Unassociated Document

SWS inventory acquired in the acquisition was valued as if Energizer was a distributor purchasing the inventory. This resulted in a one-time allocation of purchase price to acquired inventory which was $88.0 million higher than the historical manufacturing cost of SWS (the Write-Up). Inventory value and cost of products sold will be based on post-acquisition SWS production costs for all product manufactured after the acquisition date. 

During the current quarter, $56.2 of the Write-Up was recognized in cost of products sold, reducing net earnings by $35.9, after taxes. Acquired inventory remaining at June 2003 is expected to be sold in Energizer’s fourth fiscal quarter and will have an unfavorable impact on that quarter’s before and after-tax results of $31.8 and $21.3, respectively. 

The following table represents Energizer's pro forma consolidated results of operations as if the acquisition of SWS had occurred at the beginning of each period presented. Such results have been prepared by adjusting the historical Energizer results to include SWS results of operations and incremental interest and other expenses related to acquisition debt. The pro forma results do not include any cost savings that may result from the combination of Energizer and SWS operations, nor one-time items related to acquisition accounting, including the inventory Write-Up discussed above. The pro forma results may not necessarily reflect the consolidated operations that would have existed had the acquisition been completed at the beginning of such periods nor are they necessarily indicative of future results.

For the nine months ended June 30,

For the quarter ended

June 30, 2002

2003

2002 

Net sales 

$

551.9 

$

1,841.0 

$

1,762.2 

Net earnings 

$

38.5 

$

170.7 

$

134.7 

Basic earnings per share 

$

0.42 

$

1.98 

$

1.47 

Diluted earnings per share 

$

0.41 

$

1.93 

$

1.45 

Note 3 – Prior to the acquisition of SWS, Energizer’s operations were managed via four battery geographic segments. Beginning in the June 30, 2003 quarter, Energizer revised its operating segment presentation to conform to its revised organizational structure following the SWS acquisition. Energizer now has three reporting segments: North America Battery, International Battery, and Razors and Blades. 

Energizer continues to report segment results reflecting all profit derived from each outside customer sale in the region in which the customer is located. Energizer’s operations are now managed via three major segments - North America Battery (United States, Canada, and Caribbean battery and lighting products), International Battery (Asia Pacific, Europe, and South and Central America, including Mexico, battery and lighting products) and Razors and Blades (global razors, blades, and related products). Research and development costs for the battery segments are combined and included in the Total Battery segment results. Research and development costs for Razors and Blades are included in that segment’s results. Also, certain costs previously reported in General Corporate Expense that primarily sup
port the battery business have been allocated to the North America Battery and International Battery segments. 

The reduction in gross margin associated with the Write-Up discussed in Note 2 is not reflected in the Razors and Blades segment, but rather is presented as a separate line item below segment profit, as it is a non-recurring item directly associated with the SWS acquisition. Such presentation reflects management’s view of the segment’s results. 

Historical segment sales and profitability for the quarter and nine months ended June 30, 2003 and 2002, respectively, are presented below. All prior periods have been restated to conform to the current presentation. 
 
For the quarter ended June 30,

For the nine months ended June 30,

2003 

2002 

2003 

2002 

Net Sales 

North America Battery 

$

217.0 

$

231.2 

$

765.6 

$

767.3 

International Battery 

171.1 

158.7 

557.5 

530.0 

Total Battery 

388.1 

389.9 

1,323.1 

1,297.3 

Razors & Blades 

205.9 

- 

205.9 

- 

    Total Net Sales 

$

594.0 

$

389.9 

$

1,529.0 

$

1,297.3 

For the quarter ended June 30,

For the nine months ended June 30,

2003 

2002 

2003 

2002 

Profitability 

North America Battery 

$

49.6 

$

58.3 

$

206.8 

$

214.8 

International Battery 

26.0 

20.3 

87.5 

66.7 

R&D Battery 

(8.8 

) 

(8.9 

) 

(26.9 

) 

(27.2 

) 

Total Battery 

66.8 

69.7 

267.4 

254.3 

Razors and Blades 

16.6 

- 

16.6 

- 

Total segment profitability 

$

83.4 

$

69.7 

$

284.0 

$

254.3 

General corporate and other expenses 

(10.6 

) 

(7.8 

) 

(28.3 

) 

(26.9 

) 

Additional cost - acquisition inventory valuation 

(56.2 

) 

- 

(56.2 

) 

- 

Intellectual property rights income 

2.5 

- 

8.5 

- 

Gain on Sale of Property 

5.7 

- 

5.7 

- 

Provisions for restructuring and other related costs 

- 

- 

- 

(8.5 

) 

Amortization 

(1.4 

) 

- 

(1.4 

) 

- 

Interest and other financial items 

(10.2 

) 

(4.0 

) 

(18.2 

) 

(17.0 

) 

Total earnings before income taxes 

$

13.2 

$

57.9 

$

194.1 

$

201.9 

For the quarter ended June 30,

For the nine months ended June 30,

2003 

2002 

2003 

2002 

Net Sales by Product Line 
 
Alkaline Batteries 

$

242.7 

$

255.4 

$

885.7 

$

887.6 

Carbon Zinc Batteries 

56.8 

57.7 

177.7 

182.7 

Other Batteries and Lighting Products 

88.6 

76.8 

259.7 

227.0 

Razors & Blades 

205.9 

- 

205.9 

- 

Total Net Sales 

$

594.0 

$

389.9 

$

1,529.0 

$

1,297.3 

Note 4 – Basic earnings per share is based on the average number of common shares outstanding during the period. Diluted earnings per share is based on the average number of shares used for the basic earnings per share calculation, adjusted for the dilutive effect of stock options and restricted stock equivalents. 

The following table sets forth the computation of basic and diluted earnings per share for the quarter and nine months ended June 30, 2003, and 2002, respectively. 
 
Quarter Ended

Nine Months Ended 

June 30,

June 30,

2003 

2002 

2003 

2002 

Numerator: 

Net earnings for basic and dilutive earnings per share 

$

17.5 

$

39.8 

$

136.9 

$

130.2 

Denominator: 

Weighted-average shares for basic earnings per share 

83.9 

91.1 

86.3 

91.4 

Effect of dilutive securities: 

Stock options 

1.8 

1.5 

1.6 

0.9 

Restricted stock equivalents 

0.7 

0.7 

0.7 

0.6 

Total dilutive securities 

2.5 

2.2 

2.3 

1.5 

Weighted-average shares for diluted earnings per share 

86.4 

93.3 

88.6 

92.9 

Basic earnings per share 

$

0.21 

$

0.44 

$

1.59 

$

1.42 

Diluted earnings per share 

$

0.20 

$

0.43 

$

1.55 

$

1.40 

Note 5 – Energizer applies Accounting Principles Board (APB) No. 25 and related interpretations in accounting for its stock-based compensation. Charges to net earnings for stock-based compensation under APB 25 were $0.3 and $0.7 for each of the quarters ending June 30, 2003 and 2002, respectively, and $1.5 and $2.0 for the nine months ended June 30, 2003 and 2002, respectively. Had the cost for stock-based compensation been determined based on the fair value method set forth under SFAS 123, charges to net earnings would have been an additional $1.5 and $1.9 for the quarters ended June 30, 2003 and 2002, respectively, and $4.7 and $6.5 for the nine months ended June 30, 2003 and 2002, respectively. Pro forma amo
unts shown below are for disclosure purposes only and may not be representative of future calculations. 
 
Quarter Ended

Nine Months Ended 

June 30,

June 30,

2003 

2002 

2003 

2002 

Net earnings: 

As reported 

$

17.5 

$

39.8 

$

136.9 

$

130.2 

Pro forma 

$

16.0 

$

37.9 

$

132.2 

$

123.7 

Basic earnings per share: 

As reported 

$

0.21 

$

0.44 

$

1.59 

$

1.42 

Pro forma 

$

0.19 

$

0.42 

$

1.53 

$

1.35 

Diluted earnings per share: 

As reported 

$

0.20 

$

0.43 

$

1.55 

$

1.40 

Pro forma 

$

0.19 

$

0.41 

$

1.49 

$

1.33 

Note 6 - In the quarter ended June 30, 2003, Energizer recorded income of $2.5 pre-tax, or $1.5 after-tax related to a one-time payment for a license of intellectual property rights. Such payment, together with a similar one-time payment earlier in the year resulted in total intellectual property rights income of $8.5 pre-tax, or $5.2 after-tax for the nine months ended June 30, 2003. 

Note 7 - In the quarter and nine months ended June 30, 2003, Energizer recorded a gain on the sale of property of $5.7 before and after taxes, which is reflected in Selling, General and Administrative Expense. 

Note 8 – In March 2002, Energizer adopted a restructuring plan to reorganize certain European selling affiliates. The plan involved terminating up to 64 sales and administrative employees resulting in a provision for restructuring of $6.7 pre-tax. During the nine months ended June 30, 2002, Energizer recorded total provisions for restructuring related to the plan described above of $4.5 pre-tax or $2.9 after-tax. The remaining cost of the plan was recorded in the fourth quarter of fiscal 2002. 

As of June 30, 2003, 30 of a total of 64 employees have been terminated in connection with the 2002 Plan, with 3 terminated in the current quarter. Energizer expects to substantially complete all activities associated with the 2002 Plan by December 31, 2003. 

As part of other restructuring plans announced in the fourth quarter of fiscal 2001, Energizer ceased production and terminated substantially all of its employees at its Mexican carbon zinc production facility in the quarter ended December 31, 2001. Energizer recorded provisions for restructuring of $1.4 pre-tax, as well as related costs for accelerated depreciation and inventory obsolescence of $2.6 pre-tax, which was recorded in cost of products sold in the first quarter of fiscal 2002. Total provisions for restructuring and costs related to this plan were $4.0 pre-tax, or $2.9 after-tax, in the nine months ended June 30, 2002 . As of December 31, 2002, all activities associated with 2001 restructuring plans had been comp
leted, except for the disposition of certain assets held for disposal. 

Activities impacting the restructuring reserve during the nine months ended June 30, 2003, which are recorded in Other Current Liabilities on the Consolidated Balance Sheet are presented in the following table: 

Beginning 

Ending 

Balance 

Provision 

Activity 

Balance 

Termination benefits 

$

6.3 

$

- 

$ 

(3.4 

) 

$

2.9 

Other cash costs 

1.0 

- 

(0.6 

) 

0.4 

Total 

$

7.3 

$

- 

$ 

(4.0 

) 

$

3.3 

Note 9 – The components of total comprehensive income for the quarter and nine months ended June 30, 2003 and 2002, respectively, are shown in the following tables:

For the quarter ended June 30,

2003 

2002 

Net earnings 

$ 

17.5 

$ 

39.8 

Other comprehensive income items: 

- Foreign currency translation adjustments 

26.9 

17.9 

- Minimum pension liability adjustment 

(0.1 

) 

- 

Total comprehensive income 

$

44.3 

$

57.7 

For the nine months ended June 30,

2003 

2002 

Net earnings 

$ 

136.9 

$ 

130.2 

Other comprehensive income items: 

- Foreign currency translation adjustments 

33.7 

4.8 

- Minimum pension liability adjustment, net of taxes of $1.8 in fiscal 2003 and $0.3 in fiscal 2002 

(6.1 

) 

(0.3 

) 

Total comprehensive income 

$

164.5 

$

134.7 

Note 10 – Energizer participates in an ongoing Asset Securitization Program (Program) which results in attractive short-term rates and provides financing diversification. Under the structure of the Program, Energizer sells substantially all of its U.S. accounts receivable to its wholly owned, bankruptcy remote subsidiary, Energizer Receivables Funding Corporation (ERFC). ERFC then sells such accounts receivable to an outside party for a fraction of face value and retains a subordinated interest for the remaining value, less the financing cost. 

Under accounting rules prescribed by SFAS No. 140, "Accounting for Transfers and Servicing of Financial Assets and Extinguishment of Liabilities," ERFC meets the definition of a Special Purpose Entity (SPE) and the sales of accounts receivable from Energizer to ERFC must be recorded as an "off balance sheet" sales transaction. As a result of such accounting, ERFC's retained interest in accounts receivable is classified in Other Current Assets on the Consolidated Balance Sheet (see Note 13). The following table details the balances related to the Program: 

June 30, 2003 

 September 30, 2002 

June 30, 2002 

Total outstanding accounts receivable sold to SPE 

$

133.9 

$

164.6 

$

162.5 

Cash received by SPE from sale of receivables to a third party 

61.0 

- 

50.0 

Subordinated retained interest 

72.9 

164.6 

112.5 

Energizer's investment in SPE 

72.9 

164.6 

112.5 

If the Program was structured as a borrowing secured by accounts receivable rather than sales of accounts receivable, Energizer’s balance sheet would reflect additional accounts receivable, notes payable and lower other current assets as follows: 
 
June 30, 2003 

September 30, 2002 

June 30, 2002 

Additional accounts receivable 

$

133.9 

$

164.6 

$

162.5 

Additional notes payable 

61.0 

- 

50.0 

Lower other current assets 

72.9 

164.6 

112.5 

Note 11 – Energizer has certain guarantees that are required to be disclosed under FASB Interpretation No. 45. Energizer has arranged for letters of credit to be supplied by financial institutions to meet regulatory requirements for certain workers compensation and environmental obligations. Total letters of credit posted were $1.7 at June 30, 2003. Such letters expire annually; however will likely be renewed upon expiration in support of Energizer’s ongoing operations. 

Energizer guaranteed loans for certain common stock purchases made by certain executive officers and other key executives of Energizer. With respect to the executive officers, these guarantees were amended in June of 2002 to apply only to the outstanding loan balances as of June 30, 2002. The aggregate loan balances guaranteed total approximately $2.4. The maximum term of each individual loan guarantee is 3 years, and Energizer may offset any losses it may incur under an individual loan guarantee against any amounts owed by it to the individual officer or executive. 

Energizer also has certain guarantees for the purchase of goods used in the production of its product with terms ranging from 4 to 8 years with a maximum amount of potential future payments of approximately $1.3. 

Note 12 – A portion of goodwill related to the SWS acquisition that is allocated to the US and certain other countries will be deductible for tax purposes, with the amount to be determined upon final appraisal of net assets acquired. Changes in the carrying amount of goodwill for the period ended June 30, 2003 are as follows: 
 
 North American 

International 

Razors & 

Battery 

Battery 

Blades 

Total 

Balance at October 1, 2002 

$

24.7 

$

12.7 

$

- 

$

37.4 

Acquisition of SWS 

- 

- 

412.2 

412.2 

Cumulative translation adjustment 

- 

0.6 

7.2 

7.8 

Balance at June 30, 2003 

$

24.7 

$

13.3 

$

419.4 

$

457.4 

The amount of intangible assets acquired from the SWS acquisition is as follows: 
 
Wtd-Average

Amortization 

Amount Acquired 

Period (in years)

To be amortized:

Tradenames 

$

10.5 

9.8 

Technology and patents 

34.3 

11.1 

Customer-related 

10.9 

10.0 

55.7 

Indefinite-lived: 

Tradenames 

60.7 

Total acquired intangible assets 

$

116.4 

Total intangible assets at June 30, 2003 are as follows: 

Gross 

Accumulated 

Carrying Amount

Amortization 

Net 

To be amortized: 

Tradenames 

$

10.7 

$ 

(0.3 

) 

$

10.4 

Technology and patents 

34.7 

(0.8 

) 

33.9 

Customer-related 

11.0 

(0.3 

) 

10.7 

56.4 

(1.4 

) 

55.0 

Indefinite-lived: 

Tradenames 

504.8 

(365.9 

) 

138.9 

Total intangible assets 

$

561.2 

$ 

(367.3 

) 

$

193.9 

Changes in indefinite lived intangible assets are currency related. Estimated amortization expense for amortized intangible assets is as follows: 
 
For the year ended September 30, 2003 

$

2.7 

For each year ended September 30, 2004 through 2008 

5.6 

Note 13 – Supplemental financial statement information is shown below: 

June 30, 

September 30, 

June 30, 

2003 

2002 

2002 

Other current assets 

Investment in SPE 

$

72.9 

$

164.6 

$

112.5 

Miscellaneous receivables 

47.0 

21.3 

15.4 

Deferred income tax benefits 

59.2 

56.6 

44.9 

Prepaid expenses 

74.8 

63.5 

55.7 

Other 

0.1 

- 

1.9 

  Total other current assets 

$

254.0 

$

306.0 

$

230.4 

Other assets 

Goodwill 

$

457.4 

$

37.4 

$

37.3 

Other intangible assets 

193.9 

73.9 

74.4 

Pension asset 

119.0 

117.9 

114.3 

Deferred charges and other assets 

29.3 

15.3 

21.0 

  Total other assets 

$

799.6 

$

244.5 

$

247.0 

Other current liabilities 

Accrued advertising, promotion and allowances 

$

202.0 

$

141.4 

$

139.0 

Accrued salaries, vacations and incentive compensation 

77.9 

69.4 

60.7 

Other 

93.2 

94.8 

88.3 

  Total other current liabilities 

$

373.1 

$

305.6 

$

288.0 

Other non-current liabilities 

Pension, other retirement benefits and deferred compensation 

$

203.3 

$

139.6 

$

148.1 

Deferred taxes 

62.0 

31.0 

7.4 

Other non-current liabilities 

29.6 

18.1 

20.2 

  Total other non-current liabilities 

$

294.9 

$

188.7 

$

175.7 

Note 14 – The detail of Energizer’s long-term debt is as follows: 
 
June 30, 2003 

September 30, 2002 

June 30, 2002 

Private Placement, fixed interest rates ranging from 7.8% to 8.0%, due 2005 to 2010 

$

160.0 

$

175.0 

$

175.0 

Private Placement, fixed interest rates ranging from 2.3% to 4.3%, due 2006 to 2013 

375.0 

Private Placement, variable interest at LIBOR + 65 to 75 basis points, or currently
 
ranging from 1.7% to 1.8%, due 2008 to 2013 

325.0 

Revolving Credit Facility, variable interest rate currently 2.1%, due 2006 

148.0 

- 

- 

1,008.0 

175.0 

175.0 

Less current portion 

- 

15.0 

15.0 

Total long-term debt 

$

1,008.0 

$

160.0 

$

160.0 

Energizer maintains total committed debt facilities of $1,160.0, of which $152.0 remained available as of June 30, 2003. 

Aggregate maturities on all long-term debt are as follows: $110.0, $163.0, $35.0 and $85.0 in fiscal 2005, 2006, 2007 and 2008, respectively. 

Note 15 – In May 2002, Energizer’s Board of Directors approved a plan authorizing the repurchase of up to 5.0 million shares of Energizer’s common stock. In the nine months ended June 30, 2003, approximately 5 million shares were purchased. In July 2003, Energizer’s Board of Directors authorized the repurchase of an additional 10.0 million shares of its common stock. The repurchases will be made from time to time on the open market or through privately negotiated transactions, subject to corporate objectives and the discretion of management.

Note 16 –The Financial Accounting Standards Board (FASB) issued SFAS No. 143, "Accounting for Asset Retirement Obligations." SFAS 143 addresses financial accounting and reporting for obligations associated with the retirement of tangible long-lived assets and the associated asset retirement costs. Energizer adopted SFAS 143 as of the beginning of the current fiscal year, which did not have a material effect on its financial statements. 

The FASB issued SFAS No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” which provides guidance on the accounting for the impairment or disposal of long-lived assets. Energizer adopted SFAS 144 as of the beginning of the current fiscal year, which did not have a material effect on its financial statements. 

The FASB issued SFAS No. 145, “Rescission of FASB Statements No. 4, 44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections.” SFAS 145 updates, clarifies and simplifies existing accounting pronouncements. Energizer adopted SFAS 145 as of the beginning of the current fiscal year, which did not have a material effect on its financial statements. 

The FASB issued SFAS No. 146, “Accounting for Exit or Disposal Activities.” SFAS 146 provides direction for accounting and disclosure regarding specific costs related to an exit or disposal activity. These include, but are not limited to, costs to terminate a contract that is not a capital lease, costs to consolidate facilities or relocate employees, and certain termination benefits provided to employees that are involuntarily terminated under the terms of a one-time benefit arrangement. Energizer adopted SFAS 146 as of the beginning of the current fiscal year, which did not have a material effect on its financial statements, but it may change the period in which future restructuring provisions, if any, are recorded. 

The FASB issued SFAS No. 148, “Accounting for Stock-Based Compensation – Transition and Disclosure, an amendment of FAS 123.” SFAS 148 provides alternative methods of transition for a voluntary change to the fair value based method of accounting for stock-based compensation. In addition, SFAS 148 amends the disclosure requirements of SFAS 123 to require certain disclosures in both annual and interim financial statements about the method of accounting for stock-based compensation and the effect on reported results. Energizer applies APB 25 at this time and adopted the disclosure provisions of this statement in the beginning of the current fiscal year, as found in Note 5 above. 

The FASB issued Interpretation No. 45 (FIN 45), “Guarantor’s Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others.” FIN 45 clarifies the disclosures about certain guarantees to be made by a guarantor in its interim and annual financial statements. Also, FIN 45 clarifies that a guarantor is required to recognize, at the inception of certain guarantees, a liability for the fair value of the obligation undertaken in issuing the guarantee, but does not prescribe a specific approach for subsequently measuring the liability over its life. Recognition provisions of FIN 45 are to be applied prospectively for guarantees issued or modified after December 31, 2002. The disclosure requirements are effective for financial statements ending after Decembe
r 15, 2002. Energizer adopted FIN 45 as of the beginning of the current fiscal year, as found in Note 11 above, which did not have a material effect on its financial statements. 

In April 2003, the Financial Accounting Standards Board (FASB) issued SFAS No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities." SFAS 149 amends and clarifies financial reporting for derivative instruments, including certain derivative instruments embedded in other contracts (collectively referred to as derivatives) and for hedging activities under FASB Statement No. 133, "Accounting for Derivative Instruments and Hedging Activities." SFAS 149 is effective for contracts entered into or modified after June 30, 2003 and for hedging relationships designated after June 30, 2003. The provisions of this Statement that relate to Statement 133 implementation issues that have been effective for fiscal quarters that began prior to June 15, 2003, should continue to be applied in ac
cordance with their respective effective dates. The adoption of SFAS 149 will not have a material impact on Energizer's consolidated financial statements. 

In May 2003, the FASB issued SFAS No. 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity." This statement establishes standards for the classification and measurement of certain financial instruments with characteristics of both liabilities and equity and requires the classification of such financial instruments as a liability (or an asset in certain circumstances). Many of those instruments were previously permitted to be classified as equity. SFAS 150 is effective for financial instruments entered into or modified after May 31, 2003 and is otherwise effective at the beginning of the first interim period beginning after June 15, 2003. The adoption of SFAS 150 will not have a material impact on Energizer’s consolidated financial statements. 

Note 17 – On August 13, 2003, Energizer received a copy of a complaint filed by the Gillette Company in the Federal District Court for the District of Massachusetts alleging patent infringement in connection with the planned introduction of the QUATTRO men's shaving system, and seeking injunctive relief and monetary damages.  As of the date of this filing, Energizer has not completed its review and assessment of the complaint, and the probability of injunctive relief or liability, if any, cannot be determined with any certainty.  However, Energizer believes that it has meritorious defenses to the allegations. 
 
Items 2. and 3. Management's Discussion and Analysis of Financial Condition and Results of Operations, Quantitative and Qualitative Disclosures About Market Risk. (Dollars in millions) 

Highlights / Operating Results 
The following discussion is based on the historical results of Energizer Holdings, Inc. (Energizer), unless otherwise noted. On March 28, 2003, Energizer completed its acquisition of the worldwide Schick-Wilkinson Sword (SWS) business from Pfizer, Inc. 

Net earnings for the nine months ended June 30, 2003 were $136.9 or $1.59 per basic share and $1.55 per diluted share compared to $130.2, or $1.42 per basic share and $1.40 per diluted share for the same nine month period last year. The current nine month period includes additional product cost of $35.9, after tax, related to write-up of inventory acquired in the acquisition of SWS. The inventory write-up is discussed in further detail in Note 2 to the Condensed Financial Statements. The current nine months also include intellectual property rights income of $5.2 after taxes and a gain on the sale of an international property of $5.7, after taxes. Included in the prior nine month net earnings are restructuring provisions and related costs of $5.8 after taxes and a charge related to Kmart accounts receivabl
e of $6.1 after taxes. 

For the quarter ended June 30, 2003, net earnings were $17.5 or $.21 per basic share and $.20 per diluted share compared to $39.8, or $.44 per basic share and $.43 per diluted share for the quarter ended June 30, 2002. Included in the current quarter net earnings are the aforementioned inventory write-up, gain on sale of property and intellectual property rights income of $1.5 after taxes. 

Net sales increased $231.7 for the nine months and $204.1 for the quarter, primarily as a result of the acquisition of SWS, which contributed $205.9 in sales. See the following section for comments on sales changes by segment. 

Gross margin increased $73.0, or 13% for the nine months and $65.6, or 39% for the quarter, primarily due to the SWS acquisition. Gross margin percentage declined 2.1 percentage points to 42.8% for the current nine months and 3.8 percentage points to 39.6% for the quarter, primarily due to the inventory write-up related to the SWS acquisition. 

Selling, general and administrative expenses increased $20.1, or 9% in the nine months and $36.1, or 50% for the quarter, mainly due to the SWS acquisition in the current quarter, partially offset by a gain on the sale of an international property of $5.7 in the current quarter and the absence of a $10.0 bad debt write-off related to Kmart’s bankruptcy recorded in the prior nine month period. Selling, general and administrative expenses as a percent of sales, including the items discussed above, were 16.5% and 18.2% in the current nine months and quarter, respectively, compared to 17.9% and 18.4% in the prior nine months and quarter, respectively. 

Advertising and promotion expense increased $67.0, or 69% and $63.4, or 237% in the current nine months and quarter, respectively, primarily as a result of the acquisition of SWS. Advertising and promotion as a percent of sales was 10.7% and 15.2% in the current nine months and quarter, respectively, compared to 7.5% and 6.9% in the prior nine months and quarter, respectively. The increased percentage is primarily due to a higher rate of spending in razors and blades than in the battery segments. 

Research and development expense increased $6.9, or 25% and $7.1, or 80% in the current nine months and quarter, respectively, primarily as a result of the acquisition of SWS. Research and development as a percent of sales was 2.2% and 2.7% in the current nine months and quarter, respectively, compared to 2.1% and 2.3% in the prior nine months and quarter, respectively. The increased percentage is primarily due to a higher SWS percentage than the battery segments. 

Segment Results 
Prior to the acquisition of SWS, Energizer’s operations were managed via four battery geographic segments. Beginning in the June 30, 2003 quarter, Energizer revised its operating segment presentation to conform to its revised organizational structure following the SWS acquisition. Energizer now has three segments: North America Battery, International Battery and Razors and Blades. 

Energizer continues to report segment results reflecting all profit derived from each outside customer sale in the region in which the customer is located. Energizer's operations are now managed via three major segments - North America Battery (the United States, Canada and Caribbean battery and lighting products), International Battery (Asia Pacific, Europe and South and Central America, including Mexico, battery and lighting products) and Razors and Blades (global razors, blades, and related products). Research and development costs for the battery segments are combined and included in the Total Battery segment results. Research and development costs for Razors and Blades are included in that segment’s results. Certain costs previously reported in General Corporate and Other Expenses that primarily suppo
rt the battery business were allocated to the North America Battery and International Battery segments. 

This structure is the basis for Energizer’s reportable operating segment information, as included in the tables in Note 3 to the Condensed Financial Statements for the nine months and quarters ended June 30, 2003 and 2002. All prior periods have been restated to conform to the current segment presentation. 

North America Battery 
Net sales for North America Battery were $765.6 for the current nine months, down $1.7 as unfavorable pricing and product mix was nearly offset by higher volume of non-alkaline products. Gross margin declined $18.8 for the current nine months as unfavorable pricing and product mix was only partially offset by increased sales of relatively lower margin non-alkaline products. Segment profit declined $8.0 for the current nine months as lower gross margin was partially offset by the absence of the $10.0 bad debt write-off related to Kmart’s bankruptcy in the prior year nine month period.
 
