|
ENERGIZER
HOLDINGS, INC.
$890,000,000
Senior
Notes
$95,000,000
5.71% Senior Notes, Series 2007-A, due October 15,
2010
$135,000,000
6.01% Senior Notes, Series 2007-B, due October 15,
2012
$50,000,000
6.09% Senior Notes, Series 2007-C, due October 15,
2013
$80,000,000
6.23% Senior Notes, Series 2007-D, due October 15,
2014
$70,000,000
6.36% Senior Notes, Series 2007-E, due October 15,
2015
$150,000,000
6.48% Senior Notes, Series 2007-F, due October 15,
2016
$310,000,000
6.55% Senior Notes, Series 2007-G, due October 15,
2017
_________
NOTE
PURCHASE AGREEMENT
_________
Dated
as of October 15, 2007
Series
2007-A PPN: 29266R J#6
Series
2007-B PPN: 29266R K*8
Series
2007-C PPN: 29266R K@6
Series
2007-D PPN: 29266R K#4
Series
2007-E PPN: 29266R L*7
Series
2007-F PPN: 29266R L@5
Series
2007-G PPN: 29266R L#3
TABLE
OF CONTENTS
Section
Page
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1.
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AUTHORIZATION
OF NOTES.
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|
|
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1.2.
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Additional
Interest.
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|
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2.
|
SALE AND
PURCHASE OF NOTES.
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|
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4.
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CONDITIONS
TO CLOSING.
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4.1.
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Representations
and Warranties.
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|
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4.2.
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Performance;
No Default.
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4.3.
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Compliance
Certificates.
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4.4.
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Opinions of
Counsel.
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4.5.
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Purchase
Permitted By Applicable Law, etc.
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4.6.
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Sale of
Other Notes.
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4.7.
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Payment of
Special Counsel Fees.
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4.8.
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Private
Placement Numbers.
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4.9.
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Changes in
Corporate Structure.
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|
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4.10.
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Subsidiary Guaranty.
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|
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4.11.
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Proceedings
and Documents.
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|
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5.
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REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
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|
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5.1.
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Organization;
Power and Authority.
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|
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5.4.
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Organization
and Ownership of Shares of Subsidiaries.
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|
|
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5.5.
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Financial
Statements.
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|
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5.6.
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Compliance
with Laws, Other Instruments, etc.
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5.7.
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Governmental
Authorizations, etc.
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5.8.
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Litigation;
Observance of Statutes and Orders.
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5.10.
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Title to
Property; Leases.
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5.11.
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Licenses,
Permits, etc.
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5.12.
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Compliance
with ERISA.
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5.13.
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Private
Offering by the Company.
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5.14.
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Use of
Proceeds; Margin Regulations.
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5.15.
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Existing
Indebtedness.
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5.16.
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Foreign
Assets Control Regulations, Anti-Terrorism Order, etc
.
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5.17.
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Status
under Certain Statutes.
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5.18.
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Solvency of
Subsidiary Guarantors.
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5.19.
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Environmental
Matters.
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6.
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REPRESENTATIONS
OF THE PURCHASERS.
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6.1.
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Purchase
for Investment.
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7.
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INFORMATION
AS TO COMPANY.
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7.1.
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Financial
and Business Information.
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7.2.
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Officer’s
Certificate.
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|
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8.
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PREPAYMENT
OF THE NOTES.
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8.1.
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No
Scheduled Prepayments.
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8.2.
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Optional
Prepayments with Make-Whole Amount.
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8.3.
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Mandatory
Offer to Prepay Upon Change of Control.
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8.4.
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Allocation
of Partial Prepayments.
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8.5.
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Maturity;
Surrender, etc.
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|
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9.
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AFFIRMATIVE
COVENANTS.
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|
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9.1.
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Compliance
with Law.
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9.3.
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Maintenance
of Properties.
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|
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9.4.
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Payment of
Taxes and Claims.
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9.5.
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Corporate
Existence, etc.
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10.1.
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Consolidated
Indebtedness; Indebtedness of Restricted
Subsidiaries.
|
|
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10.4.
|
Mergers,
Consolidations, etc.
|
|
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10.5.
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Disposition
of Stock of Restricted Subsidiaries.
|
|
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10.6.
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Designation
of Restricted and Unrestricted Subsidiaries.
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10.7.
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Restricted
Subsidiary Guaranties.
|
|
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10.8.
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Nature of
Business.
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|
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10.9.
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Transactions
with Affiliates.
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|
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12.
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REMEDIES ON
DEFAULT, ETC.
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|
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12.4.
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No Waivers
or Election of Remedies, Expenses, etc
|
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13.
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REGISTRATION;
EXCHANGE; SUBSTITUTION OF NOTES.
|
|
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13.1.
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Registration
of Notes.
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|
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13.2.
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Transfer
and Exchange of Notes.
|
|
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13.3.
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Replacement
of Notes.
|
|
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14.2.
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Home Office
Payment.
|
|
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15.1.
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Transaction
Expenses.
|
|
|
16.
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SURVIVAL OF
REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
|
|
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17.
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AMENDMENT
AND WAIVER.
|
|
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17.2.
|
Solicitation
of Holders of Notes.
|
|
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17.3.
|
Binding
Effect, etc.
|
|
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17.4.
|
Notes held
by Company, etc.
|
|
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19.
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REPRODUCTION
OF DOCUMENTS.
|
|
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20.
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CONFIDENTIAL
INFORMATION.
|
|
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21.
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SUBSTITUTION
OF PURCHASER.
|
|
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22.
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RELEASE OF
SUBSIDIARY GUARANTOR.
|
|
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23.1.
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Successors
and Assigns.
|
|
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23.2.
|
Payments
Due on Non-Business Days.
|
|
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(5)
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Note to be
issued in the name of: THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
|
|
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(6)
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Tax I.D.
Number for The Variable Annuity Life Insurance
Company: 74-1625348
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|
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(7)
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Physical
Delivery Instructions :
|
|
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SCHEDULE
A
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--
|
Information
Relating to Purchasers
|
|
SCHEDULE
B
|
--
|
Defined
Terms
|
|
SCHEDULE
B-1
|
--
|
Investments
|
|
SCHEDULE
4.9
|
--
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Changes in
Corporate Structure
|
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SCHEDULE
5.3
|
--
|
Disclosure
Materials
|
|
SCHEDULE
5.4
|
--
|
Subsidiaries
of the Company and Ownership of Subsidiary Stock
|
|
SCHEDULE
5.5
|
--
|
Financial
Statements
|
|
SCHEDULE
5.11
|
--
|
Licenses,
Permits, etc.
|
|
SCHEDULE
5.14
|
--
|
Use of
Proceeds
|
|
SCHEDULE
5.15
|
--
|
Indebtedness
|
|
EXHIBIT 1
(a)
|
--
|
Form of
Series 2007-A Note
|
|
EXHIBIT 1
(b)
|
--
|
Form of
Series 2007-B Note
|
|
EXHIBIT 1
(c)
|
--
|
Form of
Series 2007-C Note
|
|
EXHIBIT 1
(d)
|
--
|
Form of
Series 2007-D Note
|
|
EXHIBIT 1
(e)
|
--
|
Form of
Series 2007-E Note
|
|
EXHIBIT 1
(f)
|
--
|
Form of
Series 2007-F Note
|
|
EXHIBIT 1
(g)
|
--
|
Form of
Series 2007-G Note
|
|
EXHIBIT 1
(h)
|
--
|
Form of
Subsidiary Guaranty
|
|
EXHIBIT
4.4(a)
|
--
|
Form of
Opinion of Counsel for the Company and the Subsidiary
|
|
|
EXHIBIT
4.4(b)
|
--
|
Form of
Opinion of Special Counsel for the Purchasers
|
ENERGIZER
HOLDINGS, INC.
533
Maryville University Drive
St.
