EXECUTION COPY
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of Xxxxx 00, 0000
xxxxx
XXXXXXX XXXXXX COMPANY
as the initial Borrower
prior to the assignment to
and assumption by
ENERGIZER HOLDINGS, INC.
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT
AND
WACHOVIA BANK, N.A.,
AS DOCUMENTATION AGENT
BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and Sole Bookrunner
SIDLEY & AUSTIN
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
5-YEAR REVOLVING CREDIT AGREEMENT
This 5-Year Revolving Credit Agreement dated as of March 30, 2000 is
entered into among XXXXXXX PURINA COMPANY, a Missouri corporation, the
institutions from time to time parties hereto as Lenders, whether by execution
of this Agreement or an Assignment Agreement pursuant to Section 13.3, and BANK
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ONE, NA, having its principal office in Chicago, Illinois, in its capacity as
Administrative Agent, BANK OF AMERICA, N.A., as Syndication Agent, and WACHOVIA
BANK, N.A., as Documentation Agent. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
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1.1 Certain Defined Terms. In addition to the terms defined above, the
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following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACCOUNTING CHANGE" is defined in Section 10.9 hereof.
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"ACQUISITION" means any transaction, or any series of related transactions,
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consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage of voting power) of the outstanding
equity interests of another Person.
"ADJUSTMENT DATE" means each date on which the opening pro forma balance sheet
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of Energizer and its consolidated Subsidiaries, after giving effect to the
Spin-Off Transactions, is adjusted, which adjustments shall occur simultaneously
with the adjustments made pursuant to the Reorganization Agreement to verify the
calculation of the "Indebtedness" and "Cash Holdings" of Energizer and its
Affiliates thereunder.
"ADMINISTRATIVE AGENT" means Bank One in its capacity as contractual
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representative for itself and the Lenders pursuant to Article XI hereof and any
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successor Administrative Agent appointed pursuant to Article XI hereof.
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"ADVANCE" means a borrowing hereunder consisting of the aggregate amount of the
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several Loans made by the Lenders to the Borrower of the same Type and, in the
case of Eurodollar Rate Advances, for the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.19 hereof.
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"AFFILIATE" of any Person means any other Person directly or indirectly
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controlling, controlled by or under common control with such Person. A Person
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shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the Revolving Loan
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Commitments of all the Lenders, as may be reduced from time to time pursuant to
the terms hereof. The initial Aggregate Revolving Loan Commitment is Two
Hundred Twenty-Five Million and 00/100 Dollars ($225,000,000.00).
"AGREEMENT" means this 5-Year Revolving Credit Agreement, as it may be amended,
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restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting principles
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as in effect in the United States from time to time, applied in a manner
consistent with that used in preparing the financial statements of Energizer
referred to in Section 6.7 hereof; provided, however, except as provided in
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Section 10.9, that with respect to the calculation of financial ratios and other
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financial tests required by this Agreement, "Agreement Accounting Principles"
means generally accepted accounting principles as in effect in the United States
as of the date of this Agreement, applied in a manner consistent with that used
in preparing the financial statements of Energizer referred to in Section 6.7
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hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of interest per
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annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
(a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5%) per annum.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of determination, the
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rate per annum then applicable in the determination of the amount payable under
Section 2.14(C)(i) hereof determined in accordance with the provisions of
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Section 2.14(D)(ii) hereof.
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"APPLICABLE MARGIN" means, as at any date of determination, the rate per annum
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then applicable to Advances of any Type at such time, determined in accordance
with the provisions of Section 2.14(D)(ii) hereof.
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"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination, the rate
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per annum then applicable in the determination of the amount payable under
Section 3.8(i) hereof determined in accordance with the provisions of Section
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2.14(D)(ii) hereof.
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"ARRANGER" means Banc One Capital Markets, Inc., in its capacity as the lead
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arranger and sole bookrunner for the loan transaction evidenced by this
Agreement.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement entered into
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in connection with an assignment by a Lender pursuant to Section 13.3 hereof in
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substantially the form of Exhibit D.
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"ASSET SALE" means, with respect to any Person, the sale, lease, conveyance,
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disposition or other transfer by such Person of any of its assets (including by
way of a sale-leaseback transaction, and including the sale or other transfer of
any of the Equity Interests of any Subsidiary of such Person) other than (i) the
sale of Inventory in the ordinary course of business and (ii) the sale or other
disposition of any obsolete manufacturing Equipment disposed of in the ordinary
course of business.
"AUTHORIZED OFFICER" means any of the President, any Vice President (including
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any Executive Vice President) or the Treasurer of the Borrower, acting singly.
"BANK BOOK" is defined in Section 6.7(A) hereof.
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"BANK ONE" means Bank One, NA, having its principal office in Chicago, Illinois,
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in its individual capacity, and its successors.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35) of ERISA
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(other than a Multiemployer Plan or Foreign Pension Plan) in respect of which
Energizer or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"BORROWER" means (i) for the period from the Closing Date until the consummation
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of the Debt Assumption, Xxxxxxx and (ii) from and after the consummation of the
Debt Assumption, Energizer, in each case, together with its successors and
assigns, including a debtor-in-possession on behalf of the Borrower.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is made
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hereunder.
"BORROWING/ELECTION NOTICE" is defined in Section 2.7 hereof.
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"BRIDGE FACILITIES" means any temporary bridge financing to be provided in favor
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of Xxxxxxx, all or a portion of which may be assumed by Energizer in connection
with the Spin-Off, which shall be refinanced by Energizer shortly after the
Spin-Off Date with the Receivables Purchase Facility and/or the Senior Notes
and/or cash on hand.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
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selection of Loans bearing interest at the Eurodollar Rate, a day (other than a
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Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and on which dealings in Dollars are carried on in the London interbank market
and (ii) for all other purposes a day (other than a Saturday or Sunday) on which
banks are open for business in Chicago, Illinois.
"CAPITAL STOCK" means (i) in the case of a corporation, capital stock, (ii) in
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the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership, partnership interests (whether
general or limited) and (iv) any other interest or participation that confers on
a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such Person as
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lessee which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the obligations
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of such Person under Capitalized Leases which would be capitalized on a balance
sheet of such Person prepared in accordance with Agreement Accounting
Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
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unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies (fully protected against
currency fluctuations for any such deposits with a term of more than ninety (90)
days); (iii) shares of money market, mutual or similar funds having assets in
excess of $100,000,000 and at least 95% of the investments of which are limited
to investment grade securities (i.e., securities rated at least Baa by Xxxxx'x
Investors Service, Inc. or at least BBB by Standard & Poor's Ratings Group); and
(iv) commercial paper of United States and foreign banks and bank holding
companies and their subsidiaries and United States and foreign finance,
commercial industrial or utility companies which, at the time of acquisition,
are rated A-1 (or better) by Standard & Poor's Ratings Group or P-1 by Xxxxx'x
Investors Service, Inc.; provided that the maturities of such Cash Equivalents
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described in the foregoing clauses (i) through (iv) shall not exceed 365 days;
(v) repurchase obligations of any commercial bank organized under the laws of
the United States, any state thereof, the District of Columbia, any foreign
bank, or its branches or agencies having a term not more than thirty (30) days,
with respect to securities issued or fully guaranteed or insured by the United
States government; (vi) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth,
territory, political subdivision, taxing authority or by any foreign government,
the securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least
BBB by Standard & Poor's Ratings Group or at least Baa by Xxxxx'x Investors
Service, Inc.; (vii) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any commercial
bank organized under the laws of the United States, any state thereof or the
District of Columbia (which commercial bank shall have a short-term debt rating
of A-1 (or better) by Standard & Poor's Ratings Group or P-1 by Xxxxx'x
Investors Service, Inc.), or by any foreign bank (which foreign bank shall have
a rating of B or better from Thomson BankWatch Global Issuer Rating or, if not
rated by Thomson BankWatch Global Issuer Rating, which foreign bank shall be an
institution acceptable to the Administrative Agent), or its branches or
agencies; or (viii) shares of money market mutual or similar funds at least 95%
of the assets of which are invested in the types of investments satisfying the
requirements of clauses (i) through (vii) of this definition.
"CHANGE" is defined in Section 4.2 hereof.
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"CHANGE OF CONTROL" means an event or series of events by which:
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(i) any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly
or indirectly, of thirty percent (30%) or more of the voting power of the then
outstanding Capital Stock of Energizer entitled to vote generally in the
election of the directors of Energizer (other than Xxxxxxx at any time prior to
the consummation of the Spin-Off);
(ii) during any period of 12 consecutive calendar months, the board of
directors of Energizer shall cease to have as a majority of its members
individuals who either:
(a) were directors of Energizer on the first day of such period,
(b) were elected or nominated for election to the board of directors of
Energizer at the recommendation of or other approval by at least a majority of
the directors then still in office at the time of such election or nomination
who were directors of Energizer on the first day of such period, or whose
election or nomination for election was so approved, or
(c) were directors of Energizer on the first Business Day following the
Spin-Off Date;
(iii) other than as a result of a transaction not prohibited under the terms
of this Agreement, Energizer (a) shall cease to own, of record and
beneficially, with sole voting and dispositive power, 100% of the outstanding
shares of Capital Stock of each of the Subsidiary Guarantors or (b) shall cease
to have the power, directly or indirectly, to elect all of the members of the
board of directors of each of the Subsidiary Guarantors; or
(iv) Energizer consolidates with or merges into another corporation or
conveys, transfers or leases all or substantially all of its property to any
Person, or any corporation consolidates with or merges into Energizer, in either
event pursuant to a transaction in which the outstanding Capital Stock of
Energizer is reclassified or changed into or exchanged for cash, securities or
other property.
"CLOSING DATE" means the date of this Agreement.
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"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
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otherwise modified from time to time.
"COMMISSION" means the Securities and Exchange Commission of the United States
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of America and any Person succeeding to the functions thereof.
"CONSOLIDATED ASSETS" means the total assets of Energizer and its Subsidiaries
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on a consolidated basis.
"CONSOLIDATED NET WORTH" means, as of any date of determination, the
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consolidated total stockholders' equity (including capital stock, additional
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paid-in capital and retained earnings) of Energizer and its consolidated
Subsidiaries determined in accordance with Agreement Accounting Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic substance,
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hazardous waste, special waste, petroleum or petroleum-derived substance or
waste, asbestos or polychlorinated biphenyls ("PCBS"), and includes but is not
limited to these terms as defined in Environmental, Health or Safety
Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any Contractual
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Obligation, contingent or otherwise, of that Person with respect to any
Indebtedness of another or other obligation or liability of another, including,
without limitation, any such Indebtedness, obligation or liability of another
directly or indirectly guaranteed, endorsed (otherwise than for collection or
deposit in the ordinary course of business), co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including Contractual Obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase, or otherwise
acquire such Indebtedness, obligation or liability or any security therefor, or
to provide funds for the payment or discharge thereof (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to
maintain solvency, assets, level of income, or other financial condition, or to
make payment other than for value received. The amount of any Contingent
Obligation shall be equal to the present value of the portion of the obligation
so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision of any
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equity or debt securities issued by that Person or any indenture, mortgage, deed
of trust, security agreement, pledge agreement, guaranty, contract, undertaking,
agreement or instrument, in any case in writing, to which that Person is a party
or by which it or any of its properties is bound, or to which it or any of its
properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation which is a
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member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as Energizer; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Code) with Energizer; and (iii) a member of the
same affiliated service group (within the meaning of Section 414(m) of the Code)
as Energizer, any corporation described in clause (i) above or any partnership
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or trade or business described in clause (ii) above; provided, that after the
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Spin-Off Date, such term shall not include Xxxxxxx.
"CURE LOAN" is defined in Section 9.2(iii) hereof.
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"CUSTOMARY PERMITTED LIENS" means:
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(i) Liens (other than Environmental Liens and Liens in favor of the IRS or
the PBGC or any Plan) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (if foreclosure,
distraint, sale or other similar proceedings shall not have been commenced or
any such proceeding after being commenced is stayed) which are being contested
in good faith by appropriate proceedings properly instituted and diligently
conducted and with respect to which adequate reserves or other appropriate
provisions are being maintained as may be required in accordance with Agreement
Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other similar Liens imposed
by law created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and with respect to which adequate reserves
or other appropriate provisions are being maintained as may be required in
accordance with Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor of the IRS or
the PBGC or any Plan) incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance or
other types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed money),
surety, appeal and performance bonds; provided that (A) all such Liens do not in
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the aggregate materially detract from the value of the Borrower's or such
Subsidiary's assets or property taken as a whole or materially impair the use
thereof in the operation of the Borrower's or such Subsidiary's businesses taken
as a whole, and (B) all Liens securing bonds to stay judgments or in connection
with appeals do not secure at any time an aggregate amount exceeding
$30,000,000;
(iv) Liens arising with respect to zoning restrictions, easements, licenses,
reservations, covenants, rights-of-way, utility easements, building restrictions
and other similar charges or encumbrances on the use of real property which do
not in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Borrower
or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments, writs or
warrants of attachment, or similar process against the Borrower or any of its
Subsidiaries which do not constitute a Default under Section 8.1(H) hereof;
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(vi) any interest or title of the lessor in the property subject to any
operating lease entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business; and
(vii) Liens of commercial depository institutions arising in the ordinary
course of business constituting a statutory or common law right of setoff
against amounts on deposit with any such institution.
"DEBT ASSUMPTION" means the assignment and assumption by Energizer of all
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of obligations and liabilities of Xxxxxxx hereunder and under the Loan Documents
and the concurrent release of Xxxxxxx from such obligations and liabilities,
which shall occur on the Spin-Off Date, pursuant to the Debt Assignment,
Assumption and Release Agreement in the form attached as Exhibit J to this
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Agreement (the "DEBT ASSUMPTION AGREEMENT").
"DEBT ASSUMPTION AGREEMENT" is defined in the definition of "Debt Assumption"
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above.
"DEFAULT" means an event described in Article VIII hereof.
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"DISCLOSED LITIGATION" is defined in Section 6.10 hereof.
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"DISQUALIFIED STOCK" means any preferred stock and any Capital Stock that, by
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its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is 91 days after the Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person succeeding to
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the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United States.
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"EBIT" means, for any period, on a consolidated basis for Energizer and its
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Subsidiaries, the sum of the amounts for such period, without duplication, of
(i) Net Income, plus (ii) Interest Expense to the extent deducted in computing
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Net Income, plus (iii) charges against income for foreign, federal, state and
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local taxes to the extent deducted in computing Net Income, minus (iv)
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extraordinary gains to the extent added in computing Net Income, plus (v) other
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extraordinary non-cash charges to the extent deducted in computing Net Income.
"EBITDA" means, for any period, on a consolidated basis for Energizer and its
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Subsidiaries, the sum of the amounts for such period, without duplication, of
(i) EBIT, plus (ii) depreciation expense to the extent deducted in computing Net
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Income, plus (iii) amortization expense, including, without limitation,
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amortization of goodwill and other intangible assets, to the extent deducted in
computing Net Income.
"ENERGIZER" means Energizer Holdings, Inc., a Missouri corporation, together
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with its permitted successors and assigns, including a debtor-in-possession on
behalf of Energizer.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all applicable
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foreign, federal, state and local laws or regulations relating to or addressing
pollution or protection of the environment, or protection of worker health or
safety, including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq., the Occupational
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Safety and Health Act of 1970, 29 U.S.C. 651 et seq., and the Resource
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Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., in each case
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including any amendments thereto, any successor statutes, and any regulations
promulgated thereunder, and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental Authority for (a)
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any liability under Environmental, Health or Safety Requirements of Law, or (b)
damages arising from, or costs incurred by such Governmental Authority in
response to, a Release or threatened Release of a Contaminant into the
environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement of law
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that conditions, restricts, prohibits or requires any notification or disclosure
triggered by the closure of any property or the transfer, sale or lease of any
property or deed or title for any property for environmental reasons, including,
but not limited to, any so-called "Industrial Site Recovery Act" or "Responsible
Property Transfer Act."
"EQUIPMENT" means all of the Borrower's and its Subsidiaries' present and future
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(i) equipment, including, without limitation, machinery, manufacturing,
distribution, selling, data processing and office equipment, assembly systems,
tools, molds, dies, fixtures, appliances, furniture, furnishings, vehicles,
vessels, aircraft, aircraft engines, and trade fixtures, (ii) other tangible
personal property (other than the Borrower's or Subsidiary's Inventory), and
(iii) any and all accessions, parts and appurtenances attached to any of the
foregoing or used in connection therewith, and any substitutions therefor and
replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other rights
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to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
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from time to time, including (unless the context otherwise requires) any rules
or regulations promulgated thereunder.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Advance for the
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relevant Interest Period, the applicable British Bankers' Association Interest
Settlement Rate for deposits in U.S. dollars appearing on Bloomberg Screen BBAM
as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period,
provided that, (i) if Bloomberg Screen BBAM is not available to the
Administrative Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service mutually acceptable
to the Borrower and the Administrative Agent as of 11:00 a.m. (London time) two
(2) Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, and (ii) if no such British Bankers'
Association Interest Settlement Rate is available to the Administrative Agent,
the applicable Eurodollar Base Rate for the relevant Interest Period shall
instead be the rate determined by the Administrative Agent to be the arithmetic
mean (rounded upward, if necessary, to an integral multiple of 1/16th of 1%) of
the rates of interest per annum reported to the Administrative Agent by each
Reference Lender as the rate at which such Reference Lender offers to place
deposits in Dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of such Reference
Lender's relevant Eurodollar Rate Loan and having a maturity equal to such
Interest Period. If any Reference Lender fails to provide such quotation to the
Administrative Agent, then the Administrative Agent shall determine the
Eurodollar Base Rate on the basis of the quotations of the remaining Reference
Lender(s).
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Advance for the
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relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
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Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period plus
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(ii) the then Applicable Margin; provided, however, that the foregoing
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adjustment for Reserve Requirements shall only be made with respect to that
portion of a Eurodollar Rate Loan made by a Lender which is subject to such
Reserve Requirements.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
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Eurodollar Rate.
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"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears interest at
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the Eurodollar Rate.
"EXCLUDED TAXES" means, in the case of each Lender or applicable Lending
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Installation and the Administrative Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or (ii) the jurisdiction in which the Administrative Agent's or such
Lender's principal executive office or such Lender's applicable Lending
Installation is located.
"FACILITY FEE" is defined in Section 2.14(C)(i) hereof.
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"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per annum
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equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its reasonable discretion.
"FINAL ADJUSTMENT DATE" means the last Adjustment Date, which shall occur no
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later than July 31, 2000, in accordance with the Reorganization Agreement.
"FINANCING FACILITIES" means this Agreement, the 364-Day Credit Agreement, the
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Bridge Facilities, the Receivables Purchase Facility, the Senior Notes and any
other financing facilities entered into or to be entered into in connection with
the Spin-Off, in each case, whether consummated prior to, concurrently with or
following the Spin-Off.
"FLOATING RATE ADVANCE" means an Advance which bears interest by reference to
-----------------------
the Alternate Base Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears interest by
--------------------
reference to the Alternate Base Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as defined in
--------------------------------
Section 3(3) of ERISA which is maintained or contributed to for the benefit of
the employees of Energizer or any member of the Controlled Group, but which is
not covered by ERISA pursuant to Section 4(b)(4) of ERISA.
"FOREIGN PENSION PLAN" means any employee pension benefit plan (as defined in
----------------------
Section 3(2) of ERISA) which (i) is maintained or contributed to for the benefit
of employees of Energizer or any other member of the Controlled Group, (ii) is
not covered by ERISA pursuant to Section 4(b)(4) thereof and (iii) under
applicable local law, is required to be funded through a trust or other funding
vehicle.
"FORM 10" means the Form 10 General Form for the Registration of Securities, as
--------
amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 3 thereto, filed
by Energizer (File No. 1-15401) with the Commission in connection with the
Spin-Off, together with all exhibits and appendices thereto.
"GOVERNMENTAL ACTS" is defined in Section 3.10(A) hereof.
------------------ ----------------
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal, state,
-----------------------
local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"HEDGING ARRANGEMENTS" is defined in the definition of "Hedging Obligations"
---------------------
below.
"HEDGING AGREEMENTS" is defined in Section 7.3(O) hereof.
------------------- ---------------
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such Person,
--------------------
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, commodity prices, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants or any similar derivative transactions ("HEDGING
ARRANGEMENTS"), and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from time to time
-----------------------
and shall include their respective successors, transferees and assigns.
"INDEBTEDNESS" of any Person means, without duplication, such Person's (a)
------------
obligations for borrowed money, (b) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), which purchase price is due more than six (6) months from the date of
incurrence of the obligation in respect thereof, provided that the related
obligations are not interest bearing, (c) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from property or
assets now or hereafter owned or acquired by such Person, (d) obligations which
are evidenced by notes, acceptances or other instruments, (e) Capitalized Lease
Obligations, (f) Contingent Obligations in respect of Indebtedness, (g)
obligations with respect to letters of credit, (h) Off-Balance Sheet
Liabilities, (i) Receivables Facility Attributed Indebtedness and (j)
Disqualified Stock. The amount of Indebtedness of any Person at any date shall
be without duplication (1) the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability of any
such Contingent Obligations at such date and (2) in the case of Indebtedness of
others secured by a Lien to which the property or assets owned or held by such
Person is subject, the lesser of the fair market value at such date of any asset
subject to a Lien securing the Indebtedness of others and the amount of the
Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
-------------------- ----------------
"INDEMNITEES" is defined in Section 10.7(B) hereof.
----------- ----------------
"INITIAL FUNDING DATE" means the date on which the initial Revolving Loans are
----------------------
advanced hereunder.
"INSOLVENCY EVENT" is defined in Section 10.14 hereof.
----------------- --------------
"INTERCOMPANY INDEBTEDNESS" is defined in Section 10.14 hereof.
-------------------------- --------------
"INTEREST EXPENSE" means, for any period, the total interest expense of
-----------------
Energizer and its consolidated Subsidiaries, whether paid or accrued, including,
-------
without duplication, Off-Balance Sheet Liabilities (including Receivables
Facility Financing Costs) and the interest component of Capitalized Leases, all
as determined in conformity with Agreement Accounting Principles.
"INTEREST EXPENSE COVERAGE RATIO" is defined in Section 7.4(B) hereof.
---------------------------------- ---------------
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a period of one
---------------
(1), two (2), three (3) or six (6) months and, to the extent available to all of
the Lenders, nine (9) or twelve (12) months, commencing on a Business Day
selected by the Borrower on which a Eurodollar Rate Advance is made to Borrower
pursuant to this Agreement. Such Interest Period shall end on (but exclude) the
day which corresponds numerically to such date one, two, three, six, nine or
twelve months thereafter; provided, however, that if there is no such
-------- -------
numerically corresponding day in such next, second, third, sixth, ninth or
twelfth succeeding month, such Interest Period shall end on the last Business
Day of such next, second, third, sixth, ninth or twelfth succeeding month. If
an Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next succeeding Business Day, provided,
--------
however, that if said next succeeding Business Day falls in a new calendar
-------
month, such Interest Period shall end on the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without limitation, goods
---------
in transit, wheresoever located, whether now owned or hereafter acquired by the
Borrower or any of its Subsidiaries, which are held for sale or lease, furnished
under any contract of service or held as raw materials, work in process or
supplies, and all materials used or consumed in the business of Borrower or any
of its Subsidiaries, and shall include all right, title and interest of the
Borrower or any of its Subsidiaries in any property the sale or other
disposition of which has given rise to Receivables and which has been returned
to or repossessed or stopped in transit by the Borrower or any of its
Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or other
----------
acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to the
functions thereof.
"ISSUING BANK(S)" means (i) Bank One in its separate capacity as an issuer of
----------------
Letters of Credit pursuant to Section 3.1 hereunder with respect to each Letter
-----------
of Credit issued by Bank One upon the Borrower's request and (ii) any Lender
(other than Bank One) reasonably acceptable to the Administrative Agent, in such
Lender's separate capacity as an issuer of Letters of Credit pursuant to Section
-------
3.1 hereunder with respect to any and all Letters of Credit issued by such
Lender in its sole discretion upon the Borrower's request. All references
contained in this Agreement and the other Loan Documents to the "Issuing Bank"
shall be deemed to apply equally to each of the institutions referred to in
clauses (i) and (ii) of this definition in their respective capacities as
------------ ----
issuers of any and all Letters of Credit issued by each such institution.
"L/C DOCUMENTS" is defined in Section 3.4 hereof.
-------------- ------------
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter of
----------
Credit.
----
"L/C INTEREST" shall have the meaning ascribed to such term in Section 3.6
------------- -----------
hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the sum of (i)
----------------
the aggregate of the amount then available for drawing under each of the Letters
of Credit, (ii) the face amount of all outstanding L/C Drafts corresponding to
the Letters of Credit, which L/C Drafts have been accepted by an Issuing Bank,
(iii) the aggregate outstanding amount of all Reimbursement Obligations at such
time and (iv) the aggregate face amount of all Letters of Credit requested by
the Borrower but not yet issued (unless the request for an unissued Letter of
Credit has been denied).
"LENDERS" means the lending institutions listed on the signature pages of this
-------
Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Administrative
---------------------
Agent, any office, branch, subsidiary or affiliate of such Lender or the
--
Administrative Agent.
--
"LETTER OF CREDIT" means the standby letters of credit to be issued by an
------------------
Issuing Bank pursuant to Section 3.1 hereof.
----- ------------
"LEVERAGE RATIO" is defined in Section 7.4(A) hereof.
--------------- ---------------
"LIEN" means any lien (statutory or other), mortgage, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance or preference, priority or security
--
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or lessor under any
conditional sale, Capitalized Lease or other title retention agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any Advance
-------
made pursuant to Section 2.1 hereof, and in the case of the Swing Line Bank, any
-----------
Swing Line Loan made pursuant to Section 2.2 hereof, and collectively, all
-----------
Revolving Loans and Swing Line Loans, whether made or continued as or converted
to Floating Rate Loans or Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in Section 2.12(a) hereof.
------------- ----------------
"LOAN DOCUMENTS" means this Agreement, the Subsidiary Guaranty, any promissory
---------------
notes issued pursuant to Section 2.12, the L/C Documents and all other
-------------
documents, instruments and agreements executed in connection therewith or
contemplated thereby, as the same may be amended, restated or otherwise modified
and in effect from time to time.