North America Battery sales for the quarter declined $14.2, or 6% on unfavorable pricing and product mix and lower alkaline volume. The third quarter of 2002 included approximately $19 of additional alkaline sales due to significant incremental shipments to a large customer following a packaging change and sell-in for incremental fourth quarter promotional displays. Excluding these items from the third quarter of 2002, the current quarter alkaline volume was flat, while non-alkaline products contributed $13.9 in incremental sales. Gross margin for the quarter decreased $12.4 primarily due to lower sales. Segment profit decreased $8.7 as lower gross margin was partially offset by lower advertising and promotion expense. 

In the U.S., retail alkaline category units grew an estimated 2% compared to the same quarter last year, while category value decreased 6%, reflecting lower everyday pricing by retailers and continued promotions. Retailer consumption of Energizer’s alkaline products increased an estimated 5% in units and decreased an estimated 5% in value for the quarter. Energizer estimates its share of the alkaline battery market at approximately 30% for the quarter, roughly flat compared to the same quarter last year. Energizer estimates that overall retail inventory levels at June 30, 2003, are in line with seasonal normal levels. 

International Battery 
Net sales for International Battery were $557.5 for the current nine months, an increase of $27.5, or 5% on favorable currency impacts of $21.0 and favorable pricing and product mix. Alkaline unit volume to retail channels increased 3% offset by non-retail alkaline and carbon zinc unit volume declines. For the quarter, sales were $171.1, an increase of $12.4, or 8%, due to favorable currency impacts. Absent currencies, lower alkaline volume was offset by favorable pricing and product mix. 

Segment profit increased $20.8, or 31% for the nine months and $5.7, or 28% for the quarter, with favorable currencies accounting for $9.8 and $6.8 of the increase, respectively. Excluding currency impacts, segment profit for the nine months increased $11.0 on favorable pricing and product mix and lower overhead and product costs, partially offset by higher advertising and promotion expense. Absent currencies, segment profit for the quarter declined $1.1, as higher advertising and promotion expense more than offset favorable pricing and product mix. 

Battery Research and Development Expenses 
Battery research and development expense was $26.9, or 2.0% of total battery sales for the current nine months compared to $27.2, or 2.1% of sales for the nine months last year. For the quarter, battery research and development expense was $8.8 versus $8.9 for the same quarter last year, representing 2.3% of total battery sales in both periods. 

Razors and Blades 
Energizer’s acquisition of SWS was completed on March 28, 2003; therefore, SWS is not included in the attached historical financial statements prior to the current quarter. The comparison of current year amounts are versus pro forma SWS results for the quarter ending June 30, 2002. Segment profit excludes inventory write-up, which is discussed in further detail in Note 2. 

Razors and blades segment sales for the quarter were $205.9, an increase of $43.9 compared to the same quarter last year. The sales growth was primarily attributed to the North America launch of the SWS INTUITION women’s shaving system in April 2003 and favorable currency of $12.8, partially offset by lower sales of legacy SWS products. 

Segment profit for the quarter was $16.6, an increase of $8.9 compared to pro forma profit for the same quarter last year, including favorable currency impacts of $3.3. The remaining increase related to sales due to the pipeline fill of INTUITION partially offset by heavy advertising and promotion to support the launch. 

Looking forward, SWS will continue to support the INTUITION launch in North America and the rollout in select international markets. SWS plans to launch the QUATTRO men’s shaving system in the fall. Existing product sales will likely be negatively impacted by new product sales, however the amount of such decline is not possible to predict. 

General Corporate and Other Expenses 
Corporate and other expenses increased $1.4 for the nine months and $2.8 for the quarter primarily due to lower pension income, higher management costs, as well as costs related to the integration of SWS in the current quarter, partially offset by lower compensation costs related to incentive plans and stock price. 

Restructuring Activity 
In March 2002, Energizer adopted a restructuring plan to reorganize certain European selling affiliates. The plan involved terminating up to 64 sales and administrative employees resulting in a provision for restructuring of $6.7 pre-tax. During the nine months ended June 30, 2002, Energizer recorded total provisions for restructuring related to the plan described above of $4.5 pre-tax or $2.9 after-tax. The remaining cost of the plan was recorded in the fourth quarter of fiscal 2002.

As of June 30, 2003, 30 of a total of 64 employees have been terminated in connection with the 2002 Plan, with 3 terminated in the current quarter. Energizer expects to substantially complete all activities associated with the 2002 Plan by December 31, 2003. 

During the nine months ended June 30, 2002, Energizer recorded a pre-tax provision for restructuring related to the plan described above of $4.5. Also, as part of other restructuring plans announced in the fourth quarter of fiscal 2001, Energizer recorded provisions for restructuring of $1.4 before taxes, as well as related costs for accelerated depreciation and inventory obsolescence of $2.6 before taxes in the prior nine months. The accelerated depreciation and inventory obsolescence are reflected in cost of products sold. 

Total provisions for restructuring and related costs were $8.5 before taxes, $5.8 after taxes in the prior nine months. There were no provisions for restructuring recorded in the current nine months or quarter. 

Activities impacting the restructuring reserve during the nine months ended June 30, 2003 are presented in Note 8 to the Condensed Financial Statements. 
 
Intellectual Property Rights Income
 
In the quarter ended June 30, 2003, Energizer recorded income of $2.5 pre-tax, or $1.5 after-tax related to a one-time payment for a license of intellectual property rights. Such payment, together with a similar one-time payment earlier in the year resulted in total intellectual property rights income of $8.5 pre-tax, or $5.2 after-tax for the nine months ended June 30, 2003.  

Interest Expense and Other Financing Costs 
Interest and other financing items increased $1.2, or 7.1% for the current nine months reflecting lower financing costs in the first six months, partially offset by increases in the current quarter related to the incremental debt from the SWS acquisition. Energizer’s interest and other financing costs increased $6.2 in the current quarter primarily due to incremental debt related to the acquisition of SWS. 
 
Income Taxes 
Income taxes, which include federal, state and foreign taxes, were 29.5% for the current nine months. The current nine month income tax provision of $57.2, includes a tax benefit of $20.3 associated with the SWS inventory write-up. Excluding the inventory write-up, the current nine month tax rate was 31.0% compared to a tax rate of 35.5% for the same period last year. The improvement in the tax rate was primarily due to improved foreign operating results and an international property gain not subject to taxation. 

The current quarter reflects an overall tax benefit of $4.3, which includes the aforementioned tax benefit for the SWS inventory write-up. Excluding the inventory write-up, income taxes for the current quarter were 23.1% compared to 31.3% for the same period last year. The tax rates for both the current and prior quarter included the reductions necessary to bring the tax rate for the nine months in line with expectations of the tax rate for the full year. 

In the fourth quarter of fiscal 2003, Energizer will complete an evaluation of valuation allowances associated with deferred tax assets generated from operating losses in prior years. Such review may result in reversal of valuation allowances due to improved operating results in one or more countries, which would be reflected as a reduction in Energizer's reported tax provision and overall effective tax rate in the fourth quarter of fiscal 2003. 

Schick-Wilkinson Sword Acquisition 
 
On March 28, 2003, Energizer acquired the worldwide SWS business from Pfizer, Inc. for $930 plus costs of executing the acquisition and subject to adjustments based on acquired working capital level. The final assumed liabilities will likely include costs to exit certain pre-acquisition activities based on completion of specific evaluations and definitive exit plans. 

SWS is the second largest manufacturer and marketer of men’s and women’s wet shave products in the world. SWS products are marketed in over 80 countries, accounting for an estimated 18% market share of the global wet shaving business. Its primary markets are Europe, the United States and Japan. 

Energizer views the wet shave products category as attractive within the consumer products industry due to the limited number of manufacturers, the high degree of consumer loyalty, and the ability to improve pricing through innovation. Energizer believes SWS has high quality products, a defensible market position and the opportunity to grow sales and margins. The SWS business is compatible with Energizer's business in terms of common customers, distribution channels, and geographic presence, which should provide opportunities to leverage Energizer's marketing expertise, business organization and scale globally. 

SWS’ results of operations are reflected in Energizer’s results beginning in the current quarter. See Note 2 to the Condensed Financial Statements for the pro forma sales, net earnings and earnings per share results if SWS had been part of Energizer’s results for the current and prior nine months and prior quarter. 

Financial Condition 
At June 30, 2003, working capital was $564.7, compared to $353.3 at September 30, 2002 and $345.9 at June 30, 2002. The increase in working capital is primarily due to the acquisition of SWS. 

Energizer used a $550.0 bridge loan, together with currently existing available credit facilities and cash, to fund the SWS acquisition. Energizer refinanced the bridge loan into longer term financing in the current quarter. Energizer’s total borrowings were $1,060.1 at June 30, 2003. See Note 14 to the Condensed Financial Statements for more information on Energizer’s long-term debt. As of June 30, 2003, Energizer’s total debt and financing instruments tied to short-term interest rates (primarily LIBOR) were $586.1. An increase in the applicable short-term rates of one full percentage point would increase annualized financing costs by $5.9. 

A summary of Energizer’s significant contractual obligations is shown below. See Note 11 to the Condensed Financial Statements for discussion of letters of credit, loan guarantees and guarantees for purchase of goods used in production. 
 
Total 

Less than 1 year 

1-3 years 

3-5 years 

More than 5 years 

Long-term debt, including current maturities 

$ 
1,008.0 

$ 
- 

$ 
273.0 

$ 
120.0 

$ 
615.0 

Notes payable 

52.1 

52.1 

Operating leases 

79.5 

13.0 

24.0 

17.5 

25.0 

Total 

$ 
1,139.6 

$ 
65.1 

$ 
297.0 

$ 
137.5 

$ 
640.0 

Cash flow from operations was $315.9 for the nine months ended June 30, 2003, up $140.5 from the same period a year ago primarily due to sales of accounts receivable under a financing arrangement and improved cash flow from the battery segments. Cash used in investing activities includes the acquisition of SWS, as well as capital expenditures of $34.2 in the current nine month period compared to capital expenditures of $29.9 in the same nine month period last year. The increase in capital expenditures is primarily due to the inclusion of SWS, partially offset by lower spending in the battery business. Cash flow from financing activities includes financing described above related to the SWS acquisition and purchase of $131.4 of treasury stock in the current nine months. Energizer purchased approximately five mil
lion shares of treasury stock for the current nine month period, and in July, its Board of Directors authorized the repurchase of an additional ten million shares of its common stock. The repurchases will be made from time to time, on the open market or through privately negotiated transactions, subject to corporate objectives and the discretion of management. 

Energizer’s borrowing facilities require it to maintain a debt to earnings before interest, taxes, depreciation and amortization (EBITDA) ratio of no more than 3.5 to 1.0. As of June 30, 2003, such ratio is 2.4 to 1.0. This ratio could increase if EBITDA earnings levels decline or if cash flow needs are greater than anticipated, which could result in a breach of the ratio covenant and consequent default on its borrowing facilities. 

Energizer believes that cash flows from operating activities and periodic borrowings under available credit facilities will be adequate to meet short-term and long-term liquidity requirements prior to the maturity of Energizer’s credit facilities, and that it will be able to maintain all of its borrowing covenants, including the debt to EBITDA ratio, although no guarantee can be given in this regard. 

Special Purpose Entity 
 
Energizer generates accounts receivable from its customers through its ordinary course of business. Substantially all accounts receivable in the U.S. are routinely sold to Energizer Receivables Funding Corporation (the SPE), which is a wholly owned, bankruptcy remote subsidiary of Energizer. The SPE’s only business activities relate to acquiring and selling interests in Energizer’s receivables for which transactions are used as an additional source of liquidity. The SPE sells an undivided percentage ownership interest in each individual receivable to an unrelated party (the Conduit) and uses the cash collected on these receivables to purchase additional receivables from Energizer. 

The trade receivables sale facility represents “off-balance sheet financing,” since the Conduit’s ownership interest in the SPE’s accounts receivable results in assets being removed from Energizer’s balance sheet, rather than resulting in a liability to the Conduit. Upon the facility’s termination, the Conduit would be entitled to all cash collections on the SPE’s accounts receivable until its purchased interest was repaid. 
 
The terms of the agreements governing this facility qualify trade receivables sale transactions for “sale treatment” under generally accepted accounting principles. As such, Energizer is required to account for the SPE’s transactions with the Conduit as a sale of accounts receivable instead of reflecting the Conduit’s net investment as short-term debt with a pledge of accounts receivable as collateral. Absent this “sale treatment,” Energizer’s balance sheet would reflect additional accounts receivable and short-term debt and lower other current assets. See further discussion in Note 10. 

Market Risk 
 
Energizer has interest rate risk with respect to interest expense on variable rate debt. A hypothetical 10% adverse change in all variable interest rates would have had an annual unfavorable impact, net of taxes of $0.7 on Energizer’s net earnings and cash flows based upon current debt levels. The primary interest rate exposures on variable rate debt are with respect to U.S. rates and short-term local currency rates in certain Asian and South and Central American countries. 
 
Recently Issued Accounting Standards 
See discussion in Note 16 to the Condensed Financial Statements. 

Forward-Looking Statements 
Statements in this document that are not historical, particularly statements regarding estimates of category growth, retailer consumption of Energizer’s products, Energizer’s market share, retailer inventory levels, sales of INTUITION women’s shaving system and the impact of new products on existing product sales, support of new product launches, Energizer’s anticipated full-year tax rate, the attractiveness of the wet shave products category, Energizer’s assessment of the SWS business, Energizer’s compliance with debt covenants regarding its debt to EBITDA ratio, its continuing ability to meet liquidity requirements, and the impact of adverse changes in variable interest rates, may be considered forward-looking statements within the meaning of the Private Securities Liti
gation Reform Act of 1995. Energizer cautions readers not to place undue reliance on any forward-looking statements, which speak only as of the date made. 
 
Energizer advises readers that various risks and uncertainties could affect its financial performance and could cause Energizer's actual results for future periods to differ materially from those anticipated or projected. Energizer’s estimates of battery category unit and value growth, retailer consumption of its battery products, Energizer market share and retailer inventory levels may be inaccurate, or may not reflect significant segments of the retail market. Moreover, Energizer sales volumes in future quarters may lag unit consumption if retailers are currently carrying inventories in excess of Energizer’s estimates, or if those retailers elect to further contract their inventory levels. Unexpected declines in cash flows or margins, or increased competitive activity, could impact Energizer’s 
ongoing support of its new products, and future sales of INTUITION will depend upon continuing consumer acceptance, demand for competitive products and general economic conditions. Although it is likely that sales of new products will negatively impact sales of existing products, the actual impact cannot be predicted. Energizer’s overall tax rate for the year may be higher or lower than anticipated because of unforeseen changes in the tax laws or applicable rates, higher taxes on repatriated earnings, or changes in foreign loss estimates. General economic conditions, retailer pressure, and competitive activity may negatively impact the outlook for the wet shave products category. Because of that competitive activity, the SWS business may not be able to grow sales or margins, and could lose current market position. Opportunities to integrate SWS activities with Energizer’s, and to leverage Energizer operating strengths, may be limited. Energizer’s debt to EBITDA ratio could increase beyond acce
ptable levels if EBITDA earnings levels decrease or if cash flow needs are greater than anticipated, resulting in a breach of the ratio covenant and consequent default on its existing debt facilities. Unforeseen fluctuations in levels of Energizer’s operating cash flows, or inability to maintain compliance with its debt covenants could also limit Energizer’s ability to meet future operating expenses and liquidity requirements, fund capital expenditures, or service its debt as it becomes due. The impact of adverse variable interest rate fluctuations may be more significant than anticipated. Additional risks and uncertainties include those detailed from time to time in Energizer’s publicly filed documents, including Energizer’s Registration Statement on Form 10, its Annual Report on Form 10-K for the Year ended September 30, 2002, its quarterly report on Form 10Q for the period ended December 31, 2002, and its Current Reports on Form 8-K dated April 25, 2000, January 21, 2003, January 27, 2
003, April 23, 2003 and May 30, 2003. 

Item 4. Controls and Procedures 

J. Patrick Mulcahy, Energizer's Chief Executive Officer, and Daniel J. Sescleifer, Energizer's Executive Vice President and Chief Financial Officer, evaluated Energizer's disclosure controls and procedures within 90 days of the filing date of this Quarterly Report on Form 10-Q, and determined that such controls and procedures were effective and sufficient to ensure compliance with applicable laws and regulations regarding appropriate disclosure in the Quarterly Report, and that there were no material weaknesses in those disclosure controls and procedures. They have also indicated that there were no significant changes in internal controls or other factors that could significantly affect internal controls subsequent to the date of their most recent evaluation of disc
losure controls and procedures, including any corrective actions with regard to significant deficiencies and material weaknesses. 
 
PART II – OTHER INFORMATION 

There is no information required to be reported under any items except those indicated below. 

Item 1 – Legal Proceedings 

The Company and its wholly owned subsidiary, Eveready Battery, Inc., were served with a lawsuit filed on May 19, 2003 in the Circuit Court for the 20 th Judicial Circuit in St. Clair County, Illinois by Amy Lynn Niehaus, individually and on behalf of all others similarly situated. The lawsuit petitions the court to order that it be maintained as a class action on behalf of all present and past customers of the defendants that acquired Eveready’s “Heavy Duty” or “Super Heavy Duty” carbon zinc batteries. The lawsuit alleges that the labeling of carbon zinc batteries in such manner was false and misleading and in violation of various
 state consumer protection statutes, and seeks compensatory and punitive damages, costs and attorneys’ fees in an amount less than $75,000 per plaintiff or class member. The Company and Eveready believe that they have meritorious defenses to the complaint, and have jointly filed a Motion to Dismiss, as well as a Motion to Transfer Venue. The proceeding is in a preliminary stage and may proceed for a protracted period of time; accordingly, the amount of eventual liability, if any, from the proceeding cannot be determined with certainty. However, in the opinion of the Company’s management, based upon the information presently known, the ultimate liability of the Company and Eveready, if any, arising from the pending legal proceeding, should not be material to the financial position of the Company, but could be material to results of operations or cash flows for a particular quarter or annual period. 

Item 6—Exhibits and Reports on Form 8-K 

(a)    The following exhibits (listed by numbers corresponding to the Exhibit Table of Item 601 in Regulation S-K) are filed with this report. 
 
10(i) 

Form of Amended Change of Control Employment Agreement dated May 19, 2003* 

10(ii) 

Form of Restricted Stock Equivalent Award Agreement dated May 19, 2003* 

10(iii) 

Form of Non-Qualified Stock Option dated May 19, 2003* 

10(iv) 

Form of Restricted Stock Equivalent Award Agreement dated May 19, 2003* 

10(v) 

Form of Indemnification Agreement dated May 19, 2003* 

10(vi) 

Facility Agreement dated July 25, 2003 for Energizer Asia Investments PTE, Ltd., with Citicorp Investment Bank (Singapore) Limited as Agent 

10(vii) 

Revolving Credit Agreement dated as of June 27, 2003 between Energizer Holdings, Inc. and Bank One, N.A. as Administrative Agent, Citibank, N.A. as Syndication Agent, and Bank of America, N.A. as Documentation Agent 

10(viii) 

Energizer Holdings, Inc. Note Purchase Agreement dated as of June 1, 2003 

31(i) 

Section 302 Certification of Chief Executive Officer 

31(ii) 

Section 302 Certification of Executive Vice President and Chief Financial Officer 

32(i) 

Section 1350 Certification of Chief Executive Officer 

32(ii) 

Section 1350 Certification of Executive Vice President and Chief Financial Officer 
 
*Denotes a management contract or compensatory plan or arrangement. 

(b)    On July 30, 2003, Energizer filed a Current Report on Form 8-K incorporating its press release of the same date relating to earnings results for the third quarter of fiscal 2003. A Statement of Earnings for the quarter and nine months ended June 30, 2003 was filed with the Current Report on Form 8-K. 

SIGNATURES 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. 
 
ENERGIZER HOLDINGS, INC.

Registrant

By:  
 
Daniel J. Sescleifer 

Executive Vice President and Chief Financial Officer 
Date: August 14, 2003

EX-31.(I) 3 ex31-i.htm EXHIBIT 31(I) Exhibit 31(i)

Exhibit 31(i) 

Certification of Chief Executive Officer 

I, J. Patrick Mulcahy, certify that: 

1. I have reviewed this quarterly report on Form 10-Q of Energizer Holdings, Inc.; 

2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 

3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 

4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: 

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; 

b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedure, as the end of the period covered by this report based onsuch evaluation; and 

c) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 

5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): 

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's 

ability to record, process, summarize and report financial information; and 

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. 

Date: August 14, 2003 

J. Patrick Mulcahy
Chief Executive Officer

EX-31.(II) 4 ex31-ii.htm EXHIBIT 31.II Exhibit 31.ii

Exhibit 31(ii) 

Certification of Executive Vice President and Chief Financial Officer 

I, Daniel Sescleifer, certify that: 

1. I have reviewed this quarterly report on Form 10-Q of Energizer Holdings, Inc.; 

2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 

3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 

4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have: 

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared; 

b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedure, as the end of the period covered by this report based on such evaluation; and 

c) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 

5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): 

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and 

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. 

Date: August 14, 2003 

Daniel J. Sescleifer 

Executive Vice President and Chief Financial Officer

EX-32.(I) 5 ex32-i.htm EXHIBIT 32.I Exhibit 32.i

Exhibit 32(i)

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report of Energizer Holdings, Inc. (the "Company") on Form 10-Q for the period ending June 30, 2003 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, J. Patrick Mulcahy, Chief Executive Officer of the Company, certify pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to my best knowledge:

(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.


	J. Patrick Mulcahy
	Chief Executive Officer

EX-32.(II) 6 ex32-ii.htm EXHIBIT 32.II Exhibit 32.ii

Exhibit 32(ii) 

CERTIFICATION PURSUANT TO 

18 U.S.C. SECTION 1350 

AS ADOPTED PURSUANT TO 

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 

In connection with the Quarterly Report of Energizer Holdings, Inc. (the "Company") on Form 10-Q for the period ending June 30, 2003 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Daniel J. Sescleifer, Executive Vice President and Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that, to my best knowledge: 

(1)    The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 

(2)    The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. 


	Daniel J. Sescleifer
	Executive Vice President and Chief Financial Officer

EX-10.(VI) 7 ex10-vi.htm EXHIBIT 10,VI Exhibit 10.(vi)

Exhibit 10(vi) 

EXECUTION COPY 

US$125,000,000 

and

S$220,000,000
 

FACILITY AGREEMENT 

dated 25 July 2003 

for

ENERGIZER ASIA INVESTMENTS PTE LTD 

arranged by 

CITIGROUP GLOBAL MARKETS SINGAPORE MERCHANT BANK LTD 

and

STANDARD CHARTERED BANK
 

with 

CITICORP INVESTMENT BANK (SINGAPORE) LIMITED 

acting as Agent 

Linklaters Allen & Gledhill

Ref: PHJB / TSGG 

CONTENTS 

CLAUSE		PAGE

SECTION 1
INTERPRETATION

1.	Definitions and interpretation	1

SECTION 2
THE FACILITIES

2.	The Facilities	25
3.	Purpose	25
4.	Conditions of Utilisation	25

SECTION 3
UTILISATION

5.	Utilisation	27

SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION

6.	Repayment	29
7.	Prepayment and cancellation	29

SECTION 5
COSTS OF UTILISATION

8.	Interest	32
9.	Interest Periods	33
10.	Changes to the calculation of interest	33
11.	Fees	34

SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS

12.	Tax gross up and indemnities	36
13.	Increased costs	38
14.	Other indemnities	39
15.	Mitigation by the Lenders	40
16.	Costs and expenses	40

SECTION 7
GUARANTEE

17.	Guarantee and indemnity	42

SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

18.	Representations	46
19.	Information undertakings	53
20.	Financial covenants	58
21.	General undertakings	59
22.	Negative Undertakings - The Group	62
23.	Negative Covenants - The Regional Group	67
24.	Events of Default	71

SECTION 9
CHANGES TO PARTIES

25.	Changes to the Lenders	76
26.	Changes to the Obligors	79


SECTION 10
THE FINANCE PARTIES

27.	Role of the Agent and the Arranger	80
28.	Conduct of business by the Finance Parties	85
29.	Sharing among the Finance Parties	85

SECTION 11
ADMINISTRATION

30.	Payment mechanics	87
31.	Set-off	89
32.	Disclosure of information	89
33.	Notices	91
34.	Calculations and certificates	94
35.	Partial invalidity	94
36.	Remedies and waivers	94
37.	Amendments and waivers	94
38.	Counterparts	95

SECTION 12
GOVERNING LAW AND ENFORCEMENT

39.	Governing law	96
40.	Enforcement	96

THE SCHEDULES 

SCHEDULE	PAGE

SCHEDULE 1 The Original Lenders	97
SCHEDULE 2 Conditions precedent	98
SCHEDULE 3 Requests	100
SCHEDULE 4 Form of Transfer Certificate	103
SCHEDULE 5 Form of Compliance Certificate	105
SCHEDULE 6 Existing Security, Contingent Obligations and Investments	106
SCHEDULE 7 Timetables	108
SCHEDULE 8 Litigation	109
SCHEDULE 9 Subsidiaries	113
SCHEDULE 10 Standing Payment Instructions	129

THIS AGREEMENT is dated 25 July 2003 and made between:

(1) ENERGIZER ASIA INVESTMENTS PTE LTD, a company incorporated in Singapore under registration number 200302032C as borrower (the "Borrower");

(2) ENERGIZER HOLDINGS, INC.,a company incorporated in Missouri with charter number 00474545, ENERGIZER SINGAPORE PTE LTD.,a company incorporated in Singapore with registered number 194600106W and SONCA PRODUCTS LTD.,a company incorporated in Hong Kong under registered number 167972 as guarantors (the "Guarantors");

(3) CITIGROUP GLOBAL MARKETS SINGAPORE MERCHANT BANK LTDand STANDARD CHARTERED BANK(whether acting individually or together the "Arranger");

(4) THE FINANCIAL INSTITUTIONSlisted in Schedule 1 as lenders (the "Original Lenders"); and

(5) CITICORP INVESTMENT BANK (SINGAPORE) LIMITEDas agent of the other Finance Parties (the "Agent").

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

1. Definitions and interpretation

1.1 Definitions

In this Agreement:

"Acquisition" means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which Energizer Holdings or any of its Subsidiaries:

(i) acquires any going business or all or substantially all of the assets of any firm, corporation or division thereof, whether through purchase of assets, merger or otherwise; or

(ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the shares and/or securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage of voting power) of the outstanding equity interests of another person.

"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company or any other person directly or indirectly controlling, controlled by or under control with such person.

"Agent's Spot Rate of Exchange" means the spot rate of exchange for the purchase of the relevant currency with US Dollars in the Singapore foreign exchange market at or about 11:00 a.m. on a particular day displayed on page "ASAP" of the Reuters screen.


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"Agreement Accounting Principles" means generally accepted accounting principles as in effect in the United States from time to time or, in the case of the calculation of financial ratios and other financial tests required by this Agreement, except as provided in Clause 19.3 (Requirements as to financial statements), as of the date of this Agreement, in all cases, applied in a manner consistent with that used in preparing the Original Financial Statements.

"APLMA" means the Asia Pacific Loan Market Association Limited.

"Approved Fund" means any person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or managers a Lender.

"Authorisation" means:

(a) an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration; or

(b) in relation to anything which will be fully or partly prohibited by law or regulation if a Governmental Agency intervenes or acts in any way within a specified period after lodgement, filing, registration or notification, the expiry of that period without intervention or action.

"Availability Period" means:

(a) in relation to Facility A, the period from and including the date of this Agreement to and including the date which is one Month after the date of this Agreement; and

(b) in relation to Facility B, the period from and including the date of this Agreement to and including the date which is one Month prior to the Termination Date applicable to Facility B.