Louis, MO 63141
(314)
985-2087
Fax: (314)
985-2220
$890,000,000
Senior
Notes
$95,000,000
5.71% Senior Notes, Series 2007-A, due October 15,
2010
$135,000,000
6.01% Senior Notes, Series 2007-B, due October 15,
2012
$50,000,000
6.09% Senior Notes, Series 2007-C, due October 15,
2013
$80,000,000
6.23% Senior Notes, Series 2007-D, due October 15,
2014
$70,000,000
6.36% Senior Notes, Series 2007-E, due October 15,
2015
$150,000,000
6.48% Senior Notes, Series 2007-F, due October 15,
2016
$310,000,000
6.55% Senior Notes, Series 2007-G, due October 15,
2017
Dated
as of October 15, 2007
TO
EACH OF THE PURCHASERS LISTED IN
THE
ATTACHED SCHEDULE A:
Ladies
and Gentlemen:
ENERGIZER
HOLDINGS, INC., a Missouri corporation (the
“Company”), agrees with you as
follows:
|
1.
|
AUTHORIZATION
OF NOTES.
|
The
Company has authorized the issue and sale of $890,000,000
aggregate principal amount of its Senior Notes consisting
of: (i) $95,000,000 aggregate principal amount of
its 5.71% Senior Notes, Series 2007-A, due October 15, 2010
(the “Series 2007-A
Notes”); (ii) $135,000,000
aggregate principal amount of its 6.01% Senior Notes, Series
2007-B, due October 15, 2012 (the “Series 2007-B
Notes”); (iii) $50,000,000 aggregate principal amount of
its 6.09% Senior Notes, Series 2007-C, due October 15, 2013
(the “Series 2007-C Notes”); (iv) $80,000,000
aggregate principal amount of its 6.23% Senior Notes, Series
2007-D, due October 15, 2014 (the “Series 2007-D
Notes”); (v) $70,000,000 aggregate principal amount
of its 6.36% Senior Notes, Series 2007-E, due October 15, 2015
(the “Series 2007-E Notes”); (vi) $150,000,000
aggregate principal amount of its 6.48% Senior Notes, Series
2007-F, due October 15, 2016 (the “Series 2007-F
Notes”); and (vii) $310,000,000 aggregate principal
amount of its 6.55% Senior Notes, Series 2007-G, due October
15, 2017 (the “Series 2007-G
Notes” and,
together with the Series 2007-A Notes, the Series 2007-B
Notes, the Series 2007-C Notes, the Series 2007-D Notes, the
Series 2007-E Notes and the Series 2007-F Notes, the
“Notes,” such term to include any such Notes
issued in substitution therefor pursuant to Section 13 of this
Agreement). The Notes will be substantially in the
forms set out in Exhibits 1(a), 1(b), 1(c), 1(d), 1(e), 1(f)
and 1(g), with such changes therefrom, if any, as may be
approved by the purchasers of such Notes, or series thereof,
and the Company. Certain capitalized terms used in
this Agreement are defined in Schedule B; references to a
“Schedule” or an “Exhibit” are, unless
otherwise specified, to a Schedule or an Exhibit attached to
this Agreement. Subject to Section 22, the Notes
will be guaranteed by each Subsidiary that is now or in the
future becomes a signatory to the Bank Guarantees
(individually, a “Subsidiary Guarantor” and
collectively, the “Subsidiary Guarantors”)
pursuant to a guaranty substantially in the form of Exhibit
1(h) (the “Subsidiary Guaranty”).
|
1.2.
|
Additional
Interest.
|
If the
Debt to EBITDA Ratio at any time exceeds 3.5 to 1.00, as
evidenced by an Officer’s Certificate delivered pursuant
to Section 7.2(a), the interest rate payable on each series of
Notes shall be increased by 0.75%, commencing on the first day
of the first fiscal quarter following the fiscal quarter in
respect of which such Certificate was delivered and continuing
until the Company has provided an Officer’s Certificate
pursuant to Section 7.2(a) demonstrating that, as of the end
of the fiscal quarter in respect of which such Certificate is
delivered, the Debt to EBITDA Ratio is not more than 3.5 to
1.0. Following delivery of an Officer’s
Certificate demonstrating that the Debt to EBITDA Ratio did
not exceed 3.5 to 1.0, the additional 0.75% interest shall
cease to accrue or be payable for any fiscal quarter
subsequent to the fiscal quarter in respect of which such
Certificate is delivered.
|
2.
|
SALE
AND PURCHASE OF NOTES.
|
Subject
to the terms and conditions of this Agreement, the Company
will issue and sell to you and each of the other purchasers
named in Schedule A (the “Other Purchasers”), and
you and the Other Purchasers will purchase from the Company,
at the Closing provided for in Section 3, Notes of the
series and in the principal amount specified opposite your
name in Schedule A at the purchase price of 100% of the
principal amount thereof. Your obligation hereunder
and the obligations of the Other Purchasers are several and
not joint obligations and you shall have no liability to any
Person for the performance or non-performance by any Other
Purchaser hereunder.
The
sale and purchase of the Notes to be purchased by you and the
Other Purchasers shall occur at the offices of Foley &
Lardner LLP, 321 North Clark Street, Suite 2800, Chicago,
Illinois 60610-4764, at 9:00 a.m., Chicago time, at a closing
(the “Closing”) on October 15, 2007 or on such
other Business Day thereafter on or prior to October 31, 2007
as may be agreed upon by the Company and you and the Other
Purchasers. At the Closing the Company will deliver
to you the Notes to be purchased by you in the form of a
single Note (or such greater number of Notes in denominations
of at least $150,000 as you may request) dated the date of the
Closing and registered in your name (or in the name of your
nominee), against delivery by you to the Company or its order
of immediately available funds in the amount of the purchase
price therefor by wire transfer of immediately available funds
for the account of the Company to account number 12331-33027
at Bank of America, San Francisco, California, ABA
No. 026-009-593. If at the Closing the Company
fails to tender such Notes to you as provided above in this
Section 3, or any of the conditions specified in Section 4
shall not have been fulfilled to your satisfaction, you shall,
at your election, be relieved of all further obligations under
this Agreement, without thereby waiving any rights you may
have by reason of such failure or such
nonfulfillment.
|
4.
|
CONDITIONS
TO CLOSING.
|
Your
obligation to purchase and pay for the Notes to be sold to you
at the Closing is subject to the fulfillment to your
satisfaction, prior to or at the Closing, of the following
conditions:
|
4.1.
|
Representations
and Warranties.
|
The
representations and warranties of the Company in this
Agreement shall be correct when made and correct in all
material respects at the time of the Closing.
|
4.2.
|
Performance;
No Default.
|
The
Company shall have performed and complied with all agreements
and conditions contained in this Agreement required to be
performed or complied with by it prior to or at the Closing
and after giving effect to the issue and sale of the Notes
(and the application of the proceeds thereof as contemplated
by Schedule 5.14) no Default or Event of Default shall have
occurred and be continuing.
|
4.3.
|
Compliance
Certificates.
|
(a)
Officer’s
Certificate . The Company shall have delivered to
you an Officer’s Certificate, dated the date of the Closing,
certifying that the conditions specified in Sections 4.1, 4.2 and
4.9 have been fulfilled.