"LOAN PARTIES" is defined in Section 5.1 hereof.
------------- ------------
"MARGIN STOCK" shall have the meaning ascribed to such term in Regulation U.
-------------
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the business,
-----------------------
condition (financial or otherwise), operations, performance, properties or
prospects of Energizer and its Subsidiaries, taken as a whole, (b) the ability
of Energizer and its Subsidiaries, taken as a whole, to perform their
obligations under the Loan Documents in any material respect, or (c) the ability
of the Lenders, the Issuing Banks or the Administrative Agent to enforce in any
material respect the Obligations.
"MATERIAL DOMESTIC SUBSIDIARY" means each consolidated Subsidiary (other than
------------------------------
any SPV) of the Borrower (a) incorporated under the laws of any jurisdiction in
the United States and (b) the total assets of which exceed, as at the end of any
calendar quarter or, in the case of consummation of a Permitted Acquisition, at
the time of consummation of such Permitted Acquisition (calculated by Energizer
on a pro forma basis taking into account the consummation of such Permitted
--- -----
Acquisition), three percent (3.0%) of the Consolidated Assets of Energizer and
its consolidated Subsidiaries (other than SPVs).
"MATERIAL FOREIGN SUBSIDIARY" means each consolidated Subsidiary (other than any
---------------------------
SPV) of the Borrower (a) incorporated under the laws of any foreign jurisdiction
and (b) the total assets of which exceed, as at the end of any calendar quarter
or, in the case of consummation of a Permitted Acquisition, at the time of
consummation of such Permitted Acquisition (calculated by Energizer on a pro
---
forma basis taking into account the consummation of such Permitted Acquisition),
-----
five percent (5.0%) of the Consolidated Assets of Energizer and its consolidated
Subsidiaries (other than SPVs).
"MATERIAL INDEBTEDNESS" means any Indebtedness (other than the Indebtedness
----------------------
hereunder) of a single class with an aggregate outstanding principal amount
equal to or greater than $30,000,000.
"MATERIAL SUBSIDIARIES" means each of Energizer's Material Domestic Subsidiaries
---------------------
and Material Foreign Subsidiaries.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
-------------------
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
-------
was, contributed to by either Energizer or any member of the Controlled Group.
"NET INCOME" means, for any period, the net earnings (or loss) after taxes of
-----------
Energizer and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with Agreement Accounting
Principles.
"NET WORTH CONDITION" means the requirement that, as of and after the
---------------------
consummation of the Spin-Off Transactions, the Consolidated Net Worth of
---------
Energizer and its Subsidiaries shall not be less than $625,000,000.
------
"NEW SUBSIDIARY" is defined in Section 7.3(F).
--------------- ---------------
"NON-ERISA COMMITMENTS" means
----------------------
(i) each pension, medical, dental, life, accident insurance, disability,
group insurance, sick leave, profit sharing, deferred compensation, bonus, stock
option, stock purchase, retirement, savings, severance, stock ownership,
performance, incentive, hospitalization or other insurance, or other welfare,
benefit or fringe benefit plan, policy, trust, understanding or arrangement of
any kind; and
(ii) each employee collective bargaining agreement and each agreement,
understanding or arrangement of any kind, with or for the benefit of any
present or prior officer, director, employee or consultant (including, without
limitation, each employment, compensation, deferred compensation, severance or
consulting agreement or arrangement and any agreement or arrangement associated
with a change in ownership of the Borrower or any member of the Controlled
Group);
to which Energizer or any member of the Controlled Group is a party or with
respect to which Energizer or any member of the Controlled Group is or will be
required to make any payment other than any Plans.
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
-------------------- ------------
"NON-U.S. LENDER" is defined in Section 4.5(iv) hereof.
---------------- ----------------
"NOTE PURCHASE AGREEMENT" means any agreement entered into by the Borrower with
------------------------
respect to the Borrower's issuance of senior unsecured notes (the "SENIOR
NOTES"), which shall be pari passu with the Obligations hereunder, on
substantially the terms set forth in the confidential Summary of Proposed Terms
relating to the Senior Notes sent by Banc of America Securities LLC to the
Administrative Agent by e-mail transmission on March 27, 2000, as such Note
Purchase Agreement may be amended, modified or supplemented from time to time in
a manner that is not materially adverse to the interests of the Lenders.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3(B) hereof.
---------------------- ----------------
"OBLIGATIONS" means all Loans, L/C Obligations, advances, debts, liabilities,
-----------
obligations, covenants and duties owing by the Borrower or any of its
Subsidiaries to the Administrative Agent, any Lender, the Swing Line Bank, the
Arranger, any Affiliate of the Administrative Agent or any Lender, the Issuing
Banks or any Indemnitee, of any kind or nature, present or future, arising under
this Agreement, the L/C Documents or any other Loan Document, whether or not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, reasonable
attorneys' fees and disbursements, reasonable paralegals' fees (and, after the
occurrence and during the continuance of a Default, all attorney's fees and
disbursements and paralegals' fees, whether or not reasonable), and any other
sum chargeable to the Borrower or any of its Subsidiaries under this Agreement
or any other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means, without duplication, (a) any
------------------------------
Receivables Facility Attributed Indebtedness and repurchase obligation or
liability of such Person or any of its Subsidiaries with respect to Receivables
or notes receivable sold by such Person or any of its Subsidiaries (calculated
to include the unrecovered investment of purchasers or transferees of
Receivables or notes receivable or any other obligation of the Borrower or such
transferor to purchasers/transferees of interests in Receivables or notes
receivables or the agent for such purchasers/transferees), (b) any liability
under any sale and leaseback transactions which do not create a liability on the
consolidated balance sheet of such Person, (c) any liability under any financing
lease or so-called "synthetic" lease transaction, or (d) any obligations arising
with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the
consolidated balance sheets of such Person and its Subsidiaries.
"OPENING BALANCE SHEET DELIVERY DATE" means the date within fifteen days
---------------------------------------
following the Final Adjustment Date on which the Administrative Agent receives
the opening pro forma balance sheet of Energizer and its consolidated
--- -----
Subsidiaries pursuant to Section 7.1(A)(v).
------------------
"ORIGINATORS" means the Borrower and/or any of its Subsidiaries in their
-----------
respective capacities as parties to any Receivables Purchase Documents, as
------
sellers or transferors of any Receivables and Related Security in connection
----
with a Permitted Receivables Transfer.
"OTHER TAXES" is defined in Section 4.5 hereof.
------------ ------------
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
------------ ----------------
"PAYMENT DATE" means the last day of each March, June, September and December.
-------------
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto.
----
"PERMITTED ACQUISITION" is defined in Section 7.3(F) hereof.
---------------------- ---------------
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent Obligations of
------------------------------------------
Energizer and its Subsidiaries identified on Schedule 1.1.3 to this Agreement.
--------------
"PERMITTED EXISTING INVESTMENTS" means the Investments of Energizer and its
--------------------------------
Subsidiaries identified on Schedule 1.1.1 to this Agreement.
--- ---------------
"PERMITTED EXISTING LIENS" means the Liens on assets of Energizer and its
--------------------------
Subsidiaries identified on Schedule 1.1.2 to this Agreement.
----- ---------------
"PERMITTED RECEIVABLES TRANSFER" means (i) a sale or other transfer by an
--------------------------------
Originator to a SPV of Receivables and Related Security for fair market value
-----
and without recourse (except for limited recourse typical of such structured
finance transactions), and/or (ii) a sale or other transfer by a SPV to (a)
purchasers of or other investors in such Receivables and Related Security or (b)
any other Person (including a SPV) in a transaction in which purchasers or other
investors purchase or are otherwise transferred such Receivables and Related
Security, in each case pursuant to and in accordance with the terms of the
Receivables Purchase Documents.
"PERSON" means any individual, corporation, firm, enterprise, partnership,
------
trust, incorporated or unincorporated association, joint venture, joint stock
----
company, limited liability company or other entity of any kind, or any
government or political subdivision or any agency, department or instrumentality
thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA in
----
respect of which Energizer or any member of the Controlled Group is, or within
the immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"PRIME RATE" means a rate per annum equal to the prime rate of interest
-----------
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"PRO RATA SHARE" means, with respect to any Lender, the percentage obtained by
----------------
dividing (A) such Lender's Revolving Loan Commitment at such time (in each case,
as adjusted from time to time in accordance with the provisions of this
Agreement) by (B) the Aggregate Revolving Loan Commitment at such time;
provided, however, if all of the Revolving Loan Commitments are terminated
-------
pursuant to the terms of this Agreement, then "Pro Rata Share" means the
percentage obtained by dividing (x) the sum of (A) such Lender's Revolving
Loans, plus (B) such Lender's share of the obligations to purchase
----
participations in Swing Line Loans and Letters of Credit, by (y) the sum of (A)
----
the aggregate outstanding amount of Revolving Loans, plus (B) the aggregate
----
outstanding amount of all Swing Line Loans and Letters of Credit.
"PURCHASERS" is defined in Section 13.3(A) hereof.
---------- ----------------
"XXXXXXX" means Xxxxxxx Purina Company, a Missouri corporation, and prior to the
-------
Spin-Off, the owner of all of the outstanding Capital Stock of Energizer,
together with its permitted successors and assigns, including a
debtor-in-possession on behalf of Xxxxxxx.
"RECEIVABLE(S)" means and includes all of the Borrower's and its Subsidiaries'
-------------
presently existing and hereafter arising or acquired accounts, accounts
receivable, and all present and future rights of the Borrower and its
Subsidiaries to payment for goods sold or leased or for services rendered
(except those evidenced by instruments or chattel paper), whether or not they
have been earned by performance, and all rights in any merchandise or goods
which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"RECEIVABLES AND RELATED SECURITY" means the Receivables and the related
-----------------------------------
security and collections with respect thereto which are sold or transferred by
any Originator or SPV in connection with any Permitted Receivables Transfer.
"RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS" means the amount of obligations
----------------------------------------------
outstanding under a receivables purchase facility on any date of determination
that would be characterized as principal if such facility were structured as a
secured lending transaction rather than as a purchase.
"RECEIVABLES FACILITY FINANCING COSTS" means such portion of the cash fees,
---------------------------------------
service charges, and other costs, as well as all collections or other amounts
retained by purchasers of receivables pursuant to a receivables purchase
facility, which are in excess of amounts paid to the Borrower and its
consolidated Subsidiaries under any receivables purchase facility for the
purchase of receivables pursuant to such facility and are the equivalent of the
interest component of the financing if the transaction were characterized as an
on-balance sheet transaction.
"RECEIVABLES PURCHASE DOCUMENTS" means any series of receivables purchase or
--------------------------------
sale agreements generally consistent with terms contained in comparable
structured finance transactions pursuant to which an Originator or Originators
sell or transfer to SPVs all of their respective right, title and interest in
and to certain Receivables and Related Security for further sale or transfer to
other purchasers of or investors in such assets (and the other documents,
instruments and agreements executed in connection therewith), as any such
agreements may be amended, restated, supplemented or otherwise modified from
time to time, or any replacement or substitution therefor.
"RECEIVABLES PURCHASE FACILITY" means the securitization facility made available
-----------------------------
to Energizer, pursuant to which the Receivables and Related Security of the
Originators are transferred to one or more SPVs, and thereafter to certain
investors, pursuant to the terms and conditions of the Receivables Purchase
Documents.
"REFERENCE LENDERS" means Bank One, Bank of America, N.A. and Wachovia Bank,
------------------
N.A.
"REGISTER" is defined in Section 13.3(C) hereof.
-------- ----------------
"REGULATION D" means Regulation D of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"REGULATION T" means Regulation T of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the Federal
-------------
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.7 hereof.
------------------------- ------------
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
-------
deposit, disposal, discharge, dispersal, leaching or migration into the
environment, including the movement of Contaminants through or in the air, soil,
surface water or groundwater.
"REORGANIZATION AGREEMENT" means that certain Agreement and Plan of
-------------------------
Reorganization dated as of April 1, 2000, between Xxxxxxx and Energizer, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"REPLACEMENT LENDER" is defined in Section 2.19 hereof.
------------------- -------------
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of ERISA
-----------------
and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days after such event occurs.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the aggregate, are
-----------------
greater than fifty percent (50%); provided, however, that, if any Lender shall
-------- -------
have failed to fund its Pro Rata Share of (i) any Revolving Loan requested by
the Borrower, (ii) any Revolving Loan required to be made in connection with
reimbursement for any L/C Obligations or (iii) any Swing Line Loan as requested
by the Administrative Agent, which such Lender is obligated to fund under the
terms of this Agreement and any such failure has not been cured, then for so
long as such failure continues, "REQUIRED LENDERS" means Lenders (excluding all
Lenders whose failure to fund their respective Pro Rata Shares of such Revolving
Loans or Swing Line Loans has not been so cured) whose Pro Rata Shares represent
greater than fifty percent (50%) of the aggregate Pro Rata Shares of such
Lenders; provided further, however, that, if the Revolving Loan Commitments have
-------- ------- -------
been terminated pursuant to the terms of this Agreement, "REQUIRED LENDERS"
means Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans and L/C Obligations
are greater than fifty percent (50%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws or other
--------------------
organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act of 1933, the Securities Exchange Act of
1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVE REQUIREMENT" means, with respect to an Interest Period, the maximum
--------------------
aggregate reserve requirement (including all basic, supplemental, marginal and
other reserves) which is imposed under Regulation D on "Eurocurrency
liabilities".
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the amount by
-------------------------------
which the Aggregate Revolving Loan Commitment at such time exceeds the Revolving
Credit Obligations outstanding at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum of (i) the
----------------------------
outstanding principal amount of the Revolving Loans at such time, plus (ii) the
----
outstanding principal amount of the Swing Line Loans at such time, plus (iii)
----
the outstanding L/C Obligations at such time.
"REVOLVING LOAN" is defined in Section 2.1 hereof.
--------------- ------------
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of such
---------------------------
Lender to make Revolving Loans and to purchase participations in Letters of
Credit and to participate in Swing Line Loans not exceeding the amount set forth
on Exhibit A to this Agreement opposite its name thereon under the heading
----------
"Revolving Loan Commitment" or in the Assignment Agreement by which it became a
Lender, as such amount may be modified from time to time pursuant to the terms
of this Agreement or to give effect to any applicable Assignment Agreement.
"REVOLVING LOAN TERMINATION DATE" means March 30, 2005.
----------------------------------
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
------------------------------- ------------
"SENIOR MANAGEMENT TEAM" means each Authorized Officer and the Chief Executive
------------------------
Officer of the Borrower.
"SENIOR NOTES" is defined in the definition of "Note Purchase Agreement" above.
-------------
"SOLVENT" means, when used with respect to any Person, that at the time of
-------
determination:
(i) the fair value of its assets (both at fair valuation and at present fair
saleable value) is equal to or in excess of the total amount of its
liabilities, including, without limitation, contingent liabilities; and
(ii) it is then able and believes that it will be able to pay its debts as
they mature; and
(iii) it has capital sufficient to carry on its business as conducted and as
proposed to be conducted.
With respect to contingent liabilities (such as litigation and guarantees), such
liabilities shall be computed at the amount which, in light of all the facts and
circumstances existing at the time, represent the amount which can be reasonably
be expected to become an actual or matured liability.
"SPIN-OFF" means the distribution by Xxxxxxx to its stockholders in a tax
--------
free transaction of all of the outstanding capital stock of Energizer such that
Energizer will become a separate publicly-held corporation owned directly by the
stockholders of Xxxxxxx to whom such distribution is made, in connection with
which there shall have been obtained a letter ruling from the IRS substantially
to the effect that the Spin-Off will be treated as a tax-free distribution by
Xxxxxxx under Section 355 of the Code (the "TAX RULING").
"SPIN-OFF DATE" means April 1, 2000.
--------------
"SPIN-OFF TRANSACTIONS" means the series of transactions contemplated by and
----------------------
described in the Form 10, including, but not limited to the Spin-Off.
"SPV" means any special purpose entity established for the purpose of purchasing
receivables in connection with a receivables securitization transaction
permitted under the terms of this Agreement.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
----------
outstanding securities having ordinary voting power of which shall at the time
-------
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
means a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTORS" means (i) for the period from the Closing Date until the
---------------------
consummation of the Debt Assumption, Energizer and each of its Material Domestic
Subsidiaries; (ii) from and after the consummation of the Debt Assumption, all
of Energizer's Material Domestic Subsidiaries; (iii) all New Subsidiaries which
are Material Domestic Subsidiaries and which have satisfied the provisions of
Section 7.2(K)(a); (iv) all of Energizer's Subsidiaries which become Material
----------------
Domestic Subsidiaries and which have satisfied the provisions of Section
-------
7.2(K)(b); and (v) all other Subsidiaries which become Subsidiary Guarantors in
--
satisfaction of the provisions of Section 7.2(K)(c), in each case with respect
-----------------
to clauses (i) through (v) above, other than the SPVs and together with their
------------ ---
respective successors and assigns.
"SUBSIDIARY GUARANTY" means that certain Guaranty dated as of the Closing Date,
--------------------
executed by the Subsidiary Guarantors in favor of the Administrative Agent, for
the ratable benefit of the Lenders, the Swing Line Bank and the Issuing Banks,
as it may be amended, modified, supplemented and/or restated (including to add
new Subsidiary Guarantors), and as in effect from time to time.
"SUPPLEMENT" shall have the meaning set forth in Section 7.2(K).
---------- ---------------
"SUPPLEMENTAL FINANCIAL STATEMENT" is defined in Section 6.7(A) hereof.
---------------------------------- ---------------
"SWING LINE BANK" means Bank One pursuant to the terms hereof.
-----------------
"SWING LINE COMMITMENT" means the commitment of the Swing Line Bank, in its
-----------------------
discretion, to make Swing Line Loans up to a maximum principal amount of
$10,000,000 at any one time outstanding.
"SWING LINE LOAN" means a Loan made available to the Borrower by the Swing Line
----------------
Bank pursuant to Section 2.2 hereof.
------------
"TAX RULING" is defined in the definition of "Spin-Off" above.
-----------
"TAXES" means any and all present or future taxes, duties, levies, imposts,
-----
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes.
"TERMINATION DATE" means the earliest of (a) the Revolving Loan Termination
-----------------
Date, (b) the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.5 hereof or the Revolving Loan Commitments
pursuant to Section 9.1 hereof and (c) if the Spin-Off and Debt Assumption have
-----------
not occurred prior thereto, April 4, 2000.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any Benefit
------------------
Plan; (ii) the withdrawal of Energizer or any member of the Controlled Group
from a Benefit Plan during a plan year in which Energizer or such Controlled
Group member was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA with respect to such plan; (iii) the imposition of an obligation under
Section 4041 of ERISA to provide affected parties written notice of intent to
terminate a Benefit Plan in a distress termination described in Section 4041(c)
of ERISA; (iv) the institution by the PBGC or any foreign governmental authority
of proceedings to terminate or appoint a trustee to administer a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of Energizer or any member of the Controlled Group from a
Multiemployer Plan.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day Credit Agreement of even
--------------------------
date herewith among the Borrower, the institutions from time to time parties
thereto as lenders and Bank One, NA, as Administrative Agent, Bank of America,
N.A., as Syndication Agent and Wachovia Bank, N.A., as Documentation Agent, as
the same may be amended, restated, supplemented or otherwise modified and as in
effect from time to time.
"TRANSACTION DOCUMENTS" means the Loan Documents and the documents executed and
----------------------
delivered by Xxxxxxx, Energizer or any of their respective Subsidiaries in
connection with the Spin-Off, the Bridge Facilities, the Receivables Purchase
Facility or the Senior Notes, including, without limitation, the Form 10, the
Debt Assumption Agreement, the Receivables Purchase Documents, the Senior Notes,
the Note Purchase Agreement and any documents evidencing the Bridge Facilities.
"TRANSACTIONS" means the Spin-Off Transactions, the Financing Facilities
------------
(including, without limitation, this Agreement and the financing transactions
---------
evidenced by the Loan Documents) and the Debt Assumption.
"TRANSFEREE" is defined in Section 13.5 hereof.
---------- -------------
"TYPE" means, with respect to any Loan, its nature as a Floating Rate Loan or a
----
Eurodollar Rate Loan.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or the
------------------
giving of notice, or both, would constitute a Default.
The foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms. Any accounting terms used in this Agreement
which are not specifically defined herein shall have the meanings customarily
given them in accordance with generally accepted accounting principles in
existence as of the date hereof.
1.2 References. Any references to Subsidiaries of Xxxxxxx or Energizer
----------
shall not in any way be construed as consent by the Administrative Agent or any
Lender to the establishment, maintenance or acquisition of any Subsidiary,
except as may otherwise be permitted hereunder.
ARTICLE II: THE REVOLVING LOAN FACILITY
------------ ------------------------------
2.1 Revolving Loans. (a) Upon the satisfaction of the conditions precedent
----------------
set forth in Sections 5.1 and 5.2, as applicable, from and including the Initial
------------ ---
Funding Date and prior to the Termination Date, each Lender severally and
not jointly agrees, on the terms and conditions set forth in this Agreement, to
make revolving loans to the Borrower from time to time, in Dollars, in an amount
not to exceed such Lender's Pro Rata Share of Revolving Credit Availability at
such time (each individually, a "REVOLVING LOAN" and, collectively, the
"REVOLVING LOANS"); provided, however, at no time shall the Revolving Credit
-------- -------
Obligations exceed the Aggregate Revolving Loan Commitment. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow Revolving
Loans at any time prior to the Termination Date. The Revolving Loans made on
the Initial Funding Date or on or before the third (3rd) Business Day thereafter
shall initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurodollar Rate Loans in the manner
provided in Section 2.9 and subject to the other conditions and limitations
------------
therein set forth and set forth in this Article II and set forth in the
-----------
definition of Interest Period; provided, however, that if the Borrower delivers
-------- -------
a Borrowing/Election Notice, signed by it, together with appropriate
documentation in form and substance satisfactory to the Administrative Agent
indemnifying the Lenders for the amounts described in Section 4.4 on or before
-----------
the third (3rd) Business Day prior to the Initial Funding Date, the Revolving
Loans made on the Initial Funding Date may be Eurodollar Rate Loans. Revolving
Loans made after the third (3rd) Business Day after the Initial Funding Date
shall be, at the option of the Borrower, selected in accordance with Section
-------
2.9, either Floating Rate Loans or Eurodollar Rate Loans. On the Termination
Date, the Borrower shall repay in full the outstanding principal balance of the
Revolving Loans. Each Advance under this Section 2.1 shall consist of Revolving
-----------
Loans made by each Lender ratably in proportion to such Lender's respective Pro
Rata Share.
(b) Borrowing/Election Notice. The Borrower shall deliver to the
--------------------------
Administrative Agent a Borrowing/Election Notice, signed by it, in accordance
with the terms of Section 2.7. The Administrative Agent shall promptly notify
-----------
each Lender of such request.
(c) Making of Revolving Loans. Promptly after receipt of the
----------------------------
Borrowing/Election Notice under Section 2.7 in respect of Revolving Loans, the
------------ -----------
Administrative Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission, of the requested Revolving Loan. Each Lender
shall make available its Revolving Loan in accordance with the terms of Section
-------
2.6. The Administrative Agent will promptly make the funds so received from the
Lenders available to the Borrower at the Administrative Agent's office in
Chicago, Illinois on the applicable Borrowing Date and shall disburse such
proceeds in accordance with the Borrower's disbursement instructions set forth
in such Borrowing/Election Notice. The failure of any Lender to deposit the
amount described above with the Administrative Agent on the applicable Borrowing
Date shall not relieve any other Lender of its obligations hereunder to make its
Revolving Loan on such Borrowing Date.
2.2 Swing Line Loans. (A) Amount of Swing Line Loans. Upon the
------------------ ------------------------------
satisfaction of the conditions precedent set forth in Section 5.1 and 5.2, as
----------- ---
applicable, from and including the Initial Funding Date and prior to the
Termination Date, the Swing Line Bank may, in its discretion, on the terms and
conditions set forth in this Agreement, make swing line loans to the Borrower
from time to time, in Dollars, in an amount not to exceed the Swing Line
Commitment (each, individually, a "SWING LINE LOAN" and collectively, the "SWING
LINE LOANS"); provided, however, at no time shall the Revolving Credit
-------- -------
Obligations exceed the Aggregate Revolving Loan Commitment; and provided,
--------
further, that at no time shall the sum of (a) the outstanding amount of the
Swing Line Loans, plus (b) the outstanding amount of Revolving Loans made by the
Swing Line Bank pursuant to Section 2.1, exceed the Swing Line Bank's Revolving
-----------
Loan Commitment at such time. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Swing Line Loans at any time prior to
the Termination Date.
(B) Borrowing/Election Notice for Swing Line Loans. The Borrower shall
---------------------------------------------------
deliver to the Administrative Agent and the Swing Line Bank a Borrowing/Election
Notice, signed by it, not later than 11:00 a.m. (Chicago time) on the
Borrowing Date of each Swing Line Loan, specifying (i) the applicable Borrowing
Date (which date shall be a Business Day and which may be the same date as the
date the Borrowing/Election Notice is given), and (ii) the aggregate amount of
the requested Swing Line Loan which shall be an amount not less than $1,000,000
and increments of $100,000 in excess thereof. The Swing Line Loans shall at all
times be Floating Rate Loans or shall bear interest at such other rate as shall
be agreed to between the Borrower and the Swing Line Bank at the time of the
making of such Swing Line Loans.
(C) Making of Swing Line Loans. Promptly after receipt of the
------------------------------
Borrowing/Election Notice under Section 2.2(B) in respect of Swing Line Loans,
--------------
the Swing Line Bank may, in its sole discretion make available its Swing Line
Loan, in funds immediately available in Chicago to the Administrative Agent at
its address specified pursuant to Article XIV. The Administrative Agent will
-----------
promptly make the funds so received from the Swing Line Bank available to the
Borrower on the Borrowing Date at the Administrative Agent's aforesaid address.