"Available Commitment" means, in relation to a Facility, a Lender's Commitment under that Facility minus:

(a) the amount of its participation in any outstanding Loans under that Facility; and

(b) in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,

other than, in relation to Facility B only, that Lender's participation in any Facility B Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

"Available Facility" means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.

"Benefit Plan" means a defined benefit plan as defined in Section 3(35) of ERISA (other than a Multiemployer Plan or Foreign Pension Plan) in respect of which an Obligor or an ERISA Affiliate is, or within the immediately preceding six (6) years was, an "employer" as defined in Section 3(5) of ERISA.


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"Board of Governors" means the Board of Governors of the Federal Reserve System of the US (or any successor).

"Break Costs" means the amount (if any) by which:

(a) the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount of that Loan or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount of that Loan or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in Singapore and, in relation to any date for payment or purchase of US Dollars, New York City.

"Capital Stock" means:

(i) in the case of a corporation, shares or capital stock;

(ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(iii) in the case of a partnership, partnership interests (whether general or limited); and

(iv) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person.

"Capitalised Lease" of a person means any lease of an asset by such person as lessee which would be capitalised on a balance sheet of such person prepared in accordance with Agreement Accounting Principles.

"Capitalised Lease Obligations" of a person means the amount of the obligations of such person under Capitalised Leases which would be capitalised on a balance sheet of such person prepared in accordance with Agreement Accounting Principles.

"Cash Equivalents" means:

(a) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government;

(b) domestic and Eurodollar certificates of deposit and time deposits, bankers' acceptances and floating rate certificates of deposit issued by any commercial bank organised under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations for any such deposits with a term of more than ninety (90) days);

(c) shares of money market, mutual or similar funds having assets in excess of US$100,000,000 and at least 95% of the investments of which are limited to investment


	-3-

grade securities (being securities rated at least Baa by Moody's Investors Service, Inc. or at least BBB by Standard & Poor's Ratings Group); and

(d) commercial paper of United States and foreign banks and bank holding companies and their Subsidiaries and United States and foreign finance, commercial industrial or utility companies which, at the time of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or P-1 (or better) by Moody's Investors Service, Inc.;

provided that the maturities of such Cash Equivalents described in the foregoing paragraphs (a), (b), (c) and (d) shall not exceed 365 days;

(e) repurchase obligations of any commercial bank organised under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies having a term not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government;

(f) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth, territory, political subdivision, taxing authority or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least BBB by Standard & Poor's Ratings Group or at least Baa by Moody's Investors Service, Inc.;

(g) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank organised under the laws of the United States, any state thereof or the District of Columbia (which commercial bank shall have a short-term debt rating of A-1 (or better) by Standard & Poor's Ratings Group or P-1 by Moody's Investors Service, Inc.), or by any foreign bank (which foreign bank shall have a rating of B or better from Thomson BankWatch Global Issuer Rating or, if not rated by Thomson BankWatch Global Issuer Rating, which foreign bank shall be an institution acceptable to the Agent), or its branches or agencies; or

(h) shares of money market mutual or similar funds at least 95% of the assets of which are invested in the types of investments satisfying the requirements of paragraphs (a) to (g) of this definition.

"Change of Control" means an event or series of events by which:

(a) any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the US Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of thirty percent (30%) or more of the voting power of the then outstanding Capital Stock of Energizer Holdings entitled to vote generally in the election of the directors of Energizer Holdings;

(b) during any period of 12 consecutive calendar months, the board of directors of Energizer Holdings shall cease to have as a majority of its members individuals who either:

(i) were directors of Energizer Holdings on the first day of such period; or


	-4-

(ii) were elected or nominated for election to the board of directors of Energizer Holdings at the recommendation of or other approval by at least majority of the Directors then still in office at the time of such election or nomination who were directors of Energizer Holdings on the first day of such period, or whose election or nomination for election was so approved; or

(c) Energizer Holdings consolidates with or merges into another corporation or conveys, transfers or leases all or substantially all of its property to any person, or any corporation consolidates with or merges into Energizer Holdings, in either event pursuant to a transaction in which the outstanding Capital Stock of Energizer Holdings is reclassified or changed into or exchanged for cash, securities or other property.

"Commitment" means a Facility A Commitment or Facility B Commitment.

"Companies Act" means the Companies Act (Chapter 50) Statutes of the Republic of Singapore.

"Compliance Certificate" means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate).

"Consolidated Assets" means the total assets of Energizer Holdings and its Subsidiaries on a consolidated basis.

"Consolidated Domestic Assets" means the total assets of Energizer Holdings and each of its consolidated Subsidiaries that is incorporated under the laws of any jurisdiction in the United States.

"Consolidated Net Worth" means, as of any date, all amounts which would be included under shareholders' equity (including capital stock, additional paid-in capital and retained earnings) on the consolidated balance sheet of Energizer Holdings and its consolidated Subsidiaries determined in accordance with Agreement Accounting Principles.

"Consolidated Total Capitalisation" means, as of any date, the sum of (i) Indebtedness of Energizer Holdings and its consolidated Subsidiaries and (ii) Consolidated Net Worth, all determined in accordance with Agreement Accounting Principles.

"Contingent Obligation", as applied to any person, means any Contractual Obligation, contingent or otherwise, of that person with respect to any Indebtedness or other obligation or liability of another person, including, without limitation, any such Indebtedness, obligation or liability of another person directly or indirectly guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business), co-made or discounted or sold with recourse by that person, or in respect of which that person is otherwise directly or indirectly liable, including Contractual Obligations (contingent or otherwise) arising through any agreement to purchase, repurchase, or otherwise acquire such Indebtednes s, obligation or liability or any security therefor, or to provide funds for the payment or discharge thereof (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, or other financial condition, or to make payment other than for value received. The amount of any Contingent Obligation shall be equal to the present value of the portion of the obligation so guaranteed or otherwise supported, in the case of known recurring


	-5-

obligations, and the maximum reasonably anticipated liability in respect of the portion of the obligation so guaranteed or otherwise supported assuming such person is required to perform thereunder, in all other cases.

"Contractual Obligation", as applied to any person, means any provision of any equity or debt securities issued by that person or any indenture, mortgage, deed of trust, security agreement, pledge agreement, guarantee, contract, undertaking, agreement or instrument, in any case in writing, to which that person is a party or by which it or any of its assets is bound, or to which it or any of its assets is subject. Without in any way limiting the foregoing, as used with respect to any member of the Group, Contractual Obligations shall include, without limitation, the Financing Facilities and any instruments, documents or agreements executed or delivered in connection therewith by which any member of the Group is bound.

"Customary Permitted Liens" means:

(a) Liens (other than Environmental Security and Liens in favour of the IRS or the PBGC or any Plan) with respect to the payment of Taxes, assessments or governmental charges in all cases which are not yet due or (if foreclosure, distraint, sale or other similar proceedings shall not have been commenced or any such proceeding after being commenced is stayed) which are being contested in good faith by appropriate proceedings properly instituted and diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained as may be required in accordance with Agreement Accounting Principles;

(b) statutory Liens of landlords and Liens of suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other similar Liens imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings properly instituted and diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained as may be required in accordance with Agreement Accounting Principles;

(c) Liens (other than Environmental Security and Liens in favour of the IRS or the PBGC or any Plan) incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance or other types of social security benefits or to secure the performance of bids, tenders, sales, contracts (other than for the repayment of Indebtedness), surety, appeal and performance bonds; provided that (A) all such Liens does not in the aggregate materially detract from the value of each member of the Group's assets taken as a whole or materially impair the use thereof in the operation of each member of the Group's businesses taken as a whole, and (B) all Liens securing bonds to stay judgments or in connection with appeals do not secure at any time an aggregate amount exceeding US$30,000,000;

(d) Liens arising with respect to zoning restrictions, easements, licences, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar charges or encumbrances on the use of real property which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of each member of the Group;


	-6-

(e) Liens of attachment or judgment with respect to judgments, writs, warrants of attachment, or similar process against any member of the Group which do not or would not constitute an Event of Default under Clause 24.10 (Judgments, creditors' process);

(f) any interest or title of the lessor in the property subject to any operating lease entered into by any member of the Group in the ordinary course of business; and

(g) Liens of commercial depository institutions arising in the ordinary course of business constituting a statutory or common law right of setoff against amounts on deposit with any such institution.

"Default" means an Event of Default or any event or circumstance specified in Clause 24 (Events of Default ) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

"Disqualified Stock" means any preferred stock and any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after 27 June 2006.

"DOL" means the United States Department of Labour and any person succeeding to the functions thereof.

"EBIT" has the meaning given hereto in Clause 20 (Financial covenants).

"EBITDA" has the meaning given hereto in Clause 20 (Financial covenants).

"Energizer Holdings" means Energizer Holdings, Inc, a company incorporated in Missouri with charter number 00474545.

"Energizer Singapore" means Energizer Singapore Pte Ltd, a company registered in Singapore under registration number 194600106W.

"Environment" means living organisms including the ecological systems of which they form part and the following media:

(a) air (including air within natural or man-made structures, whether above or below ground);

(b) water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

"Environmental Law" means all laws and regulations of any applicable jurisdiction which:

(a) have as a purpose or effect the protection of, and/or prevention of harm or damage to, the Environment;

(b) provide remedies or compensation for harm or damage to the Environment; or


	-7-

"Environmental Licence" means any Authorisation required at any time under Environmental Law.

"Environmental Security" means a security in favour of any Governmental Authority for (a) any liability under Environmental Law, or (b) damages arising from, or costs incurred by such Governmental Authority in response to, an actual or threatened release, escape, discharge, migration or leaching of a Hazardous Substance into the Environment.

"Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

"ERISA" means the US Employee Retirement Income Security Act of 1974, as amended from time to time, including (unless the context otherwise requires) any rules or regulations promulgated thereunder.

"ERISA Affiliate" means each person (as defined in Section 3(9) of ERISA) that is a member of a controlled group of, or under common control with, any Obligor, within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code.

"ERISA Event" means:

(a) any reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to any Benefit Plan, excluding however, such events as to which the PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days after such event occurs;

(b) the withdrawal of Energizer Holdings or any ERISA Affiliate from a Benefit Plan during a plan year in which Energizer Holdings or such ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of ERISA with respect to such plan;

(c) the imposition of an obligation under Section 4041 of ERISA to provide affected parties written notice of intent to terminate a Benefit Plan in a distress termination described in Section 4041(c) of ERISA;

(d) the institution by the PBGC or any foreign governmental authority of proceedings to terminate or appoint a trustee to administer a Benefit Plan or Foreign Pension Plan;

(e) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan; or

(f) the partial or complete withdrawal of Energizer Holdings or any ERISA Affiliate from a Multiemployer Plan.

"Event of Default" means any event or circumstance specified as such in Clause 24 (Events of Default ).

"Facility" means Facility A or Facility B.

"Facility A" means the term loan facility made available under this Agreement as described in Clause 2 (The Facilities ).

"Facility A Commitment" means:


	-8-

(a) in relation to an Original Lender, the amount in US Dollars set opposite its name under the heading "Facility A Commitment" in Schedule 1 (The Original Lenders) and the amount of any other Facility A Commitment transferred to it under this Agreement; and

(b) in relation to any other Lender, the amount in US Dollars of any Facility A Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Facility A Lender" means;

(a) any Original Facility A Lender; and

(b) any person which has become a Facility A Lender in accordance with Clause 25 (Changes to the Lenders ),

which in each case has not ceased to be a Facility A Lender in accordance with this Agreement.

"Facility A Loan" means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

"Facility B" means the revolving loan facility made available under this Agreement as described in Clause 2 (The Facilities ).

"Facility B Commitment" means:

(a) in relation to an Original Lender, the amount in Singapore Dollars set opposite its name under the heading "Facility B Commitment" in Schedule 1 (The Original Lenders) and the amount of any other Facility B Commitment transferred to it under this Agreement; and

(b) in relation to any other Lender, the amount in Singapore Dollars of any Facility B Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

"Facility B Lender" means:

(a) any Original Facility B Lender; and

(b) any person which has become a Facility B Lender in accordance with Clause 25 (Changes to the Lenders ),

which in each case has not ceased to be a Facility B Lender in accordance with the terms of this Agreement.

"Facility B Loan" means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.

"Facility Office" means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.


	-9-

"Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Arranger and the Borrower (or the Agent and the Borrower) setting out any of the fees referred to in Clause 11 (Fees).

"Finance Document" means this Agreement, any Hedging Document, any Fee Letter, any Transfer Certificate and any other document designated as such by the Agent and the Borrower.

"Finance Party" means the Agent, the Arranger or a Lender.

"Financial Indebtedness" of any person means any indebtedness, without double counting, for or in respect of:

(a) moneys borrowed;

(b) any amount raised under any acceptance credit, bill acceptance or bill endorsement facility;

(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with Agreement Accounting Principles, be treated as a finance or capital lease;

(e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

(f) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

(g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

(h) shares which are expressed to be redeemable;

(i) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;

(j) any Disqualified Stock (and the amount of Financial Indebtedness relating to Disqualified Stock shall be the aggregate amount of the liquidation preference of such Disqualified Stock); and

(k) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) above.

"Financing Facilities" means the US Facility, the Receivables Purchase Facility, the Senior Notes and this Agreement.

"Foreign Employee Benefit Plan" means any employee benefit plan as defined in Section 3(3) of ERISA which is maintained or contributed to for the benefit of the employees of Energizer Holdings or any member of the Group, but which is not covered by ERISA pursuant to Section 4(b)(4) of ERISA.


	-10-

"Foreign Pension Plan" means any employee pension benefit plan (as defined in Section 3(2) of ERISA) which:

(a) is maintained or contributed to for the benefit of employees of Energizer Holdings or any other member of the Group;

(b) is not covered by ERISA pursuant to Section 4(b)(4) thereof; and

"Governmental Agency" means any government or any governmental agency, semi-governmental or judicial entity or authority (including, without limitation, any stock exchange or any self-regulatory organisation established under any law or regulation).

"Group" means Energizer Holdings and its Subsidiaries for the time being.

"Hazardous Substance" means any waste, pollutant, contaminant or other substance (including any liquid, solid, gas, ion, living organism or noise) that may be harmful to human health or other life or the Environment or a nuisance to any person or that may make the use or ownership of any affected land or property more costly.

"Hedging Arrangements" means any commodity, currency or interest purchase, cap or collar agreement, forward rate agreements, commodity, interest rate or currency future or option contract, foreign exchange or currency purchase or sale agreement, interest rate swap, currency swap or combined interest rate and currency swap agreement and any other similar agreement.

"Hedging Bank" means, at any time, a Lender or an Affiliate of a Lender party to any Hedging Document at that time.

"Hedging Documents" means any Hedging Arrangements entered into by the Borrower in order to hedge the Borrower's exposure to fluctuations in interest and/or exchange rates arising in connection with Loans borrowed by it under this Agreement.

"Holding Company" means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

"Increased Costs" has the meaning given to it in Clause 13.1 (Increased Costs ).

"Indebtedness" of any person means, without duplication, such person's:

(a) obligations for borrowed money;

(b) obligations representing the deferred purchase price of property or services (other than accounts payable arising in the ordinary course of such person's business payable on terms customary in the trade), which purchase price is due more than six months from the date of incurrence of the obligation in respect thereof, provided that the related obligations are not interest bearing;

(c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from assets now or hereafter owned or acquired by such person;

(d) obligations which are evidenced by notes, acceptances or other instruments;


	-11-

(e) Capitalised Lease Obligations;

(f) Contingent Obligations in respect of Indebtedness;

(g) obligations with respect to letters of credit;

(h) Off-Balance Sheet Liabilities;

(i) Receivables Facility Attributed Indebtedness; and

(j) Disqualified Stock (and the amount of Indebtedness relating to Disqualified Stock shall be the aggregate amount of the liquidation preference of such Disqualified Stock).

The amount of Indebtedness of any person at any date shall be without duplication:

(i) the outstanding balance at such date of all unconditional obligations as described above and the maximum liability of any such Contingent Obligations at such date; and

(ii) in the case of Indebtedness of others secured by a Lien to which the property or assets owned or held by such person is subject, the lesser of the fair market value at such date of any asset subject to a Lien securing the Indebtedness of others and the amount of the Indebtedness secured.

"Indirect Tax" means any goods and services tax, consumption tax, value added tax or any Tax of a similar nature.

"Information Memorandum" means the document dated 20 May 2003 (and any update thereof) in the form approved by Energizer Holdings and the Borrower concerning the Group and the Regional Group which, at the Borrower's request and on its behalf, was prepared in relation to this transaction and distributed by the Arranger to selected financial institutions before the date of this Agreement.

"Internal Revenue Code" means the United States Internal Revenue Code of 1986, as amended and the regulations promulgated and any rulings issued thereunder.

"Interest Expense" has the meaning given to it in Clause 20 (Financial covenants).

"Interest Expense Coverage Ratio" has the meaning given to it in Clause 20 (Financial covenants ).

"Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).

"Investment" means, with respect to any person:

(a) any purchase or other acquisition by that person of any Indebtedness, Equity Interests or other securities, or of a beneficial interest in any Indebtedness, Equity Interests or other securities, issued by any other person;

(b) any purchase by that person of all or substantially all of the assets of a business conducted by another person; and


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(c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable, advances to employees and similar items made or incurred in the ordinary course of business) or capital contribution by that person to any other person, including all Indebtedness to such person arising from a sale of property by such person other than in the ordinary course of its business.

"IRS" means the United States Internal Revenue Service and any person succeeding to the functions thereof.

"Judicial Manager" means any judicial manager appointed pursuant to the provisions of the Companies Act.

"Lender" means a Facility A Lender or a Facility B Lender.

"Leverage Ratio" has the meaning given to it in Clause 20 (Financial covenants).

"Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalised Lease or other title retention agreement).

"Loan" means a Facility A Loan or a Facility B Loan.

"Majority Facility A Lenders" means, at any time, the Majority Lenders calculated, for the purpose of this definition, by excluding the Facility B Loans and the Facility B Commitments.

"Majority Facility B Lenders" means, at any time, the Majority Lenders calculated, for the purpose of this definition, by excluding the Facility A Loans and the Facility A Commitments.

"Majority Lenders" means a Lender or Lenders whose Available Commitments and participations in the Loans then outstanding aggregate more than 50% of the Available Facilities and all the Loans then outstanding. For the purposes of this definition, any Available Commitment or participation denominated in a currency other than US Dollars shall be converted to US Dollars at the Agent's Spot Rate of Exchange at the time determination under this definition is made.

"Margin" means, in relation to a particular Interest Period:

(a) for each Interest Period with a Quotation Date occurring in the period from and including the date of this Agreement to and including the date 5 Business Days after receipt by the Agent of Energizer Holdings' audited consolidated financial statements for the year ending 30 September 2003 and the Compliance Certificate relating thereto:

(i) in relation to Facility A, 1.00 per cent. per annum; and

(ii) in relation to Facility B, 0.90 per cent. per annum; and

(b) for each other Interest Period, the percentage rate per annum determined by reference to the Total Borrowings/EBITDA Ratio as shown in the most recent Compliance Certificate received by the Agent prior to the commencement of that Interest Period, in accordance with the following table:


	-13-

Ratio	Applicable Margin for Facility A	Applicable Margin for Facility B

Less than or equal to 2.00:1.00	0.875 per cent. per annum	0.775 per cent. per annum
Higher than 2.00:1.00 but less than or equal to 2.50:1.00	1.00 per cent. per annum	0.90 per cent. per annum
Higher than 2.50:1.00	1.25 per cent. per annum	1.15 per cent. per annum

provided that:

(i) there will be no Margin reduction or increase for a particular Interest Period if the Quotation Day for that Interest Period is within 5 Business Days of the date on which the Agent has received a Compliance Certificate (and the financial statements required to be delivered with that Compliance Certificate);

(ii) if by the fifth Business Day before the Quotation Day for an Interest Period, the Agent has not received a Compliance Certificate (or any financial statement with which that Compliance Certificate is required by this Agreement to be delivered) due on or before that day, the applicable Margin for that Interest Period will be:

(A) in relation to Facility A, 1.25 per cent. per annum; and

(B) in relation to Facility B, 1.15 per cent. per annum; and

(iii) there will be no Margin reduction for a particular Interest Period if, on the Quotation Day for that Interest Period a Default is continuing.

"Margin Stock" means margin stock or margin security within the meaning of Regulation T, U or X.

"Market Disruption Event" has the meaning given to it in Clause 10.2 (Market disruption).

"Material Adverse Effect" means a material adverse effect on or material adverse change in:

(a) the consolidated condition (financial or otherwise), assets, operations, prospects or business of the Obligors taken as a whole;

(b) the ability of the Obligors (taken as a whole) to perform and comply with any of the obligations under any Finance Document, in any material respect; or

(c) the ability of any Finance Party to enforce, in any material respect, any Finance Document or its rights or remedies under any Finance Document.

"Material Domestic Subsidiary" means each consolidated Subsidiary (other than any SPV) of Energizer Holdings:

(a) incorporated under the laws of any jurisdiction in the United States; and

(b) the total assets of which exceed, as at the end of any calendar quarter or, in the case of consummation of a Permitted Acquisition, at the time of consummation of such Permitted


	-14-

Acquisition (calculated by Energizer Holdings on a pro formabasis taking into account the consummation of such Permitted Acquisition), three per cent. of the Consolidated Domestic Assets of Energizer Holdings and its consolidated Subsidiaries (other than SPVs).

"Material Foreign Subsidiary" means each consolidated Subsidiary (other than any SPV and each member of the Regional Group) of Energizer Holdings:

(a) incorporated or organised under the laws of any jurisdiction outside the United States; and

(b) the total assets of which exceed, as at the end of any calendar quarter or, in the case of consummation of a Permitted Acquisition, at the time of consummation of such Permitted Acquisition (calculated by Energizer Holdings on a pro formabasis taking into account the consummation of such Permitted Acquisition), five per cent. of the Consolidated Assets of Energizer Holdings and its consolidated Subsidiaries (other than SPVs).

"Material Subsidiaries" means each of Energizer Holdings' Material Domestic Subsidiaries and Material Foreign Subsidiaries.

"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

(a) (subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

(b) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

(c) if an Interest Period begins on the last Business Day of a calendar month and, consistent with the terms of this Agreement, that Interest Period is to be of a duration equal to a whole number of Months, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

The above rules will only apply to the last Month of any period.

"Multiemployer Plan" means, at any time, a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) then or at any time during the previous six years maintained for, or contributed to (or to which there is or was an obligation to contribute) on behalf of, employees of any Obligor or ERISA Affiliate.

"Net Income" has the meaning given hereto in Clause 20 (Financial covenants).

"Non-ERISA Commitments" means:

(a) each pension, medical, dental, life, accident insurance, disability, group insurance, sick leave, profit sharing, deferred compensation, bonus, stock option, stock purchase, retirement, savings, severance, stock ownership, performance, incentive, hospitalisation or other insurance, or other welfare, benefit or fringe benefit plan, policy, trust, understanding or arrangement of any kind; and


	-15-

(b) each employee collective bargaining agreement and each agreement, understanding or arrangement of any kind, with or for the benefit of any present or prior officer, director, employee or consultant (including, without limitation, each employment, compensation, deferred compensation, severance or consulting agreement or arrangement and any agreement or arrangement associated with a change in ownership of any member of the Group),

to which an Obligor or an ERISA Affiliate is a party or with respect to which an Obligor or an ERISA Affiliate is or will be required to make any payment other than any Plans.

"Obligor" means the Borrower or a Guarantor.

"Off-Balance Sheet Liabilities" of a person means, without duplication:

(a) any Receivables Facility Attributed Indebtedness and repurchase obligation or liability of such person or any of its Subsidiaries with respect to Receivables or notes receivable sold by such person or any of its Subsidiaries (calculated to include the unrecovered investment of purchasers or transferees of Receivables or notes receivable or any other obligation of Energizer Holdings or such transferor to purchasers/transferees of interests in Receivables or notes receivables or the agent for such purchasers/transferees);

(b) any liability under any sale and leaseback transactions which do not create a liability on the consolidated balance sheet of such person;

(d) any obligations arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheets of such person and its Subsidiaries.

"Original Facility A Lender" means a Lender listed in Schedule 1 (The Original Lenders) as having a Facility A Commitment.

"Original Facility B Lender" means a Lender listed in Schedule 1 (The Original Lenders) as having a Facility B Commitment.

"Original Financial Statements" means:

(a) in relation to Energizer Holdings, the audited consolidated financial statements of the Group for the financial year ended 30 September 2002; and

(b) in relation to each of Energizer Singapore and Sonca Products, its audited unconsolidated financial statements for its financial year ended 31 December 2002 and 30 September 2002, respectively, as delivered to the Lenders together with the Information Memorandum.

"Party" means a party to this Agreement.

"PBGC" means the Pension Benefit Guaranty Corporation of the USA established pursuant to Section 4002 of ERISA or any entity succeeding to all or any of its functions under ERISA.

"Permitted Acquisition" has the meaning given hereto in Clause 22.6 (Conduct of business; New Subsidiaries; Acquisitions).


	-16-

"Permitted Hedging Arrangements" means any foreign exchange or interest rate swap transactions for spot or forward delivery entered into in the ordinary course of business (and not for investment for speculative purposes) entered into by any member of the Group to hedge its or its Subsidiaries' reasonably estimated currency or interest rate exposures.

"Permitted Receivables Transfer" means:

(a) a sale or other transfer by a member of the Group in its capacity as a party to a Receivables Purchase Document to an SPV of Receivables and Related Security for fair market value and without recourse (except for limited recourse typical of such structured finance transactions); and/or

(b) a sale or other transfer by an SPV to (a) purchasers of or other investors in such Receivables and Related Security or (b) any other person (including an SPV) in a transaction in which purchasers or other investors purchase or are otherwise transferred such Receivables and Related Security, in each case pursuant to and in accordance with the terms of the Receivables Purchase Documents.

"Plan" means an employee benefit plan defined in Section 3(3) of ERISA in respect of which Energizer Holdings or any member of the Group is, or within the immediately preceding six (6) years was, an "employer" as defined in Section 3(5) of ERISA.

"Quotation Day" means, in relation to any period for which an interest rate is to be determined, two Singapore Business Days before the first day of that period, unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations for that currency and period would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

"Receivable(s)" means and includes all of Energizer Holdings and its Subsidiaries' presently existing and hereafter arising or acquired accounts, accounts receivable, and all present and future rights of Energizer Holdings and its Subsidiaries to payment for goods sold or leased or for services rendered (except those evidenced by instruments or chattel paper), whether or not they have been earned by performance, and all rights in any merchandise or goods which any of the same may represent, and all rights, title, security and guarantees with respect to each of the foregoing, including, without limitation, any right of stoppage in transit.

"Receivables and Related Security" means Receivables and the related security and collections with respect thereto which are sold or transferred by any member of the Group in its capacity as a party to a Receivables Purchase Document or SPV in connection with any Permitted Receivables Transfer.

"Receivables Facility Attributed Indebtedness" means the amount of obligations outstanding under a receivables purchase facility on any date of determination that would be characterised as principal if such facility were structured as a secured lending transaction rather than as a purchase.


	-17-

"Receivables Facility Financing Costs" means such portion of the cash fees, service charges, and other costs, as well as all collections or other amounts retained by purchasers of receivables pursuant to a receivables purchase facility, which are in excess of amounts paid to Energizer Holdings and its consolidated Subsidiaries under any receivables purchase facility for the purchase of receivables pursuant to such facility and are the equivalent of the interest component of the financing if the transaction were characterised as an on-balance sheet transaction.

"Receivables Purchase Documents" means (i) the 2000 Receivables Sale Agreement and (ii) the 2000 Receivables Purchase Agreement, or any other series of receivables purchase or sale agreements generally consistent with terms contained in comparable structured finance transactions pursuant to which a member of the Group sells or transfers to SPVs all of their respective right, title and interest in and to certain Receivables and Related Security for further sale or transfer to other purchasers of or investors in such assets (in any such case, together with the other documents, instruments and agreements executed in connection therewith), as any such agreements may be amended, restated, supplemented or otherwise m odified from time to time, or any replacement or substitution therefor.