(b)
Secretary’s
Certificate . The Company shall have delivered to
you a certificate certifying as to the resolutions attached thereto
and other corporate proceedings relating to the authorization,
execution and delivery of the Notes and the Agreement.
|
4.4.
|
Opinions
of Counsel.
|
You
shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from
Bryan Cave LLP, counsel for the Company and the Subsidiary
Guarantors, covering the matters set forth in Exhibit 4.4(a)
and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably
request (and the Company instructs its counsel to deliver such
opinion to you) and (b) from Foley & Lardner LLP,
your special counsel in connection with such transactions,
substantially in the form set forth in Exhibit 4.4(b) and
covering such other matters incident to such transactions as
you may reasonably request.
|
4.5.
|
Purchase
Permitted By Applicable Law, etc.
|
On the
date of the Closing your purchase of Notes shall (i) be
permitted by the laws and regulations of each jurisdiction to
which you are subject, without recourse to provisions (such as
Section 1405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction
as to the character of the particular investment,
(ii) not violate any applicable law or regulation
(including Regulation U, T or X of the Board of Governors of
the Federal Reserve System) and (iii) not subject you to
any tax, penalty or liability under or pursuant to any
applicable law or regulation, which law or regulation was not
in effect on the date hereof. If requested by you,
you shall have received an Officer’s Certificate
certifying as to such matters of fact as you may reasonably
specify to enable you to determine whether such purchase is so
permitted.
|
4.6.
|
Sale
of Other Notes.
|
Contemporaneously
with the Closing, the Company shall sell to the Other
Purchasers and the Other Purchasers shall purchase the Notes
to be purchased by them at the Closing as specified in
Schedule A.
|
4.7.
|
Payment
of Special Counsel Fees.
|
Without
limiting the provisions of Section 15.1, the Company
shall have paid on or before the Closing the fees, charges and
disbursements of your special counsel referred to in
Section 4.4, to the extent reflected in a statement of
such counsel rendered to the Company at least one Business Day
prior to the Closing.
|
4.8.
|
Private
Placement Numbers.
|
Private
Placement Numbers issued by Standard & Poor’s CUSIP
Service Bureau (in cooperation with the Securities Valuation
Office of the National Association of Insurance Commissioners)
shall have been obtained by Foley & Lardner LLP for each
series of the Notes.
|
4.9.
|
Changes
in Corporate Structure.
|
Except
as specified in Schedule 4.9, the Company shall not have
changed its jurisdiction of incorporation or been a party to
any merger or consolidation and shall not have succeeded to
all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent
financial statements referred to in Schedule 5.5.
|
4.10.
|
Subsidiary
Guaranty.
|
Each
Subsidiary Guarantor shall have executed and delivered the
Subsidiary Guaranty in favor of you and the Other Purchasers
and you shall have received a copy of a fully executed
counterpart thereof.
|
4.11.
|
Proceedings
and Documents.
|
All
corporate and other proceedings in connection with the
transactions contemplated by this Agreement and all documents
and instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and your
special counsel shall have received all such counterpart
originals or certified or other copies of such documents as
you or they may reasonably request.
|
5.
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
|
The
Company represents and warrants to you that:
|
5.1.
|
Organization;
Power and Authority.
|
The
Company is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation
and is in good standing in each jurisdiction in which such
qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in
good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect. The Company has the corporate power and
authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business
it transacts and proposes to transact, to execute and deliver
this Agreement and the Notes and to perform the provisions
hereof and thereof.
This
Agreement and the Notes have been duly authorized by all
necessary corporate action on the part of the Company, and
this Agreement constitutes, and upon execution and delivery
thereof each Note will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may
be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and
(ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law).
The
Subsidiary Guaranty has been duly authorized by all necessary
corporate action on the part of each Subsidiary Guarantor and
upon execution and delivery thereof will constitute the legal,
valid and binding obligation of each Subsidiary Guarantor,
enforceable against each Subsidiary Guarantor in accordance
with its terms, except as such enforceability may be limited
by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
The
Company, through its agents, Banc of America Securities LLC
and J.P. Morgan Securities Inc., has delivered to you and each
Other Purchaser a copy of a Private Placement Memorandum,
dated September 2007 and the supplemental financial
information referred to therein (the
“Memorandum”), relating to the transactions
contemplated hereby. Except as disclosed in
Schedule 5.3, this Agreement, the Memorandum, the documents,
certificates or other writings identified in Schedule 5.3 and
the financial statements listed in Schedule 5.5, taken as
a whole, do not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading in light of the
circumstances under which they were made. Except as
disclosed in the Memorandum or as expressly described in
Schedule 5.3, or in one of the documents, certificates or
other writings identified therein, or in the financial
statements listed in Schedule 5.5, since September 30,
2006, there has been no change in the financial condition,
operations, business or properties of the Company or any
Subsidiary except changes that individually or in the
aggregate would not reasonably be expected to have a Material
Adverse Effect.
|
5.4.
|
Organization
and Ownership of Shares of Subsidiaries.
|
(a)
Schedule
5.4 is (except as noted therein) a complete and correct list of the
Company’s Subsidiaries, showing, as to each Subsidiary, the
correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar
equity interests outstanding owned by the Company and each other
Subsidiary.
(b)
All
of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned
by the Company and its Subsidiaries have been validly issued, are
fully paid and nonassessable and are owned by the Company or
another Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 5.4).
(c)
Each
Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization, and is duly
qualified as a foreign corporation or other legal entity and is in
good standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each such Subsidiary has the
corporate or other power and authority to own or hold under lease
the properties it purports to own or hold under lease and to
transact the business it transacts and proposes to
transact.
|
5.5.
|
Financial
Statements.
|
The
Company has delivered to you and each Other Purchaser copies
of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said
financial statements (including in each case the related
schedules and notes) fairly present in all material respects
the consolidated financial condition of the Company and its
Subsidiaries as of the respective dates specified in such
Schedule and the consolidated results of their operations and
cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied
throughout the periods involved except as set forth in the
notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments).
|
5.6.
|
Compliance
with Laws, Other Instruments, etc.
|
The
execution, delivery and performance by the Company of this
Agreement and the Notes will not (i) contravene, result
in any breach of, or constitute a default under, or result in
the creation of any Lien in respect of any property of the
Company or any Restricted Subsidiary under, any Material
agreement, or corporate charter or By-Laws, to which the
Company or any Restricted Subsidiary is bound or by which the
Company or any Restricted Subsidiary or any of their
respective properties may be bound or affected, (ii) conflict
with or result in a breach of any of the terms, conditions or
provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the
Company or any Restricted Subsidiary or (iii) violate any
provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any
Restricted Subsidiary.
The
execution, delivery and performance by each Subsidiary
Guarantor of the Subsidiary Guaranty will not
(i) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in
respect of any property of such Subsidiary Guarantor under,
any agreement, or corporate charter or by-laws, to which such
Subsidiary Guarantor is bound or by which such Subsidiary
Guarantor or any of its properties may be bound or affected,
(ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority
applicable to such Subsidiary Guarantor or (iii) violate any
provision of any statute or other rule or regulation of any
Governmental Authority applicable to such Subsidiary
Guarantor.
|
5.7.
|
Governmental
Authorizations, etc.
|
No
consent, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority is required in
connection with the execution, delivery or performance by the
Company of this Agreement or the Notes or the execution,
delivery or performance by each Subsidiary Guarantor of the
Subsidiary Guaranty, except for a filing by the Company with
the Securities and Exchange Commission on Form
8-K.
|
5.8.
|
Litigation;
Observance of Statutes and Orders.
|
Except
as disclosed in the Memorandum, there are no actions, suits or
proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary
or any property of the Company or any Subsidiary in any court
or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse
Effect.
Neither
the Company nor any Subsidiary is in default under any order,
judgment, decree or ruling of any court, arbitrator or
Governmental Authority or is in violation of any applicable
law, ordinance, rule or regulation (including Environmental
Laws and the USA Patriot Act) of any Governmental Authority,
which default or violation, individually or in the aggregate,
would reasonably be expected to have a Material Adverse
Effect.