(D) Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in
--------------------------------
full by the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans or, in a minimum
amount of $1,000,000 and increments of $100,000 in excess thereof, any portion
of the outstanding Swing Line Loans, upon notice to the Administrative Agent and
the Swing Line Bank. In addition, the Administrative Agent (i) may at any time
in its sole discretion with respect to any outstanding Swing Line Loan, or (ii)
shall, in the event the Borrower shall not have otherwise repaid such Loan, on
the fifth (5th) Business Day after the Borrowing Date of any Swing Line Loan,
require each Lender (including the Swing Line Bank) to make a Revolving Loan in
the amount of such Lender's Pro Rata Share of such Swing Line Loan, for the
purpose of repaying such Swing Line Loan. The making of such Revolving Loans by
the Lenders shall discharge the Borrower's obligation under the first sentence
of this Section 2.2(D) and such failure to pay shall not constitute a Default by
--------------
the Borrower. Promptly following receipt of notice pursuant to this Section
-------
2.2(D) from the Administrative Agent, each Lender shall make available its
------
required Revolving Loan or Revolving Loans, in funds immediately available in
Chicago to the Administrative Agent at its address specified pursuant to Article
-------
XIV. Revolving Loans made pursuant to this Section 2.2(D) shall initially be
--- --------------
Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurodollar Rate Loans in the manner provided in Section 2.9 and
-----------
subject to the other conditions and limitations therein set forth and set forth
in this Article II. Unless a Lender shall have notified the Swing Line Bank,
-----------
prior to its making any Swing Line Loan, that any applicable condition precedent
set forth in Sections 5.1 and 5.2, as applicable, had not then been satisfied,
------------ ---
such Lender's obligation to make Revolving Loans pursuant to this Section 2.2(D)
--------------
to repay Swing Line Loans shall be unconditional, continuing, irrevocable and
absolute and shall not be affected by any circumstances, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Administrative Agent, the Swing Line Bank
or any other Person, (b) the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or otherwise) of the
Borrower or (d) any other circumstances, happening or event whatsoever. In the
event that any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 2.2(D), the Administrative Agent shall be entitled
--------------
to receive, retain and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender fails to
make payment to the Administrative Agent of any amount due under this Section
-------
2.2(D), such Lender shall be deemed, at the option of the Administrative Agent,
------
to have unconditionally and irrevocably purchased from the Swing Line Bank,
without recourse or warranty, an undivided interest and participation in the
applicable Swing Line Loan in the amount of such Revolving Loan, and such
interest and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such amount is
received. On the Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Swing Line Loans.
2.3 Rate Options for all Advances; Maximum Interest Periods. The Swing Line
-------------------------------------------------------
Loans shall be Floating Rate Loans at all times or shall bear interest at
such other rate as may be agreed to between the Borrower and the Swing Line Bank
at the time of the making of any such Swing Line Loan. The Revolving Loans may
be Floating Rate Advances or Eurodollar Rate Advances, or a combination thereof,
selected by the Borrower in accordance with Section 2.10. The Borrower may
------------
select, in accordance with Section 2.9, rate options and Interest Periods
------------
applicable to the Revolving Loans; provided that there shall be no more than
--------
eight (8) Interest Periods in effect with respect to all of the Loans at any
time.
2.4 Optional Payments. The Borrower may from time to time and at any time
------------------
upon at least one (1) Business Day's prior written notice repay or prepay,
without penalty or premium all or any part of outstanding Floating Rate Advances
in an aggregate minimum amount of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof. Eurodollar Rate Advances may be voluntarily repaid
or prepaid prior to the last day of the applicable Interest Period, subject to
the indemnification provisions contained in Section 4.4, provided, that the
----------- --------
Borrower may not so prepay Eurodollar Rate Advances unless it shall have
provided at least three (3) Business Days' prior written notice to the
Administrative Agent of such prepayment and provided, further, that optional
-------- -------
prepayments of Eurodollar Rate Advances made pursuant to Section 2.1 shall be
-----------
for the entire amount of the outstanding Eurodollar Rate Advance.
2.5 Reduction of Revolving Loan Commitments. The Borrower may permanently
-----------------------------------------
reduce the Aggregate Revolving Loan Commitment in whole, or in part ratably
among the Lenders, in an aggregate minimum amount of $25,000,000 and integral
multiples of $5,000,000 in excess of that amount (unless the Aggregate Revolving
Loan Commitment is reduced in whole), upon at least three (3) Business Day's
prior written notice to the Administrative Agent, which notice shall specify the
amount of any such reduction; provided, however, that the amount of the
-------- -------
Aggregate Revolving Loan Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Obligations. All accrued
Facility Fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Loans hereunder or any reduction of the
Aggregate Revolving Loan Commitment on the amount so reduced.
2.6 Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on each
---------------------
Borrowing Date, each Lender shall make available its Revolving Loan, in
immediately available funds, to the Administrative Agent at its address
specified pursuant to Article XIV. The Administrative Agent will promptly make
-----------
the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
2.7 Method of Selecting Types and Interest Periods for Advances. The
------------------------------------------------------------------
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Rate Advance, the Interest Period applicable to each Advance from time to time.
The Borrower shall give the Administrative Agent irrevocable notice in
substantially the form of Exhibit B hereto (a "BORROWING/ELECTION NOTICE") not
---------
later than 11:00 a.m. (Chicago time) (a) on or before the Borrowing Date of each
Floating Rate Advance and (b) three (3) Business Days before the Borrowing Date
for each Eurodollar Rate Advance specifying: (i) the Borrowing Date (which
shall be a Business Day) of such Advance; (ii) the aggregate amount of such
Advance; (iii) the Type of Advance selected; and (iv) in the case of each
Eurodollar Rate Advance, the Interest Period applicable thereto; provided,
--------
however, that with respect to the borrowing on the Initial Funding Date, such
-------
notice shall be delivered in accordance with the terms of Section 2.1(a) and
--------------
shall be accompanied by the documentation specified in such Section. The
Borrower shall select Interest Periods so that, to the best of the Borrower's
knowledge, it will not be necessary to prepay all or any portion of any
Eurodollar Rate Advance prior to the last day of the applicable Interest Period
in order to make mandatory prepayments as required pursuant to the terms hereof.
Each Floating Rate Advance and all Obligations other than Loans shall bear
interest from and including the date of the making of such Advance, in the case
of Floating Rate Advances, and the date such Obligation is due and owing in the
case of such other Obligations, to (but not including) the date of repayment
thereof at the Alternate Base Rate, changing when and as such Alternate Base
Rate changes. Changes in the rate of interest on that portion of the Loans
maintained as Floating Rate Loans will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurodollar Rate Advance shall bear
interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Eurodollar Rate Advance, changing
when and as the Applicable Margin changes. Changes in the rate of interest on
that portion of the Loans maintained as Eurodollar Rate Advances will take
effect simultaneously with each change in the Applicable Margin.
2.8 Minimum Amount of Each Advance. Each Advance (other than an Advance to
-------------------------------
repay Swing Line Loans or a Reimbursement Obligation) shall be in the minimum
amount of $10,000,000 (and in multiples of $1,000,000 if in excess thereof);
provided, however, that any Floating Rate Advance may be in the amount of the
----- -------
unused Aggregate Revolving Loan Commitment.
2.9 Method of Selecting Types and Interest Periods for Conversion and
------------------------------------------------------------------------
Continuation of Advances.
--------------------
(A) Right to Convert. The Borrower may elect from time to time, subject to
-----------------
the provisions of Section 2.3 and this Section 2.9, to convert all or any part
----------- -----------
of a Loan of any Type into any other Type or Types of Loans; provided that any
--------
conversion of any Eurodollar Rate Advance shall be made on, and only on, the
last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
----------------------------------------
continue as Floating Rate Loans unless and until such Floating Rate Loans are
repaid or converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall
continue as Eurodollar Rate Loans until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have repaid such
Loans or given the Administrative Agent a Borrowing/Election Notice in
accordance with Section 2.9(D) requesting that, at the end of such Interest
---------------
Period, such Eurodollar Rate Loans continue as a Eurodollar Rate Loan.
(C) No Conversion Post-Default. Notwithstanding anything to the contrary
----------------------------
contained in Section 2.9(A) or Section 2.9(B), no Loan may be converted into or
-------------- --------------
continued as a Eurodollar Rate Loan (except with the consent of the Required
Lenders) when any Default has occurred and is continuing.
(D) Borrowing/Election Notice. The Borrower shall give the Administrative
--------------------------
Agent an irrevocable Borrowing/Election Notice of each conversion of a Floating
Rate Loan into a Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan
not later than 11:00 a.m. (Chicago time) three (3) Business Days prior to the
date of the requested conversion or continuation, specifying: (i) the requested
date (which shall be a Business Day) of such conversion or continuation; (ii)
the amount and Type of the Loan to be converted or continued; and (iii) the
amount of Eurodollar Rate Loan(s) into which such Loan is to be converted or
continued, and the duration of the Interest Period applicable thereto.
2.10 Default Rate. After the occurrence and during the continuance of a
-------------
Default, the Administrative Agent or the Required Lenders may, at their option,
by notice to the Borrower declare that, (a) the interest rate(s) applicable to
the Obligations (other than Eurodollar Rate Advances) shall be equal to the
Alternate Base Rate, changing as and when the Alternate Base Rate changes, or,
for Eurodollar Rate Advances, the then highest Eurodollar Rate (utilizing the
highest Applicable Margin in effect from time to time), in each case, plus two
----
percent (2.00%) per annum for all Loans and other Obligations, (b) the fees
payable under Section 3.8 with respect to Letters of Credit shall be calculated
-----------
using the highest Applicable L/C Fee Percentage plus two percent (2.00%) per
----
annum and (c) the Facility Fees shall be calculated using the highest Applicable
Facility Fee Percentage; provided, that after the occurrence and during the
--------
continuance of a Default under Sections 8.1(F), (G) or (I), the interest rate
---------------- --- ---
described in clause (a) above, the Letter of Credit Fee described in clause (b)
---------- ----------
above and the Facility Fee described in clause (c) above shall be applicable
----------
without any election or action on the part of the Administrative Agent or any
other Lender.
2.11 Method of Payment. All payments of principal, interest, fees,
-------------------
commissions and L/C Obligations hereunder shall be made, without setoff,
deduction or counterclaim, in immediately available funds to the Administrative
Agent at the Administrative Agent's address specified pursuant to Article XIV,
-----------
or at any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by 2:00 p.m. (Chicago time)
on the date when due and shall be made ratably among the Lenders (unless such
amount is not to be shared ratably in accordance with the terms hereof). Each
payment delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such Lender in the
same type of funds which the Administrative Agent received at its address
specified pursuant to Article XIV or at any Lending Installation specified in a
-----------
notice received by the Administrative Agent from such Lender. The Borrower
authorizes the Administrative Agent to charge the account of the Borrower
maintained with Bank One for each payment of principal, interest, fees,
commissions and L/C Obligations as it becomes due hereunder. Each reference to
the Administrative Agent in this Section 2.11 shall also be deemed to refer, and
------------
shall apply equally, to each Issuing Bank, in the case of payments required to
be made by the Borrower to such Issuing Bank pursuant to Article III.
-----------
2.12 Evidence of Debt.
------------------
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness of the
-------------
Borrower to such Lender owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b) The Register maintained by the Administrative Agent pursuant to Section
-------
13.3(C) shall include a control account, and a subsidiary account for each
-------
Lender, in which accounts (taken together) shall be recorded (i) the date and
the amount of each Loan made hereunder, the Type thereof and the Interest
Period, if any, applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder, (iii) the effective date and amount of each Assignment Agreement
delivered to and accepted by it and the parties thereto pursuant to Section
-------
13.3, (iv) the amount of any sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(c) The entries made in the Loan Account, the Register and the other accounts
maintained pursuant to subsections (a) or (b) of this Section shall be
---------------- ---
conclusive and binding for all purposes, absent manifest error, unless the
Borrower objects to information contained in the Loan Accounts, the Register or
the other accounts within thirty (30) days of the Borrower's receipt of such
information; provided that the failure of any Lender or the Administrative Agent
--------
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans in accordance with the terms
of this Agreement.
(d) Any Lender may request that the Revolving Loans made by it be evidenced by
a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note for such Loans payable to the order of
such Lender and in a form approved by the Administrative Agent in its reasonable
discretion and consistent with the terms of this Agreement. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 13.3) be represented by one or
------------
more promissory notes in such form payable to the order of the payee named
therein.
2.13 Telephonic Notices. The Borrower authorizes the Lenders and the
-------------------
Administrative Agent to extend, convert or continue Advances, effect selections
of Types of Advances and to transfer funds based on telephonic notices made by
any person or persons the Administrative Agent or any Lender in good faith
believes to be acting on behalf of the Borrower. The Borrower agrees to deliver
promptly to the Administrative Agent a written confirmation, signed by an
Authorized Officer, if such confirmation is requested by the Administrative
Agent or any Lender, of each telephonic notice. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
with respect to such telephonic notice shall govern absent manifest error. In
case of disagreement concerning such notices, if the Administrative Agent has
recorded telephonic Borrowing/Election Notices, such recordings will be made
available to the Borrower upon the Borrower's request therefor.
2.14 Promise to Pay; Interest and Facility Fees; Interest Payment Dates;
-----------------------------------------------------------------------
Interest and Fee Basis; Loan and Control Accounts.
--------------------------------------------------------
(A) Promise to Pay. The Borrower unconditionally promises to pay when due
----------------
the principal amount of each Loan and all other Obligations incurred by it, and
to pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents.
(B) Interest Payment Dates. Interest accrued on each Floating Rate Loan
------------------------
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof and at maturity (whether by acceleration or
otherwise). Interest accrued on each Eurodollar Rate Loan shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Rate Loan having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during such Interest Period. Interest accrued on the
principal balance of all other Obligations shall be payable in arrears (i) on
the last day of each calendar quarter, commencing on the first such day
following the incurrence of such Obligation, (ii) upon repayment thereof in full
or in part, and (iii) if not theretofore paid in full, at the time such other
Obligation becomes due and payable (whether by acceleration or otherwise).
(C) Facility Fees and Administrative Agent's Fees. (i) The Borrower shall
----------------------------------------------
pay to the Administrative Agent, for the account of the Lenders in accordance
with their Pro Rata Shares, from and after the Closing Date until the
Termination Date, a facility fee (the "FACILITY FEE") accruing at the per annum
rate of the then Applicable Facility Fee Percentage, on the Aggregate Revolving
Loan Commitment (whether used or unused). All such Facility Fees payable under
this clause (C) shall be payable quarterly in arrears on each Payment Date
-----------
occurring after the Closing Date (with the first such payment being calculated
for the period from the Closing Date and ending on June 30, 2000), and on the
Termination Date.
(ii) Xxxxxxx shall pay or shall cause Energizer to pay to the
Administrative Agent for the sole account of the Administrative Agent and the
Arranger (unless otherwise agreed between the Administrative Agent and the
Arranger and any Lender) the fees set forth in the letter agreement among the
Administrative Agent, the Arranger, Xxxxxxx and Energizer dated February 16,
2000, payable at the times and in the amounts set forth therein.
(D) Interest and Fee Basis; Applicable Margin, Applicable Facility Fee
------------------------------------------------------------------------
Percentage and Applicable L/C Fee Percentage.
--------------------------------------------
(i) Interest accrued on Eurodollar Rate Advances, fees payable with
respect to Letters of Credit, Facility Fees, and Floating Rate Advances and
Swing Line Loans where the basis for calculation is the Federal Funds Effective
Rate shall be calculated for actual days elapsed on the basis of a year of 360
days, and interest accrued on Floating Rate Advances and Swing Line Loans where
the basis for calculation is the Prime Rate shall be calculated for actual days
elapsed on the basis of a year of 365, or when appropriate 366, days. Interest
shall be payable for the day an Obligation is incurred but not for the day of
any payment on the amount paid if payment is received prior to 2:00 p.m.
(Chicago time) at the place of payment. If any payment of principal of or
interest on a Loan or any payment of any other Obligations shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest, fees and commissions in
connection with such payment.
(ii) The Applicable Margin, Applicable Facility Fee Percentage and Applicable
L/C Fee Percentage shall be determined from time to time by reference to the
table set forth below, on the basis of the then applicable Leverage Ratio as
described in this Section 2.14(D)(ii):
--------------------
APPLICABLE FEES
----------------
LEVERAGE RATIO APPLICABLE
APPLICABLE L/C FEE FACILITY FEE
APPLICABLE MARGIN PERCENTAGE PERCENTAGE
------------------ ----------- -----------
LEVEL I
<1.0 to 1.0 0.375% 0.375% 0.125%
-------------- ------------------ ----------- -----------
LEVEL II
1.0 to 1.0 and
<1.5 to 1.0 0.50% 0.50% 0.125%
------------------ ----------- -----------
LEVEL III
1.5 to 1.0 and
<2.0 to 1.0 0.60% 0.60% 0.15%
------------------ ----------- -----------
LEVEL IV
2.0 to 1.0 and
<2.5 to 1.0 0.825% 0.825% 0.175%
------------------ ----------- -----------
LEVEL V
2.5 to 1.0 1.05% 1.05% 0.20%
-------------- ------------------ ----------- -----------
For purposes of this Section 2.14(D)(ii), the Leverage Ratio shall be calculated
-------------------
as provided in Section 7.4(A). Upon receipt of the financial statements
---------------
delivered pursuant to Section 7.1(A)(i) and (ii), as applicable, the Applicable
----------------- ----
Margin, Applicable Facility Fee Percentage and Applicable L/C Fee Percentage
shall be adjusted, such adjustment being effective five (5) Business Days
following the Administrative Agent's receipt of such financial statements and
the compliance certificate required to be delivered in connection therewith
pursuant to Section 7.1(A)(iii); provided, that if the Borrower shall not have
------------------- --------
timely delivered its financial statements in accordance with Section 7.1(A)(i)
-----------------
or (ii), as applicable, then commencing on the date upon which such financial
----
statements should have been delivered and continuing until five (5) Business
Days following the date such financial statements are actually delivered, it
shall be assumed for purposes of determining the Applicable Margin, Applicable
Facility Fee Percentage and Applicable L/C Fee Percentage that the Leverage
Ratio was greater than 2.5 to 1.0 and Level V pricing shall be applicable.
(iii) Notwithstanding anything herein to the contrary, from the Closing
Date to but not including the fifth Business Day following receipt of the
Borrower's financial statements delivered pursuant to Section 7.1(A)(i) for the
-----------------
fiscal quarter ending June 30, 2000, the Applicable Margin, Applicable Facility
Fee Percentage and Applicable L/C Fee Percentage shall be set at the greater of
(a) Level III and (b) the Level determined in accordance with clause (ii) above.
2.15 Notification of Advances, Interest Rates, Prepayments and Aggregate
-----------------------------------------------------------------------
Revolving Loan Commitment Reductions. Promptly after receipt thereof, the
------------------------------------
Administrative Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Borrowing/Election Notice repayment
notice and issuance of Letter of Credit notice received by it hereunder. The
Administrative Agent will notify each Lender of the interest rate applicable to
each Eurodollar Rate Loan promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.16 Lending Installations. Each Lender may book its Loans or Letters of
----------------------
Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation. Subject to the provisions of Section 4.6,
-----------
each Lender may, by written or facsimile notice to the Administrative Agent and
the Borrower, designate a Lending Installation through which Loans will be made
by it and for whose account Loan payments and/or payments of L/C Obligations are
to be made.
2.17 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
-------------------------------------------------
or a Lender, as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption.
If such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
2.18 Termination Date. This Agreement shall be effective until the
-----------------
Termination Date. Notwithstanding the termination of this Agreement, until all
of the Obligations (other than contingent indemnity obligations) shall have been
fully and indefeasibly paid and satisfied in cash (to the full extent that such
Obligations are payable in cash), all financing arrangements among the Borrower
and the Lenders shall have been terminated and all of the Letters of Credit
shall have expired, been canceled or terminated, all of the rights and remedies
under this Agreement and the other Loan Documents shall survive.
2.19 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
---------------------------------
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the Borrower, or to fund a Revolving Loan in order to repay Swing
Line Loans or Reimbursement Obligations, which such Lender is obligated to fund
under the terms of this Agreement and which failure has not been cured, (ii)
requested compensation from the Borrower under Sections 4.1, 4.2 or 4.5 to
------------ --- ---
recover Taxes, Other Taxes or other additional costs incurred by such Lender
which are not being incurred generally by the other Lenders, (iii) delivered a
notice pursuant to Section 4.3 claiming that such Lender is unable to extend
------------
Eurodollar Rate Loans to the Borrower for reasons not generally applicable to
the other Lenders or (iv) has invoked Section 10.2, then, in any such case, the
------------
Borrower or the Administrative Agent may make written demand on such Affected
Lender (with a copy to the Administrative Agent in the case of a demand by the
Borrower and a copy to the Borrower in the case of a demand by the
Administrative Agent) for the Affected Lender to assign, and such Affected
Lender shall use commercially reasonable efforts to assign pursuant to one or
more duly executed Assignment Agreements five (5) Business Days after the date
of such demand, to one or more financial institutions that comply with the
provisions of Section 13.3 which the Borrower or the Administrative Agent, as
-------------
the case may be, shall have engaged for such purpose ("REPLACEMENT LENDER"), all
of such Affected Lender's rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, its Revolving Loan
Commitment, all Loans owing to it, all of its participation interests in
existing Letters of Credit, and its obligation to participate in additional
Letters of Credit and Swing Line Loans hereunder) in accordance with Section
-------
13.3. The Administrative Agent agrees, upon the occurrence of such events with
----
respect to an Affected Lender and upon the written request of the Borrower, to
use its reasonable efforts to obtain the commitments from one or more financial
institutions to act as a Replacement Lender. The Administrative Agent is
authorized to execute one or more of such Assignment Agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the same
within five (5) Business Days after the date of such demand. Further, with
respect to such assignment the Affected Lender shall have concurrently received,
in cash, all amounts due and owing to the Affected Lender hereunder or under any
other Loan Document, including, without limitation, the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment, amounts payable under
Sections 4.1, 4.2 and 4.5 with respect to such Affected Lender and compensation
--------- --- ---
payable under Section 2.14(C) in the event of any replacement of any Affected
----------------
Lender under clause (ii) or clause (iii) of this Section 2.19; provided that
------------ ------------ ------------ --------
upon such Affected Lender's replacement, such Affected Lender shall cease to be
a party hereto but shall continue to be entitled to the benefits of Sections
--------
4.1, 4.2, 4.4, 4.5 and 10.7, as well as to any fees accrued for its account
--- --- --- ----
hereunder and not yet paid, and shall continue to be obligated under Section
-------
11.8 with respect to losses, obligations, liabilities, damages, penalties,
----
actions, judgments, costs, expenses or disbursements for matters which occurred
-
prior to the date the Affected Lender is replaced. Upon the replacement of any
Affected Lender pursuant to this Section 2.19, the provisions of Section 9.2
------------ -----------
shall continue to apply with respect to Loans which are then outstanding with
respect to which the Affected Lender failed to fund its Pro Rata Share and which
failure has not been cured.
ARTICLE III: THE LETTER OF CREDIT FACILITY
------------- ---------------------------------
3.1 Obligation to Issue Letters of Credit. Subject to the terms and
------------------------------------------
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrower herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Borrower through such Issuing
Bank's branches as it and the Borrower may jointly agree, one or more standby
Letters of Credit denominated in Dollars in accordance with this Article III,
-----------
from time to time during the period, commencing on the Initial Funding Date and
ending on the fifth Business Day prior to the Revolving Loan Termination Date.
3.2 [Reserved].
----------
3.3 Types and Amounts. No Issuing Bank shall have any obligation to and no
------------------
Issuing Bank shall:
(i) issue (or amend) any Letter of Credit if on the date of issuance (or
amendment), before or after giving effect to the Letter of Credit requested
hereunder, (a) the Revolving Credit Obligations at such time would exceed the
Aggregate Revolving Loan Commitment at such time, or (b) the aggregate
outstanding amount of the L/C Obligations would exceed $10,000,000; or
(ii) issue (or amend) any Letter of Credit which has an expiration date
later than the date which is the earlier of (a) one (1) year after the date of
issuance thereof or (b) five (5) Business Days immediately preceding the
Revolving Loan Termination Date; provided that any Letter of Credit with a
--------
one-year tenor may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause
------
(b) above).
---
3.4 Conditions. In addition to being subject to the satisfaction of the
----------
conditions contained in Sections 5.1 and 5.2, the obligation of any Issuing Bank
------------ ---
to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(i) the Borrower shall have delivered to such Issuing Bank (with copies
delivered simultaneously to the Administrative Agent) at such times and in such
manner as such Issuing Bank may reasonably prescribe, a request for issuance of
such Letter of Credit in substantially the form of Exhibit C hereto, duly
---------
executed applications for such Letter of Credit, and such other documents,
instructions and agreements as may be required pursuant to the terms thereof
(all such applications, documents, instructions, and agreements being referred
to herein as the "L/C DOCUMENTS"), and the proposed Letter of Credit shall be
reasonably satisfactory to such Issuing Bank as to form and content; and
(ii) as of the date of issuance no order, judgment or decree of any court,
arbitrator or Governmental Authority shall purport by its terms to enjoin or
restrain such Issuing Bank from issuing such Letter of Credit and no law, rule
or regulation applicable to such Issuing Bank and no request or directive
(whether or not having the force of law) from a Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit or request that such Issuing
Bank refrain from the issuance of Letters of Credit generally or the issuance of
that Letter of Credit.
3.5 Procedure for Issuance of Letters of Credit. (a) Subject to the terms
--------------------------------------------
and conditions of this Article III and provided that the applicable conditions
-----------
set forth in Sections 5.1 and 5.2 hereof have been satisfied, the applicable
------------- ---
Issuing Bank shall, on the requested date, issue a Letter of Credit on behalf of
the Borrower in accordance with such Issuing Bank's usual and customary
business practices and, in this connection, such Issuing Bank may assume that
the applicable conditions set forth in Section 5.2 hereof have been satisfied
-----------
unless it shall have received notice to the contrary from the Administrative
Agent or a Lender or has knowledge that the applicable conditions have not been
met.
(b) Immediately upon such issuance, the applicable Issuing Bank shall give
the Administrative Agent written or telex notice, or telephonic notice confirmed
promptly thereafter in writing, of the issuance of a Letter of Credit, provided,
--------
however, that the failure to provide such notice shall not result in any
-------
liability on the part of such Issuing Bank.