"Receivables Purchase Facility" means the securitisation facility made available to Energizer Holdings, pursuant to which the Receivables and Related Security of members of the Group are transferred to one or more SPVs, and thereafter to certain investors, pursuant to the terms and conditions of the Receivables Purchase Documents.

"Reference Banks" means the principal Singapore offices of Citibank, N.A. and Standard Chartered Bank or such other banks as may be appointed by the Agent in consultation with the Borrower.

"Regional Group" means the Borrower and the Regional Guarantors.

"Regional Group Consolidated Assets" means (without double counting) the total assets of each member of the Regional Group on a consolidated basis.

"Regional Group Net Worth" means, as of any date, all amounts which (without double counting) would be included under shareholders' equity (including capital stock, additional paid-in capital and retained earnings) on the balance sheet for each member of the Regional Group determined in accordance with Agreement Accounting Principles.

"Regional Guarantors" means Energizer Singapore and Sonca Products.

"Regulation T", "Regulation U" or "Regulation X" means Regulation T, U or, as the case may be, X of the Board of Governors as from time to time in effect and all official rulings and interpretations thereunder or thereof.

"Relevant Interbank Market" means the Singapore interbank market.

"Repayment Instalment" means each instalment for repayment of the Facility A Loan specified in paragraph (a) of Clause 6.1 (Repayment of Facility A Loan).

"Repeating Representations" means each of the representations set out in Clause 18 (Representations).


	-18-

"Rollover Loan" means one or more Facility B Loans:

(a) made or to be made on the same day that one or more maturing Facility B Loans is or are due to be repaid;

(b) the aggregate amount of which is equal to or less than the maturing Facility B Loan(s); and

"Screen Rate" means:

(a) in relation to SIBOR, the SIBOR rate for US Dollars for the relevant period; and

(b) in relation to SOR, the swap offer rate for Singapore Dollars for the relevant period,

displayed on page 50157 of the Moneyline Telerate screen under the caption "Association of Banks in Singapore SIBOR and Swap Offer Rate fixing at 11 am Singapore time". If the agreed page is replaced or service ceases to be available, the Agent may specify another page or service displaying the appropriate rate after consultation with the Borrower and the Lenders.

"Security" means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

"Selection Notice" means a notice substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause 9 (Interest Periods) in relation to Facility A.

"Senior Management Team" means (a) any of the president, any vice president (including any executive vice president), the chief financial officer, the treasurer, the chief executive officer, secretary or any other member of management of an Obligor and (b) any chief executive officer, president, vice president, chief financial officer, treasurer, secretary or any other member of management of any Material Domestic Subsidiary.

"Senior Note Purchase Agreements" means, collectively, the 2000 Note Purchase Agreement and the 2003 Note Purchase Agreement.

"Senior Notes" means, collectively, the 2000 Senior Notes and the 2003 Senior Notes.

"SIBOR" means, in relation to any Loan:

(a) the applicable Screen Rate; or

(b) (if no Screen Rate is available for the Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks to leading banks in the Singapore interbank market,

as of the Specified Time on the Quotation Day for the offering of deposits in US Dollars for a period comparable to the Interest Period for that Loan.

"Singapore" means The Republic of Singapore.


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"Singapore Business Day" means a day (other than Saturday or Sunday) on which deposits may be dealt in on the Relevant Interbank Market and banks are open for general business in Singapore.

"Singapore Dollars" or "S$" means the lawful currency of Singapore.

"Sonca Products" means Sonca Products Ltd, a company registered in Hong Kong under registration number 167972.

"SOR" means, in relation to any Loan:

(a) the applicable Screen Rate as of the Specified Time on the Quotation Day for the offering of deposits in Singapore Dollars for a period comparable to the Interest Period for that Loan; or

(b) (if no Screen Rate is available for Singapore Dollars for the Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request quoted by the Reference Banks to leading banks in the Singapore interbank market, to be, in relation to the Interest Period for that Loan, equal to Y (rounded upwards to four decimal places) calculated by each Reference Bank in accordance with the following formula:

365

F

36500

F

365

Y

=

R

+

+

+

R

X

360

S

N

S

360

where

F	=	the premium (being a positive number) or the discount (being a negative number), as the case may be, which would have been paid or received by such Reference Bank in offering to sell US Dollars forward in exchange for Singapore Dollars on the last day of that Interest Period in the Singapore interbank market as of the Specified Time on the Quotation Day;
S	=	the exchange rate at which such Reference Bank sells US Dollars spot in exchange for Singapore Dollars in the Singapore foreign exchange market, as quoted by such Reference Bank as of the Specified Time on the Quotation Day;
R	=	the rate at which such Reference Bank is offering US Dollar deposits for that Interest Period in an amount comparable to the US Dollar equivalent of that Loan (such US Dollar equivalent to be determined by such Reference Bank at such rate or rates as such Reference Bank determines to be most appropriate) to prime banks in the Singapore interbank market as of the Specified Time on the Quotation Day; and
N	=	the actual number of days in that Interest Period.

"Specified Time" means a time determined in accordance with Schedule 7 (Timetables).


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"SPV" means any special purpose entity established for the purpose of purchasing receivables in connection with a receivables securitisation transaction permitted under the terms of this Agreement.

"Standing Payment Instruction" means:

(a) in relation to an Original Lender, payment instructions set out below the name of that Lender on Schedule 10 (Standing Payment Instructions);

(b) in relation to any other Lender, payment instructions set out in the Transfer Certificate to which that Lender is signatory,

or such other payment instructions as that Lender may notify to the Agent by not less than 5 Business Day's notice.

"Subsidiary" means, in relation to the Borrower, a subsidiary within the meaning of section 5 of the Companies Act and, in relation to any other person (the "first Person") at any particular time, any other person which is then either controlled, or more than 50% of whose issued ordinary or common equity share capital or ownership interests having ordinary voting power (or the like) is or are then beneficially owned, directly or indirectly, by the first Person.

"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

"Termination Date" means:

(a) in relation to Facility A, the date which is 5 years after the date of this Agreement; and

(b) in relation to Facility B, the date which is 3 years after the date of this Agreement.

"Third Parties Act" means the Contract (Rights of Third Parties) Act 1999 of the United Kingdom.

"Total Borrowings" has the meaning given hereto in Clause 20 (Financial covenants).

"Total Commitments" means the aggregate of the Total Facility A Commitments and the Total Facility B Commitments.

"Total Facility A Commitments" means the aggregate of the Facility A Commitments, being US$125,000,000 at the date of this Agreement.

"Total Facility B Commitments" means the aggregate of the Facility B Commitments, being S$220,000,000 at the date of this Agreement.

"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate), in a recommended form of the APLMA from time to time or in any other form agreed between the Agent and the Borrower.

"Transfer Date" means, in relation to a transfer, the later of:

(a) the proposed Transfer Date specified in the Transfer Certificate; and

(b) the date on which the Agent executes the Transfer Certificate.


	-21-

"2000 Note Purchase Agreement" means that certain Note Purchase Agreement dated as of 1 April 2000 among Energizer Holdings and the "Purchasers" referred to therein, under which Energizer Holdings has issued senior unsecured notes in the aggregate principal amount of US$175,000,000 (the "2000 Senior Notes"), which shall be pari passuwith the obligatio ns hereunder and any obligation under the Hedging Documents, as such Note Purchase Agreement may be amended, modified or supplemented from time to time in a manner that is not materially adverse to the interests of the Lenders.

"2000 Receivables Purchase Agreement" means that certain Receivables Purchase Agreement, dated as of 4 April 2000, as amended, extended or replaced in a manner permitted by this Agreement, among Energizer Receivables Funding Corporation, a Delaware corporation, as the seller thereunder, Eveready Battery Company, a Delaware Corporation, as the servicer thereunder, Falcon Asset Securitization Corporation and Bank One, as the agent thereunder.

"2000 Receivables Sale Agreement" means that certain Receivables Sale Agreement, dated as of 4 April 2000, as amended, extended or replaced in a manner permitted by this Agreement, between Eveready Battery Company, Inc., a Delaware corporation, and Energizer Receivables Funding Corporation, a Delaware corporation and SPV.

"2000 Senior Notes" has the meaning given to it in the definition of "2000 Note Purchase Agreement".

"2003 Note Purchase Agreement" means that certain Note Purchase Agreement dated as of 1 June 2003 among Energizer Holdings and the "Purchasers" referred to therein, under which Energizer Holdings has issued senior unsecured notes in the aggregate principal amount of US$700,000,000 (the "2003 Senior Notes"), which shall be pari passuwith the obligation s hereunder and any obligations under the Hedging Documents, as such Note Purchase Agreement may be amended, modified or supplemented from time to time in a manner that is not materially adverse to the interests of the Lenders.

"2003 Senior Notes" has the meaning given to it in the definition of "2003 Note Purchase Agreement".

"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under the Finance Documents.

"US" or "United States" means the United States of America.

"US Dollars" or "US$" means the lawful currency of the United States of America.

"US Facility" means the Revolving Credit Agreement dated 27 June 2003 among Energizer Holdings, the institutions listed therein as Lenders, Bank One, NA, as administrative agent, Citibank N.A., as syndication agent and Bank of America, N.A. as documentation agent.

"Utilisation" means a utilisation of a Facility.

"Utilisation Date" means the date of a Utilisation, being the date on which the relevant Loan is to be made.

"Utilisation Request" means a notice substantially in the form set out in Part I of Schedule 3 (Requests).


	-22-

1.2 Construction

(a) Unless a contrary indication appears, any reference in this Agreement to:

(i) the "Agent", the "Arranger", any "Finance Party", any "Lender", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

(ii) "assets" includes present and future properties, revenues and rights of every description;

(iii) the "control" or "controlling" of one person (the "first person") by another person (the "second person") or the person being "controlled" by the second person means that the second person (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) has the power to appoint and/or remove all or a majority of the members of the board of directors or other governing body of the first person or otherwise controls or has the power of control over the affairs and policies of the first person and for the purposes of the definition of "Affiliate" in Clause 1.1 (Definitions), other than where such definition is referred to in the definition of "Hedging Bank", means, in addition to the foregoing, that the second person is the beneficial owner of greater than 10 per cent. or more of any class of voting shares or securities or other voting interests of the first person;

(iv) a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;

(v) a "guarantee" also includes an indemnity, and any other obligation (whatever called) of any person to pay, purchase, provide funds (whether by the advance of money, the purchase of or subscription for shares or other securities, the purchase of assets or services, or otherwise) for the payment of, indemnify against the consequences of default in the payment of, or otherwise be responsible for, any indebtedness of any other person.

(vi) "indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

(vii) a "person" includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;

(viii)a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

(ix) a provision of law is a reference to that provision as amended or re-enacted; and

(x) a time of day is a reference to Singapore time.

(b) Section, Clause and Schedule headings are for ease of reference only.


	-23-

(c) Unless a contrary indication appears, a term used in any other Finance Document or in any notice or certificate given under or in connection with any Finance Document has the same meaning in that Finance Document, notice or certificate as in this Agreement.

(d) A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.

1.3 Third Party Rights

(a) Except as provided in a Finance Document, the terms of a Finance Document may be enforced and enjoyed only by a Party to it and the operation of the Third Parties Act is excluded.

(b) Notwithstanding any provision of any Finance Document, the consent of any person who is not a party to a Finance Document is not required to vary, rescind or terminate that Finance Document.


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SECTION 2

THE FACILITIES

2. The Facilities

2.1 The Facilities

Subject to the terms of this Agreement:

(a) the Facility A Lenders make available to the Borrower, a term loan facility in US Dollars in an aggregate amount equal to the Total Facility A Commitments; and

(b) the Facility B Lenders make available to the Borrower, a revolving loan facility in Singapore Dollars in an aggregate amount equal to the Total Facility B Commitments.

2.2 Finance Parties' rights and obligations

(a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

(b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.

(c) A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

3. Purpose

3.1 Purpose

Without prejudice to the other provisions of this Agreement, the Borrower shall apply all amounts borrowed by it under each Facility towards refinancing existing Financial Indebtedness of the Group (including intercompany obligations) and otherwise for general corporate purposes of the Group.

3.2 Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4. Conditions of Utilisation

4.1 Initial conditions precedent

The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in and appearing to comply with the requirements of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.


	-25-

4.2 Further conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

(a) in the case of the first Utilisation, the Agent has received evidence, in a form satisfactory to it, that Energizer Holdings has given irrevocable written notice of prepayment of certain of its existing Financial Indebtedness, such prepayment to be made on or before the date falling 2 Business Days after the first Utilisation Date;

(b) in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

4.3 Maximum number of Loans

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation:

(a) more than one Facility A Loan would be outstanding; or

(b) more than five Facility B Loans would be outstanding.


	-26-

SECTION 3

UTILISATION

5. Utilisation

5.1 Delivery of a Utilisation Request

The Borrower may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

5.2 Completion of a Utilisation Request

(a) Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

(i) it identifies the Facility to be utilised;

(ii) the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

(iii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);

(iv) the proposed Interest Period complies with Clause 9 (Interest Periods); and

(v) it specifies the account and bank (which must be in the principal financial centre of the country of the currency of the Utilisation) to which the proceeds of the Utilisation are to be credited.

(b) Only one Loan may be requested in each Utilisation Request.

5.3 Currency and amount

(a) The currency specified in a Utilisation Request:

(i) relating to Facility A, must be US Dollars; and

(ii) relating to Facility B, must be Singapore Dollars.

(b) The amount of the proposed Loan must be:

(i) if the Facility to be utilised is Facility A, a minimum of US$10,000,000 and an integral multiple of US$1,000,000 or, if less, the Available Facility for Facility A; or

(ii) if the Facility to be Utilised is Facility B, a minimum of S$10,000,000 and an integral multiple of S$1,000,000 or, if less, the Available Facility for Facility B; and

(iii) in any event such that its amount is less than or equal to the Available Facility for the relevant Facility.

5.4 Lenders' participation

(a) If the conditions set out in this Agreement have been met, each Facility A Lender shall make its participation in each Facility A Loan available by the Utilisation Date through its Facility Office and each Facility B Lender shall make its participation in each Facility B Loan available by the Utilisation Date through its Facility Office.


	-27-

(b) The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

(c) The Agent shall notify (i) each Facility A Lender of the amount of the Facility A Loan and the amount of its participation in the Facility A Loan and (ii) each Facility B Lender of the amount of each Facility B Loan and the amount of its participation in that Facility B Loan, in each case, by the Specified Time.


	-28-

SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

6. Repayment

6.1 Repayment of Facility A Loans

(a) The Facility A Loan outstanding at the end of the Availability Period for Facility A shall be repaid on the following dates in the following amounts until such time as no amount remains outstanding under Facility A:

Facility A Repayment Date	Repayment Instalment
6 Months after the date of this Agreement	US$10,000,000
12 Months after the date of this Agreement	US$10,000,000
18 Months after the date of this Agreement	US$10,000,000
24 Months after the date of this Agreement	US$10,000,000
30 Months after the date of this Agreement	US$10,000,000
36 Months after the date of this Agreement	US$15,000,000
42 Months after the date of this Agreement	US$15,000,000
48 Months after the date of this Agreement	US$15,000,000
54 Months after the date of this Agreement	US$15,000,000
Termination Date relating to Facility A	US$15,000,000

(b) The Borrower may not reborrow any part of Facility A which is repaid.

6.2 Repayment of Facility B Loans

Subject to Clause 30.4 (Netting of payments), the Borrower shall repay each Facility B Loan on the last day of its Interest Period.

7. Prepayment and cancellation

7.1 Illegality

(a) If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan:

(i) that Lender shall promptly notify the Agent upon becoming aware of that event;

(ii) upon the Agent notifying the Borrower (the "notification date"), that Lender's Commitment shall be treated as if cancelled for all purposes of this Agreement (other than Clause 25 (Changes to the Lenders)), and that Lender shall have no obligation to fund or participate in any Loan to be made following the notification date, and the Borrower may deliver a notice pursuant to Clause 25.7 (Replacement of certain Lenders) requesting a replacement of that Lender.


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(b) If by the earlier of (A) the sixth Business Day following delivery of the Borrower's notice pursuant to Clause 25.7 (Replacement of certain Lenders), (B) the date specified by the Lender in the notice delivered to the Agent pursuant to sub-paragraph (a)(i) of this Clause 7.1 (such date being no earlier than the last day of any applicable grace period permitted by law), and (C) the last day of the Interest Period for each Loan outstanding on the notification date (the earlier of such dates being the "relevant date"), that Lender has not been replaced:

(i) the Commitment of that Lender will be immediately cancelled; and

(ii) the Borrower shall repay that Lender's participation in the Loans on the last day of the Interest Period for each Loan occurring on or after the relevant date or, if earlier, the date specified by the Lender in the notice delivered to the Agent pursuant to sub-paragraph (a)(i) of this Clause 7.1.

7.2 Change of control

If Energizer Holdings ceases to wholly own (directly or indirectly) and control any member of the Regional Group or there is a Change of Control:

(a) the Borrower shall promptly notify the Agent upon becoming aware of that event;

(b) the Borrower may not make a Utilisation (except for a Rollover Loan) unless otherwise agreed by the Majority Lenders; and

(c) if the Majority Lenders so require, the Agent shall, by not less than 30 days' notice to the Borrower, cancel the Facilities and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facilities will be cancelled and all such outstanding amounts will become immediately due and payable.

7.3 Voluntary cancellation of Facility B

The Borrower may, if it gives the Agent not less than 5 Business Days' (or such shorter period as the Majority Facility B Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of S$10,000,000 and an integral multiple of S$1,000,000) of the Available Facility relating to Facility B only. Any cancellation under this Clause 7.3 shall reduce the Commitments of the Lenders rateably under Facility B.

7.4 Mandatory Cancellation

The Available Facility relating to each Facility shall be cancelled immediately following the last day of the Availability Period relating to that Facility.

7.5 Voluntary prepayment of Facility A Loan

(a) Subject to paragraph (b) below and paragraph (h) of Clause 7.7 (Restrictions), the Borrower may, if it gives the Agent not less than 5 Business Days' (or such shorter period as the Majority Facility A Lenders may agree) prior notice, prepay the whole or any part of the Facility A Loan (but, if in part, being an amount that reduces the Facility A Loan by a minimum amount of US$10,000,000 and an integral multiple of US$1,000,000).

(b) The Facility A Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the applicable Available Facility is zero).


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7.6 Right of repayment and cancellation in relation to a single Lender

(a) If:

(i) by reason of the introduction after the date of this Agreement of or any change after the date of this Agreement in (or in the interpretation, administration or application of) any law or regulation, any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 12.2 (Tax gross-up) to a greater extent than would have been required had that payment been made on the date of this Agreement; or

(ii) any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),

the Borrower may, whilst the circumstance giving rise to the requirement or indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Loans.

(b) On receipt of a notice referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero.

(c) On the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in each Loan.

7.7 Restrictions

(a) Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

(b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

(d) Unless a contrary indication appears in this Agreement, any part of Facility B which is prepaid may be reborrowed in accordance with the terms of this Agreement.

(e) The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

(f) No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

(g) If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.

(h) Any prepayment under this Clause 7 (Prepayment and cancellation) shall satisfy the obligations under Clause 6.1 (Repayment of Facility A Loans) in inverse order of maturity.


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SECTION 5

COSTS OF UTILISATION

8. Interest

8.1 Calculation of interest

(a) The rate of interest on the Facility A Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(i) Margin; and

(ii) SIBOR.

(b) The rate of interest on each Facility B Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(i) Margin; and

(ii) SOR.

8.2 Payment of interest

The Borrower shall pay accrued interest on each Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six monthly intervals after the first day of the Interest Period).

8.3 Default interest

(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, or after the occurrence of an Event of Default and for so long as that Event of Default is continuing, interest shall accrue on the overdue amount and any other amount owed to the Finance Parties, whether or not due, from the due date of that amount or the date of that Event of Default, as the case may be, up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is the sum of 2 per cent and the rate which would have been payable if such amounts had, during the relevant period, constituted a Loan in the currency of such amounts for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any in terest accruing under this Clause 8.3 shall be immediately payable by the Obligor on demand by the Agent.

(b) If any Event of Default occurs on, or any overdue amount consists of all or part of a Loan which became due on, a day which was not the last day of an Interest Period relating to that Loan:

(i) the first Interest Period for which default interest accrues shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

(ii) the rate of interest applying to the relevant amount during that first Interest Period shall be the sum of 2 per cent and the rate which would have applied if the overdue amount had not become due or the Event of Default had not occurred.

(c) Default interest (if unpaid) arising on the relevant amount will be compounded with that amount at the end of each Interest Period applicable to that amount but will remain immediately due and payable.


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8.4 Notification of rates of interest

The Agent shall promptly notify the relevant Lenders and the Borrower of the determination of a rate of interest under this Agreement.

9. Interest Periods

9.1 Selection of Interest Periods

(a) The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

(b) Each Selection Notice for a Facility A Loan is irrevocable and must be delivered to the Agent by the Borrower not later than the Specified Time.

(c) If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be one Month.

(d) Subject to this Clause 9, the Borrower may select an Interest Period of one, two, three or six Months or any other period agreed between the Borrower and the Agent (acting on the instructions of all the Lenders participating in the relevant Loan).

(e) An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility.

(f) Each Interest Period for a Facility A Loan shall start on the Utilisation Date or (if already made) on the last day of the preceding Interest Period for that Loan.

(g) A Facility B Loan has one Interest Period only.

9.2 Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

10. Changes to the calculation of interest

10.1 Absence of quotations

Subject to Clause 10.2 (Market disruption), if SIBOR or, if applicable, SOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable SIBOR or SOR shall be determined on the basis of the quotations of the remaining Reference Banks.

10.2 Market disruption

(a) If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender's share of that Loan for the Interest Period shall be the rate per annum which is the sum of:

(i) the Margin; and

(ii) the rate notified to the Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.


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(b) In this Agreement "Market Disruption Event" means:

(i) at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available or the Screen Rate is zero or negative and none or only one of the Reference Banks supplies a rate to the Agent to determine SIBOR or, if applicable, SOR for the relevant currency and Interest Period; or

(ii) before close of business in Singapore on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it or them of obtaining matching deposits in the Relevant Interbank Market would be in excess of SIBOR or, if applicable, SOR.

10.3 Alternative basis of interest or funding

(a) If a Market Disruption Event occurs and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

(b) Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties.

10.4 Break Costs

(a) The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

(b) Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

11. Fees

11.1 Commitment fee

(a) The Borrower shall pay to the Agent (for the account of each Lender) a fee in Singapore Dollars computed at the rate of 0.45 per cent. per annum on that Lender's Available Commitment under Facility B for the Availability Period applicable to Facility B.

(b) The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Availability Period for Facility B, on the last day of that Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.

11.2 Arrangement fee

The Borrower shall pay to the Arranger an arrangement fee in the amount and at the times agreed in a Fee Letter.


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11.3 Agency fee

The Borrower shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.


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SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

12. Tax gross up and indemnities

12.1 Definitions

(a) In this Agreement:

"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.

"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).

(b) Unless a contrary indication appears, in this Clause 12 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.

12.2 Tax gross-up

(a) All payments to be made by an Obligor to any Finance Party under or in connection with a Finance Document shall be made free and clear of and without any Tax Deduction, unless a Tax Deduction is required by law in which case the sum payable by that Obligor shall be increased to the extent necessary to ensure that the Finance Party concerned receives a sum, net of any Tax Deduction, equal to the sum which it would have received if no Tax Deduction had been required.

(b) An Obligor shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.

(c) If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(d) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment an original receipt (or certified copy thereof) evidencing to the reasonable satisfaction of that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment has been paid to the relevant taxing authority.

12.3 Tax indemnity

(a) Without prejudice to Clause 12.2 (Tax gross-up), if any Finance Party is required to make any payment of or on account of Tax on or in relation to any sum received or receivable under or in connection with the Finance Documents (including any sum deemed for purposes of Tax to be received or receivable by such Finance Party, whether or not actually received or receivable) or


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if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Finance Party, the Borrower shall (within three Business Days of demand by the Agent) indemnify the Finance Party which determined it has suffered a loss or liability as a result against such payment or liability together with any interest, penalties, costs and expenses payable or incurred in connection therewith.

(b) Paragraph (a) above shall not apply:

(i) with respect to any Tax imposed:

(A) by the jurisdiction in which that Finance Party is incorporated; or

(B) by the jurisdiction in which its Facility Office is located,

which is calculated by reference to the net income actually received or receivable (but, for the avoidance of doubt, not including any sum deemed for purposes of Tax to be received or receivable by that Finance Party but not actually received or receivable) by that Finance Party; or

(ii) to the extent a loss, liability or cost is compensated for by an increased payment under Clause 12.2 (Tax gross-up).

(c) A Finance Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, whereupon the Agent shall notify the Borrower.

(d) A Finance Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent.

12.4 Tax Credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

(a) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

(b) that Finance Party has obtained, utilised and fully retained that Tax Credit on an affiliated group basis,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

12.5 Stamp taxes

The Borrower shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

12.6 Indirect Tax

(a) All consideration expressed to be payable under a Finance Document by any Party to a Finance Party shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by any Finance Party to any Party in connection with a Finance Document, that Party shall pay (unless that Party is the Agent or the Arranger, in which case the Borrower shall


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pay) to the Finance Party (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax.

(b) Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party shall also at the same time pay and indemnify the Finance Party against all Indirect Tax incurred by the Finance Party in respect of the costs or expenses.

13. Increased costs

13.1 Increased costs

(a) Subject to Clause 13.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction after the date of this Agreement of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement provided that if the Borrower is required to pay the amount of any Increased Costs incurred by such Finance Party, and such Finance Party is a Lender, the Borrower may issue a notice pursuant to Clause 25.7 (Replacement of certain Lenders ). The term "law" and "regulation" in this paragraph (a) shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity reserve assets or Tax.

(b) In this Agreement "Increased Costs" means:

(i) a reduction in the rate of return from any Facility or on a Finance Party's (or its Affiliate's) overall capital (including, without limitation, as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by that Finance Party or one of its Affiliates);

(ii) an additional or increased cost; or

(iii) a reduction of any amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

13.2 Increased cost claims

(a) A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

(b) Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

13.3 Exceptions

(a) Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:

(i) attributable to a Tax Deduction required by law to be made by an Obligor;


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(ii) compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) appl ied); or

(iii) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

(b) In this Clause 13.3, a reference to a "Tax Deduction" has the same meaning given to the term in Clause 12.1 (Definitions).

14. Other indemnities

14.1 Currency indemnity

(a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of:

(i) making or filing a claim or proof against that Obligor;

(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

(b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

14.2 Other indemnities

The Borrower shall, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

(a) the occurrence of any Default;

(b) the Information Memorandum or any other information produced or approved by or on behalf of an Obligor in connection with the Facilities being or being alleged to be misleading and/or deceptive in any respect;

(c) any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under the Finance Documents;

(d) the use of proceeds of any Loan;

(e) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 29 (Sharing among the Finance Parties);


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(f) funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than to the extent by reason of default or negligence by that Finance Party); or

(g) a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.

14.3 Indemnity to the Agent

The Borrower shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

(a) investigating any event which it reasonably believes is a Default; or

(b) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.

15. Mitigation by the Lenders

15.1 Mitigation

(a) Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross-up and indemnities) (other than Clause 12.6 (Indirect Tax)) or Clause 13 (Increased costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office (whether pursuant to a request from the Borrower under Clause 25.7 (Replacement of certain Lenders) or otherwise).

(b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

15.2 Limitation of liability

(a) The Borrower shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).

(b) A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be expected to be prejudicial to it.

