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