(c) The applicable Issuing Bank shall not extend (including as a result of any
evergreen provision) or amend any Letter of Credit unless the requirements of
this Section 3.5 are met as though a new Letter of Credit was being requested
------------
and issued.
3.6 Letter of Credit Participation. Immediately upon the issuance of each
--------------------------------
Letter of Credit hereunder, each Lender with a Pro Rata Share shall be deemed to
have automatically, irrevocably and unconditionally purchased and received
from each Issuing Bank an undivided interest and participation in and to each
Letter of Credit, the obligations of the Borrower in respect thereof, and the
liability of the applicable Issuing Bank thereunder (collectively, an "L/C
INTEREST") in an amount equal to the amount available for drawing under such
Letter of Credit multiplied by such Lender's Pro Rata Share. If the Borrower
fails at any time to repay a Reimbursement Obligation pursuant to Section 3.7,
-----------
promptly following receipt of notice from the Administrative Agent or the
applicable Issuing Bank, each Lender shall make payment to the Administrative
Agent, for the account of the applicable Issuing Bank, in immediately available
funds in an amount equal to such Lender's Pro Rata Share of the amount of any
unreimbursed payment of an L/C Draft or other draw under a Letter of Credit.
The obligation of each Lender to reimburse the applicable Issuing Bank under
this Section 3.6 shall be unconditional, continuing, irrevocable and absolute.
------------
In the event that any Lender fails to make payment to the Administrative Agent
of any amount due under this Section 3.6, the Administrative Agent shall be
-----------
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Administrative
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied; provided, however, that nothing contained in this sentence
-------- -------
shall relieve such Lender of its obligation to reimburse the applicable Issuing
Bank for such amount in accordance with this Section 3.6.
------------
3.7 Reimbursement Obligation. The Borrower agrees unconditionally,
-------------------------
irrevocably and absolutely to pay immediately to the Administrative Agent, for
the account of the Lenders, the amount of each advance drawn under or pursuant
to a Letter of Credit or an L/C Draft related thereto (such obligation of the
Borrower to reimburse the Administrative Agent for an advance made under a
Letter of Credit or L/C Draft being hereinafter referred to as a "REIMBURSEMENT
OBLIGATION" with respect to such Letter of Credit or L/C Draft), each such
reimbursement to be made by the Borrower no later than the Business Day on which
the applicable Issuing Bank makes payment of each such L/C Draft or, in the case
of any other draw on a Letter of Credit, the date specified in the demand of the
applicable Issuing Bank. If the Borrower at any time fails to repay a
Reimbursement Obligation pursuant to this Section 3.7, such failure shall not
-----------
constitute a Default if the Revolving Credit Obligations do not, and after
making Revolving Loans in repayment of such Reimbursement Obligation would not,
exceed the Aggregate Revolving Loan Commitments and the conditions set forth in
Sections 5.2(i) and (ii) have been satisfied, and the Borrower shall be deemed
---------------- ----
to have elected to borrow Revolving Loans from the Lenders, as of the date of
the advance giving rise to the Reimbursement Obligation, equal in amount to the
amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall be
made as of the date of the payment giving rise to such Reimbursement Obligation,
automatically, without notice and without any requirement to satisfy the
conditions precedent otherwise applicable to an Advance of Revolving Loans.
Such Revolving Loans shall constitute a Floating Rate Advance, the proceeds of
which Advance shall be used to repay such Reimbursement Obligation. If, for any
reason, the Borrower fails to repay a Reimbursement Obligation on the day such
Reimbursement Obligation arises and, for any reason, the Lenders are unable to
make or have no obligation to make Revolving Loans, then such Reimbursement
Obligation shall bear interest from and after such day, until paid in full, at
the interest rate applicable to a Floating Rate Advance.
3.8 Letter of Credit Fees. The Borrower agrees to pay:
------------------------
(i) quarterly, in arrears, to the Administrative Agent for the ratable
benefit of the Lenders, except as set forth in Section 9.2, a letter of credit
-----------
fee at a rate per annum equal to the Applicable L/C Fee Percentage on the
average daily outstanding face amount available for drawing under all standby
Letters of Credit;
(ii) quarterly, in arrears, to the applicable Issuing Bank, a letter of
credit fronting fee in an amount or at a rate per annum to be negotiated by the
Borrower and the applicable Issuing Bank at the time of issuance of each standby
Letter of Credit on the average daily outstanding face amount available for
drawing under all Letters of Credit issued by such Issuing Bank; and
(iii) to the applicable Issuing Bank, all customary fees and other issuance,
amendment, cancellation, document examination, negotiation, transfer and
presentment expenses and related charges in connection with the issuance,
amendment, cancellation, presentation of L/C Drafts, negotiation, transfer and
the like customarily charged by such Issuing Bank with respect to standby
Letters of Credit, payable at the time of invoice of such amounts.
3.9 Issuing Bank Reporting Requirements. Upon the request of any Lender,
-------------------------------------
each Issuing Bank shall furnish to such Lender copies of any Letter of Credit
and any application for or reimbursement agreement with respect to a Letter of
Credit to which such Issuing Bank is party.
3.10 Indemnification; Exoneration. (A) In addition to amounts payable as
-----------------------------
elsewhere provided in this Article III, the Borrower hereby agrees to protect,
-----------
indemnify, pay and save harmless the Administrative Agent, each Issuing Bank and
each Lender from and against any and all liabilities and costs which the
Administrative Agent, such Issuing Bank or such Lender may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit other than, in the case of such Issuing Bank, as a result of its gross
negligence or willful misconduct, as determined by the final judgment of a court
of competent jurisdiction, or (ii) the failure of such Issuing Bank to honor a
drawing under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental
------- --------
Authority (all such acts or omissions herein called "GOVERNMENTAL ACTS").
(B) As among the Borrower, the Lenders, the Administrative Agent and each
Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or
misuse of such Letter of Credit by, the beneficiary of any Letters of Credit.
In furtherance and not in limitation of the foregoing, subject to the provisions
of the Letter of Credit applications and Letter of Credit reimbursement
agreements executed by the Borrower at the time of request for any Letter of
Credit, neither the Administrative Agent, any Issuing Bank nor any Lender shall
be responsible (in the absence of gross negligence or willful misconduct in
connection therewith, as determined by the final judgment of a court of
competent jurisdiction): (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iii) for failure of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or other similar form of
teletransmission or otherwise; (v) for errors in interpretation of technical
trade terms; (vi) for any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; (vii) for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) for any consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Banks and the Lenders, including, without
limitation, any Governmental Acts. None of the above shall affect, impair, or
prevent the vesting of any Issuing Bank's rights or powers under this Section
-------
3.10.
----
(C) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of gross negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put such Issuing Bank, the Administrative Agent or any Lender
under any resulting liability to the Borrower or relieve the Borrower of any of
its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 3.10 shall survive the payment in full of principal and interest
-------------
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
3.11 Cash Collateral. Notwithstanding anything to the contrary herein or in
---------------
any application for a Letter of Credit, after the occurrence and during the
continuance of a Default, the Borrower shall, upon the Administrative Agent's
demand, deliver to the Administrative Agent for the benefit of the Lenders and
the Issuing Banks, cash, or other collateral of a type satisfactory to the
Required Lenders, having a value, as determined by such Lenders, equal to the
aggregate outstanding L/C Obligations. In addition, but without duplication of
amounts deposited pursuant to the foregoing sentence, if the Revolving Credit
Availability is at any time less than the amount of contingent L/C Obligations
outstanding at any time, the Borrower shall deposit cash collateral with the
Administrative Agent in an amount equal to the amount by which such L/C
Obligations exceed such Revolving Credit Availability. Any such collateral
shall be held by the Administrative Agent in a separate account appropriately
designated as a cash collateral account in relation to this Agreement and the
Letters of Credit and retained by the Administrative Agent for the benefit of
the Lenders and the Issuing Banks as collateral security for the Borrower's
obligations in respect of this Agreement and each of the Letters of Credit and
L/C Drafts. Such amounts shall be applied to reimburse the Issuing Banks for
drawings or payments under or pursuant to Letters of Credit or L/C Drafts, or if
no such reimbursement is required, to payment of such of the other Obligations
as the Administrative Agent shall determine. If no Default shall be continuing,
amounts remaining in any cash collateral account established pursuant to this
Section 3.11 which are not to be applied to reimburse the Issuing Banks for
-----------
amounts actually paid or to be paid by the Issuing Banks in respect of a Letter
of Credit or L/C Draft, shall be returned promptly to the Borrower (after
deduction of the Administrative Agent's reasonable out-of-pocket expenses
incurred in connection with such cash collateral account) as the Letters of
Credit expire.
ARTICLE IV: YIELD PROTECTION; TAXES
------------ -------------------------
4.1 Yield Protection. If, on or after the date of this Agreement, the
-----------------
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to any Taxes,
or changes the basis of taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its Loans or L/C Interests, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar Rate
Advances), or
(iii) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making, funding or
maintaining its Loans or L/C Interests or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with its Loans or
L/C Interests, or requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of Loans or L/C Interests
held or interest received by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Loans, L/C
Interests or Revolving Loan Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Loans, L/C
Interests or Revolving Loan Commitment, then, within fifteen (15) days of demand
by such Lender, the Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction in
amount received.
Notwithstanding the foregoing provisions of this Section 4.1, if any Lender
-----------
fails to notify the Borrower of any event or circumstance which will entitle
such Lender to compensation pursuant to this Section 4.1 within ninety (90) days
-----------
after such Lender obtains knowledge of such event or circumstance, then such
Lender shall not be entitled to compensation from the Borrower for any amount
arising prior to the date which is ninety (90) days before the date on which
such Lender notifies the Borrower of such event or circumstance.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines the
-------------------------------------------
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender reasonably determines is attributable to this Agreement,
its Loans, L/C Interests or its Revolving Loan Commitment hereunder (after
taking into account such Lender's customary policies as to capital adequacy).
"CHANGE" means (i) any change after the date of this Agreement in the Risk-Based
Capital Guidelines or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i) the
risk-based capital guidelines in effect in the United States on the date of this
Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
4.3 Availability of Types of Advances. If any Lender determines that
-------------------------------------
maintenance of its Eurodollar Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Rate Advances are
not available or (ii) the interest rate applicable to Eurodollar Rate Advances
does not accurately reflect the cost of making or maintaining Eurodollar Rate
Advances, then the Administrative Agent shall suspend the availability of
Eurodollar Rate Advances and require any affected Eurodollar Rate Advances to be
repaid or converted to Floating Rate Advances, subject to the payment of any
funding indemnification amounts required by Section 4.4.
------------
4.4 Funding Indemnification. If any payment of a Eurodollar Rate Advance
------------------------
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar Rate
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom (excluding loss of margin),
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain such Eurodollar Rate Advance.
4.5 Taxes. (i) All payments by the Borrower to or for the account of any
-----
Lender or the Administrative Agent hereunder or under any of the other Loan
Documents shall be made free and clear of and without deduction for any and all
Taxes. If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender, any Issuing Bank or the
Administrative Agent, (a) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 4.5) such Lender, such Issuing Bank
-----------
or the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (b) the Borrower
shall make such deductions, (c) the Borrower shall pay the full amount deducted
to the relevant authority in accordance with applicable law and (d) the Borrower
shall furnish to the Administrative Agent the original copy of a receipt
evidencing payment thereof within thirty (30) days after such payment is made.
Such Lender, such Issuing Bank or the Administrative Agent, as the case may be,
shall promptly reimburse the Borrower for such payments to the extent such
Lender, such Issuing Bank or the Administrative Agent receives actual knowledge
that it has received any tax credit or other benefit in connection with such tax
payments and that such tax credit or benefit is clearly attributable to this
Agreement.
(ii) In addition, the Borrower hereby agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any
promissory note issued hereunder or from the execution or delivery of, or
otherwise with respect to, this Agreement or any promissory note issued
hereunder ("OTHER TAXES").
(iii) The Borrower hereby agrees to indemnify the Administrative Agent and each
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 4.5) paid by the Administrative Agent or such Lender and any liability
------------
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within thirty
(30) days of the date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 4.6.
------------
(iv) Each Lender that is not incorporated under the laws of the United States
of America or a state thereof (each a "Non-U.S. Lender") agrees that it will,
not less than ten (10) Business Days after the date of this Agreement, deliver
to each of the Borrower and the Administrative Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the Administrative
Agent (x) renewals or additional copies of such form (or any successor form) on
or before the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 4.5 with respect to Taxes imposed by the United States; provided
------------
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request (without cost to the
Borrower) to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any promissory
note issued hereunder pursuant to the law of any relevant jurisdiction or any
treaty shall deliver to the Borrower (with a copy to the Administrative Agent),
at the time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental authority
of the United States or any other country or any political subdivision thereof
asserts a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or properly completed, because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason other than as a
result of the gross negligence or willful misconduct of the Administrative
Agent), such Lender shall indemnify the Administrative Agent fully for all
amounts paid, directly or indirectly, by the Administrative Agent as tax,
withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the
Administrative Agent under this subsection, together with all costs and expenses
related thereto (including attorneys fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the Administrative
Agent). The obligations of the Lenders under this Section 4.5(vii) shall
----------------
survive the payment of the Obligations, the termination of the Letters of Credit
and termination of this Agreement.
4.6 Lender Statements; Survival of Indemnity. To the extent reasonably
--------------------------------------------
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Rate Loans to reduce any liability of the Borrower to
such Lender under Sections 4.1, 4.2 and 4.5 or to avoid the unavailability of
------------ --- ---
Eurodollar Rate Advances under Section 4.3, so long as such designation is not,
-----------
in the reasonable judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrower
(with a copy to the Administrative Agent) as to the amount due, if any, under
Section 4.1, 4.2, 4.4 or 4.5. Such written statement shall set forth in
------------ --- --- ---
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Rate Loan shall be calculated as though each Lender
funded its Eurodollar Rate Loan through the purchase of a deposit of the type
and maturity corresponding to the deposit used as a reference in determining the
Eurodollar Rate applicable to such Loan, whether in fact that is the case or
not, and without regard to loss of margin. Unless otherwise provided herein,
the amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 4.1, 4.2, 4.4 and 4.5 shall survive payment of
------------ --- --- ---
the Obligations, termination of the Letters of Credit and termination of this
Agreement.
ARTICLE V: CONDITIONS PRECEDENT
----------- ---------------------
5.1 Initial Advances and Letters of Credit. The Lenders shall not be
-------------------------------------------
required to make the initial Loans or issue any Letters of Credit unless the
Borrower has furnished to the Administrative Agent each of the following, with
sufficient copies for the Lenders, all in form and substance satisfactory to the
Administrative Agent and the Lenders:
(1) Copies of the Certificate of Incorporation of Xxxxxxx, Energizer and
each of the Subsidiary Guarantors (other than Energizer) (collectively, the
"LOAN PARTIES"), together with all amendments and a certificate of good
standing, both certified by the appropriate governmental officer in its
jurisdiction of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary of each of the
Loan Parties, of its By-Laws and of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by counsel for any
Lender) authorizing the execution of the Loan Documents entered into by it;
(3) An incumbency certificate, executed by the Secretary or Assistant Secretary
of each of the Loan Parties, which shall identify by name and title and bear the
signature of the officers of the Loan Parties authorized to sign the Loan
Documents and the officers of Xxxxxxx and (from and after the consummation of
the Debt Assumption) Energizer authorized to make borrowings hereunder, upon
which certificate the Lenders shall be entitled to rely until informed of any
change in writing by the Borrower; provided, that any officer who will neither
be a signatory to this Agreement nor an individual requesting borrowings
hereunder, shall be permitted to deliver a facsimile of such officer's signature
in satisfaction of this Section 5.1(3);
---------------
(4) Certificates, in form and substance satisfactory to the Administrative
Agent, (a) signed by the Chief Financial Officer of Xxxxxxx, stating that on the
Initial Funding Date all the representations in this Agreement made by Xxxxxxx
are true and correct and no Default or Unmatured Default has occurred and is
continuing and (b) signed by the Executive Vice President-Finance and Control of
Energizer, stating that on the Initial Funding Date, all of the representations
in this Agreement to be made by Energizer on the Spin-Off Date would be true and
correct if such representations were made by Energizer on the Initial Funding
Date;
(5) The written opinion of the Loan Parties' counsel, addressed to the
Administrative Agent and the Lenders, in substantially the form attached hereto
as Exhibit E and containing assumptions and qualifications acceptable to the
----------
Administrative Agent and the Lenders;
(6) A certificate in form and substance satisfactory to the Administrative
Agent, signed by the chief financial officer or Treasurer of Energizer, stating
that, after taking into consideration all information available at such time,
such officer neither knows nor should know of any information that would prevent
the Net Worth Condition from being satisfied as of the Spin-Off Date, after
giving effect to the Spin-Off Transactions and after all post-closing
adjustments have been made;
(7) Evidence satisfactory to the Administrative Agent that, except as set forth
on Schedule 6.21 of this Agreement, (i) all conditions precedent to the
consummation of the Spin-Off have been satisfied in all material respects, (ii)
the Spin-Off Transactions have been approved by all necessary corporate action
of Xxxxxxx'x and Energizer's Board of Directors and, if required, shareholders,
and the terms of the Spin-Off Transactions have not been amended, waived or
modified in any material respect from those set forth in the Form 10 without the
approval of the Administrative Agent (such approval not to be unreasonably
withheld); (iii) the Tax Ruling and all necessary regulatory approvals have been
obtained for the consummation of the Spin-Off Transactions; and (iv) the
aggregate amount of all loans and committed Financing Facilities (including this
Agreement and the 364-Day Credit Agreement) available to Energizer upon
consummation of the Spin-Off Transactions equals or exceeds $650,000,000, and
all such commitments are identified on Schedule 6.21(iv) attached hereto;
(8) Evidence satisfactory to the Administrative Agent that there exists no
injunction or temporary restraining order which, in the judgment of the
Administrative Agent, would prohibit the making of the Loans, the consummation
of the Spin-Off Transactions, the consummation of the Debt Assumption and the
other transactions contemplated by the Transaction Documents or any litigation
seeking such an injunction or restraining order;
(9) Written money transfer instructions reasonably requested by the
Administrative Agent, addressed to the Administrative Agent and signed by an
Authorized Officer;
(10) Opinions of value, solvency and other appropriate factual information and
advice in form and substance reasonably satisfactory to it and from the chief
financial officer of Energizer supporting the conclusions that after giving
effect to the Spin-Off Transactions and the Debt Assumption, Energizer and its
Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent
to incurring the indebtedness contemplated under the Transaction Documents, will
be able to pay its debts and liabilities as they become due and will not be left
with unreasonably small working capital for general corporate purposes;
(11) Evidence satisfactory to the Administrative Agent that Xxxxxxx had paid or
has caused Energizer to pay to the Administrative Agent and the Arranger the
fees agreed to in the fee letter dated February 16, 2000, among the
Administrative Agent, the Arranger, Xxxxxxx and Energizer; and
(12) Such other documents as the Administrative Agent or any Lender or its
counsel may have reasonably requested, including, without limitation, the
Subsidiary Guaranty, opinions of counsel, an officer's no-default certificate
and each other document reflected on the List of Closing Documents attached as
Exhibit F to this Agreement.
---------
5.2 Each Advance and Letter of Credit. The Lenders shall not be required to
---------------------------------
make any Advance, or issue any Letter of Credit, unless on the applicable
Borrowing Date, or in the case of a Letter of Credit, the date on which the
Letter of Credit is to be issued, both before and after taking into account the
proposed borrowing or Letter of Credit:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in Article VI are true and
----------
correct in all material respects as of such Borrowing Date except for changes in
the Schedules to this Agreement reflecting transactions permitted by or not in
violation of this Agreement; and
(iii) The Revolving Credit Obligations do not, and after making such
proposed Advance or issuing such Letter of Credit would not, exceed the
Aggregate Revolving Loan Commitment.
Each Borrowing/Election Notice with respect to each such Advance and the
letter of credit application with respect to each Letter of Credit shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 5.2(i) and (ii) have been satisfied. Any Lender may
---------------- ----
require a duly completed officer's certificate in substantially the form of
Exhibit G hereto and/or a duly completed compliance certificate in substantially
---------
the form of Exhibit H hereto as a condition to making an Advance.
----------
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
------------ --------------------------------
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and the other financial accommodations to
Xxxxxxx and, after the consummation of the Debt Assumption, Energizer, and to
issue the Letters of Credit described herein, (a) Xxxxxxx represents and
warrants as follows in Section 6.1, 6.2, 6.3, 6.14, 6.18 and 6.21 to each Lender
----------- --- --- ---- ---- ---
and the Administrative Agent as of the Closing Date, the Initial Funding Date
and the Spin-Off Date, giving effect to the consummation of the transactions
contemplated by the Transaction Documents as of each such date, (b) Energizer
represents and warrants as follows in Sections 6.4 through 6.23 and Section 6.25
------------ ---- ------------
to each Lender and the Administrative Agent as of the Spin-Off Date (immediately
following the consummation of the Debt Assumption), giving effect to the
consummation of the transactions contemplated by the Transaction Documents as of
such date, and thereafter on each date as required by Section 5.2 (other than
-----------
with respect to Section 6.8 which shall only be made by Energizer as of the
------------
Spin-Off Date) and (c) Energizer represents and warrants as follows in Section
-------
6.24 to each Lender and the Administrative Agent as a condition to the Debt
Assumption, on each Adjustment Date and on the Opening Balance Sheet Delivery
Date (in each case, as of the Spin-Off Date, taking into account the
post-closing adjustments made as of such date):
6.1 Organization; Corporate Powers of Xxxxxxx. Each of Xxxxxxx and
---------------------------------------------
Energizer (i) is a corporation, limited liability company, partnership or other
commercial entity 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 entity and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing could
reasonably be expected to have a Material Adverse Effect, and (iii) has all
requisite power and authority to own, operate and encumber its property and to
conduct its business as presently conducted and as proposed to be conducted.
6.2 Authority of Xxxxxxx.
----------------------
(A) Xxxxxxx has the requisite power and authority to execute, deliver and
perform each of the Transaction Documents which are to be executed by it in
connection with the Transactions or which have been executed by it as required
by this Agreement and the other Loan Documents and (ii) to file the Transaction
Documents which must be filed by it in connection with the Transactions or which
have been filed by it as required by this Agreement, the other Loan
Documents or otherwise with any Governmental Authority.
(B) The execution, delivery, performance and filing, as the case may be, of
each of the Transaction Documents which must be executed or filed by Xxxxxxx in
connection with the Transactions or which have been executed or filed as
required by this Agreement, the other Loan Documents or otherwise and to which
Xxxxxxx is party, and the consummation of the transactions contemplated thereby,
have been duly approved by the respective boards of directors of Xxxxxxx and
Energizer and, if necessary, the shareholders of Xxxxxxx, and such approvals
have not been rescinded. No other action or proceedings on the part of Xxxxxxx
or Energizer are necessary to consummate such transactions.
(C) Each of the Transaction Documents to which Xxxxxxx is a party has been
duly executed, delivered or filed, as the case may be, by it and constitutes its
legal, valid and binding obligation, enforceable against it 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 by proceedings in equity or at law)), is in full force and effect and
no material term or condition thereof has been amended, modified or waived from
the terms and conditions contained in the Transaction Documents delivered to the
Administrative Agent pursuant to Section 5.1 without the prior written consent
-----------
of the Required Lenders (or all of the Lenders if required by Section 9.3), and
-----------
Xxxxxxx has performed and complied with all the material terms, provisions,
agreements and conditions set forth therein and required to be performed or
complied with by Xxxxxxx on or before the Initial Funding Date, and no unmatured
default, default or breach of any covenant by any such party exists thereunder.
6.3 No Conflict; Governmental Consents for Xxxxxxx. The execution, delivery
----------------------------------------------
and performance of each of the Loan Documents and other Transaction
Documents to which Xxxxxxx is a party do not and will not (i) conflict with the
certificate or articles of incorporation or by-laws of Xxxxxxx or Energizer,
(ii) with respect to the Transaction Documents other than the Loan Documents,
constitute a tortious interference with any Contractual Obligation of Xxxxxxx or
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any Requirement of Law (including,
without limitation, any Environmental Property Transfer Act) or Contractual
Obligation of Xxxxxxx, or require termination of any Contractual Obligation,
except such interference, breach, default or termination which individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect, (iii) with respect to the Loan Documents, constitute a tortious
interference with any Contractual Obligation of Xxxxxxx or conflict with, result
in a breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of Xxxxxxx, or
require termination of any Contractual Obligation, except such interference,
breach or default which individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect, (iv) result in or require the
creation or imposition of any Lien whatsoever upon any of the property or assets
of Xxxxxxx, other than Liens permitted or created by the Loan Documents, or (v)
require any approval of Xxxxxxx'x or Energizer's Board of Directors or
shareholders, as applicable, except such as have been obtained. Except as set
forth on Schedule 6.3 to this Agreement, the execution, delivery and performance
------------
of each of the Transaction Documents to which Xxxxxxx is a party do not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except filings, consents or notices which
have been made, obtained or given, or which, if not made, obtained or given,
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
6.4 Organization; Corporate Powers of Energizer. Energizer and each of its
--------------------------------------------
Subsidiaries (i) is a corporation, limited liability company, partnership or
other commercial entity 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 entity and is in good standing under the laws of
each jurisdiction in which failure to be so qualified and in good standing could
reasonably be expected to have a Material Adverse Effect, and (iii) has all
requisite power and authority to own, operate and encumber its property and to
conduct its business as presently conducted and as proposed to be conducted.
6.5 Authority of Energizer.
------------------------
(A) Energizer and each of its Subsidiaries has the requisite power and
authority to execute, deliver and perform each of the Transaction Documents
which are to be executed by it in connection with the Transactions or which have
been executed by it as required by this Agreement and the other Loan
Documents and (ii) to file the Transaction Documents which must be filed by it
in connection with the Transactions or which have been filed by it as required
by this Agreement, the other Loan Documents or otherwise with any Governmental
Authority.
(B) The execution, delivery, performance and filing, as the case may be, of
each of the Transaction Documents which must be executed or filed by Energizer
or any of its Subsidiaries in connection with the Transactions or which have
been executed or filed as required by this Agreement, the other Loan Documents
or otherwise and to which Energizer or any of its Subsidiaries is party, and the
consummation of the transactions contemplated thereby, have been duly approved
by the respective boards of directors and, if necessary, the shareholders of
Energizer and its Subsidiaries, and such approvals have not been rescinded. No
other action or proceedings on the part of Energizer or its Subsidiaries are
necessary to consummate such transactions.