16. Costs and expenses

16.1 Transaction expenses

The Borrower shall, within 3 Business Days of demand, pay the Agent and the Arranger the amount of all costs and out-of-pocket expenses (including legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:

(a) this Agreement and any other documents referred to in this Agreement; and

(b) any other Finance Documents executed after the date of this Agreement.


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16.2 Amendment costs

If an Obligor requests an amendment, waiver or consent, the Borrower shall, within three Business Days of demand, reimburse the Agent for the amount of all costs and out-of-pocket expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

16.3 Enforcement costs

The Borrower shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and out-of-pocket expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.


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SECTION 7

GUARANTEE

17. Guarantee and indemnity

17.1 Guarantee and indemnity

Each Guarantor irrevocably and unconditionally jointly and severally:

(a) guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;

(b) undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

(c) indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance Party:

(i) if any obligation guaranteed by it (or anything which would have been an obligation if not unenforceable, invalid or illegal) is or becomes unenforceable, invalid or illegal; or

(ii) if, as a result of the introduction of or any change in (or the interpretation, administration or application of) any law or regulation, or compliance with any law, regulation or administrative procedure made after the date of this Agreement, there is a change in the currency, timing, place or manner in which any obligation guaranteed by the Guarantor is payable, or there is a reduction in any amount receivable by a Finance Party under any Finance Document,

in each case the amount of the cost, loss or liability shall be equal to the amount which that Finance Party would otherwise have been entitled to recover or receive.

17.2 Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

17.3 Reinstatement

If any payment by an Obligor or any discharge given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced for any reason including, without limitation, as a result of insolvency, breach of fiduciary or statutory duties or any other reason:

(a) the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and


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(b) each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

17.4 Waiver of defences

The obligations of each Guarantor under this Clause 17 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 17 (without limitation and whether or not known to it or any Finance Party) including:

(a) any time, waiver or consent granted to, or composition with, any Obligor or other person;

(b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

(d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

(e) any amendment (however fundamental) or replacement of a Finance Document or any other document or security;

(f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security;

(g) any insolvency or similar proceedings; or

(h) this Agreement or any other Finance Document not being executed by or binding against any person.

17.5 Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 17. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

17.6 Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

(a) refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and


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(b) hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 17.

17.7 Deferral of Guarantors' rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents:

(a) to be indemnified by an Obligor;

(b) to claim any contribution from any other guarantor of, or provider of Security or any other assurance for, any Obligor's obligations under the Finance Documents; and/or

(c) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party,

provided that, until such time as the US Facility ceases to be in effect, the foregoing shall not prohibit Energizer Holdings from receiving payment of any obligation owed to it by another Obligor for so long as the guarantees and indemnities given by Energizer Holdings in this Clause 17 remain in effect.

17.8 Additional security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

17.9 Benefits

(a) Each Guarantor acknowledges that:

(i) it will receive valuable direct or indirect benefits as a result of the transactions financed by the Finance Documents and entering into the Finance Documents to which it is a party is for its commercial benefit;

(ii) those benefits will constitute reasonably equivalent value and/or fair consideration for the purpose of any applicable law;

(iii) but for the agreement by each of the Guarantors to execute and deliver this Agreement, the Agent and the Lenders would not have made available the Facilities on the terms set forth in this Agreement;

(iv) each Finance Party has acted in good faith in connection with the guarantee given by each Guarantor and the transactions contemplated by the Finance Documents; and

(v) it has not incurred and does not intend to incur debts beyond its ability to pay as they mature.

(b) Energizer Holdings represents and warrants that, and shall ensure that at all times:

(i) the aggregate value (calculated as the lesser of fair valuation and present saleable value) of Energizer Holdings' assets is greater than the aggregate amount of its debts


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(including its obligations under the Finance Documents) and any amount that will be required to pay the probable liabilities in respect of those debts;

(ii) its capital is not unreasonably small to carry on its business as conducted or proposed to be conducted; and

(iii) it has not made a transfer or incurred any obligation under any Finance Document with the intent to hinder, delay or defraud any of its present or future creditors.

(c) Without limiting the generality of the foregoing, with respect to any obligation guaranteed under this Clause 17 that, in accordance with the original express terms of the Finance Document pursuant to which such obligation was created, was denominated in US Dollars or Singapore Dollars, each Guarantor affirms its guarantee, as a primary obligation, to pay the Agent (for the benefit of the Finance Parties) strictly in accordance with the terms of that Finance Document, including all amounts and in the currency expressly agreed to under that Finance Document.

17.10 Currency Conversions

(a) Subject to paragraph (c) of Clause 17.9 (Benefits), each Guarantors' liability under this Agreement shall be to pay the Agent (for the benefit of the Finance Parties) the full amount of the Borrower's obligations pursuant to the Finance Documents in each currency in which they are for the time being denominated, regardless of any law, regulation or administrative procedures made after the date of this Agreement, provided that (i) if and to the extent that a Guarantor does not pay such amount in such currency the Agent may accept payment of all or part of such amount in any other currency and/or (ii) the Agent, wheresoever incorporated, may require a Guarantor, in substitution for its liability to pay such amount in such currency, to pay an amount in US Dollars or Singapore Dollars which is equivalent to the amount of such currency remaining unpaid (and in either case the provisions of paragraph (b) below shall apply) to an account specified by the Agent.

(b) The equivalent on any day in one currency of any amount denominated in another currency shall be an amount in the first currency equal to the amount which the Agent would have received if the Agent had on such day (or, if such day shall not be a Business Day, on the next succeeding Business Day) made a purchase of the first currency with such amount of such other currency at the then prevailing spot rate of exchange of the Agent less all costs, charges and expenses normally incurred by the Agent or on its behalf in connection with such a purchase.

17.11 Third Party Rights

The provisions in this Clause 17 (Guarantee and indemnity) shall be for the benefit of each Hedging Bank, and each Hedging Bank shall be deemed to be a Finance Party for the purpose of this Clause 17. Accordingly, any Hedging Bank not party to this Agreement may enjoy the benefit of or enforce the terms of this Clause 17 in accordance with the provisions of the Third Parties Act as if it were a Finance Party for the purposes of this Clause 17.


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SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

18. Representations

Each Obligor makes the representations and warranties set out in this Clause 18 to each Finance Party on the date of this Agreement.

18.1 Status

(a) It and each of its Subsidiaries is a corporation, limited liability company, partnership or other commercial entity, duly incorporated or organised, validly existing and in good standing under the law of its jurisdiction of incorporation.

(b) It and each of its Subsidiaries has the power to own and operate its assets and carry on its business as it is being, and is proposed to be, conducted.

(c) It and each of its Subsidiaries is duly qualified to do business as a foreign entity and is in good standing under the laws of each jurisdiction (other than its jurisdictions of incorporation) in which it does business and in which failure to be so qualified and in good standing could reasonably be expected to have a Material Adverse Effect.

18.2 Binding obligations

The obligations expressed to be assumed by it in each Finance Document are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion accepted pursuant to Clause 4 (Conditions of Utilisation), legal, valid, binding and enforceable obligations.

18.3 Non-conflict with other obligations

The entry into, delivery and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not:

(a) conflict with

(i) any law or regulation applicable to it;

(ii) its or any of its Subsidiaries' constitutional documents; or

(iii) any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets, except to the extent such conflict could not reasonably be expected to have a Material Adverse Effect; and

(b) result in or require the creation or imposition of any Security whatsoever upon any of the assets of an Obligor.

18.4 Power and authority

It has the requisite power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

18.5 Validity and admissibility in evidence

All Authorisations required or desirable:


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(a) to enable it lawfully to enter into, deliver, exercise its rights and perform and comply with its obligations in the Finance Documents to which it is a party; and

(b) to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

have been obtained or effected and are in full force and effect.

18.6 Governing law and enforcement

(a) Subject to any matters specifically referred to in any legal opinion accepted pursuant to Clause 4 (Conditions of Utilisation), the choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.

(b) Subject to any matters specifically referred to in any legal opinion accepted pursuant to Clause 4 (Conditions of Utilisation), any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.

18.7 Deduction of Tax

Subject to any matters specifically referred to in any legal opinion accepted pursuant to Clause 4 (Conditions of Utilisation), it is not required under the law applicable where it is incorporated or resident or at its address for the purpose of this Agreement to make any deduction for or on account of Tax from any payment it may make under any Finance Document.

18.8 No filing or stamp taxes

Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

18.9 Tax Examinations

(a) All deficiencies which have been asserted against it or any of its Subsidiaries as a result of any federal, state, local or foreign Tax examination for each taxable year in respect of which an examination has been conducted have been fully paid or finally settled or are being contested in good faith, and no issue has been raised by any taxing authority in any such examination which, by application of similar principles, reasonably can be expected to result in assertion by such taxing authority of a material deficiency for any other year not so examined which has not been reserved for in its audited financial statements to the extent, if any, required by Agreement Accounting Principles.

(b) Except as permitted pursuant to Clause 21.7 (Payment of Taxes and claims; Tax consolidation) , neither it nor any of its Subsidiaries anticipates any material Tax liability with respect to the years for which a Tax examination has not been closed pursuant to applicable law.

18.10 Payment of Taxes

(a) Each member of the Group has paid when due all Taxes required to be paid by it other than any Taxes:

(i) being contested by it in good faith;


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(ii) for which adequate reserves are being maintained in accordance with Agreement Accounting Principles; and

(iii) where payment can be lawfully withheld and will not result in the imposition of any penalty nor in any Security ranking in priority to the claims of any Finance Party under any Finance Document.

(b) It has no knowledge of any proposed Tax assessment against it or any of its Subsidiaries that, if made, will have or could reasonably be expected to have a Material Adverse Effect.

18.11 No default

(a) No Default is continuing or might reasonably be expected to result from the making of any Utilisation.

(b) No other event or circumstance is outstanding which constitutes (or which would, with the lapse of time, the giving of notice, the making of any determination under the relevant document or any combination of the foregoing, constitute) a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which could reasonably be expected to have a Material Adverse Effect.

18.12 No misleading information

Any factual information provided by or on behalf of any member of the Group (whether for the purposes of the Information Memorandum or otherwise in connection with the Facility), taken as a whole, does not contain, as of the date, furnished, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading.

18.13 Financial statements

(a) Its Original Financial Statements (if any) were prepared in accordance with Agreement Accounting Principles consistently applied.

(b) Its Original Financial Statements (if any) fairly represent its financial condition and operations (consolidated in the case of Energizer Holdings and consolidated and unconsolidated in the case of each member of the Regional Group) as at the end of and for the relevant financial year.

(c) There is no material loss contingency within the meaning of Agreement Accounting Principles which has not been reflected in its Original Financial Statements (if any) or in any of its other financial statements prepared and delivered pursuant to this Agreement for the financial period during which such material loss contingency was incurred.

(d) There has been no material adverse change in its condition (financial or otherwise), assets, operations, prospects or business (or in the consolidated condition (financial or otherwise), assets, operations, prospects or business of Energizer Holdings, the Group or the Regional Group) since 30 September 2002 or any other event which has had or would reasonably be expected to have a Material Adverse Effect.


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18.14 Pari passu ranking

Its payment obligations under the Finance Documents rank at least pari passuwith the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law in its place of incorporation applying to companies generally.

18.15 No proceedings pending or threatened

(a) Except as set forth in Schedule 8 (Litigation) (the "Disclosed Litigation"), as of the date hereof, there is no action, suit, proceeding, arbitration or, to the knowledge of any member of the Senior Management Team, investigation before or by any Governmental Agency or private arbitrator pending or to the knowledge of any member of the Senior Management Team, threatened against any Obligor, any of their Subsidiaries or any property of any of them. Neither (a) any of the Disclosed Litigation nor (b) from and after the date hereof, any other action, suit, proceeding, arbitration or, to the knowledge of any member of the Senior Management Team, investigation before or by any Governmental Agency or private arbitrator pending or, to the knowledge of any member of the Senior Management Team, threatened against any Obligor, any of their Subsidiaries or any property of any of them (i) challenges the validity or the enforceability of any material provision of the Finance Documents or (ii) has had or could reasonably be expected to have a Material Adverse Effect.

(b) No litigation, arbitration, administrative or, to its knowledge, investigative proceeding of or before any court, arbitral body or agency (including any arising from or relating to Environmental Law) which, if adversely determined, could reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries or its or their assets.

(c) No attempt to organise its or its Subsidiaries employees and no labour disputes are pending or, to its knowledge, threatened, planned or contemplated, which could reasonably be expected to have a Material Adverse Effect.

(d) Neither it nor any of its Subsidiaries is:

(i) in violation of any law or regulation applicable to it or any of its assets which violation will have or could reasonably be expected to have a Material Adverse Effect; or

(ii) subject to or in default with respect to any final judgment, writ, injunction, restraining order or order of any nature, decree, rule or regulation of any court, agency or Governmental Authority which will have or could reasonably be expected to have a Material Adverse Effect.

18.16 Environmental laws, licences and releases

(a) It and each of its Subsidiaries has:

(i) complied in all material respects with all Environmental Laws to which it may be subject;

(ii) obtained all material Environmental Licences required or desirable in connection with its business; and

(iii) complied in all material respects with the terms of those Environmental Licences.

(b) No:


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(a) property currently or previously owned, leased, occupied or controlled by it or any of its Subsidiaries (including any offsite waste management or disposal location utilised by it or any of its Subsidiaries) is contaminated with any Hazardous Substance; and

(b) discharge, release, leaching, migration or escape of any Hazardous Substance into the Environment has occurred or is occurring on, under or from that property,

in each case in circumstances where that would result in material remediation costs or material penalties to any member of the Group or give rise to any material Contingent Obligation.

(c) For the purposes of this Clause 18.16, "material" means any noncompliance or other basis for liability which could reasonably be likely to subject any member of the Group to liability, individually or in the aggregate with each other basis for liability under this Clause 18.16, in excess of US$30,000,000.

18.17 Authorised signatories

Each person specified as its authorised signatory in any document accepted by the Agent pursuant to paragraph 1(c) of Schedule 2 (Conditions precedent) or delivered to the Agent pursuant to paragraph (h) of Clause 19.4 (Information: miscellaneous) is, subject to any notice to the contrary delivered to the Agent pursuant to Clause 19.4, authorised to sign all Finance Documents and all Utilisation Requests and other notices on its behalf under or in connection with the Finance Documents.

18.18 Subsidiaries

(a) Schedule 9 (Subsidiaries) identifies all Subsidiaries of Energizer Holdings, both direct and indirect, and indicates the respective holdings of each as of the date of this Agreement and, except as notified to the Agent in writing following the date of this Agreement, as of each Utilisation Date.

(b) Each member of the Regional Group is directly or indirectly, a wholly-owned and controlled Subsidiary of Energizer Holdings.

18.19 ERISA

(a) No Benefit Plan has incurred any material accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) whether or not waived.

(b) No Obligor nor any ERISA Affiliate has incurred any material liability to the PBGC which remains outstanding other than the payment of premiums.

(c) As of the last day of the most recent prior plan year, the market value of assets under each Benefit Plan, other than any Multiemployer Plan, was not by a material amount less than the present value of benefit liabilities thereunder (determined in accordance with the actuarial valuation assumptions described therein).

(d) No Obligor nor any ERISA Affiliate has:

(i) failed to make a required contribution or payment to a Multiemployer Plan of a material amount; or

(ii) incurred a material complete or partial withdrawal under Section 4203 or Section 4205 of ERISA from a Multiemployer Plan.


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(e) No Obligor nor any ERISA Affiliate has failed to make an instalment or any other payment of a material amount required under Section 412 of the Internal Revenue Code on or before the due date for such instalment or other payment.

(f) Each Plan, Foreign Employee Benefit Plan and Non-ERISA Commitment complies in all material respects in form, and has been administered in all material respects in accordance with its terms and, in accordance with all applicable laws and regulations, including but not limited to ERISA and the Internal Revenue Code.

(g) There have been no and there is no prohibited transaction described in Section 406 of ERISA or Section 4975 of the Internal Revenue Code with respect to any Plan for which a statutory or administrative exemption does not exist which could reasonably be expected to subject an Obligor or an ERISA Affiliate to material liability.

(h) No Obligor nor any ERISA Affiliate has taken or failed to take any action which would constitute or result in an ERISA Event, which action or inaction could reasonably be expected to subject an Obligor or an ERISA Affiliate to material liability.

(i) No Obligor nor any ERISA Affiliate is subject to any material liability under, or has any potential material liability under, Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA.

(j) The present value of the aggregate liabilities to provide all of the accrued benefits under any Foreign Pension Plan do not exceed the current fair market value of the assets held in trust or other funding vehicle for such plan by a material amount.

(k) With respect to any Foreign Employee Benefit Plan other than a Foreign Pension Plan, reasonable reserves have been established in accordance with prudent business practice or where required by ordinary accounting practices in the jurisdiction in which such plan is maintained.

(l) In this Clause 18.19, "material" means any amount, non-compliance or other basis for liability which could reasonably be expected to subject any member of the Group to liability, individually or in the aggregate with each other basis for liability under this Clause 18.19, in excess of US$30,000,000.

18.20 Securities Activities

(a) The proceeds of the Loans will not be used, directly or indirectly, in whole or in part, for "purchasing" or "carrying" Margin Stock or for any purpose which might (whether immediately, incidentally or ultimately) cause all or any part of the Loans to be a "purpose credit" within the meaning of Regulation U or Regulation X and no member of the Group is engaged in the business of extending credit for the purpose of "purchasing" or "carrying" Margin Stock.

(b) Following the application of the proceeds of each Loan, not more than 25 per cent. of the value of the assets of the Group (on a consolidated basis) will be invested in Margin Stock.

(c) Neither any Obligor nor any agent acting on its behalf has taken or will take any action which might cause any Finance Document or any document delivered under or in connection with any Finance Document to violate any regulation of the Board of Governors (including Regulation T, U or X) or violate the United States Securities Exchange Act of 1934 or any applicable US federal or state securities law.


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18.21 Material Agreements

(a) Neither it nor any of its Subsidiaries is a party to or otherwise bound by any agreement, arrangement or instrument or subject to any charter or other corporate or similar obligation or liability which individually or in the aggregate will have or could reasonably be expected to have a Material Adverse Effect.

(b) Neither it nor any of its Subsidiaries has received notice of or has knowledge that:

(i) it is in default in the performance, observance or fulfilment of any of the obligations, covenants or conditions contained in any agreement or instrument applicable to it; or

(ii) any condition exists which, with the giving of notice or the lapse of time or both, would constitute a default with respect to any such agreement, arrangement or instrument,

in each case, except where such default or defaults, if any, individually or in the aggregate will not have or could not reasonably be expected to have a Material Adverse Effect.

18.22 Assets and Properties

(a) It (and each other member of the Group) has good and marketable title to, or valid leases and licences of or is otherwise entitled to use, all material assets necessary or desirable for it to carry on its business as it is being or is proposed to be conducted, (except insofar as marketability may be limited by any laws or regulations of any agency or Governmental Authority affecting such assets).

(b) Substantially all of its assets and/or each of its Subsidiaries' assets are in adequate operating condition and repair, ordinary wear and tear expected.

(c) Neither any Finance Document nor any transaction contemplated by any Finance Document, will affect any right, title or interest of it or its Subsidiaries in and to any of its assets in a manner that has or could reasonably be expected to have a Material Adverse Effect.

18.23 US Statutory Indebtedness Restrictions

No member of the Group is:

(a) a "holding company", an "affiliate" of a "holding company" or a "subsidiary company" of a "holding company" within the meaning of, or subject to regulation under, the United States Public Utility Holding Company Act of 1935;

(b) a "public utility" within the meaning of, or subject to regulation under, the United States Federal Power Act of 1920;

(c) an "investment company" or a company "controlled" by an "investment company" within the meaning of the United States Investment Company Act of 1940; or

(d) subject to regulation under any United States federal or state law or regulation that limits its ability to incur or guarantee indebtedness.

18.24 Insurance

(a) The insurances required by Clause 21.5 (Insurance) are in full force and effect as required by this Agreement.


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(b) No event or circumstance has occurred, and there has been no failure to disclose a material fact, which would entitle any insurer to reduce or avoid its liability under any such insurance.

18.25 Repetition

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of each Utilisation Request and the first day of each Interest Period.

19. Information undertakings

The undertakings in this Clause 19 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

19.1 Financial statements

Each Obligor shall supply to the Agent in sufficient copies for all the Lenders:

(a) as soon as the same become available, but in any event within 90 days after the end of each of its financial years:

(i) its audited consolidated financial statements for that financial year; and

(ii) (in the case of each Obligor other than Energizer Holdings) its audited unconsolidated financial statements for that financial year; and

(b) as soon as the same become available, but in any event within 45 days after the end of each quarter (other than the last quarter) of each of its financial years:

(i) its consolidated financial statements for that financial quarter; and

(ii) (in the case of each Obligor other than Energizer Holdings) its unconsolidated financial statements for that financial quarter.

19.2 Compliance Certificate

(a) Energizer Holdings shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 19.1 (Financial statements), a Compliance Certificate:

(i) setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial covenants) as at the date as at which those financial statements were drawn up;

(ii) certifying that the financial statements delivered with that Compliance Certificate fairly represent the consolidated financial position of the Group as at the dates indicated and the results of their operations and cash flows for the periods indicated in accordance with Agreement Accounting Principles, subject (save in the case of financial statements delivered pursuant to paragraph (a) of Clause 19.1 (Financial statements)) to normal year-end audit adjustments and the absence of footnotes; and

(iii) stating that the Repeating Representations are true and correct in all material respects and no Default exists (or if a Default does exist, stating the nature and status thereof) as of the date of such Compliance Certificate.


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(b) Each Compliance Certificate shall be signed by the chief financial officer or treasurer of Energizer Holdings.

19.3 Requirements as to financial statements

(a) Each set of financial statements delivered by an Obligor (other than Energizer Holdings) pursuant to paragraph (a) of Clause 19.1 (Financial statements) shall be certified by a director of the relevant company as fairly representing, in accordance with Agreement Accounting Principles, its (or, as the case may be, its consolidated) financial condition and operations as at the end of and for the period in relation to which those financial statements were drawn up.

(b) Each set of financial statements delivered by Energizer Holdings pursuant to paragraph (a) of Clause 19.1 (Financial statements) or by any Obligor pursuant to paragraph (b) of Clause 19.1 (Financial statements) shall be certified by the Chief Financial Officer or Treasurer of Energizer Holdings as fairly representing, in accordance with Agreement Accounting Principles, its (or, as the case may be, its consolidated or the relevant Obligors' consolidated or unconsolidated) financial condition and operations as at the end of and for the period in relation to which those financial statements were drawn up.

(c) Each Obligor shall procure that each set of its financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using Agreement Accounting Principles, and accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements provided that if any changes in generally accepted accounting principles in the United States as at the date of this Agreement are required or permitted after the date of this Agreement and are adopted by Energizer Holdings or any of its Subsidiaries with the agreement of its indep endent auditors and such changes result in a change in the method of calculation of any of the financial covenants, tests, restrictions or standards in this Agreement or in the related definitions or terms used in this Agreement ("Accounting Changes"), the Parties agree, at Energizer Holdings' request, to enter into negotiations, in good faith, in order to amend such provisions in a credit neutral manner so as to reflect equitably such changes with the desired result that the criteria for evaluating the financial condition of Energizer Holdings and its Subsidiaries shall be the same after such changes as if such changes had not been made. Until such provisions are amended in a manner reasonably satisfactory to the Majority Lenders, no Accounting Change shall be given effect in such calculations and all financial statements and r eports required to be delivered under this Agreement shall be prepared in accordance with Agreement Accounting Principles without taking into account such Accounting Changes. In the event such amendment is entered into, all references in this Agreement to Agreement Accounting Principles as of the date of this Agreement shall mean generally accepted accounting principles as in effect in the United States as of the date of such amendment.

19.4 Information: miscellaneous

Each Obligor shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(a) copies of all financial statements, reports and notices, if any, sent by Energizer Holdings to its securities holders or filed with the US Securities and Exchange Commission by


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Energizer Holdings (other than Reports on Form 8-K which contain only information furnished pursuant to Item 12 thereof) promptly after they are dispatched or filed;

(b) all documents dispatched by each Obligor other than Energizer Holdings to its creditors generally or required to be dispatched to any shareholder pursuant to applicable law or regulation promptly after they are dispatched;

(c) promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect;

(d) promptly upon becoming aware of them, the details of any material labour dispute affecting any member of the Group;

(e) promptly upon becoming aware of the addition or removal of a Subsidiary from the list of Material Subsidiaries delivered pursuant to Clause 4.1 (Initial conditions precedent), an updated list of its Material Subsidiaries;

(f) promptly upon becoming aware of them and within 10 days of receipt by it, the details of any claim, notice or other communication received by it in respect of (i) any actual or alleged breach of or liability under Environmental Law and (ii) any actual or alleged liability as a result of discharge, release, leaching, migration or escape of any Hazardous Substance which, if substantiated, in the case of any member of the Group, could reasonably be expected to result in liabilities of, and/or expenditure by, one or more members of the Group in excess of US$25,000,000 (or its equivalent in another currency or currencies) individually or in aggregate or, in the case of any member of the Regional Group otherwise could reasonably be expected to have a Material Adverse Effect;< /FONT>

(g) promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request; and

(h) promptly, notice of any change in the authorised signatories of any Obligor, signed by a Director or authorised officer or the secretary of that Obligor whose specimen signature has previously been provided to the Agent, accompanied (where relevant) by a specimen signature of each new signatory.

19.5 Notification of default

Each Obligor shall notify the Agent of:

(a) any Default (specifying its nature and the steps, if any, being taken to remedy it); and

(b) any other development, financial or otherwise, which could reasonably be expected to have a Material Adverse Effect (specifying its nature and the steps if any being taken to remedy it),

promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).


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19.6 ERISA Notices

Energizer Holdings shall deliver or cause to be delivered to the Agent and the Lenders, at its expense, the following information and notices as soon as reasonably possible, and in any event:

(a) within ten (10) Business Days after any Obligor or any ERISA Affiliate obtains knowledge that an ERISA Event has occurred which could reasonably be expected to subject Energizer Holdings to liability individually or in the aggregate in excess of US$20,000,000, a written statement of the chief financial officer or the treasurer of Energizer Holdings describing such ERISA Event and the action, if any, which the Obligor or ERISA Affiliate has taken, is taking or proposes to take with respect thereto, and when known, any action taken or threatened by the IRS, DOL or PBGC with respect thereto;

(b) within ten (10) Business Days after the filing of any funding waiver request with the IRS, a copy of such funding waiver request and thereafter all communications received by an Obligor or an ERISA Affiliate with respect to such request within ten (10) Business Days such communication is received; and

(i) a Benefit Plan or a Multiemployer Plan has been terminated;

(ii) the administrator or plan sponsor of a Benefit Plan or a Multiemployer Plan intends to terminate a Multiemployer Plan; or

(iii) the PBGC has instituted or will institute proceedings to terminate a Benefit Plan or a Multiemployer Plan, a notice describing such matter.

For purposes of this Clause 19.6, an Obligor and an ERISA Affiliate shall be deemed to know all facts known by the administrator of any Plan of which such Obligor or ERISA Affiliate is the plan sponsor.

19.7 Use of websites

(a) Each Obligor may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the "Website Lenders") who accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Agent (the "Designated Website") if:

(i) the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

(ii) both the Borrower and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

(iii) the information is in a format previously agreed between the Borrower and the Agent.

If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then the Agent shall notify the Borrower accordingly and the relevant Obligor shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper


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form. In any event the relevant Obligor shall supply the Agent with at least one copy in paper form of any information required to be provided by it.

(b) The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Agent.

(i) the Designated Website cannot be accessed due to technical failure;

(ii) the password specifications for the Designated Website change;

(iii) any new information which is required to be provided under this Agreement is posted onto the Designated Website;

(iv) any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

(v) the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If an Obligor notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by an Obligor under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

(d) Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The relevant Obligor shall comply with any such request within ten Business Days.

