EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT
AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this
“ Amendment ”), dated as of April 2, 2009, is
entered into by THE CLOROX COMPANY, a Delaware corporation (the
“ Borrower ”), and the banks party
hereto.
W I T N E S
S E T H
WHEREAS, the Borrower, the financial
institutions party thereto, JPMorgan Chase Bank, N.A., Citicorp
USA, Inc. and Wachovia Bank, N.A., as Administrative Agents and
Citicorp USA, Inc, as Servicing Agent are parties to the Credit
Agreement dated as of April 16, 2008 (the “ Credit
Agreement ”);
WHEREAS, Borrower and Lehman Brothers Bank, FSB
have agreed that the Commitment of Lehman Brothers Bank, FSB is to
be terminated; and
WHEREAS, the Borrower has requested and, subject
to the conditions hereof, the Required Banks have agreed to amend
the Credit Agreement to reflect the foregoing and to make the other
changes set forth herein.
NOW, THEREFORE, in consideration of the
premises, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Definitions; Interpretation
.
(a) Terms Defined in Credit Agreement
. All capitalized terms used in this
Amendment (including in the recitals hereof) and not otherwise
defined herein shall have the meanings assigned to them in the
Credit Agreement, as amended by this Amendment.
(b) Interpretation . The rules of interpretation set forth in
Article I to the Credit Agreement shall be applicable to
this Amendment and are incorporated herein mutatis mutandis
by this reference.
SECTION 2. Amendment to Credit Agreement
. Subject to the satisfaction of the
conditions set forth in Section 3, the Credit Agreement is hereby
amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended to add the following defined terms in their appropriate
alphabetical order:
“ Default Excess ” means,
with respect to any Defaulting Bank, the amount, if any, of such
Defaulting Bank’s ratable portion of the aggregate
outstanding principal amount of the Loans (calculated as if all
Defaulting Banks (including such Defaulting Bank) had funded all of
their respective Defaulted Loans) in excess of the aggregate
outstanding principal amount of all Loans actually funded by such
Defaulting Bank.
“ Default Period ” means,
with respect to any Defaulting Bank, the period commencing on the
date such Bank becomes a Defaulting Bank and ending on the earliest
of the following dates: (i) the date on which the Default Excess
with respect to such Defaulting Bank has been reduced to zero and
such Defaulting Bank has otherwise satisfied all of its obligations
under this Agreement, provided such Defaulting Bank shall
have delivered to the Borrower and the Servicing Agent a written
reaffirmation of its intention to honor its obligations hereunder
with respect to its Commitment; (ii) the date on which the
Defaulting Bank’s Commitment is terminated pursuant to
Section 2.10(b) or assumed pursuant to Section 8.06; and (iii) the
date on which the Borrower, the Servicing Agent and the Required
Banks waive in writing all defaults of such Defaulting Bank under
this Agreement.
“ Defaulted Loan ” means any
Loan that a Defaulting Bank has failed to make.
“ Defaulting Bank ” means any
Bank that (a) has failed to fund any portion of the Committed Loans
or participations in Reimbursement Obligations required to be
funded by it hereunder within three Business Days of the date
required to be funded by it hereunder, (b) has otherwise failed to
pay over to the Servicing Agent or any other Bank any other amount
required to be paid by it hereunder within three Business Days of
the date when due, unless such amount is the subject of a good
faith dispute, (c) has notified the Borrower and/or the Servicing
Agent in writing that it does not intend to comply with its
obligations under Section 2.04 and/or Section 2.18 or has failed,
within five Business Days, to confirm to the Borrower or the
Servicing Agent upon written request its intention to comply with
Section 2.04 and/or Section 2.18, or (d) has become insolvent or
the subject of a bankruptcy or insolvency proceeding.
(b) The definition of “Percentage” in
Section 1.01 of the Credit Agreement is hereby amended by adding
the following proviso at the end of the first sentence thereof:
“ provided that the “Percentage” of any
Bank whose Commitment has been terminated pursuant to Section
2.10(b) shall be deemed to be zero”.
(c) The definition of “Required Banks”
in Section 1.01 of the Credit Agreement is hereby amended to insert
the following proviso at the end of such definition: “;
provided that the Credit Exposure held, or deemed held, by
any Defaulting Bank during the related Default Period shall be
excluded for purposes of making a determination of Required
Banks”.
(d) Section 2.09(a) of the Credit Agreement is
hereby amended to insert the following proviso at the end of the
first sentence: “; provided that for purposes of such
fee the Credit Exposure of a Defaulting Bank for each day during
the related Default Period shall be deemed to be the sum of the
aggregate principal amount of its Loans on such
day”.