(C) Each of the Transaction Documents to which Energizer or any of its
Subsidiaries is a party has been duly executed, delivered or filed, as the case
may be, by it and constitutes its legal, valid and binding obligation,
enforceable against it 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 by proceedings in equity
or at law)), is in full force and effect (other than as a result of expiration
in accordance with its terms) and no material term or condition thereof has been
amended, modified or waived from the terms and conditions contained in the
Transaction Documents delivered to the Administrative Agent pursuant to Section
-------
5.1 without the prior written consent of the Required Lenders (or all of the
Lenders if required by Section 9.3), and Energizer and its Subsidiaries have,
-----------
and, to the best of Energizer's and its Subsidiaries' knowledge, all other
parties thereto have, performed and complied with all the material terms,
provisions, agreements and conditions set forth therein and required to be
performed or complied with by such parties on or before the Initial Funding Date
or Spin-Off Date, as applicable, and no unmatured default, default or breach of
any covenant by any such party exists thereunder.
6.6 No Conflict; Governmental Consents for Energizer. The execution,
-----------------------------------------------------
delivery and performance of each of the Loan Documents and other Transaction
Documents to which Energizer or any of its Subsidiaries is a party do not and
will not (i) conflict with the certificate or articles of incorporation or
by-laws of Energizer or any such Subsidiary, (ii) with respect to the
Transaction Documents other than the Loan Documents, constitute a tortious
interference with any Contractual Obligation of any Person or conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of Energizer
or any such Subsidiary, or require termination of any Contractual Obligation,
except such interference, breach, default or termination which individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect, (iii) with respect to the Loan Documents, constitute a tortious
interference with any Contractual Obligation of any Person or conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of Energizer or
any such Subsidiary, or require termination of any Contractual Obligation,
except such interference, breach or default which individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect,
(iv) result in or require the creation or imposition of any Lien whatsoever upon
any of the property or assets of Energizer or any such Subsidiary, other than
Liens permitted or created by the Loan Documents, or (v) require any approval of
Energizer's or any such Subsidiary's Board of Directors or shareholders except
such as have been obtained. Except as set forth on Schedule 6.6 to this
------------
Agreement, the execution, delivery and performance of each of the Transaction
Documents to which Energizer or any of its Subsidiaries is a party do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except filings, consents or notices which
have been made, obtained or given, or which, if not made, obtained or given,
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
6.7 Financial Statements.
---------------------
(A) The pro forma historical balance sheet (as updated by the pro forma
--- ----- --- -----
historical balance sheet prepared with respect to Energizer and its Subsidiaries
as of February 29, 2000 (the "SUPPLEMENTAL FINANCIAL STATEMENT")), income
statements and statements of cash flow of Energizer and its Subsidiaries
contained in the Form 10 and the projections and assumptions contained in the
Borrower's Confidential Information Memorandum dated February, 2000 (the "BANK
BOOK") under Appendix A thereof, copies of which are attached hereto as Schedule
---------- --------
6.7 to this Agreement, present on a pro forma basis the financial condition of
--- --- -----
Energizer and such Subsidiaries as of such date, and reflect on a pro forma
--- -----
basis those liabilities reflected in the notes thereto and resulting from
consummation of the Transactions and the other transactions contemplated by this
Agreement, and the payment or accrual of all transaction costs payable on the
Initial Funding Date and the Spin-Off Date with respect to any of the foregoing
and demonstrate that, after giving effect to such transactions, Energizer and
its Subsidiaries can repay their debts and satisfy their other obligations as
and when due, and can comply with the requirements of this Agreement. The
projections and assumptions contained in the Bank Book were prepared in good
faith and represent management's opinion based on the information available to
the Borrower at the time so furnished and, since the preparation thereof and of
the pro forma historical financial statements contained in the Form 10 (as
--- -----
updated by the Supplemental Financial Statement) there has occurred no material
adverse change in the business, financial condition, operations, or prospects of
Energizer or any of its Subsidiaries, or Energizer and its Subsidiaries taken as
a whole (it being understood that so long as the representation and warranty
contained in Section 6.24 is true and correct at each time Energizer is required
------------
to make such representation and warranty pursuant to the introduction to this
Article VI, changes from the "Net transactions with RPCO" line item on the pro
--------- ---
forma statement of cash flow will not constitute a material adverse change).
(B) Complete and accurate copies of the audited financial statements and
the audit report related thereto prepared with respect to Energizer and its
Subsidiaries as of September 30, 1999 and unaudited financial statements of
prepared with respect to Energizer and its Subsidiaries as of December 31, 1999
have been delivered to the Administrative Agent.
(C) Since the financial statements prepared as of December 31, 1999, the
historical pro forma financial statements contained in the Form 10 (as updated
--- -----
by the Supplemental Financial Statement), and the projections and assumptions
included as Appendix A of the Bank Book, Energizer and its Subsidiaries have
conducted their respective operations (including, without limitation, any
operations and transactions with Xxxxxxx, any holder or holders of any of the
Equity Interests of Energizer, or with any Affiliate of Energizer which is not
its Subsidiary) according to their ordinary and usual course of business and
consistent with past practice, as reflected in such financial statements, Form
10 (as updated by the Supplemental Financial Statement) and the Bank Book, as
applicable, in all material respects (it being understood that so long as the
representation and warranty contained in Section 6.24 is true and correct at
------------
each time Energizer is required to make such representation and warranty
pursuant to the introduction to this Article VI, changes from the "Net
-----------
transactions with RPCO" line item on the pro forma statement of cash flow will
--- -----
not constitute a material deviation from past operations).
6.8 No Material Adverse Change. Since each of (a) December 31, 1999
-----------------------------
(determined by reference to the financial statements prepared with respect to
Energizer and its Subsidiaries), (b) the pro forma historical financial
--- -----
statements set forth in the Form 10 (as updated by the Supplemental Financial
Statement), and (c) the projections and assumptions included as Appendix A of
the Bank Book, there has occurred no change in the business, properties,
condition (financial or otherwise), performance, results of operations or
prospects of Energizer, or Energizer and its Subsidiaries taken as a whole or
any other event which has had or would reasonably be expected to have a Material
Adverse Effect (it being understood that so long as the representation and
warranty contained in Section 6.24 is true and correct at each time Energizer is
------------
required to make such representation and warranty pursuant to the introduction
to this Article VI, changes from the "Net transactions with RPCO" line item on
----------
the pro forma statement of cash flow will not constitute an event which has had
--- -----
or would reasonably be expected to have a Material Adverse Effect).
6.9 Taxes.
-----
(A) Tax Examinations. All deficiencies which have been asserted against
-----------------
Energizer or any of Energizer's Subsidiaries as a result of any federal, state,
local or foreign tax examination for each taxable year in respect of which an
examination has been conducted have been fully paid or finally settled or are
being contested in good faith, and no issue has been raised by any taxing
authority in any such examination which, by application of similar principles,
reasonably can be expected to result in assertion by such taxing authority of a
material deficiency for any other year not so examined which has not been
reserved for in Energizer's consolidated financial statements to the extent, if
any, required by Agreement Accounting Principles. Except as permitted pursuant
to Section 7.2(D), neither Energizer nor any of Energizer's Subsidiaries
---------------
anticipates any material tax liability with respect to the years which have not
been closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of Energizer and its
------------------
Subsidiaries required to be filed have been timely filed, and all taxes,
assessments, fees and other governmental charges thereupon and upon their
respective property, assets, income and franchises which are shown in such
returns or reports to be due and payable have been paid except those items which
are being contested in good faith and have been reserved for in accordance with
Agreement Accounting Principles. Energizer has no knowledge of any proposed tax
assessment against Energizer or any of its Subsidiaries that will have or could
reasonably be expected to have a Material Adverse Effect.
6.10 Litigation; Loss Contingencies and Violations. Except as set forth in
----------------------------------------------
Schedule 6.10 (the "DISCLOSED LITIGATION"), there is no action, suit,
--------------
proceeding, arbitration or, to Energizer's knowledge, investigation before or by
----------
any Governmental Authority or private arbitrator pending or, to Energizer's
knowledge, threatened against Energizer, any of its Subsidiaries or any property
of any of them. Neither any of the Disclosed Litigation nor any action, suit,
proceeding, arbitration or investigation which has commenced since the Closing
Date (or the most recent update of the Disclosed Litigation) (i) challenges the
validity or the enforceability of any material provision of the Transaction
Documents or (ii) has or could reasonably be expected to have a Material Adverse
Effect. There is no material loss contingency within the meaning of Agreement
Accounting Principles which has not been reflected in the consolidated financial
statements of Energizer prepared and delivered pursuant to Section 7.1(A) for
--------------
the fiscal period during which such material loss contingency was incurred.
Neither Energizer nor any of its Subsidiaries is (A) in violation of any
applicable Requirements of Law which violation will have or could reasonably be
expected to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have or could reasonably be expected to have a Material Adverse
Effect.
6.11 Subsidiaries. Schedule 6.11 to this Agreement (i) contains a
------------ --------------
description of the corporate structure of Energizer, its Subsidiaries and any
other Person in which Energizer or any of its Subsidiaries holds a material
Equity Interest after giving effect to the Spin-Off Transactions; and (ii)
accurately sets forth (A) the correct legal name, the jurisdiction of
incorporation and the jurisdictions in which each of Energizer and the direct
and indirect Subsidiaries of Energizer are qualified to transact business as a
foreign corporation, (B) the authorized, issued and outstanding shares of each
class of Capital Stock of Energizer and each of its Subsidiaries and the owners
of such shares (both as of the consummation of the Spin-Off and on a
fully-diluted basis), and (C) a summary of the direct and indirect partnership,
joint venture, or other Equity Interests, if any, of Energizer and each
Subsidiary of Energizer in any Person that is not a corporation. After the
formation or acquisition of any New Subsidiary permitted under Section 7.3(F),
--------------
if requested by the Administrative Agent, Energizer shall provide a supplement
to Schedule 6.11 to this Agreement reflecting the addition of such New
--------------
Subsidiary. Except as disclosed on Schedule 6.11, none of the issued and
--------- --------------
outstanding Capital Stock of Energizer or any of Energizer's Subsidiaries is
subject to any vesting, redemption, or repurchase agreement, and there are no
warrants or options outstanding with respect to such Capital Stock. The
outstanding Capital Stock of Energizer and each of its Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable and the stock of
Energizer's Subsidiaries is not Margin Stock.
6.12 ERISA. No Benefit Plan has incurred any material accumulated funding
-----
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code)
whether or not waived. Neither Energizer nor any member of the Controlled Group
has incurred any material liability to the PBGC which remains outstanding other
than the payment of premiums. As of the last day of the most recent prior plan
year, the market value of assets under each Benefit Plan, other than any
Multiemployer Plan, was not by a material amount less than the present value of
benefit liabilities thereunder (determined in accordance with the actuarial
valuation assumptions described therein). Neither Energizer nor any member of
the Controlled Group has (i) failed to make a required contribution or payment
to a Multiemployer Plan of a material amount or (ii) incurred a material
complete or partial withdrawal under Section 4203 or Section 4205 of ERISA from
a Multiemployer Plan. Neither Energizer nor any member of the Controlled Group
has failed to make an installment or any other payment of a material amount
required under Section 412 of the Code on or before the due date for such
installment or other payment. Each Plan, Foreign Employee Benefit Plan and
Non-ERISA Commitment complies in all material respects in form, and has been
administered in all material respects in accordance with its terms and, in
accordance with all applicable laws and regulations, including but not limited
to ERISA and the Code. There have been no and there is no prohibited
transaction described in Sections 406 of ERISA or 4975 of the Code with respect
to any Plan for which a statutory or administrative exemption does not exist
which could reasonably be expected to subject Energizer or any of is
Subsidiaries to material liability. Neither Energizer nor any member of the
Controlled Group has taken or failed to take any action which would constitute
or result in a Termination Event, which action or inaction could reasonably be
expected to subject Energizer or any of its Subsidiaries to material liability.
Neither Energizer nor any member of the Controlled Group is subject to any
material liability under, or has any potential material liability under, Section
4063, 4064, 4069, 4204 or 4212(c) of ERISA. The present value of the aggregate
liabilities to provide all of the accrued benefits under any Foreign Pension
Plan do not exceed the current fair market value of the assets held in trust or
other funding vehicle for such plan by a material amount. With respect to any
Foreign Employee Benefit Plan other than a Foreign Pension Plan, reasonable
reserves have been established in accordance with prudent business practice or
where required by ordinary accounting practices in the jurisdiction in which
such plan is maintained. Neither Xxxxxxx nor any other member of its controlled
group (within the meaning of Section 414(b), (c), (m) or (o) of the Code) has
taken or failed to take any action, nor has any event occurred, with respect to
any "employee benefit plan" (as defined in section 3(3) of ERISA) which action,
inaction or event could reasonably be expected to subject Energizer or any of
its Subsidiaries to material liability. For purposes of this Section 6.12,
------------
"material" means any amount, noncompliance or other basis for liability which
could reasonably be expected to subject Energizer or any of its Subsidiaries to
liability, individually or in the aggregate with each other basis for liability
under this Section 6.12, in excess of $25,000,000.
-------------
6.13 Accuracy of Information. The information, exhibits and reports
-------------------------
furnished by or on behalf of Energizer and any of its Subsidiaries to the
Administrative Agent or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents, the representations and warranties of
Xxxxxxx, Energizer and their respective Subsidiaries contained in the Loan
Documents, and all certificates and documents delivered to the Administrative
Agent and the Lenders pursuant to the terms thereof, including, without
limitation the Bank Book and the Form 10 (as updated by the Supplemental
Financial Statement), taken as a whole, do not contain as of the date furnished
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading.
6.14 Securities Activities. Neither Xxxxxxx, Energizer nor any of its
----------------------
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
6.15 Material Agreements. Neither Energizer nor any Subsidiary is a party
--------------------
to any Contractual Obligation or subject to any charter or other corporate or
similar restriction which individually or in the aggregate will have or could
reasonably be expected to have a Material Adverse Effect. Neither Energizer nor
any of its Subsidiaries has received notice or has knowledge that (i) it is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Contractual Obligation applicable to
it, or (ii) any condition exists which, with the giving of notice or the lapse
of time or both, would constitute a default with respect to any such Contractual
Obligation, in each case, except where such default or defaults, if any,
individually or in the aggregate will not have or could not reasonably be
expected to have a Material Adverse Effect.
6.16 Compliance with Laws. Energizer and its Subsidiaries are in compliance
---------------------
with all Requirements of Law applicable to them and their respective businesses,
in each case where the failure to so comply individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
6.17 Assets and Properties. Energizer and each of its Subsidiaries has
-----------------------
legal title to all of its assets and properties (tangible and intangible, real
or personal) owned by it or a valid leasehold interest in all of its leased
assets (except insofar as marketability may be limited by any laws or
regulations of any Governmental Authority affecting such assets), and all such
assets and property are free and clear of all Liens, except Liens permitted
under Section 7.3(C). Substantially all of the assets and properties owned by,
--------------
leased to or used by Energizer and/or each such Subsidiary of Energizer are in
adequate operating condition and repair, ordinary wear and tear excepted.
Neither this Agreement nor any other Transaction Document, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of Energizer or such Subsidiary in and to any of such assets in a manner that
has or could reasonably be expected to have a Material Adverse Effect.
6.18 Statutory Indebtedness Restrictions. Neither Xxxxxxx, Energizer nor
-------------------------------------
any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act,
or the Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.19 Insurance. The insurance policies and programs in effect with respect
---------
to the respective properties, assets, liabilities and business reflect coverage
that is reasonably consistent with prudent industry practice.
6.20 Labor Matters. No attempt to organize the employees of Energizer, and
--------------
no labor disputes, strikes or walkouts affecting the operations of Energizer or
any of its Subsidiaries, is pending, or, to Energizer's knowledge, threatened,
planned or contemplated, which has or could reasonably be expected to have a
Material Adverse Effect.
6.21 Spin-Off Transactions. Except as set forth in Schedule 6.21 to this
---------------------- -------------
Agreement, (i) (a) all conditions precedent to, and all consents necessary to
permit, the consummation of the Spin-Off Transactions have been satisfied in all
material respects, (b) no additional actions are necessary to consummate the
Spin-Off Transactions other than the passage of time and (c) the Spin-Off will
take effect on April 1, 2000 without any further action on the part of Energizer
or Xxxxxxx, (ii) the Spin-Off Transactions have been approved by all necessary
corporate action of Xxxxxxx'x and Energizer's Board of Directors and, if
required, shareholders, and the terms of the Spin-Off Transactions have not been
amended, waived or modified in any material respect from those set forth in the
Form 10 without the approval of the Administrative Agent and the Required
Lenders (such approval not to be unreasonably withheld); (iii) the Tax Ruling
and all necessary regulatory approvals have been obtained for the consummation
of the Spin-Off Transactions; and (iv) the aggregate amount of all loans and
committed Financing Facilities (including this Agreement and the 364-Day Credit
Agreement) available to Energizer upon consummation of the Spin-Off Transactions
equals or exceeds $650,000,000, and all such commitments are identified on
Schedule 6.21(iv) attached hereto.
------------------
6.22 Environmental Matters. (A) Except as disclosed on Schedule 6.22 to
---------------------- -------------
this Agreement
(i) the operations of Energizer and its Subsidiaries comply in all material
respects with Environmental, Health or Safety Requirements of Law;
(ii) Energizer and its Subsidiaries have all material permits, licenses or
other authorizations required under Environmental, Health or Safety Requirements
of Law and are in material compliance with such permits;
(iii) neither Energizer, any of its Subsidiaries nor any of their respective
present property or operations, or, to Energizer's or any of its Subsidiaries'
knowledge, any of their respective past property or operations, are subject to
or the subject of, any investigation known to Energizer or any of its
Subsidiaries, any judicial or administrative proceeding, order, judgment,
decree, settlement or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material remedial
action; or (C) any material claims or liabilities arising from the Release or
threatened Release of a Contaminant into the environment;
(iv) there is not now, nor to Energizer's or any of its Subsidiaries'
knowledge has there ever been, on or in the property of Energizer or any of its
Subsidiaries any landfill, waste pile, underground storage tanks, aboveground
storage tanks, surface impoundment or hazardous waste storage facility of any
kind, any polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or any asbestos containing material that would
result in material remediation costs or material penalties to Energizer or any
of its Subsidiaries; and
(v) neither Energizer nor any of its Subsidiaries has any material
Contingent Obligation in connection with any Release or threatened Release of a
Contaminant into the environment.
(B) For purposes of this Section 6.22 "material" means any noncompliance or
------------
other basis for liability which could reasonably be likely to subject Energizer
or any of its Subsidiaries to liability, individually or in the aggregate with
each other basis for liability under this Section 6.22, in excess of
-------------
$25,000,000.
6.23 Solvency. After giving effect to (i) the Loans to be made on the
--------
Initial Funding Date or such other date as Loans requested hereunder are made
and the consummation of the Debt Assumption, (ii) the other transactions
contemplated by this Agreement and the other Transaction Documents, including
consummation of the Spin-Off Transactions, and (iii) the payment and accrual of
all transaction costs with respect to the foregoing, Energizer is, and Energizer
and its Subsidiaries taken as a whole are, Solvent.
6.24 Net Worth Condition. Upon consummation of the Spin-Off Transactions,
---------------------
the Net Worth Condition will be satisfied.
6.25 Benefits. Each of Energizer and its Subsidiaries will benefit from the
--------
financing arrangement established by this Agreement. The Administrative Agent
and the Lenders have stated and Energizer acknowledges that, but for the
agreement by each of the Subsidiary Guarantors to execute and deliver the
Subsidiary Guaranty, the Administrative Agent and the Lenders would not have
made available the credit facilities established hereby on the terms set forth
herein.
ARTICLE VII: COVENANTS
------------- ---------
From and after the consummation of the Debt Assumption, Energizer covenants
and agrees that so long as any Revolving Loan Commitments are outstanding and
thereafter until all of the Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied in cash,
all financing arrangements among the Borrower and the Lenders shall have been
terminated and all of the Letters of Credit shall have expired, been canceled or
terminated, unless the Required Lenders shall otherwise give prior written
consent:
7.1 Reporting. Energizer shall:
---------
(A) Financial Reporting. Furnish to the Administrative Agent (with
--------------------
sufficient copies for each of the Lenders, which the Administrative Agent shall
promptly deliver to the Lenders):
(i) Quarterly Reports. As soon as practicable, and in any event within
------------------
forty-five (45) days after the end of each of Energizer's first three fiscal
quarters, the consolidated balance sheet of Energizer and its Subsidiaries as at
the end of such period and the related consolidated statements of income
and cash flows of Energizer and its Subsidiaries for such fiscal quarter and for
the period from the beginning of the then current fiscal year to the end of such
fiscal quarter, certified by the chief financial officer of Energizer on behalf
of Energizer as fairly presenting the consolidated financial position of
Energizer and its Subsidiaries as at the dates indicated and the results of
their operations and cash flows for the periods indicated in accordance with
Agreement Accounting Principles, subject to normal year-end audit adjustments
and the absence of footnotes.
(ii) Annual Reports. As soon as practicable, and in any event within ninety
--------------
(90) days after the end of each fiscal year, (a) the consolidated and
consolidating balance sheet of Energizer and its Subsidiaries as at the end of
such fiscal year and the related consolidated and consolidating statements of
income, stockholders' equity and cash flows of Energizer and its Subsidiaries
for such fiscal year, and in comparative form the corresponding figures for the
previous fiscal year along with consolidating schedules in form and substance
sufficient to calculate the financial covenants set forth in Section 7.4, and
-----------
(b) an audit report on the consolidated financial statements (but not the
consolidating financial statements or schedules) listed in clause (a) hereof of
----------
independent certified public accountants of recognized national standing, which
audit report shall be unqualified and shall state that such financial statements
fairly present the consolidated financial position of Energizer and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flows for the periods indicated in conformity with Agreement Accounting
Principles and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards.
(iii) Officer's Compliance Certificate. Together with each delivery of any
---------------------------------
financial statement (a) pursuant to clauses (i) and (ii) of this Section 7.1(A),
----------- ---- --------------
an Officer's Certificate from the chief financial officer or Treasurer of
Energizer, substantially in the form of Exhibit G attached hereto and made a
---------
part hereof, stating that (x) the representations and warranties of Energizer
contained in Article VI hereof shall have been true and correct in all material
----------
respects as of the date of such Officer's Certificate and (y) as of the date of
such Officer's Certificate no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status thereof and
(b) pursuant to clauses (i) and (ii) of this Section 7.1(A), a compliance
------------ ---- --------------
certificate, substantially in the form of Exhibit H attached hereto and made a
---------
part hereof, signed by Energizer's chief financial officer or Treasurer, setting
forth calculations for the period which demonstrate compliance, when applicable,
with the provisions of Sections 7.3(A) through (R) and Section 7.4, and which
--------------- --- -----------
calculate the Leverage Ratio for purposes of determining the then Applicable
Margin, Applicable Facility Fee Percentage and Applicable L/C Fee Percentage.
(iv) Officer's Net Worth Condition Certificate. On each Adjustment Date
---------------------------------------------
(including the Final Adjustment Date) and on the Opening Balance Sheet Delivery
Date, a certificate in form and substance satisfactory to the Administrative
Agent, signed by the chief financial officer or Treasurer of Energizer, stating
that, after giving effect to the Spin-Off Transactions and after all
post-closing adjustments as of such date have been effected, the Net Worth
Condition was satisfied as of the Spin-Off Date.
(v) Opening Pro Forma Balance Sheet. On the Opening Balance Sheet Delivery
--------------------------------
Date, copies of the pro forma opening consolidated balance sheet of Energizer
--- -----
and its Subsidiaries, after giving effect to the Spin-Off Transactions and
including all post-closing adjustments.
(B) Notice of Default and Adverse Developments. Promptly upon any of the
---------------------------------------------
chief executive officer, chief operating officer, chief financial officer,
treasurer or controller of Energizer obtaining actual knowledge (i) of any
condition or event which constitutes a Default or Unmatured Default, or becoming
aware that any Lender or Administrative Agent has given any written notice
with respect to a claimed Default or Unmatured Default under this Agreement,
(ii) that any Person having the authority to give such a notice has given any
written notice to Energizer or any Subsidiary of Energizer or taken any other
action with respect to a claimed default or event or condition of the type
referred to in Section 8.1(E), or (iii) that any other development, financial or
--------------
otherwise, which could reasonably be expected to have a Material Adverse Effect
has occurred specifying (a) the nature and period of existence of any such
claimed default, Default, Unmatured Default, condition or event, (b) the notice
given or action taken by such Person in connection therewith, and (c) what
action Energizer has taken, is taking and proposes to take with respect thereto.
(C) ERISA Notices. Deliver or cause to be delivered to the Administrative
--------------
Agent and the Lenders, at Energizer's expense, the following information and
notices as soon as reasonably possible, and in any event:
(i) within ten (10) Business Days after any member of the Controlled Group
obtains knowledge that a Termination Event has occurred which could reasonably
be expected to subject Energizer to liability individually or in the aggregate
in excess of $20,000,000, a written statement of the Chief Financial Officer of
Energizer describing such Termination Event and the action, if any, which the
member of the Controlled Group has taken, is taking or proposes to take with
respect thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(ii) within ten (10) Business Days after the filing of any funding waiver
request with the IRS, a copy of such funding waiver request and thereafter all
communications received by Energizer or a member of the Controlled Group with
respect to such request within ten (10) Business Days such communication is
received; and
(iii) within ten (10) Business Days after Energizer or any member of the
Controlled Group knows or has reason to know that (a) a Multiemployer Plan has
been terminated, (b) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (c) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, a notice describing such matter.
For purposes of this Section 7.1(C), Energizer and any member of the Controlled
--------------
Group shall be deemed to know all facts known by the administrator of any Plan
of which Energizer or any member of the Controlled Group is the plan sponsor.