19.8 Access to books, premises and records

(a) Each Obligor shall (and shall ensure that each member of the Group will):

(i) keep books and records which accurately reflect in all material respects all of its business, affairs and transactions; and

(ii) permit any Finance Party or any of its representatives, professional advisers or contractors, at reasonable times and intervals, and upon reasonable notice, to visit any of its offices or premises (including, without limitation, in connection with environmental compliance, hazards or liabilities), to inspect any of its books and records and to discuss its financial matters with its officers and auditors.

(b) Each Obligor hereby authorises its auditors to discuss any of the Group's affairs, finances and accounts with the officers and independent certified public accountants of any Finance Party or any of its representatives, all upon reasonable notice and at such reasonable times during normal business hours, as often as may be reasonably requested (provided that an officer of the Group may, if it so desires, be present at and participate in any such discussion), and to inspect any of its books and records.


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(c) Each Obligor hereby authorises each firm which prepared any report delivered to any Finance Party in connection with the Finance Documents to discuss such report with any Finance Party.

(d) If an Event of Default has occurred and is continuing, each Obligor shall, upon request by the Agent, turn over copies of any of its books and records to the Agent or its representatives.

20. Financial covenants

20.1 Maximum Leverage Ratio

(a) Energizer Holdings shall ensure that the ratio (the "Leverage Ratio") of (i) Total Borrowings to (ii) EBITDA at any time shall not be greater than 3.50 to 1.00.

(b) The Leverage Ratio shall be calculated, in each case, determined as of the last day of each financial quarter based upon:

(i) Total Borrowings, Total Borrowings as of the last day of each such financial quarter; and

(ii) for EBITDA, the actual amount for the four-quarter period ending on such day, calculated, with respect to Permitted Acquisitions, on a pro forma basis using unadjusted historical audited and reviewed unaudited financial statements obtained from the seller (with the EBITDA component thereof broken down by fiscal quarter in Energizer Holdings' reasonable judgment).

20.2 Minimum Interest Expense Coverage Ratio

(a) Energizer Holdings shall ensure that the ratio (the "Interest Expense Coverage Ratio") for any applicable period of (i) EBIT for such period to (ii) Interest Expense for such period is greater than 3.00 to 1.00 for each financial quarter.

(b) The Interest Expense Coverage Ratio shall be calculated, as of the last day of each financial quarter for the four-quarter period ending on such day calculated, with respect to Permitted Acquisitions, on a pro forma basis using unadjusted historical audited and reviewed unaudited financial statements obtained from the seller (with the EBITDA component thereof broken down by financial quarter in the reasonable judgement of Energizer Holdings).

20.3 Definitions

In this Clause 20 (Financial covenants):

"EBIT" means, for any period, on a consolidated basis for the Group, the sum of the amounts for such period, without double-counting, of (i) Net Income, plus (ii) Interest Expense to the extent deducted in computing Net Income, plus (iii) charges against income for foreign, federal, state and local Taxes to the extent deducted in computing Net Income, plus (iv) any additional non-cash charges (except any non-cash charges that require accrual of a reserve for anticipated future cash payments for any period) to the extent deducted in computing Net Income, plus (v) other extraordinary non-cash charges to the extent deducted in computing Net Income minus (vi) extraordinary gains to the extent added in computing Net Income.

"EBITDA" means, for any period, on a consolidated basis for the Group, the sum of the amounts for such period, without duplication, of (i) EBIT, plus (ii) depreciation expense to the extent deducted in computing Net Income,


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plus (iii) amortisation expenses, including, without limitation, amortisation of goodwill and other intangible assets, to the extent deducted in computing Net Income.

"Interest Expense" means, for any period, the total interest expense of the Group, whether paid or accrued, including, without duplication, Off-Balance Sheet Liabilities (including Receivables Facility Financing Costs) and the interest component of Capitalised Leases, all as determined in conformity with Agreement Accounting Principles.

"Net Income" means, for any period, the net earnings (or loss) after taxes of Energizer Holdings and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with Agreement Accounting Principles.

"Total Borrowings" means the sum of all Indebtedness of Energizer Holdings and its Subsidiaries as determined in conformity with Agreement Accounting Principles.

21. General undertakings

The undertakings in this Clause 21 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

21.1 Corporate existence, etc

Except as permitted pursuant to Clause 22.8 (Restrictions on fundamental changes), each Obligor shall, and shall cause each of its Subsidiaries to, at all times maintain its existence and preserve and keep, or cause to be preserved and kept, in full force and effect its rights and franchises material to its businesses.

21.2 Authorisations

Each Obligor shall promptly:

(a) obtain, comply with and do all that is necessary to maintain in full force and effect; and

(b) supply certified copies to the Agent of,

any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document or (in the case of paragraph (a) above only) otherwise required for a purpose specified in Clause 18.5 (Validity and admissibility in evidence ).

21.3 Corporate powers; conduct of business

(a) Each Obligor shall, and shall cause each of its Material Subsidiaries to, qualify and remain qualified to do business in each jurisdiction in which the nature of its business requires it to be so qualified and where the failure to be so qualified would have or could reasonably be expected to have a Material Adverse Effect.

(b) Except as expressly provided in paragraph (b) of the definition of "Permitted Acquisition" set out in Clause 22.6 (Conduct of business; New Subsidiaries; Acquisitions), Energizer Holdings shall, and will cause each of its Material Subsidiaries to, carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted at the date of this Agreement unless the failure of its Material Subsidiaries to carry on


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and conduct its business as so described could not reasonably be expected to have a Material Adverse Effect.

(c) Energizer Holdings may create, acquire in a Permitted Acquisition or capitalise any Subsidiary (a "New Subsidiary") after the date hereof if no Default shall have occurred and be continuing or would result therefrom.

21.4 Compliance with laws

Each Obligor shall (and shall ensure that its Subsidiaries will) comply in all respects with all laws to which it may be subject, if failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.

21.5 Insurance

Each Obligor shall (and shall ensure that each of its Subsidiaries will) maintain in full force and effect insurances on and in relation to its business and assets with reputable underwriters or insurance companies against those risks, and to the extent, usually insured against by prudent companies located in the same or a similar location and carrying on a similar business.

21.6 Environmental undertakings

Each Obligor shall (and shall ensure that its Subsidiaries will):

(a) comply with all Environmental Laws to which it may be subject;

(b) obtain all Environmental Licences required or desirable in connection with its business; and

except where failure to do so will not have or is not reasonably likely to subject Energizer Holdings or any of its Subsidiaries, individually or in aggregate, to liability in excess of US$30,000,000.

21.7 Payment of Taxes and claims; Tax consolidation

Each Obligor shall pay, and cause each of its Subsidiaries to pay:

(a) all Taxes, assessments and other governmental charges imposed upon it or on any of its properties or assets or in respect of any of its franchises, business, income or assets before any penalty or interest accrues thereon; and

(b) all claims (including, without limitation, claims for labour, services, materials and supplies) for sums which have become due and payable and which by law have or may become secured by a Security and/or Lien (other than a Security or Lien permitted by Clause 22.2 (Liens) or Clause 23.2 (Negative pledge)) upon any of its or such Subsidiary's assets, prior to the time when any penalty or fine shall be incurred with respect thereto,

provided however, that no such Taxes, assessments and governmental charges referred to in paragraph (a) above or claims referred to in paragraph (b) above (and interest, penalties or fines relating thereto) need be paid if being contested in good faith by appropriate proceedings diligently instituted and conducted and if such reserve or other appropriate provision, if any, as shall be required in conformity with Agreement Accounting Principles shall have been made therefor.


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21.8 ERISA compliance

Energizer Holdings shall, and shall cause each of its Subsidiaries to, establish, maintain and operate all Plans to comply in all material respects with the provisions of ERISA and shall operate all Plans and Non-ERISA Commitments to comply in all material respects with the applicable provisions of the Internal Revenue Code, all other applicable laws, and the regulations and interpretations thereunder and the respective requirements of the governing documents for such Plans and Non-ERISA Commitments, except for any non-compliance which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

21.9 Maintenance of assets

Each Obligor shall cause all assets necessary for the conduct of its business or the business of any of its Subsidiaries to be maintained and kept in good condition, repair and working order and shall supply all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements to such assets or equipment, all as in its judgment may be necessary for the conduct of its or its Subsidiaries' business; provided, however, that nothing in this Clause 21.9 shall prevent any member of the Group from discontinuing the operation or maintenance of any such asset or equipment if such discontinuance is, in its judgment, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in the reasonable opinion of Energizer Holdings in any material respect to the Finance Parties.

21.10 Use of proceeds

The Borrower shall use the proceeds of the Loans in accordance with Clause 3.1 (Purpose) provided that it shall not lend or otherwise make available by financial accommodation or otherwise, directly or indirectly, to any Subsidiary of Energizer Holdings which is a guarantor of Energizer Holdings' obligations under the US Facility, any proceeds of the Loan in circumstances where the right to repayment of such amount would be subordinated (or otherwise subject to restrictions on repayment) to the rights of any person to whom Energizer Holdings' obligations under the US Facility are owed.

21.11 Subordination

Energizer Holdings shall procure that any loan or other financial accommodation made by it to another member of the Group, directly or indirectly, which is not a guarantor of Energizer Holdings' obligations under the US Facility is not subordinated (or otherwise subject to restrictions on repayment) to the rights of any person to whom Energizer Holdings' obligations under the US Facility are owed.

21.12 Pari passu

Each Obligor shall ensure that its obligations under the Finance Documents rank at all times at least pari passuin right of priority and payment with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.


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22. Negative Undertakings - The Group

The undertakings in this Clause 22 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

22.1 Subsidiary Indebtedness

Energizer Holdings shall not permit any of its Subsidiaries directly or indirectly to create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except:

(a) Indebtedness of the Guarantors under Clause 17 (Guarantee and indemnity);

(b) Indebtedness in respect of guarantees executed by any member of the Group with respect to any Indebtedness of Energizer Holdings, provided such Indebtedness is not incurred by Energizer Holdings in violation of this Agreement;

(d) Indebtedness constituting Contingent Obligations permitted by Clause 22.5 (Contingent Obligations);

(e) Indebtedness arising from loans (a) from any Subsidiary of Energizer Holdings to any wholly-owned Subsidiary of Energizer Holdings or (b) from Energizer Holdings to any wholly-owned Subsidiary;

(f) Indebtedness in respect of Permitted Hedging Arrangements;

(g) Indebtedness with respect to surety, appeal and performance bonds obtained by any member of the Group (other than Energizer Holdings) in the ordinary course of business;

(h) Indebtedness incurred in connection with the Receivables Purchase Documents, provided, that Receivables Facility Attributed Indebtedness incurred in connection therewith does not exceed US$250,000,000 in the aggregate at any time; or

(i) other Indebtedness in addition to that referred to elsewhere in this Clause 22.1 incurred by any Subsidiary of Energizer Holdings; provided that no Default shall have occurred and be continuing at the date of such incurrence or would result therefrom and provided further that the aggregate outstanding amount of all Indebtedness incurred by any such Subsidiary (other than Indebtedness incurred pursuant to clauses (a), (b), (e), (f) and (h)) of this Clause 22.1) shall not at any time exceed 20 per cent. of Energizer Holdings Consolidated Total Capitalisation.

22.2 Liens

No member of the Group shall (and Energizer Holdings shall procure that none of its Subsidiaries will) directly or indirectly create, incur, assume or permit to exist any Lien on or with respect to any of their respective property or assets except:

(a) Liens, if any, created by, or in connection with, the US Facility or otherwise securing the obligations under the US Facility;

(b) Customary Permitted Liens;


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(d) other Liens, including any Liens listed in Part 1 of Schedule 6 (Existing Security, Contingent Obligations and Investments), (i) securing Indebtedness of Energizer Holdings and/or (ii) securing Indebtedness of Energizer Holdings' Subsidiaries as permitted pursuant to Clause 22.1 (Subsidiary Indebtedness), all of which, when taken together, secure Indebtedness in an aggregate outstanding principal amount not to exce ed five per cent. of Consolidated Assets at any time.

22.3 Disposals

(a) Subject to paragraph (b) below, no member of the Group shall (and Energizer Holdings shall ensure that none of its Subsidiaries will) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any asset.

(b) Paragraph (a) above does not apply to any sale, lease, transfer or other disposal:

(i) made in the ordinary course of trading of the disposing entity;

(ii) of an asset that is obsolete, excess or no longer used or useful in the ordinary course of trading;

(iii) permitted under Clause 22.9 (Sale and leasebacks) or Clause 23.3 (Disposals);

(iv) any transfer or an interest in Receivables, Receivables and Related Security, accounts or notes receivable on a limited recourse basis under the Receivables Purchase Documents, provided such transfer qualifies as a legal sale and as a sale under Agreement Accounting Principles and that the amount of Receivables Facility Attributable Indebtedness does not exceed US$250,000,000 at any one time outstanding; or

(v) where the transaction is for not less than fair market value and, when aggregated with any other sale, lease, transfer or other disposal (each such transaction being valued at book value), other than any permitted under paragraphs (i) to (iv) above, occurring during the financial year in which such proposed transaction occurs, does not exceed 15 per cent. of Energizer Holdings Consolidated Assets (such Consolidated Assets being as calculated as at the end of the financial year immediately preceding that in which such transaction is proposed to be entered into).

22.4 Investments

Except to the extent permitted pursuant to Clause 22.7 (Transactions with shareholders and Affiliates) below, no member of the Group shall (and Energizer Holdings shall ensure that none of its Subsidiaries will) directly or indirectly make or own any Investment except:

(a) Investments in cash and Cash Equivalents;

(b) any Investments listed in Part II of Schedule 6 (Existing Security, Contingent Obligations and Investments) except to the extent the amount of such Investment exceeds the amount stated in that Schedule;

(c) Investments in trade receivables or received in connection with the bankruptcy or reorganisation of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;


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(d) Investments consisting of deposit accounts maintained by Energizer Holdings or its Subsidiaries;

(e) Investments consisting of non-cash consideration from a sale, assignment, transfer, lease, conveyance or other disposition of property permitted by Clause 22.3 (Disposals);

(f) Investments in any consolidated Subsidiaries (other than joint ventures);

(g) Investments in joint ventures and nonconsolidated Subsidiaries in an aggregate amount not to exceed US$50,000,000;

(h) Investments constituting Permitted Acquisitions;

(i) Investments constituting Financial Indebtedness permitted by Clause 22.1 (Subsidiary Indebtedness) or Contingent Obligations permitted by Clause 22.5 (Contingent Obligations);

(j) Investments in the SPVs (a) required in connection with the Receivables Purchase Documents and (b) resulting from the transfers permitted by sub-paragraph (b)(iv) of Clause 22.3 (Disposals);

(k) Investments permitted pursuant to Clause 23.4 (Loans and guarantees); and

(l) Investments in addition to those referred to elsewhere in this Clause in an aggregate amount not to exceed US$50,000,000.

22.5 Contingent Obligations

Energizer Holdings shall ensure that none of its Subsidiaries will directly or indirectly create or become or be liable with respect to any Contingent Obligation, except:

(a) recourse obligations resulting from endorsements of negotiable instruments for collection in the ordinary course of business;

(b) any Contingent Obligations listed in Part III of Schedule 6 (Existing Security, Contingent Obligations and Investments) except to the extent the amount of such Contingent Obligations exceeds the amount stated in that Schedule;

(c) obligations, warranties, and indemnities, not relating to Indebtedness of any person, which have been or are undertaken or made in the ordinary course of business and not for the benefit of or in favour of an Affiliate of Energizer Holdings or such Subsidiary;

(d) Contingent Obligations with respect to surety, appeal and performance bonds obtained by Energizer Holdings or any Subsidiary in the ordinary course of business;

(e) Contingent Obligations of the Guarantors under the Finance Documents;

(f) Contingent Obligations of Subsidiaries which are guarantors under a guarantee of the Indebtedness evidenced by the Senior Notes, the Senior Note Purchase Agreements or the US Facility;


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(g) Contingent Obligations of Energizer Holdings or any of its Subsidiaries arising under the Receivables Purchase Documents;

(h) Contingent Obligations of non-US Subsidiaries of Energizer Holdings represented by guarantees of obligations of non-US Subsidiaries; and

(i) Contingent Obligations incurred in the ordinary course of business by any of Energizer Holdings' Subsidiaries in respect of obligations of any Subsidiary of Energizer Holdings.

22.6 Conduct of Business; New Subsidiaries; Acquisitions

Without in any way limiting Clause 21.3 (Corporate powers, conduct of business), Clause 23.5 (Acquisition and investments), Clause 23.6 (Merger) or Clause 23.8 (Change of business), Energizer Holdings shall not (and shall procure that its Subsidiaries do not) make any Acquisitions, other than Acquisitions meeting the following requirements or otherwise approved by the Majority Lenders (each such Acquisition constituting a "Permitted Acquisition"):

(a) the purchase is consummated pursuant to a negotiated acquisition agreement on a non-hostile basis pursuant to an acquisition agreement approved by the board of directors or other applicable governing body of the seller prior to the commencement thereof;

(b) the businesses being acquired shall be consumer product companies or other businesses that are in substantially the same fields of enterprise or related or incidental to the businesses or activities engaged in by Energizer Holdings and its Subsidiaries as of the date of this Agreement (or which each member of the Group may engage in accordance with the terms of this Agreement), as well as suppliers to or distributors of products similar to those of Energizer Holdings and its Subsidiaries; provided, however, that Energizer Holdings and its Subsidiaries shall be permitted to acquire businesses that do not satisfy the foregoing criteria in this paragraph (iii) so long as the aggregate purchase price for all such acquisitions does not exceed 5 per cent. of Energizer Holdings' con solidated tangible net assets (on a pro forma basis) as of the date of the consummation of such Acquisition; and

(c) prior to each such Acquisition, Energizer Holdings shall determine that after giving effect to such Acquisition and the incurrence of any Indebtedness by Energizer Holdings or any of its Subsidiaries, to the extent permitted by Clause 22.1 (Subsidiary Indebtedness), in connection therewith, on a pro forma basis using historical audited and reviewed unaudited financial statements obtained from the seller, broken down by financial quarter in Energizer Holdings' reasonable judgment, as if the Acquisition and such incurrence of Financial Indebtedness had occurred on the first day of the twelve Month period ending on the last day of Energizer Holdings' most recently completed financial quarter, Energizer Holdings would have been in compliance with the financial covenants in Clause 20 (Financial covenants) and not otherwise in Default.

22.7 Transactions with shareholders and Affiliates

Except for:

(a) the transactions set forth in Part IV of Schedule 6 (Existing Security, Contingent Obligations and Investments),


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(b) Permitted Receivables Transfers; and

Energizer Holdings shall not (and shall procure that its Subsidiaries do not) directly or indirectly enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any asset or the rendering of any service) with any holder or holders of any of the Equity Interests of Energizer Holdings, or with any Affiliate of Energizer Holdings which is not its Subsidiary, on terms that are less favourable to Energizer Holdings or any of its Subsidiaries, as applicable, than those that might be obtained in an arm's length transaction at the time from persons who are not such a holder or Affiliate.

22.8 Restriction on fundamental changes

Energizer Holdings shall not (and shall procure that its Subsidiaries do not) enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of Energizer Holdings' or any such Subsidiary's business or property, whether now or hereafter acquired, except:

(a) transactions permitted under Clauses 22.3 (Disposals) or 22.6 (Conduct of business; New Subsidiaries; Acquisitions); and

(b) a Subsidiary of Energizer Holdings (other than a member of the Regional Group) may be merged into, liquidated into or consolidated with Energizer Holdings (in which case Energizer Holdings shall be the surviving corporation) or any wholly-owned Subsidiary of Energizer Holdings.

22.9 Sales and leasebacks

Energizer Holdings shall not (and shall procure that its Subsidiaries do not) become liable, directly, by assumption or by Contingent Obligation, with respect to any lease, whether an operating lease or a Capitalised Lease, of any property (whether real or personal or mixed):

(a) which it or one of its Subsidiaries sold or transferred or is to sell or transfer to any other person; or

(b) which it or one of its Subsidiaries intends to use for substantially the same purposes as any other property which has been or is to be sold or transferred by it or one of its Subsidiaries to any other person in connection with such lease, unless in either case the sale involved is not prohibited under Clause 22.3 (Disposals) and the lease involved is not prohibited under Clause 22.1 (Subsidiary Indebtedness).

22.10 Margin Regulations

Neither Energizer Holdings nor any of its Subsidiaries shall use all or any portion of the proceeds of any credit extended under this Agreement to purchase or carry Margin Stock.

22.11 ERISA

Each Obligor shall not:

(a) permit to exist any accumulated funding deficiency (as defined in Sections 302 of ERISA and 412 of the Code), with respect to any Benefit Plan, whether or not waived;


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(b) terminate, or permit any ERISA Affiliate to terminate, any Benefit Plan which would result in liability of Energizer or any Group member under Title IV of ERISA;

(c) fail, or permit any ERISA Affiliate to fail, to pay any required instalment or any other payment required under Section 412 of the Internal Revenue Code on or before the due date for such instalment or other payment; or

(d) permit any unfunded liabilities with respect to any Foreign Pension Plan,

except where such transactions, events, circumstances, or failures are not, individually or in the aggregate, reasonably expected to result in liability individually or in the aggregate in excess of US$25,000,000 or have a Material Adverse Effect.

22.12 Corporate Documents

Energizer Holdings shall not (and shall procure that each of its Subsidiaries will not) amend, modify or otherwise change any of the terms or provisions in any of their respective constituent documents as in effect on the date of this Agreement in any manner adverse to the interests of the Lenders, without the prior written consent of the Majority Lenders.

22.13 Financial Year

Neither Energizer Holdings nor any of its consolidated Subsidiaries shall change its fiscal year for accounting or tax purposes from that used at the date of this Agreement.

22.14 Hedging Obligations

Energizer Holdings shall not and shall not permit any of its Subsidiaries to enter into any Hedging Arrangements other than Permitted Hedging Arrangements.

22.15 Issuance of Disqualified Stock

Neither Energizer Holdings, nor any of its Subsidiaries shall issue any Disqualified Stock.

23. Negative Covenants - The Regional Group

Without in any way limiting Clause 22 (Negative Undertakings - the Group), the undertakings in this Clause 23 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Document or any Commitment is in force.

23.1 Financial Indebtedness

No member of the Regional Group shall incur or permit to subsist any Financial Indebtedness other than:

(a) Financial Indebtedness arising under the Finance Documents;

(b) Financial Indebtedness arising under any trade credit with tenor of less than 12 Months arising in the ordinary course of trading on normal commercial terms;

(d) Financial Indebtedness due from one member of the Regional Group to another to the extent expressly permitted under Clauses 21.10 (Use of proceeds) and 23.4 (Loans and Guarantees); and


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(e) Financial Indebtedness with tenor of less than 12 Months and incurred in the ordinary course of business, the aggregate outstanding principal amount of which does not exceed 20 per cent. of Regional Group Net Worth.

23.2 Negative pledge

(a) No member of the Regional Group shall create or permit to subsist any Security over any of its assets.

(b) No member of the Regional Group shall:

(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by any member of the Regional Group;

(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;

(iii) enter into or permit to subsist any title retention arrangement;

(iv) enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

(v) enter into or permit to subsist any other preferential arrangement having a similar effect,

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

(i) any Security listed in Part 1 of Schedule 6 (Existing Security, Contingent Obligations and Investments) except to the extent the principal amount secured by that Security exceeds the amount stated in that Schedule;

(ii) any netting or set-off arrangement entered into by any member of the Regional Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

(iii) any lien arising by operation of law and in the ordinary course of trading so long as the debt which it secures is paid when due or contested in good faith by appropriate proceedings and properly provisioned;

(iv) title retention arrangements arising pursuant to a supplier's usual terms of supply provided that there is no default in payment for any goods so supplied (and no other event is subsisting) which might entitle the supplier to reclaim possession of the relevant goods; or

(v) other Security, including Security permitted under sub-paragraph (c)(i) above, securing Financial Indebtedness of a member of the Regional Group (as permitted pursuant to Clause 23.1 (Financial Indebtedness)), all of which, when taken together, secures Financial Indebtedness in an aggregate outstanding principal amount not to exceed 5 per cent. of Regional Group Consolidated Assets at any time.


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23.3 Disposals

(a) No member of the Regional Group shall enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any asset.

(b) Paragraph (a) above does not apply to any sale, lease, transfer or other disposal of an asset:

(i) made in the ordinary course of trading of the disposing entity;

(ii) made in the ordinary course of business of obsolete or excess equipment or equipment that is no longer used or useful in the business of any member of the Regional Group;

(iii) in exchange for other assets comparable or superior as to type, value and quality and for a similar purpose; or

(iv) where the higher of the market value or consideration receivable (when aggregated with the higher of the market value or consideration receivable for any other sale, lease, transfer or other disposal, other than any permitted under paragraphs (i) to (iii) above) does not exceed 15 per cent. of the Regional Group Consolidated Assets (such Regional Group Consolidated Assets being calculated as at 31 December of the year immediately preceding the year in which such transaction is proposed to be entered into) in any calendar year and such sale, lease, transfer or other disposal could not reasonably be expected to have a Material Adverse Effect.

23.4 Loans and guarantees

(a) No member of the Regional Group shall:

(i) make any loan, or provide any form of credit or financial accommodation, to any other person; or

(ii) give or issue any guarantee, indemnity, bond or letter of credit to or for the benefit of any person; or

(iii) permit to subsist any guarantee of any Financial Indebtedness of any of its Subsidiaries.

(b) Paragraph (a) above does not apply to:

(i) any guarantee or indemnity given pursuant to the Finance Documents;

(ii) trade credit given in the ordinary course of trading on normal commercial terms;

(iii) loans made to employees as part of their terms of employment; or

(iv) any loan, credit or financial accommodation made or provided to, or any guarantee, indemnity, bond or letter of credit given or issued to, or for the benefit of, any wholly-owned, direct or indirect, Subsidiary of Energizer Holdings (other than (a) a Subsidiary of Energizer Holdings incorporated in any jurisdiction of the United States or (b) any other Subsidiary of Energizer Holdings if the rights of the member of the Regional Group making, providing, giving or issuing, as the case may be, such loan, credit, financial accommodation, guarantee, letter of credit, bond or indemnity would be subordinated (or otherwise subject to restrictions) to the rights of any other person), the outstanding principal amounts of which, or liabilities under which, as the case may be, in aggreg ate


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do not exceed US$20,000,000 (or its equivalent in any other currency or currencies), provided that:

(A) each member of the Regional Group shall, at the time such loan, credit or financial accommodation is made or provided or such guarantee, indemnity, bond or letter of credit is given or issued, be deemed to represent and warrant that, taking into account its future liabilities and revenues, it is able to, and will remain able to, pay all amounts owed by it under the Finance Documents as such amounts fall due, notwithstanding the making or provision of such loan, credit or financial accommodation or the giving or issue of such guarantee, bond, indemnity or letter of credit, as the case may be; and

(B) Energizer Holdings shall, in each Compliance Certificate, notify the Agent of the aggregate of the outstanding principal amounts of and/or the outstanding liabilities under, as the case may be, any such loan, credit or financial accommodation that has been made or provided and any such guarantee, indemnity, bond or letter of credit that has been given or issued, provided that such outstanding principal amounts, or such outstanding liabilities, as the case may be, in aggregate equal or exceed US$5,000,000 (or its equivalent) as at such date.

23.5 Acquisitions and investments

No member of the Regional Group shall:

(a) invest in or acquire, whether by incorporation or otherwise, any share in or any security issued by any person, or any interest therein or in the capital of any person, or make any capital contribution to any person (other than any investment, acquisition or capital contribution by the Borrower in the Regional Guarantors);

(b) invest in or acquire any business or going concern, or the whole or substantially the whole business of the assets, property or business of any person or any assets that constitute a division or operating unit of the business of any person; or

23.6 Merger

No member of the Regional Group shall enter into any amalgamation, demerger, merger or corporate reconstruction.