The
Company and its Subsidiaries have filed all income tax returns
that are required to have been filed in any jurisdiction, and
have paid all taxes, to the extent such taxes are payable by
them, to the extent such taxes and assessments have become due
and payable and before they have become delinquent, except for
any taxes and assessments (i) the amount of which is not
individually or in the aggregate Material or (ii) the
amount, applicability or validity of which is currently being
contested in good faith by appropriate proceedings and with
respect to which the Company or a Subsidiary, as the case may
be, has established adequate reserves in accordance with
GAAP. The federal income tax liabilities of the
Company and its Subsidiaries have been determined by the
Internal Revenue Service and paid for all fiscal years up to
and including the fiscal year ended September 30,
2002.
|
5.10.
|
Title
to Property; Leases.
|
The
Company and its Subsidiaries have good and sufficient title to
their respective Material properties, including all such
properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired
by the Company or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens prohibited by
this Agreement, except for those defects in title and Liens
that, individually or in the aggregate, would not have a
Material Adverse Effect. All Material leases are
valid and subsisting and are in full force and effect in all
material respects.
|
5.11.
|
Licenses,
Permits, etc.
|
Except
as disclosed in Schedule 5.11, the Company and its
Subsidiaries own or possess all licenses, permits, franchises,
authorizations, patents, copyrights, service marks, trademarks
and trade names, or rights thereto, that are Material, without
known conflict with the rights of others, except for those
conflicts that, individually or in the aggregate, would not
have a Material Adverse Effect.
|
5.12.
|
Compliance
with ERISA.
|
(a)
The Company
and each ERISA Affiliate have operated and administered each Plan
in compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and would not reasonably be
expected to result in a Material Adverse Effect. Neither
the Company nor any ERISA Affiliate has incurred any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans (as
defined in Section 3 of ERISA), and no event, transaction or
condition has occurred or exists that would reasonably be expected
to result in the incurrence of any such liability by the Company or
any ERISA Affiliate, or in the imposition of any Lien on any of the
rights, properties or assets of the Company or any ERISA Affiliate,
in either case pursuant to Title I or IV of ERISA or to such
penalty or excise tax provisions or to Section 401(a)(29) or
412 of the Code, other than such liabilities or Liens as would not
be individually or in the aggregate Material.
(b)
The present
value of the aggregate benefit liabilities under each of the Plans
(other than Multiemployer Plans) that is a defined benefit pension
plan qualified under Code Section 401(a), determined as of the end
of such Plan’s most recently ended plan year on the basis of
the actuarial assumptions specified for funding purposes in such
Plan’s most recent actuarial valuation report, did not exceed
the aggregate current value of the assets of such Plan allocable to
such benefit liabilities. The term “benefit
liabilities” has the meaning specified in Section 4001
of ERISA and the terms “current value” and
“present value” have the meaning specified in
Section 3 of ERISA.
(c)
The Company
and its ERISA Affiliates have not incurred withdrawal liabilities
(and are not subject to contingent withdrawal liabilities) under
Section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are
Material.
(d)
The
expected postretirement benefit obligation (determined as of the
last day of the Company’s most recently ended fiscal year in
accordance with Financial Accounting Standards Board Statement No.
106, without regard to liabilities attributable to continuation
coverage mandated by Section 4980B of the Code) of the Company and
its Subsidiaries is not Material or has been disclosed in the most
recent audited consolidated financial statements of the Company and
its Subsidiaries.
(e)
The
execution and delivery of this Agreement and the issuance and sale
of the Notes hereunder will not involve any transaction that is
subject to the prohibitions of Section 406 of ERISA or in
connection with which a tax would be imposed pursuant to
Section 4975(c)(1)(A)-(D) of the Code. The
representation by the Company in the first sentence of this Section
5.12(e) is made in reliance upon and subject to the accuracy of
your representation in Section 6.2 as to the sources of the funds
used to pay the purchase price of the Notes to be purchased by
you.
|
5.13.
|
Private
Offering by the Company.
|
Neither
the Company nor anyone acting on its behalf has offered the
Notes, the Subsidiary Guaranty or any similar securities for
sale to, or solicited any offer to buy any of the same from,
or otherwise approached or negotiated in respect thereof with,
any Person other than you, the Other Purchasers and not more
than 35 other Institutional Investors, each of which has been
offered the Notes at a private sale for
investment. Neither the Company nor anyone acting
on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Notes or the execution and
delivery of the Subsidiary Guaranty to the registration
requirements of Section 5 of the Securities Act.
|
5.14.
|
Use
of Proceeds; Margin Regulations.
|
The
Company will apply the proceeds of the sale of the Notes to
provide permanent financing for the acquisition of Playtex
Products, Inc. and for general corporate purposes, including
repayment of Indebtedness as set forth in Schedule
5.14. No part of the proceeds from the sale of the
Notes will be used, directly or indirectly, for the purpose of
buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve
System (12 CFR 221), or for the purpose of buying or carrying
or trading in any securities under such circumstances as to
involve the Company in a violation of Regulation X of said
Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR
220). Margin stock does not constitute more than 5%
of the value of the consolidated assets of the Company and its
Subsidiaries and the Company does not have any present
intention that margin stock will constitute more than 5% of
the value of such assets. As used in this Section,
the terms “margin stock” and “purpose of
buying or carrying” shall have the meanings assigned to
them in said Regulation U.
|
5.15.
|
Existing
Indebtedness.
|
Except
as described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Indebtedness of the Company
and its Subsidiaries as of June 30, 2007 (except as otherwise
indicated), since which date there has been no Material change
in the amounts, interest rates, sinking funds, installment
payments or maturities of the Indebtedness of the Company or
its Subsidiaries. Neither the Company nor any
Restricted Subsidiary is in default and no waiver of default
is currently in effect, in the payment of any principal or
interest on any Indebtedness of the Company or such Restricted
Subsidiary that is outstanding in an aggregate principal
amount in excess of $5,000,000 and no event or condition
exists with respect to any Indebtedness of the Company or any
Restricted Subsidiary that is outstanding in an aggregate
principal amount in excess of $5,000,000 and that would permit
(or that with notice or the lapse of time, or both, would
permit) one or more Persons to cause such Indebtedness to
become due and payable before its stated maturity or before
its regularly scheduled dates of payment.
|
5.16.
|
Foreign
Assets Control Regulations, Anti-Terrorism Order, etc
.
|
Neither
the sale of the Notes by the Company hereunder nor its use of
the proceeds thereof will violate (a) the Trading with the
Enemy Act, as amended, (b) any of the foreign assets control
regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation
or executive order relating thereto or (c) to the
knowledge of the Company, the Anti-Terrorism
Order. Without limiting the foregoing, neither the
Company nor any Subsidiary (i) is a blocked person
described in Section 1 of the Anti-Terrorism Order or
(ii) engages in any dealings or transactions, or is
otherwise associated, with any such person.
|
5.17.
|
Status
under Certain Statutes.
|
Neither
the Company nor any Restricted Subsidiary is subject to
regulation under the Investment Company Act of 1940, as
amended, the Interstate Commerce Act, as amended by the ICC
Termination Act, as amended, or the Federal Power Act, as
amended.
|
5.18.
|
Solvency
of Subsidiary Guarantors.
|
After
giving effect to the transactions contemplated herein,
(i) the present fair salable value of the assets of each
Subsidiary Guarantor is in excess of the amount that will be
required to pay its probable liability on its existing debts
as said debts become absolute and matured, (ii) each
Subsidiary Guarantor has received reasonably equivalent value
for executing and delivering the Subsidiary Guaranty,
(iii) the property remaining in the hands of each
Subsidiary Guarantor is not an unreasonably small capital, and
(iv) each Subsidiary Guarantor is able to pay its debts
as they mature.
|
5.19.
|
Environmental
Matters.
|
Neither
the Company nor any Subsidiary has knowledge of any claim or
has received any notice of any claim, and no proceeding has
been instituted raising any claim against the Company or any
of its Subsidiaries or any of their respective real properties
now or formerly owned, leased or operated by any of them or
other assets, alleging any damage to the environment or
violation of any Environmental Laws, except, in each case,
such as could not reasonably be expected to result in a
Material Adverse Effect. Except as otherwise
disclosed to you in writing,
(a)
neither the
Company nor any Subsidiary has knowledge of any facts which would
give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from,
occurring on or in any way related to real properties now or
formerly owned, leased or operated by any of them or to other
assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse
Effect;
(b)
neither the
Company nor any of its Subsidiaries has stored any Hazardous
Materials on real properties now or formerly owned, leased or
operated by any of them and has not disposed of any Hazardous
Materials in a manner contrary to any Environmental Laws in each
case in any manner that could reasonably be expected to result in a
Material Adverse Effect; and
(c)
all
buildings on all real properties now owned, leased or operated by
the Company or any of its Subsidiaries are in compliance with
applicable Environmental Laws, except where failure to comply could
not reasonably be expected to result in a Material Adverse
Effect.
|
6.
|
REPRESENTATIONS
OF THE PURCHASERS.
|
|
6.1.
|
Purchase
for Investment.
|
You
represent that you are purchasing the Notes for your own
account or for one or more separate accounts maintained by you
or for the account of one or more pension or trust funds and
not with a view to the distribution thereof, provided that the
disposition of your or their property shall at all times be
within your or their control. You understand that
the Notes have not been registered under the Securities Act
and may be resold only if registered pursuant to the
provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where
neither such registration nor such an exemption is required by
law, and that the Company is not required to register the
Notes.