(D) Other Indebtedness. Deliver to the Administrative Agent (i) a copy of
-------------------
each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of Energizer to the holders of funded Material Indebtedness, including
the Senior Notes and the investors parties to the Receivable Purchase Facility
or any Bridge Facilities, pursuant to the terms of the agreements governing such
Indebtedness, such delivery to be made at the same time and by the same
means as such notice or other communication is delivered to such holders, and
(ii) a copy of each notice received by Energizer from the from the holders of
funded Material Indebtedness who are authorized and/or have standing to deliver
such notice pursuant to the terms of such Indebtedness, such delivery to be made
promptly after such notice is received by Energizer.
(E) Other Reports. Deliver or cause to be delivered to the Administrative
--------------
Agent and the Lenders copies of all financial statements, reports and notices,
if any, sent by Energizer to its securities holders or filed with the Commission
by Energizer.
(F) Environmental Notices. As soon as possible and in any event within ten
----------------------
(10) days after receipt by Energizer, a copy of (i) any notice or claim to the
effect that Energizer or any of its Subsidiaries is or may be liable to any
Person as a result of the Release by Energizer, any of its Subsidiaries, or any
other Person of any Contaminant into the environment, and (ii) any notice
alleging any violation of any Environmental, Health or Safety Requirements of
Law by Energizer or any of its Subsidiaries if, in either case, such notice or
claim relates to an event which could reasonably be expected to subject
Energizer and each of its Subsidiaries to liability individually or in the
aggregate in excess of $20,000,000.
(G) Amendments to Financing Facilities. Promptly after the execution
-------------------------------------
thereof, copies of all material amendments to (i) any of the documents
evidencing Indebtedness extended under the Bridge Facilities, (ii) any of the
Receivables Purchase Documents or (iii) the Note Purchase Agreement or the
Senior Notes.
(H) Other Information. Promptly upon receiving a request therefor from the
------------------
Administrative Agent, prepare and deliver to the Administrative Agent and the
Lenders such other information with respect to Energizer, any of its
Subsidiaries, or their respective businesses and assets, including, without
limitation, schedules identifying and describing any Asset Sale (and the use of
the net cash proceeds thereof), as from time to time may be reasonably requested
by the Administrative Agent.
7.2 Affirmative Covenants.
----------------------
(A) Corporate Existence, Etc. Except as permitted pursuant to Section
--------------------------- -------
7.3(H), Energizer shall, and shall cause each of its Subsidiaries to, at all
times maintain its existence and preserve and keep, or cause to be preserved and
kept, in full force and effect its rights and franchises material to its
businesses.
(B) Corporate Powers; Conduct of Business. Energizer shall, and shall cause
-------------------------------------
each of its Material Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified and where the failure to be so qualified will have or would
reasonably be expected to have a Material Adverse Effect. Energizer will, and
will cause each Material Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted unless the failure of Energizer or its Material
Subsidiaries to carry on and conduct its business as so described would not
reasonably be expected to have a Material Adverse Effect.
(C) Compliance with Laws, Etc. Energizer shall, and shall cause its
-----------------------------
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all permits necessary for
its operations and maintain such permits in good standing unless, in either
case, failure to comply or obtain such permits would not reasonably be expected
to have a Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. Energizer shall pay,
-------------------------------------------------
and cause each of its Subsidiaries to pay, (i) all taxes, assessments and other
governmental charges imposed upon it or on any of its properties or assets or in
respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 7.3(C)) upon any of Energizer's or such
---------------
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no such taxes,
-------- -------
assessments and governmental charges referred to in clause (i) above or claims
----------
referred to in clause (ii) above (and interest, penalties or fines relating
------------
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor.
(E) Insurance. Energizer shall maintain for itself and its Subsidiaries, or
---------
shall cause each of its Subsidiaries to maintain in full force and effect,
insurance policies and programs, with such deductibles or self-insurance amounts
as reflect coverage that is reasonably consistent with prudent industry practice
as determined by Energizer.
(F) Inspection of Property; Books and Records; Discussions. Energizer shall
------------------------------------------------------
permit and cause each of Energizer's Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or any Lender to
visit and inspect any of the properties of Energizer or any of its Subsidiaries,
to examine their respective financial and accounting records and other material
data relating to their respective businesses or the transactions contemplated
hereby (including, without limitation, in connection with environmental
compliance, hazard or liability), and to discuss their affairs, finances and
accounts with their officers and independent certified public accountants, all
upon reasonable notice and at such reasonable times during normal business
hours, as often as may be reasonably requested (provided that an officer of
Energizer or any of its Subsidiaries may, if it so desires, be present at and
participate in any such discussion). Energizer shall keep and maintain, and
cause each of Energizer's Subsidiaries to keep and maintain, in all material
respects, proper books of record and account in which entries in conformity with
Agreement Accounting Principles shall be made of all dealings and transactions
in relation to their respective businesses and activities. If a Default has
occurred and is continuing, Energizer, upon the Administrative Agent's request,
shall turn over copies of any such records to the Administrative Agent or its
representatives.
(G) ERISA Compliance. Energizer shall, and shall cause each of Energizer's
-----------------
Subsidiaries to, establish, maintain and operate all Plans to comply in all
material respects with the provisions of ERISA and shall operate all Plans and
Non-ERISA Commitments to comply in all material respects with the applicable
provisions of the Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans and Non-ERISA Commitments, except for any noncompliance
which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(H) Maintenance of Property. Energizer shall cause all property necessary
-------------------------
for the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of Energizer may be necessary for the conduct of its business;
provided, however, that nothing in this Section 7.2(H) shall prevent Energizer
------- --------------
from discontinuing the operation or maintenance of any of such property if such
discontinuance is, in the judgment of Energizer, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Administrative Agent or the Lenders.
(I) Environmental Compliance. (a) Energizer and its Subsidiaries shall
-------------------------
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject
Energizer or any of its Subsidiaries, individually or in the aggregate, to
liability in excess of $25,000,000.
(J) Use of Proceeds. (a) Prior to the consummation of the Debt Assumption,
----------------
Xxxxxxx shall use the proceeds of the Loans for its working capital needs and
other general corporate purposes of Xxxxxxx and its Subsidiaries, and (b) from
and after the consummation of the Debt Assumption, Energizer shall use the
proceeds of any subsequent Loans for the general corporate purposes of Energizer
and its Subsidiaries, including, without limitation, to finance Permitted
Acquisitions.
(K) Addition of Subsidiary Guarantors. (a) New Subsidiaries. Energizer
------------------------------------ ----------------
shall cause each New Subsidiary that is, at any time, a Material Domestic
Subsidiary (other than a SPV) to deliver to the Administrative Agent an executed
Supplement to become a Subsidiary Guarantor under the Subsidiary Guaranty in the
form of Exhibit I attached hereto (a "SUPPLEMENT") and appropriate corporate
----------
resolutions, opinions and other documentation in form and substance reasonably
satisfactory to the Administrative Agent, such Supplement and other
documentation to be delivered to the Administrative Agent as promptly as
possible upon the creation, acquisition of or capitalization thereof or if
otherwise necessary to remain in compliance with Section 7.3(R), but in any
--------------
event within thirty (30) days of such creation, acquisition or capitalization.
(b) Additional Material Domestic Subsidiaries. If any consolidated
--------------------------------------------
Subsidiary of Energizer (other than a New Subsidiary to the extent addressed in
Section 7.2(K)(a) or a SPV) becomes a Material Domestic Subsidiary, Energizer
------------------
shall cause any such Material Domestic Subsidiary to deliver to the
Administrative Agent an executed Supplement to become a Subsidiary Guarantor
and appropriate corporate resolutions, opinions and other documentation in form
and substance reasonably satisfactory to the Administrative Agent in connection
therewith, such Supplement and other documentation to be delivered to the
Administrative Agent as promptly as possible but in any event within thirty (30)
days following the date on which such consolidated Subsidiary became a Material
Domestic Subsidiary.
(c) Additional Subsidiary Guarantors. (i) If at any time an Authorized
----------------------------------
Officer of Energizer has actual knowledge that the aggregate assets of all of
Energizer's domestic consolidated Subsidiaries (other than SPVs) which are not
Subsidiary Guarantors exceed ten percent (10%) of Consolidated Assets of
Energizer and its consolidated Subsidiaries (other than the SPVs), as calculated
by Energizer, Energizer shall cause such domestic consolidated Subsidiaries as
are necessary to reduce such aggregate assets to or below ten percent (10%) of
such Consolidated Assets to deliver to the Administrative Agent executed
Supplements to become Subsidiary Guarantors and appropriate corporate
resolutions, opinions and other documentation in form and substance reasonably
satisfactory to the Administrative Agent in connection therewith, such
Supplements and other documentation to be delivered to the Administrative Agent
as promptly as possible but in any event within thirty (30) days following the
initial date on which such aggregate assets exceed ten percent (10%) of such
Consolidated Assets.
(ii) If at any time any domestic Subsidiary of Energizer which is not
a Subsidiary Guarantor guaranties any Indebtedness of Energizer other than the
Indebtedness hereunder or under the 364-Day Agreement, Energizer shall cause
such Subsidiary to deliver to the Administrative Agent an executed Supplement to
become a Subsidiary Guarantor and appropriate corporate resolutions, opinions
and other documentation in form and substance reasonably satisfactory to the
Administrative Agent in connection therewith, such Supplement and other
documentation to be delivered to the Administrative Agent concurrently with the
delivery of the guaranty of such other Indebtedness.
7.3 Negative Covenants.
-------------------
(A) Subsidiary Indebtedness.(A) Subsidiary Indebtedness Energizer shall
------------------------
not permit any of its Subsidiaries directly or indirectly to create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to any Indebtedness, except:
(i) Indebtedness of the Subsidiaries under the Subsidiary Guaranty;
(ii) Indebtedness in respect of guaranties executed by any Subsidiary
Guarantor with respect to any Indebtedness of Energizer, provided such
--------
Indebtedness is not incurred by Energizer in violation of this Agreement;
(iii) Indebtedness in respect of obligations secured by Customary Permitted
Liens;
(iv) Indebtedness constituting Contingent Obligations permitted by Section
-------
7.3(E);
-----
(v) Indebtedness arising from loans (a) from any Subsidiary to any
wholly-owned Subsidiary or (b) from Energizer to any wholly-owned Subsidiary;
provided, that if any Subsidiary Guarantor is the obligor on such Indebtedness,
--------
such Indebtedness shall be expressly subordinate to the payment in full in cash
of the Obligations on terms satisfactory to the Administrative Agent;
(vi) Indebtedness in respect of Hedging Obligations permitted under Section
-------
7.3(O);
------
(vii) Indebtedness with respect to surety, appeal and performance bonds
obtained by any of Energizer's Subsidiaries in the ordinary course of business;
(viii) Indebtedness incurred in connection with the Receivables Purchase
Documents, provided, that Receivables Facility Attributed Indebtedness incurred
--------
in connection therewith does not exceed $250,000,000 in the aggregate at any
time; and
(ix) Other Indebtedness in addition to that referred to elsewhere in this
Section 7.3(A) incurred by Energizer's Subsidiaries; provided that no Default or
------------ --------
Unmatured Default shall have occurred and be continuing at the date of such
incurrence or would result therefrom; and provided further that the aggregate
-------- -------
outstanding amount of all Indebtedness incurred by Energizer's Subsidiaries
(other than Indebtedness incurred pursuant to clauses (i), (ii), (v), (vi) and
----------- ---- --- ----
(viii) of this Section 7.3(A)) shall not at any time exceed $250,000,000.
----- --------------
(B) Sales of Assets. Neither Energizer nor any of its Subsidiaries shall
-----------------
sell, assign, transfer, lease, convey or otherwise dispose of any property,
whether now owned or hereafter acquired, or any income or profits therefrom, or
enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business of Equipment that is
obsolete, excess or no longer used or useful in Energizer's or its Subsidiaries'
businesses;
(iii) any transfer of an interest in Receivables, Receivables Related
Security, accounts or notes receivable on a limited recourse basis under the
Receivables Purchase Documents, provided that such transfer qualifies as a legal
--------
sale and as a sale under Agreement Accounting Principles and that the amount of
Receivables Facility Attributed Indebtedness does not exceed $250,000,000 at any
one time outstanding; and
(iv) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets (other than pursuant to clauses (i), (ii) and (iii)
----------- ---- -----
above) if such transaction (a) is for not less than fair market value, and (b)
when combined with all such other transactions (each such transaction being
valued at book value) during the period from the Closing Date, to the date of
such proposed transaction, represents the disposition of not greater than twenty
percent (20%) of Energizer's Consolidated Assets (such Consolidated Assets being
calculated for the end of the fiscal year immediately preceding that in which
such transaction is proposed to be entered into).
(C) Liens. Neither Energizer nor any of its Subsidiaries shall directly or
-----
indirectly create, incur, assume or permit to exist any Lien on or with respect
to any of their respective property or assets except:
(i) Liens, if any, created by the Loan Documents or otherwise securing the
Obligations, or Liens created by the "Loan Documents" under and as defined in
the 364-Day Credit Agreement or otherwise Securing the "Obligations" (as such
terms are defined in the 364-Day Credit Agreement;
(ii) Customary Permitted Liens;
(iii) Liens arising under the Receivables Purchase Documents; and
(iv) other Liens, including Permitted Existing Liens, (a) securing
Indebtedness of Energizer and/or (b) securing Indebtedness of Energizer's
Subsidiaries as permitted pursuant to Section 7.3(A) and in an aggregate
---------------
outstanding amount not to exceed five percent (5%) of Consolidated Assets at any
time.
In addition, neither Energizer nor any of its Subsidiaries shall become a party
to any agreement, note, indenture or other instrument, or take any other action,
which would prohibit the creation of a Lien on any of its properties or other
assets in favor of the Administrative Agent for the benefit of itself and the
Holders of Obligations, as collateral for the Obligations; provided, that any
--------
agreement, note, indenture or other instrument in connection with purchase money
indebtedness (including Capitalized Leases) may prohibit the creation of a Lien
in favor of the Administrative Agent for the benefit of itself and the Holders
of Obligations on the items of property obtained with the proceeds of such
purchase money indebtedness; provided, further, that (a) the Note Purchase
-------- -------
Agreement in connection with the Senior Notes may prohibit the creation of a
Lien in favor of the Administrative Agent for the benefit of itself and the
Holders of Obligations, as collateral for the Obligations unless the holders of
the Senior Notes shall be provided with an equal and ratable Lien and (b) the
Receivables Purchase Documents may prohibit the creation of a Lien with respect
to all of the assets of the SPV and with respect to the Receivables and Related
Security of any of the Originators in favor of the Administrative Agent for the
benefit of itself and the Holders of Obligations, as collateral for the
Obligations.
(D) Investments. Except to the extent permitted pursuant to paragraph (G)
----------- -------------
below, neither Energizer nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments in an amount not greater than the amount
thereof on the Closing Date;
(iii) Investments in trade receivables or received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by Energizer and
its Subsidiaries;
(v) Investments consisting of non-cash consideration from a sale,
assignment, transfer, lease, conveyance or other disposition of property
permitted by Section 7.3(B);
---------------
(vi) Investments in any consolidated Subsidiaries (other than joint
ventures);
(vii) Investments in joint ventures and nonconsolidated Subsidiaries in an
aggregate amount not to exceed $50,000,000;
(viii) Investments constituting Permitted Acquisitions;
(ix) Investments constituting Indebtedness permitted by Section 7.3(A) or
--------------
Contingent Obligations permitted by Section 7.3(E);
---------------
(x) Investments in the SPVs (a) required in connection with the Receivables
Purchase Documents and (b) resulting from the transfers permitted by Section
-------
7.3(B)(iii); and
--------
(xi) Investments in addition to those referred to elsewhere in this Section
-------
7.3(D) in an aggregate amount not to exceed $50,000,000.
------
(E) Contingent Obligations. None of Energizer's Subsidiaries shall directly
----------------------
or indirectly create or become or be liable with respect to any Contingent
Obligation, except: (i) recourse obligations resulting from endorsement of
negotiable instruments for collection in the ordinary course of business; (ii)
Permitted Existing Contingent Obligations; (iii) obligations, warranties, and
indemnities, not relating to Indebtedness of any Person, which have been or are
undertaken or made in the ordinary course of business and not for the benefit of
or in favor of an Affiliate of Energizer or such Subsidiary; (iv) Contingent
Obligations with respect to surety, appeal and performance bonds obtained by
Energizer or any Subsidiary in the ordinary course of business; (v) Contingent
Obligations of the Subsidiary Guarantors under the Subsidiary Guaranty; (vi)
Contingent Obligations of Subsidiaries which are guarantors under a guaranty of
the Indebtedness evidenced by the Senior Notes and the Note Purchase Agreements;
(vii) Contingent Obligations of Energizer or any of its Subsidiaries arising
under the Receivables Purchase Documents and (viii) Contingent Obligations
incurred in the ordinary course of business by any of Energizer's Subsidiaries
in respect of obligations of any Subsidiary.
(F) Conduct of Business; New Subsidiaries; Acquisitions. Except as
--------------------------------------------------------
expressly provided in clause (c) in the definition of "Permitted Acquisition"
----------
below, neither Energizer nor any of its Subsidiaries shall engage in any
business other than the businesses engaged in by Energizer and its Subsidiaries
on the date of such transaction and any business or activities which are
substantially similar, related or incidental thereto. Energizer may create,
acquire in a Permitted Acquisition or capitalize any Subsidiary (a "NEW
SUBSIDIARY") after the date hereof if (i) no Default or Unmatured Default shall
have occurred and be continuing or would result therefrom; (ii) after such
creation, acquisition or capitalization, all of the representations and
warranties contained herein shall be true and correct; and (iii) after such
creation, acquisition or capitalization Energizer shall be in compliance with
the terms of Sections 7.2(K) and 7.3(R).
---------------- -------
Without in any way limiting the foregoing, Energizer shall not make any
Acquisitions, other than Acquisitions meeting the following requirements or
otherwise approved by the Required Lenders (each such Acquisition constituting a
"PERMITTED ACQUISITION"):
(a) no Default or Unmatured Default shall have occurred and be continuing or
would result from such Acquisition or the incurrence of any Indebtedness in
connection therewith, and all of the representations and warranties contained
herein shall be true and correct on and as of the date such Acquisition with the
same effect as though made on and as of such date;
(b) the purchase is consummated pursuant to a negotiated acquisition
agreement on a non-hostile basis pursuant to an acquisition agreement approved
by the board of directors or other applicable governing body of the Seller prior
to the commencement thereof;
(c) the businesses being acquired shall be consumer product companies or
other businesses that are substantially similar, related or incidental to the
businesses or activities engaged in by Energizer and its Subsidiaries as of the
consummation of the Debt Assumption or such future business or activities
engaged in by Energizer and its Subsidiaries, as well as suppliers to or
distributors of products similar to those of Energizer and its Subsidiaries;
provided, however, that Energizer and its Subsidiaries shall be permitted to
-------- -------
acquire businesses that do not satisfy the foregoing criteria in this clause (c)
----------
so long as the aggregate purchase price for all such acquisitions does not
exceed five percent (5%) of Energizer's consolidated tangible net assets (on a
pro forma basis) as of the date of the consummation of such Acquisition; and
(d) prior to each such Acquisition, Energizer shall determine that after
giving effect to such Acquisition and the incurrence of any Indebtedness by
Energizer or any of its Subsidiaries, to the extent permitted by Section 7.3(A),
--------------
in connection therewith, on a pro forma basis using historical audited and
--- -----
reviewed unaudited financial statements obtained from the seller, broken down by
fiscal quarter in Energizer's reasonable judgment, as if the Acquisition and
such incurrence of Indebtedness had occurred on the first day of the
twelve-month period ending on the last day of Energizer's most recently
completed fiscal quarter, Energizer would have been in compliance with the
financial covenants in Section 7.4 and not otherwise in Default.
------------
(G) Transactions with Xxxxxxx'x Shareholders and Affiliates. Except for (a)
-------------------------------------------------------
the transactions set forth on Schedule 7.3(G), (b) Permitted Receivables
---------------
Transfers and (c) Investments permitted by Section 7.3(D), neither Energizer nor
--------------
any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with Xxxxxxx, any
holder or holders of any of the Equity Interests of Energizer, or with any
Affiliate of Energizer which is not its Subsidiary, on terms that are less
favorable to Energizer or any of its Subsidiaries, as applicable, than those
that might be obtained in an arm's length transaction at the time from Persons
who are not such a holder or Affiliate.
(H) Restriction on Fundamental Changes. Neither Energizer nor any of its
-------------------------------------
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of Energizer's or any such Subsidiary's business or
property, whether now or hereafter acquired, except (i) transactions permitted
under Sections 7.3(B) or 7.3(F), and (ii) a Subsidiary of Energizer may be
---------------- ------
merged into, liquidated into or consolidated with Energizer (in which case
Energizer shall be the surviving corporation) or any wholly-owned Subsidiary of
Energizer, provided if a Subsidiary Guarantor is merged into, liquidated into or
--------
consolidated with another Subsidiary of Energizer, the surviving Subsidiary
shall also be or shall become a Subsidiary Guarantor.
(I) Sales and Leasebacks. Neither Energizer nor any of its Subsidiaries
----------------------
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any lease, whether an operating lease or a Capitalized Lease, of any
property (whether real or personal or mixed), (i) which it or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person,
or (ii) which it or one of its Subsidiaries intends to use for substantially the
same purposes as any other property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person in connection
with such lease, unless in either case the sale involved is not prohibited under
Section 7.3(B) and the lease involved is not prohibited under Section 7.3(A).
--------------- --------------
(J) Margin Regulations. Neither Energizer nor any of its Subsidiaries,
-------------------
shall use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock.
(K) ERISA. Energizer shall not:
-----
(i) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Code), with respect to any Benefit Plan,
whether or not waived;
(ii) terminate, or permit any Controlled Group member to terminate, any
Benefit Plan which would result in liability of Energizer or any Controlled
Group member under Title IV of ERISA;
(iii) fail, or permit any Controlled Group member to fail, to pay any
required installment or any other payment required under Section 412 of the Code
on or before the due date for such installment or other payment; or
(iv) permit any unfunded liabilities with respect to any Foreign Pension
Plan;
except where such transactions, events, circumstances, or failures are not,
individually or in the aggregate, reasonably expected to result in liability
individually or in the aggregate in excess of $25,000,000 or have a Material
Adverse Effect.
(L) Corporate Documents. Neither Energizer nor any of its Subsidiaries
--------------------
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective constituent documents as in effect on the date hereof in
any manner adverse to the interests of the Lenders, without the prior written
consent of the Required Lenders.
(M) Fiscal Year. Neither Energizer nor any of its consolidated Subsidiaries
-----------
shall change its fiscal year for accounting or tax purposes from a twelve-month
period ending September 30 of each year.
(N) Subsidiary Covenants. Energizer will not, and will not permit any
---------------------
Subsidiary to, create or otherwise cause to become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to pay
dividends or make any other distribution on its stock, redeem or repurchase its
stock, make any other similar payment or distribution, pay any Indebtedness or
other Obligation owed to Energizer or any other Subsidiary, make loans or
advances or other Investments in Energizer or any other Subsidiary, to sell,
transfer or otherwise convey any of its property to Energizer or any other
Subsidiary or merge, consolidate with or liquidate into Energizer or any other
Subsidiary other than pursuant to the Receivables Purchase Documents.
(O) Hedging Obligations. Energizer shall not and shall not permit any of
--------------------
its Subsidiaries to enter into any Hedging Arrangements other than Hedging
Arrangements entered into by Energizer or its Subsidiaries pursuant to which
Energizer or such Subsidiary has hedged its or its Subsidiaries' reasonably
estimated interest rate, foreign currency or commodity exposure and which are of
a non-speculative nature. Such permitted Hedging Arrangements entered into by
Energizer and any Lender or any affiliate of any Lender are sometimes referred
to herein as "HEDGING AGREEMENTS."
(P) Issuance of Disqualified Stock. From and after the Closing Date,
---------------------------------
neither Energizer, nor any of its Subsidiaries shall issue any Disqualified
Stock. All issued and outstanding Disqualified Stock shall be treated as
Indebtedness for borrowed money for all purposes of this Agreement, and the
amount of such deemed Indebtedness shall be the aggregate amount of the
liquidation preference of such Disqualified Stock.
(Q) Non-Guarantor Subsidiaries. Energizer will not at any time permit the
---------------------------
aggregate assets of all of Energizer's domestic consolidated Subsidiaries (other
than the SPVs) which are not Subsidiary Guarantors to exceed ten percent (10%)
of Consolidated Assets of Energizer and its consolidated Subsidiaries (other
than the SPVs). Energizer shall not permit any of its Subsidiaries to guaranty
any Indebtedness of Energizer other than the Indebtedness hereunder or under the
364-Day Agreement unless each such Subsidiary is a Subsidiary Guarantor under
the Subsidiary Guaranty.
(R) Tax Ruling. Notwithstanding anything herein to the contrary, neither
------------
Energizer nor any of its Subsidiaries shall engage in any transaction (i)
described in Section 8.01(b) of the Reorganization Agreement for the time
----------------
periods specified therein unless Energizer or such Subsidiary shall have
obtained and/or delivered such documentation as may be required by Section
-------
8.01(a) thereof, or (ii) that would otherwise adversely affect the Tax Ruling.
7.4 Financial Covenants. Energizer shall comply with the following:
--------------------
(A) Maximum Leverage Ratio. Energizer shall not permit the ratio (the
------------------------
"LEVERAGE RATIO") of (i) the sum of (a) all Indebtedness of Energizer and its
Subsidiaries to (ii) EBITDA at any time to be greater than 3.00 to 1.00. The
Leverage Ratio shall be calculated, in each case, determined as of the last day
of each fiscal quarter based upon (a) for Indebtedness, Indebtedness as of the
last day of each such fiscal quarter; and (b) for EBITDA, the actual amount for
the four-quarter period ending on such day, calculated, with respect to
Permitted Acquisitions, on a pro forma basis using unadjusted historical audited
--- -----
and reviewed unaudited financial statements obtained from the seller (with
the EBITDA component thereof broken down by fiscal quarter in Energizer's
reasonable judgment).