23.7 Arm's length dealings

No member of the Regional Group shall enter into any arrangement, agreement or commitment with any person or pay any fees, commissions or other sums on any account whatsoever to any persons other than as required by the Finance Documents or on terms which are at least as good as those it would obtain in the ordinary course of trading, on an arm's length basis unless the Majority Lenders have given their prior written consent to such arrangement, agreement or commitment.


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23.8 Change of business

(a) The Borrower shall procure that no material change is made to the general nature of the business of the Borrower or the Regional Group taken as a whole from that carried on at the date of this Agreement.

(b) Each member of the Regional Group shall carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted at the date of this Agreement unless, in the case of a Regional Guarantor, the failure to carry on and conduct its business as so described would not reasonably be expected to have a Material Adverse Effect.

24. Events of Default

Each of the events or circumstances set out in Clause 24 is an Event of Default.

24.1 Non-payment

(a) An Obligor does not pay on the due date any amount of principal of a Loan at the place at and in the currency in which it is expressed to be payable.

(b) An Obligor does not pay within 5 Business Days of the due date any other amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable.

24.2 Financial and negative covenants

Any requirement of Clause 20 (Financial covenants), Clause 22 (Negative Undertakings - the Group) or Clause 23 (Negative Undertakings - the Regional Group) (other than any requirement to notify the Agent pursuant to sub-paragraph (b)(iv)(B) of Clause 23.4 (Loans and guarante es)) is not satisfied.

24.3 Other obligations

(a) An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 (Non-payment) and Clause 24.2 (Financial and negative covenants)) including, for the avoidance of doubt, any requirement to notify the Agent pursuant to sub-paragraph (b)(iv)(B) of Clause 23.4 (Loans and guarantees).

(b) No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 days of the earlier to occur of the Agent or any Lender giving notice thereof to the Borrower or the date on which a member of the Senior Management Team of an Obligor becomes aware of the failure to comply or should have know of such failure to comply.

24.4 Misrepresentation

Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.


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24.5 Cross default

(a) Any Indebtedness of any member of the Group or Financial Indebtedness of any member of the Regional Group is not paid when due nor within any originally applicable grace period.

(b) Any Indebtedness of any member of the Group or Financial Indebtedness of any member of the Regional Group is declared to be or otherwise becomes due and payable (or otherwise redeemable or repurchaseable) prior to its specified maturity as a result of any actual or potential default, event of default, credit review event or any similar event (however described).

(c) Any creditor of any member of the Group or Regional Group becomes entitled to declare any Indebtedness of any member of the Group or any Financial Indebtedness of any member of the Regional Group due and payable (or otherwise redeemable or repurchaseable) prior to its specified maturity as a result of any actual or potential default, event of default, credit review event or any similar event (however described).

(d) No Event of Default will occur under this Clause 24.5 if the aggregate amount, without double counting, of all Indebtedness (in the case of members of the Group) and all Financial Indebtedness (in the case of members of the Regional Group) falling within paragraphs (a) to (c) above is less than US$30,000,000 (or its equivalent in any other currency or currencies).

24.6 Insolvency

(a) A member of the Regional Group is unable to, or is presumed or deemed to be unable to or admits its inability to pay its debts, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.

(b) The value of the assets of any member of the Regional Group is less than its liabilities (taking into account contingent and prospective liabilities).

24.7 Insolvency proceedings

Any corporate action, legal proceedings or other procedure or step is taken in relation to:

(a) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Regional Group;

(b) a composition, assignment or arrangement with any creditor of any member of the Regional Group;

(c) the appointment of a liquidator, Judicial Manager, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Regional Group or any of its assets; or

(d) enforcement of any Security over any assets of any member of the Regional Group,

or any analogous procedure or step is taken in any jurisdiction unless, in each case, such procedure or step is frivolous or vexatious and is discharged within 10 days of being taken.


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24.8 US Involuntary Bankruptcy; Appointment of Receiver, Etc.

(a) An involuntary case shall be commenced against Energizer Holdings or any of its Material Subsidiaries and the petition shall not be dismissed, stayed, bonded or discharged within sixty (60) days after commencement of the case; or a court having jurisdiction in the premises shall enter a decree or order for relief in respect of Energizer Holdings or any of its Material Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or any other similar relief shall be granted under any applicable federal, state, local or foreign law.

(b) A decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Energizer Holdings or any of its Material Subsidiaries or over all or a substantial part of the assets of Energizer Holdings or any of its Material Subsidiaries shall be entered; or an interim receiver, trustee or other custodian of Energizer Holdings or any of its Material Subsidiaries or of all or a substantial part of the assets of Energizer Holdings or any of its Material Subsidiaries shall be appointed or a warrant of attachment, execution or similar process against any substantial part of the assets of Energizer Holdings of its or any of its Material Subsidiaries shall be issued and any such event shall not be stayed, dism issed, bonded or discharged within sixty (60) days after entry, appointment or issuance or any order, judgment or decree shall be entered against Energizer Holdings decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of sixty (60) days or Energizer Holdings shall otherwise dissolve or cease to exist.

24.9 US Voluntary Bankruptcy; Appointment of Receiver, Etc.

Energizer Holdings or any of its Material Subsidiaries shall (i) commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, (iii) consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property, (iv) make any assignment for the benefit of creditors, (v) take any corporate action to authorise any of the foregoing or (vi) is generally not paying, or admits in writing its inability to pay, its debts as they become due.

24.10 Judgments, creditors' process

(a) Any money judgment (other than a money judgment covered by insurance as to which the insurance company has not disclaimed or reserved the right to disclaim coverage) made or given by any court of competent jurisdiction against a member of the Group or its assets involving in any single case or in the aggregate an amount in excess of US$30,000,000 (or its equivalent) shall remain undischarged, unvacated, unbonded or unstayed for a period of 60 days or, if earlier, by the date 15 days prior to the date of any proposed sale thereunder.

(b) Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of a member of the Group having in any single case or in the aggregate a value of US$30,000,000 (or its equivalent) and is not discharged within 60 days or, if earlier, by the date 15 days prior to the date of any proposed sale thereunder.


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24.11 Declared company

An Obligor is declared by the Minister of Finance of Singapore to be a company to which Part IX of the Companies Act applies.

24.12 Unlawfulness

It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.

24.13 Repudiation

An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document or any Finance Document ceases to be in full force and effect.

24.14 ERISA Event

Any ERISA Event occurs which the Majority Lenders believe is reasonably likely to subject any member of the Group to liability individually or in the aggregate in excess of US$30,000,000.

24.15 Waiver of Minimum Funding Standard

If the plan administrator of any Plan applies under Section 412(d) of the Internal Revenue Code for a waiver of the minimum funding standards of Section 412(a) of the Internal Revenue Code and the Majority Lenders believe the substantial business hardship upon which the application for the waiver is based could reasonably be expected to subject any member of the Group to liability individually or in the aggregate in excess of US$30,000,000.

24.16 Environmental Matters

Any member of the Group shall be the subject of any proceeding or investigation pertaining to:

(a) the release by the Borrower or any of its Subsidiaries of any Hazardous Substance into the Environment;

(b) the liability of the Borrower or any of its Subsidiaries arising from the release by any other person of any Hazardous Substance into the Environment; or

which has or is reasonably likely to subject any member of the Group to liability individually or in the aggregate in excess of US$30,000,000.

24.17 Receivables Purchase Document Events

A "Termination Event" (as defined in the 2000 Receivables Sale Agreement), an "Amortization Event" (as defined in the 2000 Receivables Purchase Agreement) or any other breach or event of like import under any replacement Receivables Purchase Documents permitted hereby (any such event, a "Receivables Facility Trigger Event") shall:

(a) occur with respect to the conduct or performance of (i) any member of the Group party to such Receivables Purchase Document, (ii) any servicer of the Receivables (so long as such servicer is Energizer Holdings or a Subsidiary thereof) under the Receivables Purchase Documents, (iii) any guarantor of the obligations of any member of the Group party to such Receivables Purchase Document or servicer under the Receivables Purchase Documents or (iv) any of their respective Subsidiaries other than an SPV; and


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(b) result in the termination of reinvestments of collections or proceeds of Receivables and Related Security under any agreements evidencing Receivables Facility Attributed Indebtedness,

it being understood and agreed that the occurrence of a Receivables Facility Trigger Event resulting solely from (i) the conduct or performance of an SPV and/or (ii) the performance or quality of the Receivables securing the obligations under the Receivables Purchase Documents, taken together with the circumstances described in paragraph (b) above shall not give rise to an Event of Default under this Clause 24.17.

24.18 Acceleration

On and at any time after the occurrence of an Event of Default the Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrower:

(a) cancel the Total Commitments whereupon they shall immediately be cancelled;

(b) declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

(c) declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.

24.19 Automatic Acceleration

If an Event of Default occurs under Clause 24.8 (US Involuntary Bankruptcy; Appointment of Receiver, Etc.) or Clause 24.9 (US Voluntary Bankruptcy; Appointment of Receiver, Etc.) in relation to Energizer Holdings, each amount expressed by Clause 17 (Guarantee and indemnity) to be payable by Energizer Holdings on demand shall, after that Event of Default has occurred, be imme diately due and payable by Energizer Holdings without the need for any demand or other claim on Energizer Holdings.


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SECTION 9

CHANGES TO PARTIES

25. Changes to the Lenders

25.1 Assignments and transfers by the Lenders

Subject to this Clause 25, a Lender (the "Existing Lender") may:

(a) assign any of its rights; or

(b) transfer by novation any of its rights and obligations,

to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the "New Lender").

25.2 Conditions of assignment or transfer

(a) The consent of the Borrower is required for an assignment or transfer by a Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender or an Approved Fund of a Lender or a Default is continuing.

(b) The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent five Business Days after the Lender has requested it unless consent is expressly refused by the Borrower within that time.

(c) Unless the Agent and, if the consent of the Borrower is required pursuant to paragraph (a) above, the Borrower otherwise agree, any assignment or transfer by a Lender must be (when the amount of the participation being assigned or transferred is aggregated with the Existing Lender's Available Commitment being transferred) in a minimum amount equal to:

(i) in relation to Facility A, US$5,000,000; and

(ii) in relation to Facility B, S$5,000,000,

or if less, the Existing Lender's participation in the Loans in that Facility and the Existing Lender's Available Commitment in respect of that Facility.

(d) An assignment will only be effective on receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was an Original Lender.

(e) A transfer will only be effective if the procedure set out in Clause 25.5 (Procedure for transfer) is complied with.

(f) If:

(i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

(ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (Tax gross-up and indemnities) or Clause 13 (Increased Costs),


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then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.

25.3 Assignment or transfer fee

The New Lender shall, on the date upon which an assignment or transfer takes effect or the Transfer Certificate is delivered to the Agent in accordance with Clause 25.5 (Procedure for transfer), pay to the Agent (for its own account) a fee of US$1,000.

25.4 Limitation of responsibility of Existing Lenders

(a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

(i) the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

(ii) the financial condition of any Obligor;

(iii) the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

(iv) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

(b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and

(ii) will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

(i) accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause 25; or

(ii) support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.


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25.5 Procedure for transfer

(a) Subject to the conditions set out in Clause 25.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (b) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

(b) On the Transfer Date:

(i) to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the "Discharged Rights and Obligations");

(ii) each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;

(iii) the Agent, the Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

(iv) the New Lender shall become a Party as a "Lender".

25.6 Participations

For the avoidance of doubt, nothing in this Agreement shall prevent any Lender from entering into any sub-participation, risk participation, credit default swap or other similar transaction with any other person.

25.7 Replacement of Certain Lenders

(a) Without in any way limiting the obligations of the Obligors under the Finance Documents (including, without limitation, pursuant to Clauses 7.1 (Illegality) or 13.1 (Increased Costs)), in the event that a Lender (an "Affected Lender") is entitled to repayment or prepayment pursuant to Clause 7.1 (Illegality) or to payment of its Increased Costs pursuant to Clause 13.1 (Increased Costs) and such payments are not payable to any other Lender pursuant to Clauses 7.1 (Illegality) or 13.1 (Increased Costs), the Borrower may deliver a notice to such Affected Len der (with a copy to the Agent) requesting the Affected Lender to transfer all of such Affected Lender's rights and obligations under the Finance Documents (including, without limitation, its Commitment) to one or more financial institutions or other persons that comply with the provisions of this Clause 25 (Changes to Lenders), which the Borrower shall have engaged for such purposes (a "Replacement Lender") and notified to the Affected Lender in the Borrower's notice and, on receipt of such notice, such Affected Lender shall use its reasonable efforts to make such transfer in accordance with the foregoing provisions of this Clause 25 (Changes to the Lenders) within five (5) Business Days from the date of such notice (or in the case of Clause 7.1 (Illegality), if earlier, the date specified by the Affected Lender in the notice delivered to the Agent pursuant to sub-paragraph (a)(i) of that Clause 7.1(Illegality) or, if earlier, the last day of the Interest Period for each Loan outstanding on the notification date (as defined in Clause 7.1 (Illegality)).


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(b) The Agent agrees, upon the written request of the Borrower following the occurrence of an event entitling the Borrower to deliver a notice under this Clause 25.7, to use its reasonable efforts to help the Borrower engage one or more financial institutions to act as a Replacement Lender.

(c) For the avoidance of doubt, an Affected Lender need not effect any transfer pursuant to this Clause 25.7, unless prior to (or on) such transfer it receives in cash, all amounts due and owing to the Affected Lender under each Finance Document, including, without limitation, the aggregate outstanding principal amount of the Loans owed to such Affected Lender, together with accrued interest thereon until the date of such transfer.

26. Changes to the Obligors

No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.


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SECTION 10

THE FINANCE PARTIES

27. Role of the Agent and the Arranger

27.1 Appointment of the Agent

(a) The Arranger and each Lender appoints the Agent to act as its agent under and in connection with the Finance Documents.

(b) The Arranger and each Lender authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

27.2 Duties of the Agent

(a) The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.

(b) Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

(c) If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Lenders.

(d) If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties.

(e) The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. The Agent shall have no other duties save as expressly provided in the Finance Documents to which it is party.

27.3 Role of the Arranger

Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.

27.4 No fiduciary duties

(a) Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.

(b) Neither the Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.

27.5 Business with the Group

The Agent and the Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.

27.6 Rights and discretions of the Agent

(a) The Agent may rely on:


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(i) any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and

(ii) any statement purportedly made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.

(b) The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:

(i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 24.1 (Non-payment));

(ii) any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and

(iii) any notice or request made by an Obligor (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors.

(c) The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.

(d) The Agent may act in relation to the Finance Documents through its personnel and agents.

(e) The Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

(f) Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.

27.7 Majority Lenders' instructions

(a) Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.

(b) Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.

(c) The Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) or under paragraph (d) below until it has received such security as it may require for any cost, loss or liability (together with any associated Indirect Tax) which it may incur in complying with the instructions.

(d) In the absence of instructions from the Majority Lenders (or, if appropriate, the Lenders), the Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.


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(e) The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.

27.8 Responsibility for documentation

Neither the Agent nor the Arranger:

(a) is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, an Obligor or any other person given in or in connection with any Finance Document or the Information Memorandum; or

(b) is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document.

27.9 Exclusion of liability

(a) Without limiting paragraph (b) below, the Agent will not be liable for any action taken by it, or for omitting to take action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.

(b) No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document. Any third party referred to in this paragraph (b) may enjoy the benefit of or enforce the terms of this paragraph in accordance with the provisions of the Third Parties Act.

(c) The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose.

27.10 Lenders' indemnity to the Agent

(a) Subject to paragraph (b) below, each Lender shall (in proportion to its Available Commitments and participations in the Loans then outstanding to the Available Facilities and all the Loans then outstanding) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).

(b) If the Available Facilities are then zero each Lender's indemnity under paragraph (a) above shall be in proportion to its Available Commitments to the Available Facilities immediately prior to their reduction to zero, unless there are then any Loans outstanding in which case it shall be in proportion to its participations in the Loans then outstanding to all the Loans then outstanding.

27.11 Resignation of the Agent

(a) The Agent may resign and appoint one of its Affiliates acting through an office in Singapore as successor by giving notice to the other Finance Parties and the Borrower.


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(b) Alternatively the Agent may resign by giving notice to the other Finance Parties and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Agent.

(c) If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the Agent (after consultation with the Borrower) may appoint a successor Agent (acting through an office in Singapore).

(d) The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.

(e) The Agent's resignation notice shall only take effect upon the appointment of a successor.

(f) Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 27. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

(g) After consultation with the Borrower, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.

27.12 Confidentiality

(a) In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.

(b) If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.

(c) Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger are obliged to disclose to any person (i) any confidential information or (ii) any other information if the disclosure would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of any contractual or fiduciary duty.

27.13 Relationship with the Lenders

The Agent may treat each Lender as a Lender, entitled to payments under this Agreement and acting through its Facility Office unless it has received not less than five Business Days prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

27.14 Credit appraisal by the Lenders

Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:

(a) the financial condition, status and nature of each member of the Group;


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(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;

(c) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and

(d) the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.

27.15 Reference Banks

If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with the Borrower) appoint another Lender or an Affiliate of a Lender or any bank approved by the Majority Lenders to replace that Reference Bank. If a Reference Bank ceases generally to offer quotations for SIBOR or SOR, the Agent shall (in consultation with the Borrower) appoint another bank or financial institution approved by the Majority Lenders to replace that Reference Bank.

27.16 Agent's Management Time

Any amount payable to the Agent under Clause 14.3 (Indemnity to the Agent), Clause 16 (Costs and expenses) and Clause 27.10 (Lenders' indemnity to the Agent) shall include the cost of utilising the Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Agent may notify to the Borrower and the Lenders, an d is in addition to any fee paid or payable to the Agent under Clause 11 (Fees).

27.17 Deduction from amounts payable by the Agent

If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.

27.18 Money Laundering

Unless mandatorily required by applicable law or regulation to which the Agent is subject, the Agent shall not be responsible to any other Party for providing any certification or documents with respect to information (except in respect of itself) required for any anti-money laundering due diligence purpose. Such certificates and related documents shall be provided directly by the Borrower and other Obligors provided that the request for such information may be made through the Agent.


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27.19 Hedging Banks

Except as otherwise stated in this Agreement, the Agent shall have no liability under the Finance Documents whatsoever to any Hedging Bank.

28. Conduct of business by the Finance Parties

No provision of this Agreement will:

(a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

(b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or

(c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.

29. Sharing among the Finance Parties

29.1 Payments to Finance Parties

If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 30 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then:

(a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent;

(b) the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 30 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

(c) the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 30.6 (Partial payments).

29.2 Redistribution of payments

The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 30.6 (Partial payments).

29.3 Recovering Finance Party's rights

(a) On a distribution by the Agent under Clause 29.2 (Redistribution of payments), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.


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(b) If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.

29.4 Reversal of redistribution

If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

(a) each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 29.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and

(b) that Recovering Finance Party's rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed.

29.5 Exceptions

(a) This Clause 29 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.

(b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:

(i) it notified that other Finance Party of the legal or arbitration proceedings; and

(ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.


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SECTION 11

ADMINISTRATION

30. Payment mechanics

30.1 Payments to the Agent

(a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.

(b) Payment shall be made to the following accounts of the Agent:

For payment in US$:
Bank	:	Citibank N.A., New York
Swift	:	CITIUS33
For Account of	:	Citicorp Investment Bank (Singapore) Limited
Account No.	:	10999866
For payment in S$:

Citibank NA Singapore for the account of Citicorp Investment Bank (S) Limited account No. 0-010698-014,

or to such account in the principal financial centre of the country of that currency with such bank as the Agent specifies to the Parties after the date of this Agreement.

30.2 Distributions by the Agent

(a) Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 30.3 (Distributions to an Obligor) and Clause 30.5 (Clawback) and to paragraph (b) below, be made available by the Agent by payment as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' prior notice, with a bank in the principal financial centre of the country of that currency. Any notice given to the Agent by a Party under this paragraph (a) is only effective when the original notice is received by the Agent signed by an authorised officer of that Party.

(b) Notwithstanding paragraph (a) above, any payment to be made under the Finance Documents by the Agent to a Lender in US Dollars or Singapore Dollars shall be made in accordance with that Lender's Standing Payment Instruction for that currency.

30.3 Distributions to an Obligor

The Agent may (with the consent of the Obligor or in accordance with Clause 31 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.


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30.4 Netting of Payments

Notwithstanding Clause 6.2 (Repayment of Facility B Loans) or Clauses 30.1 (Payments to the Agent) to 30.3 (Distributions to an Obligor) or any other provision of the Finance Documents, if on any date an amount (the "first amount") is to be advanced by a Lender under this Agreement and an amount (the "second amount") is due from the Borrower to that Lender under the Finance Documents in the same currency, that Lender shall apply the first amount in or towards payment of the second amount. The relevant Lender shall remain obliged to advance any excess (or, as the case may be, the Obligors shall remain liable in respect of any shortfall) in accordance with this Clause 30. Nothing in this Clause 30.4 shall be effective to create a charge.

30.5 Clawback

(a) Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.

(b) If the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.

30.6 Partial payments

(a) If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

(i) first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent or the Arranger under the Finance Documents;

(ii) secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;

(iii) thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and

(iv) fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

(b) The Agent shall, if so directed by the Majority Facility A Lenders and the Majority Facility B Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above.

30.7 No set-off by Obligors

All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.


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30.8 Business Days

(a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

(b) During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.

30.9 Currency of account

(a) Subject to paragraphs (b) to (e) below, US Dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.

(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.

(c) Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated when that interest accrued.

(d) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

(e) Any amount expressed to be payable in a currency other than US Dollars shall be paid in that other currency.

31. Set-off

Without prior notice to any Obligor, a Finance Party may, but is not obliged to, set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor (whether or not matured), regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

32. Disclosure of information

32.1 General

Without prejudice to Clause 32.2 (Tax) or to the rights of the Finance Parties to disclose information relating to any Obligor, the Regional Group or the Group whether under the common law or the Banking Act, Chapter 19 of Singapore (as amended or re-enacted from time to time, the "Banking Act") or otherwise, each Obligor consents to each Finance Party, its officers (as defined in the Banking Act) and agents and all persons to whom Section 47 of the Banking Act applies disclosing any customer information (as defined in the Banking Act) and any other inform ation relating to any Obligor, the Group, the Regional Group and the Finance Documents as that Finance Party shall consider necessary for any such purposes as it thinks fit, and any other information (including personal data) relating to the Obligors and the Obligors' account relationship (including deposit accounts) and/or dealing relationship with that Finance Party, including


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but not limited to details of the Facilities, any Finance Document, any security taken, transactions undertaken and balances and positions with each Lender and any information which is in the public domain to:

(a) any of that Finance Party's agents, contractors or third party service providers or professional advisers who are under a duty of confidentiality to the Lender and who provide administrative, telecommunications, computer, payment, collections, security, clearing, credit reference or checking, or other services or facilities to that Finance Party under or in connection with the Facility, this Agreement or any other Finance Document and/or the operation of that Finance Party's business, whether in Singapore or outside Singapore;

(b) that Finance Party's head office, branches, representative offices, Subsidiaries, related corporations or Affiliates, in Singapore or overseas (collectively the "Related Parties" and each a "Related Party") for any database or data processing purposes or any other purposes whatsoever, notwithstanding that a Related Party's principal place of business may be outside of Singapore or that the Obligor's information following disclosure may be collected, held, processed or used by any Related Party in whole or in part outside of Singapore;

(c) any regulatory, supervisory or other authority, court of law, tribunal or person, in Singapore or any other jurisdiction, where such disclosure is required by law, regulation, judgment or order of court or order of any tribunal or otherwise in connection with any legal proceedings taken against any Obligor in connection with the Finance Documents;

(d) any actual or potential New Lender or other assignee or transferee of any rights and obligations of that Finance Party or other participants in any of its rights and/or obligations under or relating to the Facilities, this Agreement or any other Finance Document and any security therefor for any purposes connected with the proposed assignment or transfer;

(e) any insurer (whether of that Finance Party or an Obligor or otherwise), guarantor or provider of security;

(f) any of that Finance Party's Affiliates or any other person:

(i) with (or through) whom that Finance Party enters into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made by reference to, the Finance Documents or any Obligor;

(ii) who is a person, or who belongs to a class of persons, specified in the second column of the Sixth Schedule to the Banking Act (the "Sixth Schedule") but only for the purposes specified in the first column of the Sixth Schedule and subject always to the conditions (if any) set out in the third column of the Sixth Schedule; and


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(iii) to whom that Finance Party is under a duty to disclose subject, however, to the restrictions on any such disclosure set out in Section 47 of the Banking Act or in the Sixth Schedule.

This Clause 32.1 is not, and shall not be deemed to constitute, an express or implied agreement by any Finance Party with any Obligor for a higher degree of confidentiality than that prescribed in Section 47 of the Banking Act and in the Sixth Schedule to the Banking Act.

32.2 Tax

Notwithstanding any other term of this Agreement, confidential information shall not include, and each Finance Party (and each employee, representative or other agent of any Finance Party) may disclose to any and all persons, without limitation of any kind, the "tax treatment" and "tax structure" (in each case, within the meaning of US Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are or have been provided to such Finance Party relating to such tax treatment or tax structure; provided that (unless otherwise permitted pursuant to the terms of this Agreement) (a) this Clause is not intended to permit disclosure of any other information to the extent not related to such tax treatment or tax structure and (b) with respect to any document or similar item that in either case contains information concerning such ta x treatment or tax structure of the transactions contemplated by this Agreement as well as other information, this Clause shall only apply to such portions of the document or similar item that relate to such tax treatment or tax structure.

33. Notices

33.1 Communications in writing

Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax, letter or under Clause 33.5 (Electronic communication) by email.

33.2 Addresses

The address, fax number and (if applicable) email address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:

(a) in the case of the Borrower, that identified with its name below;

(b) in the case of each Original Lender or any other Obligor, that identified with its name below;

(c) in the case of each Lender that becomes a Party after the date of this Agreement, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

(d) in the case of the Agent, that identified with its name below,

or any substitute address, fax number or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days' notice.


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33.3 Delivery

(a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:

(i) if sent by fax before 5 p.m. (local time in the place to which it is sent) on a working day in that place, when sent or, if sent by fax at any other time, at 9 a.m. (local time in the place to which it is sent) on the next working day in that place, provided, in each case, that the person sending the fax shall have received a transmission receipt; or

(ii) if by way of letter, when it has been left at the relevant address or three Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or

(iii) if by way of email, if it complies with the rules under Clause 33.5 (Electronic communication)

and, if a particular department or officer is specified as part of its address details provided under Clause 33.2 (Addresses), if addressed to that department or officer. For this purpose, working days are days other than Saturdays, Sundays and bank holidays.

(b) Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's signature below (or any substitute department or officer as the Agent shall specify for this purpose).

(d) Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.

33.4 Notification of address and fax number

Promptly upon receipt of notification of an address, fax number and email address or change of address, fax number or email address pursuant to Clause 33.2 (Addresses) or changing its own address, fax number or email address the Agent shall notify the other Parties.

33.5 Electronic communication

(a) Any communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Lender:

(i) agree that, unless and until notified to the contrary, this is to be an accepted form of communication;

(ii) notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

(iii) notify each other of any change to their electronic mail address or any other such information supplied by them.


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Any Lender which sets out an email address as part of its "administration details" provided by it to the Agent from time to time in connection with the Finance Documents is deemed to agree to receiving communications from the Agent by electronic mail to that email address.

(b) Any electronic communication made:

(i) by the Agent to a Lender will be effective when it is sent by the Agent unless the Agent receives a message indicating failed delivery; and

(ii) by a Lender to the Agent will be effective only when actually received by the Agent and then only if it is addressed in such a manner as the Agent shall specify to that Lender for this purpose.

(c) The Agent or a Lender shall notify any affected Parties promptly upon becoming aware that its electronic mail system or other electronic means of communication cannot be used due to technical failure (and that failure is or is likely to be continuing for more than 2 Business Days). Until the Agent or that Lender has notified the other affected Parties that the failure has been remedied, all notices between those parties shall be sent by fax or letter in accordance with this Clause 33 (Notices).