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(e) Section 2.10 of the Credit Agreement is hereby
amended to insert an “(a)” prior to the first sentence
and to insert the following clause (b):
“(b) The Borrower shall have the right, at
any time that no Default has occurred and is continuing, upon at
least three Business Days’ notice to a Defaulting Bank (with
a copy to the Servicing Agent), to terminate in full such
Defaulting Bank’s Commitment. Such termination shall be
effective, (1) with respect to such Defaulting Bank’s unused
Commitment and its Commitment in respect of outstanding Letter of
Credit Liabilities, on the date set forth in such notice (which
date shall be no earlier than three Business Days after receipt of
such notice), provided that the requirements of the last
paragraph of Section 2.18(c), if applicable, shall have been
satisfied, and (2) with respect to any Commitment in respect of
outstanding Loans made by such Defaulting Bank, with respect to
each Base Rate Loan outstanding to such Defaulting Bank, on the
date set forth in such notice and, with respect to each Euro-Dollar
Loan, Competitive Bid LIBOR Loan or Competitive Bid Absolute Rate
Loan outstanding to such Defaulting Bank, on the last day of the
then current Interest Period relating to such Loan. Upon a
termination of a Defaulting Bank’s Commitment in respect of
outstanding Loans, the Borrower will pay or cause to be paid all
principal of, and interest accrued to the date of such payment on,
Loans owing to such Defaulting Bank. In addition, upon termination
of a Defaulting Bank’s Commitment the Borrower shall pay any
accrued facility fee and Letter of Credit Fee payable to such
Defaulting Bank in respect of such Commitment pursuant to the
provisions of Section 2.09, and all other amounts payable to such
Defaulting Bank hereunder in respect of such Commitment (including,
but not limited to, any increased costs or other amounts owing
under Section 8.03 and any indemnification for Taxes under Section
8.04). Upon termination in full of a Defaulting Bank’s
Commitment and the making of such payments, the obligations of such
Defaulting Bank hereunder shall, by the provisions hereof, be
released and discharged; provided , however , that
(x) such Defaulting Bank’s rights under Sections 2.18(e),
8.04(b) and 9.03, and its obligations under Section 9.07 shall
survive such release and discharge as to matters occurring prior to
such date and (y) no claim or any rights that the Borrower may have
against such Defaulting Bank arising out of such Defaulting
Bank’s default hereunder shall be released, prejudiced or
impaired in any way. Subject to Section 2.17, the aggregate amount
of the Commitments of the Defaulting Banks once reduced or
terminated pursuant to this Section 2.10(b) may not be reinstated;
provided further , however , that if pursuant to this
Section 2.10(b), the Borrower pays or causes to be paid to a
Defaulting Bank any principal of, or interest accrued on, the Loans
owing to such Defaulting Bank, then the Borrower shall either (x)
confirm to the Servicing Agent that the conditions set forth in
Section 3.02(c) and (d) are met on and as of such date of payment
or (y) pay or cause to be paid a ratable payment of principal and
interest to all Banks who are not Defaulting
Banks.”
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(f) Section 2.18(c) of the Credit Agreement is
hereby amended by adding the new clause (vi) at the end
thereof:
“Notwithstanding anything to the contrary
in this Agreement, no Bank shall be required to fund a Base Rate
Loan pursuant to clause (ii) above or to fund a Reimbursement
Obligation pursuant to clause (iii) above, in each case to the
extent, but only to the extent, such funding would cause its
Outstanding Committed Amount to exceed the amount of its
Commitment. If any Letter of Credit Liabilities exist at the time a
Bank’s Commitment is terminated pursuant to clause (i) of
Section 2.10(b), and if such termination would (but for the
immediately preceding sentence) cause the aggregate Outstanding
Committed Amounts of the remaining Banks to exceed the aggregate
Commitments of the remaining Banks, then the Borrower shall make
arrangements satisfactory to the applicable Issuing Bank
eliminating the risk of such Issuing Bank with respect to such
excess, and if no such satisfactory arrangements are made within 15
Business Days, the Borrower shall cash collateralize the amount of
such excess on terms satisfactory to such Issuing Bank (in which
case any such cash collateral held by such Issuing Bank will be
applied as a payment of its Reimbursement Obligations immediately
prior to any exercise by such Issuing Bank of its rights to require
the funding of participations in such Loans pursuant to this
Section 2.18(c)).”
(g) The Credit Agreement is hereby amended to add
the following Section 2.20:
“Section 2.20 Defaulting Banks .
Notwithstanding anything contained in this Agreement to the
contrary, (a) to the extent permitted by applicable law, until such
time as the Default Excess with respect to any Defaulting Bank
shall have been reduced to zero or any such Defaulting Bank’s
Credit Exposure in respect of outstanding Loans is terminated
pursuant to Section 2.10(b) or assumed pursuant to Section 8.06,
any prepayment of the Loans shall, if the Borrower directs at the
time of making such prepayment, be applied to the Loans of the
Banks other than such Defaulting Bank as if such Defaulting Bank
had no Loans outstanding and (b) any Defaulting Bank’s unused
Commitment shall be excluded for purposes of calculating the
facility fee, and its Commitment shall be excluded for purposes of
calculating the Letter of Credit Fee, payable to Banks pursuant to
Section 2.09 in respect of any day during any Default Period with
respect to any such Defaulting Bank (unless and until such
Defaulting Bank’s Credit Exposure has been assumed pursuant
to Section 8.06), and such Defaulting Bank shall not be entitled to
receive any facility fee in respect of its unused Commitment, or
Letter of Credit Fee in respect of its Commitment, pursuant to
Section 2.09 during any Default Period with respect to such
Defaulting Bank. No Commitment of any Bank shall be increased or
otherwise affected (other than in accordance with Section 8.06),
and, except as otherwise expressly provided in this Section 2.20,
performance by the Borrower of its obligations hereunder shall not
be excused or otherwise modified as a result of any failure by a
Defaulting Bank to fund or the operation of this Section 2.20. The
rights and remedies against a Defaulting Bank under this Section
2.20 are in addition to other rights and remedies that the
Borrower, the Servicing Agent or any other Bank may have against
such Defaulting Bank with respect to any failure by such Defaulting
Bank to perform its obligations under the
Agreement.”
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(h) S