(B) Minimum Interest Expense Coverage Ratio. Energizer shall maintain a
-------------------------------------------
ratio (the "INTEREST EXPENSE COVERAGE RATIO") for any applicable period of (a)
EBIT for such period to (b) Interest Expense for such period of greater than
3.00 to 1.00 for each fiscal quarter. The Interest Expense Coverage Ratio shall
be calculated as of the last day of each fiscal quarter for the four-quarter
period ending on such day; provided, that (i) for the fiscal quarter ending June
--------
30, 2000, the Interest Expense Coverage Ratio shall be calculated using EBIT and
Interest Expense for the fiscal quarter ending June 30, 2000, (b) for the fiscal
quarter ending September 30, 2000, the Interest Expense Coverage Ratio shall be
calculated using EBIT and Interest Expense for the two fiscal quarter period
ending September 30, 2000, and (iii) for the fiscal quarter ending December 31,
2000, the Interest Expense Coverage Ratio shall be calculated using such items
for Energizer and its consolidated Subsidiaries for the three fiscal quarter
period ending December 31, 2000.
ARTICLE VIII: DEFAULTS
-------------- --------
8.1 Defaults. Each of the following occurrences shall constitute a Default
--------
under this Agreement:
(A) Failure to Make Payments When Due. The Borrower shall (i) fail to pay
-----------------------------------
when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within five (5) Business Days of the date when
due any of the other Obligations under this Agreement or the other Loan
Documents.
(B) Breach of Certain Covenants. The Borrower shall fail duly and
------------------------------
punctually to perform or observe any agreement, covenant or obligation binding
-
on the Borrower or there shall otherwise be a breach of any covenant under:
(i) Sections 7.1 or 7.2 and such failure or breach shall continue unremedied
------------ ---
for thirty (30) days after the earlier to occur of (a) the date on which
written notice from the Administrative Agent or any Lender is received by the
Borrower of such breach and (b) the date on which a member of the Senior
Management Team of the Borrower or any Subsidiary Guarantor had knowledge of the
existence of such breach or should have known of the existence of such breach;
or
(ii) Sections 7.3 or 7.4.
------------- ---
(C) Breach of Representation or Warranty. Any representation or warranty
---------------------------------------
made or deemed made by the Borrower to the Administrative Agent or any Lender
herein or by the Borrower or any of its Subsidiaries in any of the other Loan
Documents or in any statement or certificate at any time given by any such
Person pursuant to any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made (or deemed made).
(D) Other Defaults. The Borrower shall default in the performance of or
---------------
compliance with any term contained in this Agreement (other than as covered by
paragraphs (A) or (B) of this Section 8.1), or the Borrower or any of its
-------------- --- ------------
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for thirty (30) days after the earlier to occur of (a) the date on which written
notice from the Administrative Agent or any Lender is received by the Borrower
of such breach and (b) the date on which a member of the Senior Management Team
of the Borrower or any Subsidiary Guarantor had knowledge of the existence of
such breach or should have known of the existence of such breach.
(E) Default as to Other Indebtedness. The Borrower or any of its
------------------------------------
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), beyond any
period of grace provided, with respect to (i) any Indebtedness incurred pursuant
to the 364-Day Credit Agreement or (ii) any other Indebtedness (other than
Indebtedness hereunder) which individually or together with other such
Indebtedness as to which any such failure exists (other than hereunder or under
the 364-Day Credit Agreement) constitutes Material Indebtedness; or any breach,
default or event of default (including any "Amortization Event" or event of like
import in connection with the Receivables Purchase Facility) shall occur, or any
other condition shall exist under any instrument, agreement or indenture
pertaining to any such Indebtedness under the 364-Day Credit Agreement or
Material Indebtedness having such aggregate outstanding principal amount, beyond
any period of grace, if any, provided with respect thereto, if the effect
thereof is to cause an acceleration, mandatory redemption, a requirement that
the Borrower offer to purchase such Indebtedness under the 364-Day Credit
Agreement or Material Indebtedness or other required repurchase of such
Indebtedness under the 364-Day Credit Agreement or Material Indebtedness, or
permit the holder(s) of such Indebtedness under the 364-Day Credit Agreement or
Material Indebtedness to accelerate the maturity of any such Indebtedness under
the 364-Day Credit Agreement or Material Indebtedness or require a redemption or
other repurchase of such Indebtedness under the 364-Day Credit Agreement or
Material Indebtedness; or any such Indebtedness under the 364-Day Credit
Agreement or Material Indebtedness shall be otherwise declared to be due and
payable (by acceleration or otherwise) or required to be prepaid, redeemed or
otherwise repurchased by the Borrower or any of its Subsidiaries (other than by
a regularly scheduled required prepayment) prior to the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Borrower or any of
the Borrower's Material Subsidiaries and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Borrower or any of the Borrower's Material
Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency
or other similar law now or hereinafter in effect; or any other similar
relief shall be granted under any applicable federal, state, local or foreign
law.
(ii) A decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the Borrower or any of the Borrower's
Material Subsidiaries or over all or a substantial part of the property of the
Borrower or any of the Borrower's Material Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of the Borrower or any of the
Borrower's Material Subsidiaries or of all or a substantial part of the property
of the Borrower or any of the Borrower's Material Subsidiaries shall be
appointed or a warrant of attachment, execution or similar process against any
substantial part of the property of the Borrower or any of the Borrower's
Material Subsidiaries shall be issued and any such event shall not be stayed,
dismissed, bonded or discharged within sixty (60) days after entry, appointment
or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or any
---------------------------------------------------
of the Borrower's Material Subsidiaries shall (i) commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, (iii) consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property, (iv) make any assignment for the benefit of creditors, (v)
take any corporate action to authorize any of the foregoing or (vi) is
generally not paying, or admits in writing its inability to pay, its debts as
they become due.
(H) Judgments and Attachments. Any money judgment(s) (other than a money
---------------------------
judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any of its Subsidiaries
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $30,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or
in any event later than fifteen (15) days prior to the date of any proposed sale
thereunder.
(I) Dissolution. Any order, judgment or decree shall be entered against the
-----------
Borrower decreeing its involuntary dissolution or split up and such order shall
remain undischarged and unstayed for a period in excess of sixty (60) days; or
the Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan Document as a
---------------
whole that materially affects the ability of the Administrative Agent, or any of
the Lenders to enforce the Obligations ceases to be in full force and effect or
the Borrower or any of the Borrower's Subsidiaries party thereto seeks to
repudiate its obligations under any Loan Document.
(K) Termination Event. Any Termination Event occurs which the Required
------------------
Lenders believe is reasonably likely to subject either the Borrower or any of
its Subsidiaries to liability individually or in the aggregate in excess of
$25,000,000.
(L) Waiver of Minimum Funding Standard. If the plan administrator of any
-------------------------------------
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and the Required Lenders believe
the substantial business hardship upon which the application for the waiver is
based could reasonably be expected to subject either the Borrower or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$25,000,000.
(M) Change of Control. A Change of Control shall occur.
-------------------
(N) Hedging Agreements. Nonpayment by the Borrower of any material
-------------------
obligation under any Hedging Agreement or the breach by the Borrower of any
material term, provision or condition contained in any such Hedging Agreement.
(O) Environmental Matters. The Borrower or any of its Subsidiaries shall be
---------------------
the subject of any proceeding or investigation pertaining to (i) the Release by
the Borrower or any of its Subsidiaries of any Contaminant into the environment,
(ii) the liability of the Borrower or any of its Subsidiaries arising from the
Release by any other Person of any Contaminant into the environment, or (iii)
any violation of any Environmental, Health or Safety Requirements of Law which
by the Borrower or any of its Subsidiaries, which, in any case, has or is
reasonably likely to subject either the Borrower or its Subsidiaries to
liability individually or in the aggregate in excess of $25,000,000.
(P) Subsidiary Guarantor Revocation. Any Subsidiary Guarantor shall
---------------------------------
terminate or revoke any of its obligations under the Subsidiary Guaranty or
breach any of the material terms of such Subsidiary Guaranty.
(Q) Receivables Purchase Document Events. Other than at the request of
---------------------------------------
Energizer, the "Amortization Date" or an event of like import resulting in the
termination of the reinvestment of collections or proceeds of Receivables and
Related Security shall occur under any Receivables Purchase Document.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
------------
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND
------------ --------------------------------------------------------------
REMEDIES
--------
9.1 Termination of Revolving Loan Commitments; Acceleration. If any Default
-------------------------------------------------------
described in Section 8.1(F), (G) or (I) occurs with respect to the
--------------- --- ---
Borrower, the obligations of the Lenders to make Loans hereunder and the
obligation of the Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs, the Required Lenders may terminate
or suspend the obligations of the Lenders to make Loans hereunder and the
obligation of the Issuing Banks to issue Letters of Credit hereunder, or declare
the Obligations to be due and payable, or both, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower expressly waives.
9.2 Defaulting Lender. In the event that any Lender fails to fund its Pro
------------------
Rata Share of any Advance requested or deemed requested by the Borrower (or an
Advance to repay Swing Line Loans to the Swing Line Bank or Reimbursement
Obligations to the Issuing Banks), which such Lender is obligated to fund under
the terms of this Agreement (the funded portion of such Advance being
hereinafter referred to as a "NON PRO RATA LOAN"), until the earlier of such
Lender's cure of such failure and the termination of the Revolving Loan
Commitments, the proceeds of all amounts thereafter repaid to the Administrative
Agent by the Borrower and otherwise required to be applied to such Lender's
share of all other Obligations pursuant to the terms of this Agreement shall be
advanced to the Borrower by the Administrative Agent on behalf of such Lender to
cure, in full or in part, such failure by such Lender, but shall nevertheless be
deemed to have been paid to such Lender in satisfaction of such other
Obligations. Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall apply only with
------------
respect to the proceeds of payments of Obligations and shall not affect the
conversion or continuation of Loans pursuant to Section 2.9;
------------
(ii) any such Lender shall be deemed to have cured its failure to fund its
Pro Rata Share, of any Advance at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of such Advance is
fully funded to the Borrower, whether made by such Lender itself or by operation
of the terms of this Section 9.2, and whether or not the Non Pro Rata Loan with
-----------
respect thereto has been repaid, converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in part, any such
Lender's failure to fund its Pro Rata Share of any Advance ("CURE LOANS") shall
bear interest at the rate applicable to Floating Rate Loans in effect from time
to time, and for all other purposes of this Agreement shall be treated as if
they were Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or is continuing,
and notwithstanding the instructions of the Borrower as to its desired
application, all repayments of principal which, in accordance with the other
terms of this Agreement, would be applied to the outstanding Floating Rate Loans
shall be applied first, ratably to all Floating Rate Loans constituting Non Pro
-----
Rata Loans, second, ratably to Floating Rate Loans other than those constituting
------
Non Pro Rata Loans or Cure Loans and, third, ratably to Floating Rate Loans
-----
constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's cure of the
failure to fund its Pro Rata Share of any Advance and the termination of the
Revolving Loan Commitments, the term "Required Lenders" for purposes of this
Agreement shall mean Lenders (excluding all Lenders whose failure to fund their
respective Pro Rata Share of such Advance have not been so cured) whose Pro Rata
Shares represent greater than fifty percent (50%) of the aggregate Pro Rata
Shares of such Lenders; and
(vi) for so long as and until any such Lender's failure to fund its Pro Rata
Share of any Advance is cured in accordance with Section 9.2(ii), (A) such
---------------
Lender shall not be entitled to any Facility Fees with respect to its Revolving
Loan Commitment and (B) such Lender shall not be entitled to any letter of
credit fees, which Facility Fees and letter of credit fees shall accrue in favor
of the Lenders which have funded their respective Pro Rata Share of such
requested Advance, shall be allocated among such performing Lenders ratably
based upon their relative Revolving Loan Commitments, and shall be calculated
based upon the average amount by which the aggregate Revolving Loan Commitments
of such performing Lenders exceeds the sum of (I) the outstanding principal
amount of the Loans owing to such performing Lenders, plus (II) the outstanding
----
Reimbursement Obligations owing to such performing Lenders, plus (III) the
----
aggregate participation interests of such performing Lenders arising pursuant to
Section 3.6 with respect to undrawn and outstanding Letters of Credit.
------------
9.3 Amendments. Subject to the provisions of this Article IX, the Required
---------- ----------
Lenders (or the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for
the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
-------- -------
agreement shall, without the consent of each Lender (which is not a defaulting
Lender under the provisions of Section 9.2) affected thereby:
------------
(i) Postpone or extend the Revolving Loan Termination Date or any other date
fixed for any payment of principal of, or interest on, the Loans, the
Reimbursement Obligations or any fees or other amounts payable to such Lender
(other than any modifications of the provisions relating to amounts, timing or
application of prepayments of the Loans and other Obligations, which
modifications shall require the approval only of the Required Lenders).
(ii) Reduce the principal amount of any Loans or L/C Obligations, or reduce
the rate or extend the time of payment of interest or fees thereon (other than
(a) a waiver of the application of the default rate of interest pursuant to
Section 2.10 hereof and (b) as a result of a change in the definition of
-------------
Leverage Ratio or any of the components thereof or the method of calculation
thereof).
(iii) Reduce the percentage specified in the definition of Required Lenders
or any other percentage of Lenders specified to be the applicable percentage in
this Agreement to act on specified matters or amend the definitions of "Required
Lenders" or "Pro Rata Share".
(iv) Increase the amount of the Revolving Loan Commitment of such Lender
hereunder or increase such Lender's Pro Rata Share.
(v) Permit the Borrower to assign its rights under this Agreement, other
than pursuant to the Debt Assumption.
(vi) other than pursuant to a transaction permitted by the terms of this
Agreement, release any guarantor from its obligations under the Subsidiary
Guaranty.
(vii) Amend this Section 9.3.
------------
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (b) Swing Line Loans shall be effective without the
written consent of the Swing Line Bank and (c) any Issuing Bank shall be
effective without the written consent of such Issuing Bank. The Administrative
Agent may waive payment of the fee required under Section 13.3(B) without
---------------
obtaining the consent of any of the Lenders.
9.4 Preservation of Rights. No delay or omission of the Lenders or the
------------------------
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan or issuance of such Letter of
Credit shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to Section 9.3,
-----------
and then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be cumulative
and all shall be available to the Administrative Agent and the Lenders until all
of the Obligations (other than contingent indemnity obligations) shall have been
fully and indefeasibly paid and satisfied in cash, all financing arrangements
among the Borrower and the Lenders shall have been terminated and all of the
Letters of Credit shall have expired, been canceled or terminated.
ARTICLE X: GENERAL PROVISIONS
----------- -------------------
10.1 Survival of Representations. All representations and warranties of the
---------------------------
Borrower contained in this Agreement shall survive delivery of this
Agreement and the making of the Loans herein contemplated.
10.2 Governmental Regulation. Anything contained in this Agreement to the
------------------------
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Performance of Obligations. The Borrower agrees that after the
----------------------------
occurrence and during the continuance of a Default, the Administrative Agent
may, but shall have no obligation to, make any payment or perform any act
required of the Borrower under any Loan Document to the extent the
Administrative Agent determines that such action shall be necessary or advisable
in order to protect or preserve the rights of the Lenders and Issuing Banks
hereunder. The Administrative Agent shall use its reasonable efforts to give
the Borrower notice of any action taken under this Section 10.3 prior to the
------------
taking of such action or promptly thereafter provided the failure to give such
notice shall not affect the Borrower's obligations in respect thereof. The
Borrower agrees to pay the Administrative Agent, upon demand, the principal
amount of all funds advanced by the Administrative Agent under this Section
-------
10.3, together with interest thereon at the rate from time to time applicable to
Floating Rate Loans from the date of such advance until the outstanding
principal balance thereof is paid in full. If the Borrower fails to make
payment in respect of any such advance under this Section 10.3 within one (1)
------------
Business Day after the date the Borrower receives written demand therefor from
the Administrative Agent, the Administrative Agent shall promptly notify each
Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in immediately available funds, the amount
equal to such Lender's Pro Rata Share of such advance. If such funds are not
made available to the Administrative Agent by such Lender within one (1)
Business Day after the Administrative Agent's demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of such demand and ending on
the date such amount is received. The failure of any Lender to make available
to the Administrative Agent its Pro Rata Share of any such unreimbursed advance
under this Section 10.3 shall neither relieve any other Lender of its obligation
------------
hereunder to make available to the Administrative Agent such other Lender's Pro
Rata Share of such advance on the date such payment is to be made nor increase
the obligation of any other Lender to make such payment to the Administrative
Agent. All outstanding principal of, and interest on, advances made under this
Section 10.3 shall constitute Obligations subject to the terms of this Agreement
------------
until paid in full by the Borrower.
10.4 Headings. Section headings in the Loan Documents are for convenience
--------
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
10.5 Entire Agreement. The Loan Documents embody the entire agreement and
-----------------
understanding among the Borrower, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof.
10.6 Several Obligations; Benefits of this Agreement. The respective
----------------------------------------------------
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
10.7 Expenses; Indemnification.
--------------------------
(A) Expenses. The Borrower shall reimburse the Administrative Agent and the
--------
Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time charges
of attorneys and paralegals for the Administrative Agent, which attorneys and
paralegals may be employees of the Administrative Agent) paid or incurred by the
Administrative Agent or the Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment modification
and, after the occurrence and during the continuance of a Default or an
Unmatured Default, administration of the Loan Documents. The Borrower also
agrees to reimburse the Administrative Agent and the Arranger and the Lenders
for any reasonable costs and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Administrative Agent and the Arranger and the Lenders, which attorneys and
paralegals may be employees of the Administrative Agent or the Arranger or the
Lenders) paid or incurred by the Administrative Agent or the Arranger or any
Lender in connection with the collection of the Obligations and enforcement of
the Loan Documents; provided, that after the occurrence and during the
--------
continuance of a Default, the Borrower agrees to reimburse the Administrative
Agent, the Arranger and the Lenders for all such costs and out-of-pocket
expenses, whether or not reasonable.
(B) Indemnity. The Borrower further agrees to defend, protect, indemnify,
---------
and hold harmless the Administrative Agent, the Arranger, the Syndication Agent,
the Documentation Agent and each and all of the Lenders and each of their
respective Affiliates, and each of such Administrative Agent's, Syndication
Agent's, Documentation Agent's, Arranger's, Lender's, or Affiliate's respective
officers, directors, trustees, investment advisors, employees, attorneys and
agents (including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article V) (collectively, the "INDEMNITEES") from and against any and all
----------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses of any kind or nature whatsoever (including, without
limitation, the fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding,
whether or not such Indemnitees shall be designated a party thereto), imposed
on, incurred by, or asserted against such Indemnitees in any manner relating to
or arising out of:
(i) this Agreement, the other Loan Documents or any of the Transaction
Documents, or any act, event or transaction related or attendant thereto or to
the Transactions, the making of the Loans, and the issuance of and participation
in Letters of Credit hereunder, the management of such Loans or Letters of
Credit, the use or intended use of the proceeds of the Loans or Letters of
Credit hereunder, or any of the other transactions contemplated by the
Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or threat
to the environment, natural resources or public health or welfare, costs and
expenses (including, without limitation, attorney, expert and consulting fees
and costs of investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known or
unknown, absolute or contingent, past, present or future relating to violation
of any Environmental, Health or Safety Requirements of Law arising from or in
connection with the past, present or future operations of the Borrower, its
Subsidiaries or any of their respective predecessors in interest, or, the past,
present or future environmental, health or safety condition of any respective
property of the Borrower or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the Borrower or its
Subsidiaries or the Release or threatened Release of any Contaminant into the
environment (collectively, the "INDEMNIFIED MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
-------- -------
hereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or gross negligence of such Indemnitee with respect to the
Loan Documents, as determined by the final non-appealed judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the Borrower shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law, to the payment
and satisfaction of all Indemnified Matters incurred by the Indemnitees.
Each Indemnitee, with respect to any action against it in respect of which
indemnity may be sought under this Section, shall give written notice of the
commencement of such action to the Borrower within a reasonable time after such
Indemnitee is made a party to such action. Upon receipt of any such notice by
the Borrower, unless such Indemnitee shall be advised by its counsel that there
are or may be legal defenses available to such Indemnitee that are different
from, in addition to, or in conflict with, the defenses available to the
Borrower or any of its Subsidiaries, the Borrower may participate with the
Indemnitee in the defense of such Indemnified Matter, including the employment
of counsel consented to by such Indemnitee (which consent shall not be
unreasonably withheld); provided, however, nothing provided herein shall entitle
-------- -------
(a) the Borrower or any of its Subsidiaries to assume the defense of such
Indemnified Matter or (b) any Indemnitee to effect any settlement in respect of
any indemnified matter without the Borrower's consent, such consent not to be
unreasonably withheld.
(C) Waiver of Certain Claims; Settlement of Claims. The Borrower further
-------------------------------------------------
agrees to assert no claim against any of the Indemnitees on any theory of
liability seeking consequential, special, indirect, exemplary or punitive
damages. No settlement of any claim asserted against or likely to be asserted
against an Indemnitee shall be entered into by the Borrower or any if its
Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced by this
Agreement, the other Loan Documents or in connection with the Transactions
(whether or not the Administrative Agent or any Lender or any Indemnitee is a
party thereto) unless such settlement releases such Indemnitee from any and all
liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of the Borrower
-----------------------
under this Section 10.7 shall survive the termination of this Agreement.
-------------
10.8 Numbers of Documents. All statements, notices, closing documents, and
---------------------
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9 Accounting. Except as provided to the contrary herein, all accounting
----------
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles. If
any changes in generally accepted accounting principles are hereafter required
or permitted and are adopted by the Borrower or any of its Subsidiaries with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the financial
covenants, tests, restrictions or standards herein or in the related definitions
or terms used therein ("ACCOUNTING CHANGES"), the parties hereto agree, at the
Borrower's request, to enter into negotiations, in good faith, in order to amend
such provisions in a credit neutral manner so as to reflect equitably such
changes with the desired result that the criteria for evaluating the Borrower's
and its Subsidiaries' financial condition shall be the same after such changes
as if such changes had not been made; provided, however, until such provisions
-------- -------
are amended in a manner reasonably satisfactory to the Administrative Agent and
the Required Lenders, no Accounting Change shall be given effect in such
calculations and all financial statements and reports required to be delivered
hereunder shall be prepared in accordance with Agreement Accounting Principles
without taking into account such Accounting Changes. In the event such
amendment is entered into, all references in this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as of
the date of such amendment.
10.10 Severability of Provisions. Any provision in any Loan Document that
----------------------------
is held to be 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 all Loan Documents are declared to be severable.
10.11 Nonliability of Lenders. The relationship between the Borrower and
-------------------------
the Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Administrative Agent
nor any Lender undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
10.12 GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON
--------------
BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS 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.
10.13 CONSENT TO JURISDICTION; JURY TRIAL.
---------------------------------------
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
----------------------- --------------
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. THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT,
-------------------
ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED
AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2) IN ORDER TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE
BORROWER 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). THE BORROWER 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. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (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
--------------------
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
-------------------
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
SECTION 10.7 AND THIS SECTION 10.13, WITH ITS COUNSEL.
------------- --------------
10.14 Subordination of Intercompany Indebtedness. The Borrower agrees that
-------------------------------------------
any and all claims of the Borrower against any of its Subsidiaries that is a
Subsidiary Guarantor with respect to any "Intercompany Indebtedness" (as
hereinafter defined), any endorser, obligor or any other guarantor of all or any
part of the Obligations, or against any of its properties shall be
subordinate and subject in right of payment to the prior payment, in full and in
cash, of all Obligations and Hedging Obligations under Hedging Agreements;
provided that, and not in contravention of the foregoing, so long as no Default
has occurred and is continuing the Borrower may make loans to and receive
payments in the ordinary course with respect to such Intercompany Indebtedness
from each such Subsidiary Guarantor to the extent permitted by the terms of this
Agreement and the other Loan Documents. Notwithstanding any right of the
Borrower to ask, demand, xxx for, take or receive any payment from any
Subsidiary Guarantor, all rights, liens and security interests of the Borrower,
whether now or hereafter arising and howsoever existing, in any assets of any
Subsidiary Guarantor shall be and are subordinated to the rights of the holders
of the Obligations and the Administrative Agent in those assets. The Borrower
shall have no right to possession of any such asset or to foreclose upon any
such asset, whether by judicial action or otherwise, unless and until all of the
Obligations (other than contingent indemnity obligations) and the Hedging
Obligations under Hedging Agreements shall have been fully paid and satisfied
(in cash) and all financing arrangements pursuant to any Loan Document or
Hedging Agreement among the Borrower and the holders of the Obligations (or any
affiliate thereof) have been terminated. If all or any part of the assets of
any Subsidiary Guarantor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Subsidiary
Guarantor, whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors or any other action or proceeding, or if the business of
any such Subsidiary Guarantor is dissolved or if substantially all of the assets
of any such Subsidiary Guarantor are sold, then, and in any such event (such
events being herein referred to as an "INSOLVENCY EVENT"), any payment or
distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any
indebtedness of any Subsidiary Guarantor to the Borrower ("INTERCOMPANY
INDEBTEDNESS") shall be paid or delivered directly to the Administrative Agent
for application on any of the Obligations and Hedging Obligations under the
Hedging Agreements, due or to become due, until such Obligations and Hedging
Obligations (other than contingent indemnity obligations) shall have first been
fully paid and satisfied (in cash). Should any payment, distribution, security
or instrument or proceeds thereof be received by the Borrower upon or with
respect to the Intercompany Indebtedness after an Insolvency Event prior to the
satisfaction of all of the Obligations (other than contingent indemnity
obligations) and Hedging Obligations under Hedging Agreements and the
termination of all financing arrangements pursuant to any Loan Document or
Hedging Agreement among the Borrower and the holders of Obligations (and their
affiliates), the Borrower shall receive and hold the same in trust, as trustee,
for the benefit of the holders of the Obligations and such Hedging Obligations
and shall forthwith deliver the same to the Administrative Agent, for the
benefit of such Persons, in precisely the form received (except for the
endorsement or assignment of the Borrower where necessary), for application to
any of the Obligations and such Hedging Obligations, due or not due, and, until
so delivered, the same shall be held in trust by the Borrower as the property of
the holders of the Obligations and such Hedging Obligations. If the Borrower
fails to make any such endorsement or assignment to the Administrative Agent,
the Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. The Borrower agrees that until the Obligations
(other than the contingent indemnity obligations) and such Hedging Obligations
have been paid in full (in cash) and satisfied and all financing arrangements
pursuant to any Loan Document or Hedging Agreement among the Borrower and the
holders of the Obligations (and their affiliates) have been terminated, the
Borrower will not assign or transfer to any Person (other than the
Administrative Agent) any claim the Borrower has or may have against any
Subsidiary Guarantor.