You
represent that at least one of the following statements is an
accurate representation as to each source of funds (a
“Source”) to be used by you to pay the purchase
price of the Notes to be purchased by you
hereunder:
(a)
the Source
is an “insurance company general account” (as the term
is defined in the United States Department of Labor’s
Prohibited Transaction Exemption (“PTE”) 95-60) in
respect of which the reserves and liabilities (as defined by the
annual statement for life insurance companies approved by the
National Association of Insurance Commissioners (the “NAIC
Annual Statement”)) for the general account contract(s) held
by or on behalf of any employee benefit plan together with the
amount of the reserves and liabilities for the general account
contract(s) held by or on behalf of any other employee benefit
plans maintained by the same employer (or affiliate thereof as
defined in PTE 95-60) or by the same employee organization in the
general account do not exceed 10% of the total reserves and
liabilities of the general account (exclusive of separate account
liabilities) plus surplus as set forth in the NAIC Annual Statement
filed with such Purchaser’s state of domicile;
or
(b)
the Source
is a separate account that is maintained solely in connection with
such Purchaser’s fixed contractual obligations under which
the amounts payable, or credited, to any employee benefit plan (or
its related trust) that has any interest in such separate account
(or to any participant or beneficiary of such plan (including any
annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c)
the Source
is either (i) an insurance company pooled separate account, within
the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank
collective investment fund, within the meaning of PTE 91-38 (issued
July 12, 1991) and, except as you have disclosed to the Company in
writing pursuant to this paragraph (c), no employee benefit plan or
group of plans maintained by the same employer or employee
organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(d)
the Source
constitutes assets of an “investment fund” (within the
meaning of Part V of PTE 84-14 (the “QPAM Exemption”))
managed by a “qualified professional asset manager” or
“QPAM” (within the meaning of Part V of the QPAM
Exemption), no employee benefit plan’s assets that are
included in such investment fund, when combined with the assets of
all other employee benefit plans established or maintained by the
same employer or by an affiliate (within the meaning of Section
V(c)(1) of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed 20% of the
total client assets managed by such QPAM, the conditions of Part
I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM
nor a person controlling or controlled by the QPAM (applying the
definition of “control” in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the
identity of such QPAM and (ii) the names of all employee benefit
plans whose assets are included in such investment fund have been
disclosed to the Company in writing pursuant to this clause (d);
or
(e)
the Source
constitutes assets of a “plan(s)” (within the meaning
of Section IV of PTE 96-23 (the “INHAM Exemption”))
managed by an “in-house asset manager” or
“INHAM” (within the meaning of Part IV of the INHAM
exemption), the conditions of Part I(a), (g) and (h) of the INHAM
Exemption are satisfied, neither the INHAM nor a person controlling
or controlled by the INHAM (applying the definition of
“control” in Section IV(h) of the INHAM Exemption) owns
a 5% or more interest in the Company and (i) the identity of such
INHAM and (ii) the name(s) of the employee benefit plan(s) whose
assets constitute the Source have been disclosed to the Company in
writing pursuant to this clause (e); or
(f)
the Source
is a governmental plan; or
(g)
the Source
is one or more employee benefit plans, or a separate account or
trust fund comprised of one or more employee benefit plans, each of
which has been identified to the Company in writing pursuant to
this paragraph (g); or
(h)
the Source
does not include assets of any employee benefit plan, other than a
plan exempt from the coverage of ERISA.
As
used in this Section 6.2, the terms “employee benefit
plan”, “governmental plan” and
“separate account” shall have the respective
meanings assigned to such terms in Section 3 of
ERISA.
|
7.
|
INFORMATION
AS TO COMPANY.
|
|
7.1.
|
Financial
and Business Information.
|
The
Company will deliver to each holder of Notes that is an
Institutional Investor:
(a)
Quarterly
Statements -- within 60 days after the end of each quarterly
fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate
copies of
(i)
a
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such quarter, and
(ii)
consolidated
statements of earnings and stockholders’ equity of the
Company and its Subsidiaries for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year
ending with such quarter, and
(iii)
consolidated
statements of cash flows of the Company and its Subsidiaries for
such quarter or (in the case of the second and third quarters) for
the portion of the fiscal year ending with such
quarter,
setting
forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP applicable
to quarterly financial statements generally, and certified by
a Senior Financial Officer as fairly presenting, in all
material respects, the financial condition of the companies
being reported on and their results of operations and cash
flows, subject to changes resulting from year-end adjustments,
provided that delivery within the time period specified above
of copies of the Company’s Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and
filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section
7.1(a);
(b)
Annual
Statements -- within 105 days after the end of each fiscal year
of the Company, duplicate copies of
(i)
a
consolidated balance sheet of the Company and its Subsidiaries, as
at the end of such year, and
(ii)
consolidated
statements of income, changes in stockholders’ equity and
cash flows of the Company and its Subsidiaries, for such
year,
setting
forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP, and accompanied by an opinion thereon of
independent certified public accountants of recognized
national standing, which opinion shall state that such
financial statements present fairly, in all material respects,
the financial condition of the companies being reported upon
and their results of operations and cash flows and have been
prepared in conformity with GAAP, and that the examination of
such accountants in connection with such financial statements
has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for
such opinion in the circumstances, provided that the delivery
within the time period specified above of the Company’s
Annual Report on Form 10-K for such fiscal year (together with
the Company’s annual report to shareholders, if any,
prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared in accordance with the requirements therefor and
filed with the Securities and Exchange Commission shall be
deemed to satisfy the requirements of this Section
7.1(b);
(c)
Unrestricted
Subsidiaries -- if, at the time of delivery of any financial
statements pursuant to Section 7.1(a) or (b), Unrestricted
Subsidiaries account for more than 10% of (i) the consolidated
total assets of the Company and its Subsidiaries reflected in the
balance sheet included in such financial statements or (ii) the
consolidated revenues of the Company and its Subsidiaries reflected
in the consolidated statement of income included in such financial
statements, an unaudited balance sheet for all Unrestricted
Subsidiaries taken as whole as at the end of the fiscal period
included in such financial statements and the related unaudited
statements of income, stockholders’ equity and cash flows for
such Unrestricted Subsidiaries for such period, together with
consolidating statements reflecting all eliminations or adjustments
necessary to reconcile such group financial statements to the
consolidated financial statements of the Company and its
Subsidiaries;
(d)
SEC and
Other Reports -- promptly upon their becoming available, one
copy of (i) each financial statement, report, notice or proxy
statement sent by the Company or any Restricted Subsidiary to
public securities holders generally, and (ii) each regular or
periodic report, each registration statement (other than a
Registration Statement on Form S-8) that shall have become
effective (without exhibits except as expressly requested by such
holder), and each final prospectus and all amendments (other than
one relating sole to employee benefit plans) thereto filed by the
Company or any Restricted Subsidiary with the Securities and
Exchange Commission;
(e)
Notice
of Default or Event of Default -- promptly, and in any event
within five Business Days after a Responsible Officer obtains
actual knowledge of the existence of any Default or Event of
Default, a written notice specifying the nature and period of
existence thereof and what action the Company is taking or proposes
to take with respect thereto;
(f)
ERISA
Matters -- promptly, and in any event within five days after a
Responsible Officer becoming aware of any of the following, a
written notice setting forth the nature thereof and the action, if
any, that the Company or an ERISA Affiliate proposes to take with
respect thereto:
(i)
with
respect to any Plan, any reportable event, as defined in
Section 4043(b) of ERISA and the regulations thereunder, for
which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(ii)
the taking
by the PBGC of steps to institute, or the threatening by the PBGC
of the institution of, proceedings under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii)
any event,
transaction or condition that would result in the incurrence of any
liability by the Company or any ERISA Affiliate pursuant to Title I
or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of any
Lien on any of the rights, properties or assets of the Company or
any ERISA Affiliate pursuant to Title I or IV of ERISA or such
penalty or excise tax provisions, if such liability or Lien, taken
together with any other such liabilities or Liens then existing,
would reasonably be expected to have a Material Adverse Effect;
and
(g)
Requested
Information -- with reasonable promptness, such other data and
information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of
its Subsidiaries or relating to the ability of the Company to
perform its obligations hereunder and under the Notes as from time
to time may be reasonably requested by any such holder of
Notes.
