXXXX PURINA COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President and Chief Financial
Officer
ENERGIZER HOLDINGS, INC.
By:/s/ Xxxxxx X. Xxxxxx
Title: Executive Vice President, Finance and
Control
EXHIBIT "B"
MASTER NOTE
(FLOATING RATE)
$175,000,000.00 Date: March 30, 2000
FOR VALUE RECEIVED, XXXXXXX PURINA COMPANY ("Xxxxxxx") or, after consummation of
the "Debt Assumption" (as such term is defined in the 5-Year Credit Agreement
referenced in the Letter Agreement referred to below), ENERGIZER HOLDINGS, INC.
(the "Borrower") promises to pay to the order of BANK OF AMERICA, N.A. (the
"Bank"), in lawful money of the United States at the office of the Bank at 000
Xxxx Xxxxxx, Xxxxxx, Xxxxx, or as the Bank may otherwise direct, the lesser of
One Hundred and Seventy-Five Million and NO/100ths Dollars ($175,000,000.00) or
the aggregate outstanding unpaid principal amount of loans evidenced hereby
("Loans"), together with interest as provided below.
Any person authorized to borrow on behalf of Xxxxxxx (an "Authorized Person")
may request a Loan by telephone or telex. Xxxxxxx and the Borrower agree that
the Bank is authorized to honor requests which it believes, in good faith, to
emanate from an Authorized Person, whether in fact that be the case or not.
All Loans shall bear interest at a rate equal to the prime rate of interest
announced by the Bank from time to time minus 2.00%, changing when and as the
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prime rate changes. The Loans shall be payable on the "Maturity Date" (as such
term is defined in the Letter Agreement defined below). Interest on the Loans
shall be payable on the Maturity Date and on demand thereafter. Any Loan which
is not paid on the Maturity Date (or any earlier accelerated maturity date or
date when due) shall bear interest at a rate equal to the prime rate of interest
announced by the Bank from time to time, changing when and as the corporate base
rate changes.
Each payment of principal or interest hereunder shall be made in immediately
available funds in United States Dollars. If any payment shall become due and
payable on a Saturday, Sunday or legal holiday under the laws of Texas, such
payment shall be made on the next succeeding business day in Texas and any such
extended time of the payment of principal or interest shall be included in
computing interest. All interest hereunder shall be computed for the actual
number of days elapsed on a 360-day year basis. Xxxxxxx and the Borrower hereby
authorize the Bank to deposit the proceeds of Loans to Xxxxxxx'x account at the
Bank or such other account as may be designated by Xxxxxxx. The Borrower hereby
authorizes the Bank to charge payments of principal and interest against, the
Borrower's deposit account with the Bank.
The Loans may be prepaid by Xxxxxxx or the Borrower, without premium or penalty.
Amounts prepaid or repaid may not be reborrowed.
Xxxxxxx and the Borrower hereby authorize the Bank to record Loans, interest
rates, repayments, and payment dates on the schedule attached to this Note or
otherwise in accordance with the Bank's usual practice. The obligation of
Xxxxxxx and, after the Debt Assumption, the Borrower to repay each Loan made
hereunder shall be absolute and unconditional notwithstanding any failure of the
Bank to enter such amounts on such schedule or to receive written confirmation
of the transaction from the Xxxxxxx or the Borrower. If the Bank requests a
written confirmation of a requested Loan, Xxxxxxx or the Borrower will confirm
the terms of each Loan by mailing a confirmation letter to the Bank signed by
any Authorized Person. If the Bank elects to confirm the terms of a Loan to the
Borrower, the Borrower will notify the Bank in writing within 10 days after the
Borrower's receipt of such confirmation if it believes such confirmation to be
inaccurate, and the Borrower hereby waives any right to contest the accuracy of
such confirmation after such 10-day period. In the event of disagreement as to
the terms of a transaction, the Bank's records shall govern, absent manifest
error.
The Bank may elect to sell participations in or assign its rights under Loans.
Xxxxxxx and the Borrower agree that if it fails to pay any Loan when due, any
purchaser of an interest in such Loan shall be entitled to seek enforcement of
this note if the purchaser is permitted to do so pursuant to the terms of the
participation agreement between the Bank and such purchaser.
The Borrower hereby authorizes the Bank and any other holder of an interest in
this Note (a "Holder") to disclose confidential information relating to the
financial condition or operations of the Borrower (i) to any affiliate of the
Bank or any Holder, (ii) to any purchaser or prospective purchaser of an
interest in any Loan, (iii) to legal counsel, accountants, and other
professional advisors to the Bank or any Holder, (iv) to regulatory officials,
(v) as requested or required by law, regulation, or legal process or (vi) in
connection with any legal proceeding to which the Bank or any other holder is a
party.
This Note is the Note issued pursuant to, and is entitled to the benefits of,
the letter agreement between Xxxxxxx and the Bank dated of even date herewith
(which, as it may be amended or modified and in effect from time to time, is
herein called the "Letter Agreement"), to which Letter Agreement reference is
hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which the maturity of this Note may be
accelerated. Nothing in this Note shall constitute a commitment to make loans
to Xxxxxxx or the Borrower.
If any amount payable hereunder is not paid when due or upon demand, as
applicable, then any indebtedness from the Bank to Xxxxxxx, if the Debt
Assumption has not occurred, or the Borrower may be offset and applied toward
the payment of all unpaid principal, interest and fees payable hereunder,
whether or not such amounts, or any part thereof, shall then be due. Xxxxxxx
and the Borrower expressly waive any presentment, demand, protest or notice in
connection with this note now, or hereafter, required by applicable law and
agree to pay all costs and expenses of collection.
THIS NOTE SHALL BE GOVERNED BY THE INTERNAL LAW (AND NOT THE LAW OF CONFLICTS)
OF THE STATE OF TEXAS, GIVING EFFECT, HOWEVER, TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS. XXXXXXX, THE BORROWER AND THE BANK EACH HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS NOTE OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.
XXXXXXX PURINA COMPANY
By:
Title:
Assigned to and Assumed pursuant
to the terms of that certain Debt
Assumption Agreement Dated as of
March 30, 2000 among Xxxxxxx,
The Borrower and the Bank
ENERGIZER HOLDINGS, INC.
By:
Title:
To be executed upon the effectiveness of the Debt Assumption Agreement.