ARTICLE XI: THE ADMINISTRATIVE AGENT
------------ --------------------------
11.1 Appointment; Nature of Relationship. Bank One, NA, having its
---------------------------------------
principal office in Chicago, Illinois is appointed by the Lenders as the
Administrative Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Administrative Agent
agrees to act as such contractual representative upon the express conditions
contained in this Article XI. Notwithstanding the use of the defined term
-----------
"Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Holder
of Obligations by reason of this Agreement and that the Administrative
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Obligations, (ii) is a "representative" of the Holders of Obligations
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its affiliates as Holders of
Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Obligations waives.
11.2 Powers. The Administrative Agent shall have and may exercise such
------
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
11.3 General Immunity. Neither the Administrative Agent nor any of its
-----------------
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen solely from the
gross negligence or willful misconduct of such Person.
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc. Neither
-------------------------------------------------------------
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article V, except receipt of items
---------
required to be delivered solely to the Administrative Agent; (iv) the existence
or possible existence of any Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein or in
any of the other Loan Documents, for the perfection or priority of the Liens on
collateral, if any, or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the transactions contemplated thereby, or for
the financial condition of any guarantor of any or all of the Obligations, the
Borrower or any of its Subsidiaries.
11.5 Action on Instructions of Lenders. The Administrative Agent shall in
-----------------------------------
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders (or all of the Lenders in the event that and to the
extent that this Agreement expressly requires such), and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all owners of Loans and on all Holders of Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
11.6 Employment of Administrative Agents and Counsel. The Administrative
--------------------------------------------------
Agent may execute any of its duties as the Administrative Agent hereunder and
under any other Loan Document by or through employees, agents, and
attorney-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Administrative Agent
and the Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
11.7 Reliance on Documents; Counsel. The Administrative Agent shall be
---------------------------------
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8 The Administrative Agent's Reimbursement and Indemnification. The
-----------------------------------------------------------------
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
--------
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen solely from the gross negligence or willful
misconduct of the Administrative Agent.
11.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
---------------------
Loans made by it, and Letters of Credit issued by it, the Administrative Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender or Issuing Bank and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders" or
"Issuing Bank" or "Issuing Banks" shall, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent may accept deposits from, lend money to, and generally engage in any kind
of trust, debt, equity or other transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
11.10 Lender Credit Decision. Each Lender acknowledges that it has,
------------------------
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
11.11 Successor Administrative Agent. The Administrative Agent may resign
--------------------------------
at any time by giving written notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint,
on behalf of the Borrower and the Lenders, a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding anything herein to the
contrary, so long as no Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to approval by the Borrower,
which approval shall not be unreasonably withheld. Such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $500,000,000. Upon the acceptance of any appointment as
the Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article XI shall continue in effect for its benefit in
----------
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
11.12 No Duties Imposed Upon Syndication Agent, Documentation Agent or
-----------------------------------------------------------------
Arranger. None of the Persons identified on the cover page to this Agreement,
--------
the signature pages to this Agreement or otherwise in this Agreement as a
"Syndication Agent" or "Documentation Agent" or "Arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than if such Person is a Lender, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Persons identified on the cover page
to this Agreement, the signature pages to this Agreement or otherwise in this
Agreement as a "Syndication Agent" or "Documentation Agent" or "Arranger" shall
have or be deemed to have any fiduciary duty to or fiduciary relationship with
any Lender. In addition to the agreement set forth in Section 11.10, each of
-------------
the Lenders acknowledges that it has not relied, and will not rely, on any of
the Persons so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
------------- --------------------------
12.1 Setoff. In addition to, and without limitation of, any rights of the
------
Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
12.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
-----------------
payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any
--------- --- ---
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3 Application of Payments. Subject to the provisions of Section 9.2, the
----------------------- -----------
Administrative Agent shall, unless otherwise specified at the direction of the
Required Lenders which direction shall be consistent with the last sentence of
this Section 12.3, apply all payments and prepayments in respect of any
-------------
Obligations received after the occurrence and during the continuance of a
Default or Unmatured Default in the following order:
(A) first, to pay interest on and then principal of any portion of the Loans
which the Administrative Agent may have advanced on behalf of any Lender
for which the Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay interest on and then principal of any advance made under
Section 10.3 for which the Administrative Agent has not then been paid by the
-------------
Borrower or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Administrative Agent;
(D) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders and the issuer(s) of
Letters of Credit;
(E) fifth, to pay interest due in respect of Swing Line Loans;
(F) sixth, to pay interest due in respect of Loans (other than Swing Line
Loans) and L/C Obligations;
(G) seventh, to the ratable payment or prepayment of principal outstanding
on Swing Line Loans;
(H) eighth, to the ratable payment or prepayment of principal outstanding on
Loans (other than Swing Line Loans), Reimbursement Obligations and Hedging
Obligations under Hedging Agreements in such order as the Administrative Agent
may determine in its sole discretion;
(I) ninth, to provide required cash collateral, if required pursuant to
Section 3.11; and
---------
(J) tenth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrower, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied to the outstanding
Revolving Loans first, to repay outstanding Floating Rate Loans, and then to
----
repay outstanding Eurodollar Rate Loans with those Eurodollar Rate Loans which
have earlier expiring Interest Periods being repaid prior to those which have
later expiring Interest Periods. The order of priority set forth in this
Section 12.3 and the related provisions of this Agreement are set forth solely
-------
to determine the rights and priorities of the Administrative Agent, the Lenders,
the Swing Line Bank and the issuer(s) of Letters of Credit as among themselves.
The order of priority set forth in clauses (D) through (J) of this Section 12.3
----------- --- ------------
may at any time and from time to time be changed by the Required Lenders without
necessity of notice to or consent of or approval by the Borrower, or any other
Person; provided, that the order of priority of payments in respect of Swing
--------
Line Loans may be changed only with the prior written consent of the Swing Line
Bank. The order of priority set forth in clauses (A) through (C) of this
----------- ---
Section 12.3 may be changed only with the prior written consent of the
Administrative Agent.
12.4 Relations Among Lenders.
-------------------------
(A) Except with respect to the exercise of set-off rights of any Lender in
accordance with Section 12.1, the proceeds of which are applied in accordance
-------------
with this Agreement, and except as set forth in the following sentence, each
Lender agrees that it will not take any action, nor institute any actions or
proceedings, against the Borrower or any other obligor hereunder or with respect
to any Loan Document, without the prior written consent of the Required
Lenders or, as may be provided in this Agreement or the other Loan Documents, at
the direction of the Administrative Agent.
(B) The Lenders are not partners or co-venturers, and no Lender shall be
liable for the acts or omissions of, or (except as otherwise set forth herein in
case of the Administrative Agent) authorized to act for, any other Lender. The
Administrative Agent shall have the exclusive right on behalf of the Lenders, at
the direction of the Required Lenders, to enforce on the payment of the
principal of and interest on any Loan after the date such principal or interest
has become due and payable pursuant to the terms of this Agreement.
12.5 Representations and Covenants Among Lenders. Each Lender represents
----------------------------------------------
and covenants for the benefit of all other Lenders and the Administrative Agent
that such Lender is not satisfying and shall not satisfy any of its obligations
pursuant to this Agreement with any assets considered for any purposes of ERISA
or Section 4975 of the Code to be assets of or on behalf of any "plan" as
defined in section 3(3) of ERISA or section 4975 of the Code, regardless of
whether subject to ERISA or Section 4975 of the Code.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------- -----------------------------------------------------
13.1 Successors and Assigns. The terms and provisions of the Loan Documents
----------------------
shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) without the
consent of all of the Lenders, (a) Xxxxxxx shall not have the right to assign
its rights or obligations under the Loan Documents other than pursuant to the
Debt Assumption and only if the Net Worth Condition and all other conditions to
the Debt Assumption have been satisfied, and (b) Energizer shall not have the
right to assign its rights or obligations under the Loan Documents, and any such
assignment in violation of this Section 13.1(i) shall be null and void, and (ii)
---------------
any assignment by any Lender must be made in compliance with Section 13.3
------------
hereof. Notwithstanding clause (ii) of this Section 13.1 or Section 13.3, (i)
------------ ------------ ------------
any Lender may at any time, without the consent of the Borrower or the
Administrative Agent, assign all or any portion of its rights under this
Agreement to a Federal Reserve Bank and (ii) any Lender which is a fund or
commingled investment vehicle that invests in commercial loans in the ordinary
course of its business may at any time, without the consent of the Borrower or
the Administrative Agent, pledge or assign all or any part of its rights under
this Agreement to a trustee or other representative of holders of obligations
owed or securities issued by such Lender as collateral to secure such
obligations or securities; provided, however, that no such assignment or pledge
-------- -------
shall release the transferor Lender from its obligations hereunder. The
Administrative Agent may treat each Lender as the owner of the Loans made by
such Lender hereunder for all purposes hereof unless and until such Lender
complies with Section 13.3 hereof in the case of an assignment thereof or, in
-------------
the case of any other transfer, a written notice of the transfer is filed with
the Administrative Agent. Any assignee or transferee of a Loan, Revolving Loan
Commitment, L/C Interest or any other interest of a lender under the Loan
Documents agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of any Loan, shall be conclusive and binding on any
subsequent owner, transferee or assignee of such Loan.
13.2 Participations.
--------------
(A) Permitted Participants; Effect. Subject to the terms set forth in this
-------------------------------
Section 13.2, any Lender may, in the ordinary course of its business and in
-------------
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Revolving Loan Commitment of such Lender, any L/C Interest of such
Lender or any other interest of such Lender under the Loan Documents on a pro
rata or non-pro rata basis. Notice of such participation to the Borrower and
the Administrative Agent shall be required prior to any participation becoming
effective with respect to a Participant which is not a Lender or an Affiliate
thereof. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of all Loans made by it for all purposes under the Loan
Documents, all amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
the Loan Documents except that, for purposes of Article IV hereof, the
-----------
Participants shall be entitled to the same rights as if they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
--------------
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan, Letter of Credit or Revolving Loan Commitment
in which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Revolving Loan Commitment, releases any Subsidiary
Guarantor from its obligations under the Subsidiary Guaranty, or releases all or
substantially all of the collateral, if any, securing any such Loan or Letter of
Credit.
(C) Benefit of Setoff. The Borrower agrees that each Participant shall be
-------------------
deemed to have the right of setoff provided in Section 12.1 hereof in respect to
------------
its participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
--------
right of setoff provided in Section 12.1 hereof with respect to the amount of
------------
participating interests sold to each Participant except to the extent such
Participant exercises its right of setoff. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in
Section 12.1 hereof, agrees to share with each Lender, any amount received
-------------
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.2 as if each Participant were a Lender.
-------------
13.3 Assignments.
-----------
(A) Permitted Assignments. Any Lender may, in the ordinary course of its
----------------------
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Revolving
Loan Commitment, all Loans owing to it, all of its participation interests in
existing Letters of Credit, and its obligation to participate in additional
Letters of Credit hereunder) in accordance with the provisions of this Section
-------
13.3. Each assignment shall be of a constant, and not a varying, ratable
percentage of all of the assigning Lender's rights and obligations under this
Agreement. Such assignment shall be substantially in the form of Exhibit D
---------
hereto and shall not be permitted hereunder unless such assignment is either for
all of such Lender's rights and obligations under the Loan Documents or,
without the prior written consent of the Administrative Agent and (if no Default
or Unmatured Default has occurred or is continuing) the Borrower, involves loans
and commitments in an aggregate amount of at least $5,000,000 (which minimum
amount shall not apply to any assignment between Lenders, or to an Affiliate of
any Lender). Other than with respect to any assignment to another Lender or an
Affiliate or successor entity of such Lender, the consent of the Administrative
Agent, and, prior to the occurrence and continuance of a Default or Unmatured
Default, the Borrower (which consent, in each such case, shall not be
unreasonably withheld) shall be required prior to an assignment becoming
effective.
(B) Effect; Effective Date. Upon (i) delivery to the Administrative Agent
------------------------
of a notice of assignment, substantially in the form attached as Appendix I to
----------
Exhibit D hereto (a "NOTICE OF ASSIGNMENT"), together with any consent required
---------
by Section 13.3(A) hereof, and (ii) payment of a $3,500 fee by the assignee or
----------------
the assignor (as agreed) to the Administrative Agent for processing such
assignment (provided no such fee shall be required in connection with an
assignment to an Affiliate or successor entity of an assignor Lender), such
assignment shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the purchase
of the Revolving Loan Commitment, Loans and L/C Obligations under the applicable
Assignment Agreement constitute for any purpose of ERISA or Section 4975 of the
Code assets of any "plan" as defined in Section 3(3) of ERISA or Section 4975 of
the Code and that the rights and interests of the Purchaser in and under the
Loan Documents will not constitute such "plan assets". On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Borrower, the
Lenders or the Administrative Agent shall be required to release the transferor
Lender with respect to the percentage of the Aggregate Revolving Loan
Commitment, Loans and Letter of Credit participations assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 13.3(B), the transferor Lender, the Administrative Agent and the
----------------
Borrower shall make appropriate arrangements so that, to the extent notes have
been issued to evidence any of the transferred Loans, replacement notes are
issued to such transferor Lender and new notes or, as appropriate, replacement
notes, are issued to such Purchaser, in each case in principal amounts
reflecting their Revolving Loan Commitment, as adjusted pursuant to such
assignment.
(C) The Register. The Administrative Agent shall maintain at its address
-------------
referred to in Section 14.1 a copy of each assignment delivered to and accepted
------------
by it pursuant to this Section 13.3 and a register (the "REGISTER") for the
------------
recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of and principal amount of the Loans owing to, each Lender from time
to time and whether such Lender is an original Lender or the assignee of another
Lender pursuant to an assignment under this Section 13.3. The entries in the
------------
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower and each of its Subsidiaries, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
13.4 Confidentiality. Subject to Section 13.5, the Administrative Agent and
--------------- ------------
the Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Borrower in accordance with such Person's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound commercial lending or investment practices and in
any event may make disclosure reasonably required by a prospective Transferee in
connection with the contemplated participation or assignment or as required or
requested by any Governmental Authority or any securities exchange or similar
self-regulatory organization or representative thereof or pursuant to a
regulatory examination or legal process, or to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor, and shall require any such Transferee to agree (and
require any of its Transferees to agree) to comply with this Section 13.4. In
------------
no event shall the Administrative Agent or any Lender be obligated or required
to return any materials furnished by the Borrower; provided, however, each
-------- -------
prospective Transferee shall be required to agree that if it does not become a
participant or assignee it shall return all materials furnished to it by or on
behalf of the Borrower in connection with this Agreement.
13.5 Dissemination of Information. The Borrower authorizes each Lender to
------------------------------
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries; provided that prior to any such
--------
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 13.4 the confidentiality of any confidential information described
------------
therein.
ARTICLE XIV: NOTICES
------------- -------
14.1 Giving Notice. Except as otherwise permitted by Section 2.13 with
-------------- ------------
respect to Borrowing/Election Notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Documents
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid, shall be
deemed given three (3) Business Days after mailed; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes); or, any notice, if transmitted by courier, one (1)
Business Day after deposit with a reputable overnight carrier services, with all
charges paid.
14.2 Change of Address. The Borrower, the Administrative Agent and any
-------------------
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XV: COUNTERPARTS
------------ ------------
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Administrative Agent
and the Lenders and each party has notified the Administrative Agent by telex or
telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
XXXXXXX PURINA COMPANY, as the Borrower
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
Address:
Xxxxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Chief Financial Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxxxx@xxxxxxx.xxx
BANK ONE, NA (Main Office Chicago), as Administrative Agent, an Issuing
Lender, the Swing Line Bank and as a Lender
By: /s/ BANK ONE, NA
Name:
Title:
Address:
1 Bank Xxx Xxxxx
Xxxxx XX0-0000
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
BANK OF AMERICA, N.A., as Syndication Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Address:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx
WACHOVIA BANK, N.A., as Documentation Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Address:
000 Xxxxxxxxx Xxxxxx, XX-XX000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxx.xxxxxxxx@xxxxxxxx.xxx
THE NORTHERN TRUST COMPANY,
as a Lender
By: Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: Second Vice President
Address:
00 Xxxxx XxXxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxxxxx@xxxxx.xxxx.xxx
STANDARD CHARTERED BANK,
as a Lender
By: /s/ Xxxxxx Xx
--------------------
Name: Xxxxxx Xx
Title: Vice President
By: Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
Address:
0 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: Xxxxxxxx.Xxxxxx@XX.XxxxxxxxXxxxxxxxxx.xxx
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH, as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxx@xxxxx.xxx
BANK OF NEW YORK, as a Lender
By: /s/ Xxxx-Xxxx Xxxxxxx
----------------------------
Name: Xxxx-Xxxx Xxxxxxx
Title: Vice President
Address:
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
BANCA COMMERCIALE ITALIANA, CHICAGO BRANCH, as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Mr. Xxxxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xx. Xxxxxx Xxxxxxx
Title: First Vice President
Deputy Manager
Address:
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
BANCA NAZIONALE DEL LAVORO S.P.A.-NEW YORK BRANCH, as a Lender
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxx@xxxxx.Xxx
BANQUE NATIONALE DE PARIS,
as a Lender
By: Xxxxxx Xxxxxx du Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President
and General Manager
Address:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG, as a Lender
By:/s/ DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG
Name:
Title:
By:/s/ DG BANK DEUTSCHE GENOSSENSCHAFTSBANK AG
Name:
Title:
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx, Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000/1550
THE DAI-ICHI KANGYO BANK, LTD.,
as a Lender
By: /s/ Nobuyasu Fukatsu
---------------------------
Name: Nobuyasu Fukatsu
Title: General Manager
Address:
00 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxxxxx@xxx.xxx
MERCANTILE BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address:
One Mercantile Center
Tram 001/1001/12-3
Xx. Xxxxx, XX 00000
Attention: Xxxxx X. Hibgee
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxx.x.xxxxxx@xxxxxxx.xxx
SANPAOLO IMI S.P.A., as a Lender
By: /s/ Xxxx Xxxxxx
------------------------
Name: Xxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Deputy General Manager
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxx@xxxxxxxxxx.xxx
SUNTRUST BANK, as a Lender
By: /s/ Xxxxx X. Dash
-------------------------
Name: Xxxxx X. Dash
Title: Vice President
Address:
000 Xxxxxxxxx Xxxxxx, X.X.
Mail Code 0000, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Dash
Phone: (000) 000-0000
Fax: (000) 000-0000
WESTPAC BANKING CORPORATION,
as a Lender
By: /s/ Xxxxx Love
-----------------------
Name: Xxxxx Love
Title: Head of Legal & Compliance
Europe & Americas
Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Ms. Xxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxx@xxxxxxx.xxx.xx
Effective as of April 1, 2000,
assigned to and assumed pursuant
to the terms of that certain Debt
Assignment, Assumption
and Release Agreement
dated as of April 1, 2000
among Xxxxxxx, Energizer and the
Administrative Agent
ENERGIZER HOLDINGS, INC.
/s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President - Finance and Control
Address:
Checkerboard Square
000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: XXXxxxxx@Xxxxxxxxx.xxx
xix
EXHIBITS
EXHIBIT A -- Revolving Loan Commitments (Definitions)
EXHIBIT B -- Form of Borrowing/Election Notice (Section 2.2 and Section 2.7
and Section 2.9)
EXHIBIT C -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT D -- Form of Assignment and Acceptance Agreement (Sections 2.19
and 13.3)
EXHIBIT E -- Form of Borrower's Counsel's Opinion (Section 5.1)
EXHIBIT F -- List of Closing Documents (Section 5.1)
EXHIBIT G -- Form of Officer's Certificate (Sections 5.2 and 7.1(A)(iii))
EXHIBIT H -- Form of Compliance Certificate (Sections 5.2 and 7.1(A)(iii))
EXHIBIT I -- Form of Supplement to Subsidiary Guaranty (Definitions)
EXHIBIT J -- Form of Debt Assumption Agreement (Definitions)
SCHEDULES
Schedule 1.1.1 -- Permitted Existing Investments (Definitions)
Schedule 1.1.2 -- Permitted Existing Liens (Definitions)
Schedule 1.1.3 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 6.3 -- Xxxxxxx Conflicts; Xxxxxxx Governmental Consents (Section 6.3)
Schedule 6.6 -- Energizer Conflicts; Energizer Governmental Consents (Section 6.6)
Schedule 6.7 -- Pro Forma Financial Statements (Section 6.7(A))
Schedule 6.10 -- Litigation; Loss Contingencies (Section 6.10)
Schedule 6.11 -- Subsidiaries (Section 6.11)
Schedule 6.21 -- Outstanding Spin-Off Conditions (Section 6.21, Section 5.1(7))
Schedule 6.21(iv) -- Committed Financing Facilities (Section 6.21(iv), Section 5.1(7)(iv))
Schedule 6.22 -- Environmental Matters (Section 6.22)
Schedule 7.3(G) -- Transactions with Xxxxxxx'x Shareholders and Affiliates (Section 7.3(G))
Table of Contents
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Page
----
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE II: THE REVOLVING LOAN FACILITY
2.1 Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.2 Swing Line Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.3 Rate Options for all Advances; Maximum Interest Periods . . . . . . . . . . . 24
2.4 Optional Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.5 Reduction of Revolving Loan Commitments . . . . . . . . . . . . . . . . . . . 24
2.6 Method of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.7 Method of Selecting Types and Interest Periods for Advances . . . . . . . . . 25
2.8 Minimum Amount of Each Advance. . . . . . . . . . . . . . . . . . . . . . . . 25
2.9 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.10 Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.11 Method of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.12 Evidence of Debt.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.13 Telephonic Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.14 Promise to Pay; Interest and Facility Fees; Interest Payment Dates; Interest
and Fee Basis; Loan and Control Accounts.. . . . . . . . . . . . . . . . . . . . 27
1.15 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . 29
1.16 Lending Installations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1.17 Non-Receipt of Funds by the Administrative Agent . . . . . . . . . . . . . . 30
1.18 Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
1.19 Replacement of Certain Lenders . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue Letters of Credit . . . . . . . . . . . . . . . . . . . . 31
3.2 [Reserved]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.3 Types and Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.4 Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.5 Procedure for Issuance of Letters of Credit . . . . . . . . . . . . . . . . . 32
3.6 Letter of Credit Participation. . . . . . . . . . . . . . . . . . . . . . . . 32
3.7 Reimbursement Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.8 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.9 Issuing Bank Reporting Requirements . . . . . . . . . . . . . . . . . . . . . 34
3.10 Indemnification; Exoneration . . . . . . . . . . . . . . . . . . . . . . . . 34
3.11 Cash Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE IV: YIELD PROTECTION; TAXES
4.1 Yield Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.2 Changes in Capital Adequacy Regulations . . . . . . . . . . . . . . . . . . . 36
4.3 Availability of Types of Advances . . . . . . . . . . . . . . . . . . . . . . 36
4.4 Funding Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.6 Lender Statements; Survival of Indemnity. . . . . . . . . . . . . . . . . . . 1
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit. . . . . . . . . . . . . . . . . . . . 2
5.2 Each Advance and Letter of Credit . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
6.1 Organization; Corporate Powers of Xxxxxxx . . . . . . . . . . . . . . . . . . 4
6.2 Authority of Xxxxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6.3 No Conflict; Governmental Consents for Xxxxxxx. . . . . . . . . . . . . . . . 5
6.4 Organization; Corporate Powers of Energizer . . . . . . . . . . . . . . . . . 6
6.5 Authority of Energizer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.6 No Conflict; Governmental Consents for Energizer. . . . . . . . . . . . . . . 6
6.7 Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.8 No Material Adverse Change. . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.9 Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.10 Litigation; Loss Contingencies and Violations. . . . . . . . . . . . . . . . 9
6.11 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.12 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.13 Accuracy of Information. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.14 Securities Activities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.15 Material Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.16 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.17 Assets and Properties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.18 Statutory Indebtedness Restrictions. . . . . . . . . . . . . . . . . . . . . 11
6.19 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.20 Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.21 Spin-Off Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.22 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.23 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.24 Net Worth Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.25 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII: COVENANTS
7.1 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.2 Affirmative Covenants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.3 Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.4 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VIII: DEFAULTS
8.1 Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 Termination of Revolving Loan Commitments; Acceleration . . . . . . . . . . . 28
9.2 Defaulting Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.3 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.4 Preservation of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations. . . . . . . . . . . . . . . . . . . . . . . . . 30
10.2 Governmental Regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.3 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 30
10.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.6 Several Obligations; Benefits of this Agreement. . . . . . . . . . . . . . . 31
10.7 Expenses; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.8 Numbers of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.9 Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.10 Severability of Provisions. . . . . . . . . . . . . . . . . . . . . . . . . 34
10.11 Nonliability of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.13 CONSENT TO JURISDICTION; JURY TRIAL.. . . . . . . . . . . . . . . . . . . . 34
10.14 Subordination of Intercompany Indebtedness. . . . . . . . . . . . . . . . . 35
ARTICLE XI: THE ADMINISTRATIVE AGENT
11.1 Appointment; Nature of Relationship. . . . . . . . . . . . . . . . . . . . . 36
11.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11.3 General Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc . . . . . . . . 37
11.5 Action on Instructions of Lenders. . . . . . . . . . . . . . . . . . . . . . 37
11.6 Employment of Administrative Agents and Counsel. . . . . . . . . . . . . . . 38
11.7 Reliance on Documents; Counsel . . . . . . . . . . . . . . . . . . . . . . . 38
11.8 The Administrative Agent's Reimbursement and Indemnification . . . . . . . . 38
11.9 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.10 Lender Credit Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.11 Successor Administrative Agent. . . . . . . . . . . . . . . . . . . . . . . 39
11.12 No Duties Imposed Upon Syndication Agent, Documentation Agent or
Arranger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
12.2 Ratable Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
12.3 Application of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 40
12.4 Relations Among Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
12.5 Representations and Covenants Among Lenders. . . . . . . . . . . . . . . . . 41
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
13.2 Participations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
13.3 Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
13.4 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
13.5 Dissemination of Information . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE XIV: NOTICES
14.1 Giving Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
14.2 Change of Address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE XV: COUNTERPARTS 45