|
7.2.
|
Officer’s
Certificate.
|
Each
set of financial statements delivered to a holder of Notes
pursuant to Section 7.1(a) or (b) shall be accompanied by
a certificate of a Senior Financial Officer setting
forth:
(a)
Covenant
Compliance -- the information (including detailed calculations)
required in order to establish whether the Company was in
compliance with the requirements of Section 10.1 through
Section 10.9, inclusive, during the quarterly or annual period
covered by the statements then being furnished (including with
respect to each such Section, where applicable, the calculations of
the maximum or minimum amount, ratio or percentage, as the case may
be, permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in existence);
and
(b)
Event of
Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his
or her supervision, a review of the transactions and conditions of
the Company and its Restricted Subsidiaries from the beginning of
the quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall
not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists
(including any such event or condition resulting from the failure
of the Company or any Restricted Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence
thereof and what action the Company shall have taken or proposes to
take with respect thereto.
The
Company will permit the representatives of each holder of
Notes that is an Institutional Investor:
(a)
No
Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the
Company, to visit the principal executive office of the Company, to
discuss the affairs, finances and accounts of the Company and its
Subsidiaries with the Company’s officers, and, with the
consent of the Company (which consent will not be unreasonably
withheld), to visit the other offices and properties of the Company
and each Restricted Subsidiary, all at such reasonable times and as
often as may be reasonably requested in writing; and
(b)
Default
-- if a Default or Event of Default then exists, at the expense of
the Company, to visit and inspect any of the offices or properties
of the Company or any Subsidiary, to examine all their respective
books of account, records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective affairs,
finances, and accounts with their respective officers and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such times
and as often as may be requested.
|
8.
|
PREPAYMENT
OF THE NOTES.
|
|
8.1.
|
No
Scheduled Prepayments.
|
No
regularly scheduled prepayments are due on the Notes prior to
their stated maturity.
|
8.2.
|
Optional
Prepayments with Make-Whole Amount.
|
The
Company may, at its option, upon notice as provided below,
prepay at any time all, or from time to time any part of, the
Notes of any series, in an amount not less than $1,000,000 in
the aggregate in the case of a partial prepayment, at 100% of
the principal amount so prepaid, plus the Make-Whole Amount
determined for the prepayment date with respect to such
principal amount. The Company will give each holder
of Notes of the series to be prepaid written notice of each
optional prepayment under this Section 8.2 not less than
30 days and not more than 60 days prior to the date fixed for
such prepayment. Each such notice shall specify
such date, the aggregate principal amount of the Notes of such
series to be prepaid on such date, the principal amount of
each Note of such series held by such holder to be prepaid
(determined in accordance with Section 8.4), and the interest
to be paid on the prepayment date with respect to such
principal amount being prepaid, and shall be accompanied by a
certificate of a Senior Financial Officer as to the estimated
Make-Whole Amount due in connection with such prepayment
(calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such
computation. Two Business Days prior to such
prepayment, the Company shall deliver to each holder of Notes
of the series to be prepaid a certificate of a Senior
Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment
date.
8.3.
Mandatory
Offer to Prepay Upon Change of Control.
(a)
Notice
of Change of Control and Control Event -- The Company will,
within five Business Days after any Responsible Officer has
knowledge of the occurrence of any Change of Control or Control
Event, give notice of such Change of Control or Control Event to
each holder of Notes unless notice in respect of such Change of
Control or Control Event shall have been given pursuant to
subparagraph (b) of this Section 8.3. If a Change of
Control has occurred, the Company shall give immediate notice to
each holder of Notes and such notice shall contain and constitute
an offer to prepay Notes as described in paragraph (b) of this
Section 8.3 and shall be accompanied by the certificate described
in paragraph (e) of this Section 8.3.
(b)
Offer to
Prepay Notes -- The offer to prepay Notes contemplated by
paragraph (a) of this Section 8.3 shall be an offer to prepay, in
accordance with and subject to this Section 8.3, all, but not less
than all, of the Notes held by each holder (in this case only,
“holder” in respect of any Note registered in the name
of a nominee for a disclosed beneficial owner shall mean such
beneficial owner) on a date specified in such offer (the
“Proposed Prepayment Date”). Such Proposed
Prepayment Date shall be not less than 30 days and not more than 60
days after the date of such offer.
(c)
Acceptance;
Rejection -- A holder of Notes may accept the offer to prepay
made pursuant to this Section 8.3 by causing a notice of such
acceptance to be delivered to the Company on or before the date
specified in the certificate described in paragraph (e) of
this Section 8.3. A failure by a holder of Notes to
respond to an offer to prepay made pursuant to this Section 8.3, or
to accept an offer as to all of the Notes held by the holder,
within such time period shall be deemed to constitute rejection of
such offer by such holder.
(d)
Prepayment
-- Prepayment of the Notes to be prepaid pursuant to this Section
8.3 shall be at 100% of the principal amount of such Notes,
together with interest on such Notes accrued to the date of
prepayment and shall not require the payment of any Make-Whole
Amount. The prepayment shall be made on the Proposed
Prepayment Date.
(e)
Officer’s
Certificate -- Each offer to prepay the Notes pursuant to this
Section 8.3 shall be accompanied by a certificate, executed by a
Senior Financial Officer of the Company and dated the date of such
offer, specifying: (i) the Proposed Prepayment Date,
(ii) that such offer is made pursuant to this Section 8.3,
(iii) the principal amount of each Note offered to be prepaid,
(iv) the interest that would be due on each Note offered to be
prepaid, accrued to the Proposed Prepayment Date, (v) that the
conditions of this Section 8.3 have been fulfilled, (vi) in
reasonable detail, the nature of the Change of Control, and
(vii) the date by which any holder of a Note that wishes to
accept such offer must deliver notice thereof to the Company, which
date shall not be earlier than seven Business Days prior to the
Proposed Prepayment Date.
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8.4.
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Allocation
of Partial Prepayments.
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In the
case of each partial prepayment of the Notes of a series, the
principal amount of the Notes of such series to be prepaid
shall be allocated among all of the Notes of such series at
the time outstanding in proportion, as nearly as practicable,
to the respective unpaid principal amounts thereof not
theretofore called for prepayment.
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8.5.
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Maturity;
Surrender, etc.
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In the
case of each prepayment of Notes pursuant to this Section 8,
the principal amount of each Note to be prepaid shall mature
and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company
shall fail to pay such principal amount when so due and
payable, together with the interest and Make-Whole Amount, if
any, as aforesaid, interest on such principal amount shall
cease to accrue. Any Note paid or prepaid in full
shall be surrendered to the Company and canceled and shall not
be reissued, and no Note shall be issued in lieu of any
prepaid principal amount of any Note.
The
Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes of any series except
(a) upon the payment or prepayment of the Notes of a series in
accordance with the terms of this Agreement and the Notes or
(b) pursuant to an offer to purchase made by the Company or an
Affiliate pro rata to the holders of all Notes of a series at
the time outstanding upon the same terms and
conditions. Any such offer shall provide each
holder with sufficient information to enable it to make an
informed decision with respect to such offer, and shall remain
open for at least 30 Business Days. If the holders
of more than 25% of the principal amount of the Notes of a
series then outstanding accept such offer, the Company shall
promptly notify the remaining holders of such fact and the
expiration date for the acceptance by holders of Notes of such
series of such offer shall be extended by the number of days
necessary to give each such remaining holder at least ten
Business Days from its receipt of such notice to accept such
offer. The Company will promptly cancel all Notes
acquired by it or any Affiliate pursuant to any payment,
prepayment or purchase of Notes pursuant to any provision of
this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
The
term “Make-Whole Amount” means,
with respect to any Note, an amount equal to the excess, if
any, of the Discounted Value of the Remaining Scheduled
Payments with respect to the Called Principal of such Note
over the amount of such Called Principal, provided that the
Make-Whole Amount may in no event be less than
zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following
meanings:
“Called
Principal” means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to
Section 8.2 or has become or is declared to be
immediately due and payable pursuant to Section 12.1, as
the context requires.
“Discounted
Value” means, with respect to the Called
Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount
factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment
Yield with respect to such Called Principal.
“Reinvestment
Yield” means, with respect to the Called
Principal of any Note, .50% over the yield to maturity implied
by (i) the yields reported as of 10:00 a.m. (New York City
time) on the second Business Day preceding the Settlement Date
with respect to such Called Principal, on the display
designated as “Page PX1” (or such other
display as may replace Page PX1 on Bloomberg Financial Markets
(“Bloomberg”) or, if Page PX1 (or its successor
screen on Bloomberg) is unavailable, the Telerate Access
Service screen which corresponds most closely to Page PX1 for
the most recently issued actively traded on-the-run U.S.
Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement
Date, or (ii) if such yields are not reported as of such time
or the yields reported as of such time are not ascertainable
(including by way of interpolation), the Treasury Constant
Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business
Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519)
(or any comparable successor publication) for actively traded
U.S. Treasury securities having a constant maturity equal to
the Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield will be
determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond equivalent yields in accordance with
accepted financial practice and (b) interpolating linearly
between (1) the actively traded U.S. Treasury security with
the maturity closest to and greater than such Remaining
Average Life and (2) the actively traded U.S. Treasury
security with the maturity closest to and less than such
Remaining Average Life. The Reinvestment Yield
shall be rounded to the number of decimal places as appears in
the interest rate of the applicable Note.
“Remaining
Average Life” means, with respect to any Called
Principal, the number of years (calculated to the nearest
one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of
such Remaining Scheduled Payment.
“Remaining
Scheduled Payments” means, with respect to the
Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its
scheduled due date, provided that if such Settlement Date is
not a date on which interest payments are due to be made under
the terms of the Notes, then the amount of the next succeeding
scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be
paid on such Settlement Date pursuant to Section 8.2 or
12.1.
“Settlement
Date” means, with respect to the Called
Principal of any Note, the date on which such Called Principal
is to be prepaid pursuant to Section 8.2 or has become or
is declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
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9.
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AFFIRMATIVE
COVENANTS.
|
The
Company covenants that so long as any of the Notes are
outstanding:
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9.1.
|
Compliance
with Law.
|
The
Company will, and will cause each Subsidiary to, comply with
all laws, ordinances or governmental rules or regulations to
which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all
licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of
their respective properties or to the conduct of their
respective businesses, in each case to the extent necessary to
ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or
maintain in effect such licenses, certificates, permits,
franchises and other governmental authorizations would not,
individually or in the aggregate, reasonably be expected to
have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the
Company and its Restricted Subsidiaries taken as a
whole.
The
Company will, and will cause each Restricted Subsidiary to,
maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and
businesses against such casualties and contingencies, of such
types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary
in the case of entities of established reputations engaged in
the same or a similar business and similarly
situated.
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9.3.
|
Maintenance
of Properties.
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The
Company will and will cause each Restricted Subsidiary to
maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and
condition (other than ordinary wear and tear), so that the
business carried on in connection therewith may be properly
conducted at all times, provided that this Section shall not
prevent the Company or any Restricted Subsidiary from
discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct
of its business and the Company has concluded that such
discontinuance would not, individually or in the aggregate,
reasonably be expected to have a materially adverse effect on
the business, operations, affairs, financial condition,
properties or assets of the Company and its Restricted
Subsidiaries taken as a whole.
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9.4.
|
Payment
of Taxes and Claims.
|
The
Company will, and will cause each Subsidiary to, file all
income tax or similar tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be
due and payable on such returns and all other taxes,
assessments, governmental charges, or levies payable by any of
them, to the extent such taxes and assessments have become due
and payable and before they have become delinquent, provided
that neither the Company nor any Subsidiary need pay any such
tax or assessment or claims if (i) the amount, applicability
or validity thereof is contested by the Company or such
Subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Company or a Subsidiary has established
adequate reserves therefor in accordance with GAAP on the
books of the Company or such Subsidiary or (ii) the nonpayment
of all such taxes and assessments in the aggregate could not
reasonably be expected to have a materially adverse effect on
the business, operations, affairs, financial condition,
properties or assets of the Company and its Subsidiaries taken
as a whole.
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9.5.
|
Corporate
Existence, etc.
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The
Company will at all times preserve and keep in full force and
effect its corporate existence. Subject to Sections
10.3 and 10.4, the Company will at all times preserve and keep
in full force and effect the corporate existence of each of
its Restricted Subsidiaries (unless merged into the Company or
a Wholly-Owned Restricted Subsidiary) and all rights and
franchises of the Company and its Restricted Subsidiaries
unless, in the good faith judgment of the Company, the
termination of or failure to preserve and keep in full force
and effect a particular corporate existence, right or
franchise could not, individually or in the aggregate, have a
materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the
Company and its Restricted Subsidiaries taken as a
whole.
The
Company covenants that so long as any of the Notes are
outstanding:
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10.1.
|
Consolidated
Indebtedness; Indebtedness of Restricted
Subsidiaries.
|
The
Company will not permit:
(a)
the Debt to
EBITDA Ratio to be greater than 3.5 to 1.0 at any time; provided
that, for any period of not more than four successive fiscal
quarters, such ratio may be greater than 3.5 to 1.0, but in no
event greater than 4.0 to 1.0, if the Company pays the additional
interest provided for in Section 1.2; and
(b)
any
Restricted Subsidiary to incur any Indebtedness if, after giving
effect thereto and to the application of the proceeds therefrom,
Priority Debt outstanding would exceed 25% of Consolidated Total
Capitalization. For purposes of this Section 10.1(b),
any unsecured Indebtedness of a Restricted Subsidiary that is a
Subsidiary Guarantor shall be deemed to have been incurred by such
Subsidiary at the time it ceases to be a Subsidiary
Guarantor.
The
Company will not, and will not permit any Restricted
Subsidiary to, permit to exist, create, assume or incur,
directly or indirectly, any Lien on its properties or assets,
whether now owned or hereafter acquired, except:
(a)
Liens
existing on property or assets of the Company or any Restricted
Subsidiary as of the date of this Agreement that are described in
Schedule 10.2;
(b)
Liens for
taxes, assessments or governmental charges not then due and
delinquent or the nonpayment of which is permitted by Section
9.4;
(c)
encumbrances
in the nature of leases, subleases, zoning restrictions, easements,
rights of way and other rights and restrictions of record on the
use of real property and defects in title arising or incurred in
the ordinary course of business, which, individually and in the
aggregate, do not materially impair the use or value of the
property or assets subject thereto or which relate only to assets
that in the aggregate are not material;
(d)
Liens
incidental to the conduct of business or the ownership of
properties and assets (including landlords’, lessors’,
carriers’, warehousemen’s, mechanics’,
materialmen’s and other similar liens) and Liens to secure
the performance of bids, tenders, leases or trade contracts, or to
secure statutory obligations (including obligations under workers
compensation, unemployment insurance and other social security
legislation), surety or appeal bonds or other Liens of like general
nature incurred in the ordinary course of business and not in
connection with the borrowing of money;
(e)
any
attachment or judgment Lien, unless the judgment it secures has
not, within 60 days after the entry thereof, been discharged or
execution thereof stayed pending appeal, or has not been discharged
within 60 days after the expiration of any such stay;
(f)
Liens
securing Indebtedness of a Restricted Subsidiary to the Company or
to another Restricted Subsidiary and Liens securing Indebtedness of
the Company to a Restricted Subsidiary;
(g)
Liens (i)
existing on property at the time of its acquisition by the Company
or a Restricted Subsidiary and not created in contemplation
thereof, whether or not the Indebtedness secured by such Lien is
assumed by the Company or a Restricted Subsidiary; or (ii) on
property created contemporaneously with its acquisition or within
180 days of the acquisition or completion of construction thereof
to secure or provide for all or a portion of the purchase price or
cost of construction of such property after the date of Closing; or
(iii) existing on property of a Person at the time such Person is
merged or consolidated with, or becomes a Restricted Subsidiary of,
or all or substantially all of its assets are acquired by, the
Company or a Restricted Subsidiary and not created in contemplation
thereof; provided that in the case of clauses (i), (ii) and (iii)
such Liens do not extend to additional property of the Company or
any Restricted Subsidiary (other than property that is an
improvement to or is acquired for specific use in connection with
the subject property) and, in the case of clause (ii) only, that
the aggregate principal amount of Indebtedness secured by each such
Lien does not exceed the lesser of the fair market value
(determined in good faith by one or more officers of the Company to
whom authority to enter into such transaction has been delegated by
the board of directors of the Company) or cost of acquisition or
construction of the property subject thereto;
(h)
Liens
incurred in connection with Asset Securitization
Transactions;
(i)
Liens
resulting from extensions, renewals or replacements of Liens
permitted by paragraphs (a), (f), (g) and (h), provided that (i)
there is no increase in the principal amount or decrease in
maturity of the Indebtedness secured thereby at the time of such
extension, renewal or replacement, (ii) any new Lien attaches only
to the same property theretofore subject to such earlier Lien and
(iii) immediately after such extension, renewal or replacement no
Default or Event of Default would exist; and
(j)
Liens
securing Indebtedness not otherwise permitted by paragraphs (a)
through (i) above, provided that, at the time of creation,
assumption or incurrence thereof and immediately after giving
effect thereto and to the application of the proceeds therefrom,
Priority Debt outstanding does not exceed 25% of Consolidated Total
Capitalization.
Except
as permitted by Section 10.4, the Company will not, and
will not permit any Restricted Subsidiary to, sell, lease,
transfer or otherwise dispose of, including by way of merger
(collectively a “Disposition”), any assets,
including capital stock of Restricted Subsidiaries, in one or
a series of transactions, to any Person, other than (a)
Dispositions in the ordinary course of business, (b)
Dispositions by the Company to a Restricted Subsidiary or by a
Restricted Subsidiary to the Company or another Restricted
Subsidiary or (c) Dispositions not otherwise permitted by
clauses (a) or (b) of this Section 10.3, provided that the
aggregate net book value of all assets so disposed of in any
fiscal year pursuant to this Section 10.3(c) does not
exceed 15% of Consolidated Total Assets as of the end of the
immediately preceding fiscal year. Notwithstanding
the foregoing, the Company may, or may permit any Restricted
Subsidiary to, make a Disposition (including the sale of
receivables in an Asset Securitization Transaction) and the
assets subject to such Disposition shall not be subject to or
included in the foregoing limitation and computation contained
in clause (c) of the preceding sentence to the extent that
(i) such assets were acquired or constructed not more
than 180 days prior to the date of Closing and are leased back
by the Company or any Restricted Subsidiary, as lessee, within
180 days of the acquisition or construction thereof, or
(ii) the net proceeds from such Disposition are within
one year of such Disposition (A) reinvested in productive
assets by the Company or a Restricted Subsidiary or
(B) applied to the payment or prepayment of any
outstanding Indebtedness of the Company or any Restricted
Subsidiary that is not subordinated to the
Notes. Any prepayment of Notes pursuant to this
Section 10.3 shall be in accordance with
Sections 8.2 and 8.4 without regard to the minimum
prepayment requirements of Section 8.2.
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10.4.
|
Mergers,
Consolidations, etc.
|
The
Company will not, and will not permit any Restricted
Subsidiary to, consolidate with or merge with any other Person
or convey, transfer, sell or lease all or substantially all of
its assets in a single transaction or series of transactions
to any Person except that:
(a)
the Company
may consolidate or merge with any other Person or convey, transfer,
sell or lease all or substantially all of its assets in a single
transaction or series of transactions to any Person, provided
that:
(i)
the
successor formed by such consolidation or the survivor of such
merger or the Person that acquires by conveyance, transfer, sale or
lease all or substantially all of the assets of the Company as an
entirety, as the case may be, is a solvent corporation organized
and existing under the laws of the United States or any state
thereof (including the District of Columbia), and, if the Company
is not such corporation, such corporation (y) shall have executed
and delivered to each holder of any Notes its assumption of the due
and punctual performance and observance of each covenant and
condition of this Agreement and the Notes and (z) shall have caused
to be delivered to each holder of any Notes an opinion of
independent counsel reasonably satisfactory to the Required
Holders, to the effect that all agreements or instruments effecting
such assumption are enforceable in accordance with their terms and
comply with the terms hereof; and
(ii)
immediately
before and after giving effect to such transaction, no Default or
Event of Default shall exist; and
(b)
Any
Restricted Subsidiary may (x) merge into the Company (provided
that the Company is the surviving corporation) or another
Wholly-Owned Restricted Subsidiary or (y) sell, transfer or
lease all or any part of its assets to the Company or another
Wholly-Owned Restricted Subsidiary, or (z) merge or
consolidate with, or sell, transfer or lease all or substantially
all of its assets to, any Person in a transaction that is permitted
by Section 10.3 or, as a result of which, such Person becomes a
Restricted Subsidiary; provided in each instance set forth in
clauses (x) through (z) that, immediately before and after giving
effect thereto, there shall exist no Default or Event of
Default;
No
such conveyance, transfer, sale or lease of all or
substantially all of the assets of the Company shall have the
effect of releasing the Company or any successor corporation
that shall theretofore have become such in the manner
prescribed in this Section 10.4 from its liability under
this Agreement or the Notes.
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10.5.
|
Disposition
of Stock of Restricted Subsidiaries.
|
The
Company (i) will not permit any Restricted Subsidiary to issue
its capital stock, or any warrants, rights or options to
purchase, or securities convertible into or exchangeable for,
such capital stock, to any Person other than the Company or
another Restricted Subsidiary (other than directors’
qualifying shares, shares satisfying local ownership
requirements or shares for any similar statutory purposes) and
(ii) will not, and will not permit any Restricted Subsidiary
to, sell, transfer or otherwise dispose of any shares of
capital stock of a Restricted Subsidiary if such sale would be
prohibited by Section 10.3. If a Restricted
Subsidiary at any time ceases to be such as a result of a sale
or issuance of its capital stock, any Liens on property of the
Company or any other Restricted Subsidiary securing
Indebtedness owed to such Restricted Subsidiary, which is not
contemporaneously repaid, together with such Indebtedness,
shall be deemed to have been incurred by the Company or such
other Restricted Subsidiary, as the case may be, at the
tim
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