(d) Each Party acknowledges and agrees that the privacy and integrity of electronic transmissions cannot be guaranteed. To the extent that any information relating to the Finance Documents is transmitted electronically, each Obligor agrees to release each Finance Party, and each Lender agrees to release each other Finance Party from any loss or liability incurred in connection with the electronic transmission of such information, including the unauthorised interception, alteration or fraudulent generation and transmission of electronic transmissions by third parties provided that the transmitting Party has taken all reasonable prudent precautions to protect the integrity of its electronic communication system.

33.6 Reliance

(a) Any notice sent under this Clause 33 can be relied on by the recipient if the recipient reasonably believes the notice to be genuine and if it bears what appears to be the signature (original or facsimile) of an authorised signatory of the sender or, as applicable, if it is sent from an email address notified for this purpose pursuant to Clause 33.5 (Electronic communication) (in each case without the need for further enquiry or confirmation).

(b) Each Party must take reasonable care to ensure that no forged, false or unauthorised notices are sent to another Party.

33.7 English language

(a) Any notice given under or in connection with any Finance Document must be in English.

(b) All other documents provided under or in connection with any Finance Document must be:

(i) in English; or

(ii) if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.


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34. Calculations and certificates

34.1 Accounts

In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.

34.2 Certificates and Determinations

Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.

34.3 Day count convention

Any interest, commission or fee accruing under a Finance Document will accrue from day to day and, in relation to Facility A, is calculated on the basis of the actual number of days elapsed and a year of 360 days and, in relation to Facility B, on the basis of the actual number of days elapsed and on year of 365 days or, in any case where the practice in the Relevant Interbank Market differs, in accordance with that market practice.

35. Partial invalidity

If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

36. Remedies and waivers

No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

37. Amendments and waivers

37.1 Required consents

(a) Subject to Clause 37.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.

(b) The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.

37.2 Exceptions

(a) An amendment or waiver that has the effect of changing or which relates to:

(i) the definition of "Majority Lenders", "Majority Facility A Lenders" or "Majority Facility B Lenders" in Clause 1.1 (Definitions);


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(ii) an extension to the date of payment of any amount under the Finance Documents;

(iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

(iv) an increase in or an extension of any Commitment;

(v) a change to the Borrower or Guarantors other than in accordance with Clause 26 (Changes to the Obligors);

(vi) any provision which expressly requires the consent of all the Lenders; or

(vii) Clause 2.2 (Finance Parties' rights and obligations), Clause 25 (Changes to the Lenders), Clause 29 (Sharing among the Finance Parties), or this Clause 37,

shall not be made without the prior consent of all the Lenders.

(b) An amendment or waiver which relates to the rights or obligations of the Agent or the Arranger may not be effected without the consent of the Agent or the Arranger.

(c) Except where the consent of all Lenders is required by any Finance Document, an amendment or waiver which relates solely to the rights or obligations of the Facility A Lenders shall not be effective without the consent of the Majority Facility A Lenders and shall not require the consent of any Facility B Lender.

(d) Except where the consent of all Lenders is required by any Finance Document, an amendment or waiver which relates solely to the rights and obligations of the Facility B Lenders shall not be effective without the consent of the Majority Facility B Lenders and shall not require the consent of any Facility A Lender.

38. Counterparts

Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.


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SECTION 12

GOVERNING LAW AND ENFORCEMENT

39. Governing law

This Agreement is governed by English law.

40. Enforcement

40.1 Jurisdiction

(a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a "Dispute").

(b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

(c) This Clause 40.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.

40.2 Service of process

Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales):

(a) irrevocably appoints the offices of Bryan Cave at 33 Cannon Street, London, EC4M 5TE, England as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and

(b) agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.

40.3 Waiver of consequential damages etc.

(a) Each Obligor irrevocably agrees that, in connection with the Finance Documents and the transactions contemplated thereby, no Finance Party nor any of their respective Affiliates, officers, employees or agents shall be liable to the Borrower (except to the extent of its own gross negligence or wilful misconduct) nor liable, on any theory of liability, for any special, indirect, consequential or punitive damages and the Borrower agrees not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favour.

(b) Any third party referred to in paragraph (a) above may enjoy the benefit of or enforce the terms of that paragraph in accordance with the provisions of the Third Parties Act.

This Agreement has been entered into on the date stated at the beginning of this Agreement.


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SCHEDULE 1
The Original Lenders

Name of Original Lender	Facility A Commitment	Facility B Commitment

Standard Chartered Bank	US$18,500,000	S$33,000,000

Citibank, N.A., Singapore Branch	US$10,000,000	S$18,000,000

DBS Bank Ltd.	US$10,000,000	S$17,000,000

Bank of China, Singapore Branch	US$8,250,000	S$14,500,000

Credit Lyonnais, Singapore Branch	US$8,250,000	S$14,500,000

Norddeutsche Landesbank Girozentrale, Singapore Branch	US$8,250,000	S$14,500,000

Oversea-Chinese Banking Corporation Limited	US$8,250,000	S$14,500,000

SANPAOLO IMI S.p.A., Singapore Branch	US$8,250,000	S$14,500,000

Sumitomo Mitsui Banking Corporation, Singapore Branch	US$8,250,000	S$14,500,000

The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch	US$8,250,000	S$14,500,000

United Overseas Bank Limited	US$8,250,000	S$14,500,000

The Bank of Nova Scotia Asia Limited	US$7,500,000	S$13,000,000

Bank of America, N.A.	US$5,000,000	S$9,000,000

Mizuho Corporate Bank, Ltd., Singapore Branch	US$5,000,000	S$9,000,000

Westpac Banking Corporation	US$3,000,000	S$5,000,000

Total	US$125,000,000	S$220,000,000


	- 97 -

SCHEDULE 2
Conditions precedent

1.   Obligors

(a)   A copy of the constitutional documents of each Obligor.

(b)   A copy of a resolution of the board of directors of each Obligor: 

(i)    approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party and, in the case of each Guarantor, giving reasons for such execution, to the effect that is in the best interests of that Guarantor;

(ii)   authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and

(iii)  authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request and Selection Notice) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.

(c)   A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above. 

(d)  A copy of a resolution signed by all the holders of the issued shares in (i) Sonca Products and (ii) the Borrower approving the terms of, and the transactions contemplated by, the Finance Documents to which Sonca Products or the Borrower, as the case may be, is a party. 

(e)  A certificate of a director or the secretary of the relevant Obligor confirming that: 

(i)    borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded; and

(ii)   each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. 

(f)   A certification of good standing relating to Energizer Holdings. 

2.  Legal opinions

(a)  A legal opinion of Linklaters Allen & Gledhill, legal advisers to the Arranger and the Agent in England and Wales, substantially in the form distributed to the Original Lenders prior to signing this Agreement. 

(b)  A legal opinion of Linklaters, legal advisers to the Arranger and the Agent in Hong Kong, substantially in the form distributed to the Original Lenders prior to signing this Agreement. 

(c)  A legal opinion of Allen & Gledhill, legal advisers to the Arranger and the Agent in Singapore, substantially in the form distributed to the Original Lenders prior to signing this Agreement.

(d)  A legal opinion of Bryan Cave, legal advisers to the Borrower and the Guarantors in Missouri, substantially in the form distributed to the Original Lenders prior to signing this Agreement. 


	- 98 -

(e)  A legal opinion of Colin Ng & Partners, legal advisers to the Borrower and Energizer Singapore in Singapore, substantially in the form distributed to the Original Lenders prior to signing this Agreement. 

3.    Other documents and evidence

(a)   Evidence that any process agent referred to in Clause 40.2 ( Service of process ) has accepted its appointment.

(b)  A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.

(c)   The Original Financial Statements.

(d)   Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 ( Fees ) and Clause 16 ( Costs and expenses ) have been paid or will be paid by the first Utilisation Date. 

(e)   A list of Material Subsidiaries as at the date of this Agreement.

(f)    A list of Subsidiaries of Energizer Holdings that are guarantors of its obligations under the US Facility. 

(g)   A copy of the Section 76A(6) Certificate issued by Energizer Singapore and addressed to the Agent, pursuant to Section 76A(6) of the Companies Act. 


	- 99 -

SCHEDULE 3
Requests

PART I
Utilisation Request

From:  Energizer Asia Investments Pte Ltd

To:    Citicorp Investment Bank (Singapore) Limited

Dated:

Dear Sirs 

Energizer Asia Investments Pte Ltd - US$125,000,000 and S$220,000,000 Facility Agreement
dated 25 July 2003 (the "Agreement")

1.   We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request. 

2.   We wish to borrow a Loan on the following terms:

Proposed Utilisation Date:	[__________] (or, if that is not a Business Day, the next Business Day)

Facility to be utilised:	[Facility A]/[Facility B] ^*

Currency of Loan:	[US Dollars/Singapore Dollars]*

Amount:	[__________] or, if less, the Available Facility

Interest Period:	[__________]

3. We confirm that each condition specified in Clause 4.2 ( Further conditions precedent ) is satisfied on the date of this Utilisation Request.

4. The proceeds of this Loan should be credited to:

[For US$ payments	:

For Account of	:	Bank of America, N.A., Singapore

Account No.	:	57163 027

SWIFT Code	:	BOFASG2X

Favouring	:	ENERGIZER ASIA INVESTMENTS PTE LTD]*

[For S$ payments	:

For Account of	:	Bank of America, N.A., Singapore

Account No.	:	57163 019

SWIFT Code	:	BOFASG2X

Favouring	:	ENERGIZER ASIA INVESTMENTS PTE LTD]*

*    Delete as appropriate. 


	- 100 -

5. This Utilisation Request is irrevocable.

Yours faithfully 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

authorised signatory for
Energizer Asia Investments Pte Ltd


	- 101 -

PART II
Selection Notice
Applicable to a Facility A Loan

From:  Energizer Asia Investments Pte Ltd

To:    Citicorp Investment Bank (Singapore) Limited 

Dated:

Dear Sirs

Energizer Asia Investments Pte Ltd - US$125,000,000 and S$220,000,000 Facility Agreement
dated 25 July 2003 (the "Agreement")

1.   We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.

2.   We refer to the following Facility A Loan[s] in US Dollars with an Interest Period ending on [__________].* 

3.   We request that the next Interest Period for the above Facility A Loan[s] is [__________]. 

4.   This Selection Notice is irrevocable. 

Yours faithfully 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

authorised signatory for
Energizer Asia Investments Pte Ltd

* Insert details of all Facility A Loans which have an Interest Period ending on the same date.


	- 102 -

SCHEDULE 4
Form of Transfer Certificate

To:  Citicorp Investment Bank (Singapore) Limited as Agent

From:  [The Existing Lender] (the " Existing Lender ") and [The New Lender] (the " New Lender ")

Dated:

Energizer Asia Investments Pte Ltd - US$125,000,000 and S$220,000,000 Facility Agreement
dated 25 July 2003 (the "Agreement")

1.     We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.

2.    We refer to Clause 25.5 ( Procedure for transfer ):

(a)  The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 25.5 ( Procedure for transfer ). 

(b)  The proposed Transfer Date is [__________].

(c)  The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 33.2 ( Addresses ) are set out in the Schedule.

3.    The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 25.4 ( Limitation of responsibility of Existing Lenders ).

This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.

This Transfer Certificate is governed by English law. 

THE SCHEDULE

Commitment/rights and obligations to be transferred 

Available Commitment Transferred	Participation in Loans Transferred	Next Interest Payment Date
Facility A : US$[?]	Facility A : US$[?]	Facility A : [?]
Facility B : S$[?]	Facility B : S$[?]	Facility B : [?]


	- 103 -

Administration Details: 

	US$	S$
New Lender's Standing Payment Instructions:	[ ]	[ ]

Facility Office address:	[ ]	[ ]

Telephone:	[ ]	[ ]

Fax:	[ ]	[ ]

Email Address:	[ ]	[ ]

Attn/Ref:	[ ]	[ ]

[Existing Lender]		[New Lender]
By:		By:

This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [ ]. 

Citicorp Investment Bank (Singapore) Limited 

By:


	- 104 -

SCHEDULE 5
Form of Compliance Certificate

To:  Citicorp Investment Bank (Singapore) Limited as Agent

From:  Energizer Holdings, Inc. 

Dated:        [      ] 200[  ] 

Dear Sirs

Energizer Asia Investments Pte Ltd - US$125,000,000 and S$220,000,000 Facility Agreement
dated 25 July 2003 (the " Agreement")

1.    We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.

2.    We confirm that on the last day of the financial quarter ending on [__________] 200[  ]:

(a)  the Leverage Ratio was [__________ ] to 1.00 and has not at any time during such financial quarter exceeded 3.50:1.00; and

(b)  the Interest Expense Coverage Ratio was [__________ ] to 1.00 (being greater than 3.00 to 1.00); [and

(c)  the aggregate of the outstanding principal amounts of and/or the outstanding liabilities under any loan, credit or financial accommodation made or provided and any guarantee, indemnity, bond or letter of credit given or issued in accordance with Clause 23.4 ( Loans and guarantees ) was US$[__________] (or its equivalent).] 

3.    [We confirm that the Repeating Representations are true in all material respects and no Default is continuing.] * 

Signed:	. . . . . . . . . . . . . . . . .	. . . . . . . . . . . . . . . . .
	Officer of	Officer of
	Energizer Holdings, Inc.	Energizer Holdings, Inc.

[ [insert applicable certification language] 

. . . . . . . . . . . . . . . . . . . . . . . . .

for and on behalf of
[name of auditors of the Borrower]

*    If this statement cannot be made, the certificate should identify any Default that is continuing and the steps, if any, being taken to remedy it.


	- 105 -

SCHEDULE 6
Existing Security, Contingent Obligations and Investments

PART I
Existing Liens

Name of member of Group	Security	Total Principal Amount of Indebtedness Secured
Liens securing immaterial and de minimis Indebtedness.

PART II
Existing Investments

Name of member of Group	Investment	Amount of Investment
Energizer International, Inc.	Energizer LLC (Russia)	(5%)
	Eveready Batteries Kenya Ltd. (Kenya)	(14%)
Eveready Battery Company, Inc.	Eveready de Colombia, S.A. (Colombia)	(10%)
EBC (India) Co. Ltd.	Eveready Energizer Miniatures Limited	(49%) (joint venture)^*
Energizer Hong Kong Limited	Eveready Hong Kong Company (Hong Kong)	(50%) (joint venture)
Energizer France	FIBAT SA (France)	(20%) ^^ (dormant)
MKTE, Inc.	Two intercompany notes from Eveready Battery Company, Inc.	(1) $27,100,145.30 and (2) $312,693,584.31
Partnership of Sonca Products Limited & Energizer Hong Kong Limited	Eveready Hong Kong Company (Hong Kong)
Energizer Czech spol. s r.o.	Ecobat s r.o (Czech Republic)	(33-1/3%) **
Energizer Polska sp. zo.o.	Reba Organizoja Odzysku S.A. (Poland)	(25%) **
Energizer SA (Switzerland)	Ecopilhas Lda. (Portugal)	(20%) **
Other immaterial Investments. Investments in subsidiaries disclosed on Schedule 18.18

*    in liquidation

**  non-profit 


	- 106 -

PART III
Existing Contingent Obligations

Name of member of Group	Contingent Obligations	Amount of Contingent Obligations
Guaranties of immaterial and de minimis obligations arising in the ordinary course of business and not related to the borrowing of money.

PART IV
Transactions with shareholders and Affiliates

Name of member of Group	Description of transaction with shareholder and/or Affiliate
None.


	- 107 -

SCHEDULE 7
Timetables

"D - " refers to the number of Business Days before the relevant Utilisation Date/the first day of the relevant Interest Period.

	Loans in US Dollars	Loans in Singapore Dollars
Delivery of a duly completed Utilisation Request (Clause 5.1 ( Delivery of a Utilisation Request )) or a Selection Notice (Clause 9.1 ( Selection of Interest Periods ))	D - 3 10:00 a.m.	D - 3 10:00 a.m.
Agent notifies the Lenders of the Loan in accordance with Clause 5.4 ( Lenders' participation )	D - 3 Noon	D - 3 Noon
SIBOR or SOR is fixed (in accordance with the definitions in Clause 1.1 ( Definitions ))	Quotation Day as of 11:00 a.m.	Quotation Day as of 11:00 a.m.


	- 108 -

SCHEDULE 8
Litigation

The following table sets forth various litigation matters: 

NAME OF CASE	MATTER TYPE	DESCRIPTION OF CASE
Abiney, et al. v. EBC Dorcy International, Inc.	Product Liability	Plaintiff alleges personal injuries on March 12, 1998 from leaking batteries in a small portable lantern.
Border, et al. v. EBC, Johnson Controls, et al	Product Liability	Plaintiff alleges personal injuries on February 2, 1996 from leaking car battery. We are being indemnified by Johnson Controls.
Comins v. Rival, EBC, Johnson Controls	Product Liability	Plaintiff alleges personal injuries on December 16, 1996 from leaking batteries in a mini-vac.
EBC v. A. Rajab & A. Silsilah	Breach of Contract	Breach of contract suit relating to distribution agreement.
Lindsey, et al. v. Gelco, et al	Personal Injuries	Plaintiff alleges personal injuries on August 16, 1997 in an automobile accident.
Long v. EBC, et al	Product Liability	Plaintiff alleges personal injuries on May 8, 1996 from leaking batteries in a portable television set.
Nationwide Ins. Co., et al. v. Tabler, et al. v. EBC	Insurance	Subrogation suit relating to an August 28, 1998 incident when chemical fallout damaged vehicle.
Phillips v. EBC	Personal Injury	Plaintiff alleges personal injuries on March 17, 1999, from leaking 9V batteries in an illuminated bow tie
Popa v. EBC	Personal Injury	Plaintiff alleges personal injuries during 1935 – 1943 when he developed mesophelioma. Case has been dormant since 1998.
Rossi v. EBC	Product Liability	Plaintiff alleges personal injuries on January 26, 1996 when batteries leaked.
Armstrong v. EBC	Product Liability	Alleged personal injury from leakage and rupture of batteries in diving light January 6, 2000
Ahmad, by GAL v. EBC	Product Liability	Alleged injuries from defective batteries on January 9, 2000


	- 109 -

NAME OF CASE	MATTER TYPE	DESCRIPTION OF CASE
Abdo v. Target, EBC	Product Liability	Battery leakage from a GTX Radio purchased @ Target caused alleged injuries on March 23, 2000
Bozorth, et al v. EBC, Wal-Mart	Product Liability	Batteries purchased at Wal-Mart leaked causing alleged injury to lap on December 4, 2000
Bratcher v. EBC	Product Liability	Battery leakage onto lap causing alleged injuries on October 16, 1999
Cama v. EBC	Product Liability	Alleged personal injury from leakage from battery in radio on February 11, 1999
Hechinger Investment v. EBC	Bankruptcy	Complaint to avoid & recover preferential transfers in bankruptcy on September 6, 2001
Kremmel v. Energizer Battery	Product Liability	Alleged personal injury from leakage from batteries in TV on January 2, 2001
Parker v. EBC	Product Liability	Alleged personal injury from batteries while opening package on June 30, 2001
Poppish v. RPCo, EBC, et al	Product Liability	Alleged personal injury from leakage from batteries in TV on November 2, 1999
Rainer Pacific Management v. EBC	Product Liability	Alleged strip mall fire from battery charger
Scata, Nunzio v. EBC, et al	Product Liability	Alleged personal injury and proposed damage from leakage from batteries in package on December 14, 1999
Schlenther v. EBC	Personal Injury	Plaintiff alleges personal injuries on 7/16/99 when AA batteries leaked from Motorola pager onto his skin.
Service Merchandise v. EBC	Bankruptcy	Recovery of preferential transfers in bankruptcy action August 22, 2001
Sterling, Jerry, et al v. EBC	Product Liability	Alleged personal injury from leakage from lantern battery still in package on January 20, 2002
Sturiale v. EBC	Product Liability	Alleged personal injury from leakage from batteries in flashlight on February 1, 2002
Torbush v. EBC	Personal Injury	Plaintiff alleges personal injuries on 12/24/98 when batteries leaked from remote control and injured eye.


	- 110 -

NAME OF CASE	MATTER TYPE	DESCRIPTION OF CASE
Testa v. EBC	Personal Injury	Plaintiff alleges personal injuries on 2/2/98 from batteries, which leaked from reading light onto hands. Device and batteries destroyed, do not know if in fact our product.
Washington v. EBC	Product Liability	Alleged personal injury from battery leakage on April 24, 2000
Australia
Linda Mrocki	Product Liability	10-12cm cut to the Plaintiff's right lower leg allegedly caused by a faulty Schick EXII razor. Claim threatened but not filed. Incident date: September 4, 2001
Austria
Wilkinson Sword GmbH (Austria)		Outstanding claim of WS Austria against Vassileva GmbH.
Brazil
Miguel Alves Pereira	Employment	Labor Claim related to cancelled employment agreement. Incident date: November 23, 1992.
China
State Administration of Taxation	Tax	Investigation of Warner-Lambert (Guangzhou) Limited's tax records; however, the State Administration of Taxation did not follow up with another investigation.
Germany
Ferrero OHG mbH	Trademark	Regional Court ruled for Wilkinson Sword GmbH on June 14, 2001 prohibiting Wilkinson Sword GmbH from using the "DUPLO" trademark.
Accuracy Surgical Ltd.	Breach of Contract and Trademark	Dispute regarding (1) obligation of Wilkinson Sword GmbH to accept products of Accuracy Surgical Ltd. and (2) right of Accuracy Surgical Ltd. to sell products with a Wilkinson Sword logo in Asia. Lawsuit pending at the High Court of Sindh at Karachi, Pakistan since 1994.


	- 111 -

NAME OF CASE	MATTER TYPE	DESCRIPTION OF CASE
Wilhelm Drache KG GmbH & Co ("Drache")	Real Estate	Drache claims the violation of public building law due to an exhaust installation erected by Wilkinson Sword GmbH near the border to Drache's neighboring real estate. No lawsuit filed.
Hong Kong
Hong Kong Inland Revenue Department	Tax	Queries in connection with certain transactions involving Warner-Lambert Trading Company Limited and affiliates and subsidiaries during the years of assessment of 1997/1998 and 1999/2000 respectively, and with Warner-Lambert Trading Company Limited's organization and operations during the years of assessment of 2000/2001 and 2001/2002 respectively.
Italy
Cingolani	Stock Options	Former Marketing Manager for Wilkinson claiming payment as a consequence of the sale of stock options. Incident date: June 6, 2002
Netherlands
General Inspection Service (Algemene Inspectiediens, AID)	Conviction payment of Euro 375 and recall of product	Alleged use of hair of a protected species (for shaving brushes) under the Netherlands Nature Protection Act


	- 112 -

SCHEDULE 9

Subsidiaries

(Subsidiaries are effectively 100% wholly owned unless otherwise indicated.) 

*   In liquidation
** Non-profit

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Berec Overseas Investments Limited	UK		Authorized: 100 Issued: 100 Energizer Holdings UK Company
EBC Batteries, Inc.	Delaware	India	Authorized: 1,000 Issued: 1,000 Energizer International, Inc.
EBC Uruguay S.A.	Uruguay		Authorized: 1,400,000 Issued: 350,000 Energizer International, Inc.
Energizer Asia Pacific, Inc.	Delaware	Hong Kong	Authorized: 1,000 Issued: 1,000 Energizer International, Inc.
Energizer Australia Pty. Ltd.	Australia		Authorized: 200,000,000 Issued: 6,000,000 Energizer International, Inc.


	- 113 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Energizer Canada Inc.	Canada		Common Stock Authorized: unlimited Issued: 28,500,100 Energizer International, Inc. (38%) 10,961,576 Energizer Holdings, Inc. (62%) 17,538,524
Energizer (China) Co., Ltd.	China		$41,000,000 paid in capital Energizer International, Inc.
Energizer Hellas A.E.	Greece		Authorized: 100,100 Issued: 100,100 Energizer International, Inc. (99.9%)100,087 Eveready Battery Company, Inc.: 13 shares
Energizer Hong Kong Limited	Hong Kong		Authorized: 400,000 Issued: 400,000 Energizer International, Inc.
Energizer Hungary Trading Ltd.	Hungary		Authorized: 37,457,000 HUF Issued: 37,457,000 HUF Energizer International, Inc.
EBC (India) Co. Private Limited	India		Authorized: 35,000,000 Issued: 32,776,589 (94%) Energizer International, Inc. Energizer Singapore Pte. Ltd.: 1 share


	- 114 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Energizer India Private Limited	India		Authorized: 35,000,000 Issued: 33,781,800 EBC (India) Co. Ltd. 1 share to Anil Gadi (nominee)	joint venture
Energizer Insurance Company Ltd.	Bermuda		Authorized: 120,000 Issued: 120,000 Eveready Battery Company, Inc.
Energizer International, Inc.	Delaware (holding company)		Authorized: 1,000 Issued: 1,000 Eveready Battery Company, Inc.
Energizer Italia, S.p.A.	Italy		Authorized: 250,000 Issued: 250,000 Energizer International, Inc. – 247,500 Eveready Battery Company, Inc. – 2,500
Energizer Japan, Inc.	Delaware	Japan	Authorized: 5,000 Issued: 10 Energizer International, Inc.
Energizer Korea, Ltd.	Korea		Authorized: 1,000,000 Issued: 538,000 Energizer International, Inc.
Energizer Lanka Limited	Sri Lanka		Authorized: 20,000,000 Issued: 15,120,000 Energizer International, Inc. (60.6%) 9,172,000 Local Partners (39.4%) 5,948,000


	- 115 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Energizer LLC	Russia		Capital: $US 2,350,000 Energizer International, Inc. (5%) Energizer Holdings, Inc. (95%)
Energizer Limited	United Kingdom		Authorized: 20,000,000 Issued: 16,280,000 Energizer Holdings UK Company
Energizer Malaysia Sdn. Bhd.	Malaysia		Authorized: 10,000,000 Issued: 7,920,000 Energizer International, Inc. (80%) 6,336,000 Local Shareholders (20%) 1,584,000
Energizer Middle East and Africa Limited	Delaware	UAE Lebanon Ivory Coast Ethiopia	Authorized: 1,000 Issued: 850 Energizer International, Inc.
Energizer Philippines, Inc.	Philippines		Authorized: 550,000 Issued: 550,000 Energizer International, Inc.


	- 116 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Energizer Polska Spolka zo.o	Poland		Authorized: 345,253 Issued: 345,253 Energizer International, Inc.
Energizer Puerto Rico, Inc.	Puerto Rico		Authorized: 10,000 Issued: 10 Energizer International, Inc.
Energizer SA	Switzerland		Authorized: 14,000 Issued: 14,000 Energizer International, Inc.
Energizer Sales Limited	Barbados		Authorized: unlimited Issued: 1,000 Eveready Battery Co., Inc.
Energizer Slovakia, Spol. s r.o.	Slovak Republic		Authorized: 35,079,000 Skk Issued: 1 Energizer International, Inc.
Energizer (South Africa) Ltd.	Delaware	South Africa	Authorized: 1,000 Issued: 1,000 Energizer International, Inc.
Energizer (Thailand) Limited	Thailand		Authorized: 640,000 Issued: 640,000 Energizer International, Inc.
Energizer Holdings UK Company	UK		Authorized: 25,000,000 Issued: 13,835,000 Energizer Investments U.K. Limited


	- 117 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Energizer Ireland Limited	Ireland		Common Stock Authorized: 640,000 Issued: 480,000 Berec Overseas Investments Ltd. (99.9%) 479,600 Energizer Financial Services Centre Limited (0.1%) 400 Preferred Stock Authorized: 20,000 Issued: 20,000 Berec Overseas Investments Ltd. (99%) 19,818
Ever Ready Limited	UK		Authorized: 100 Issued: 2 Energizer Holdings UK Co.
Eveready Batteries Kenya Ltd.	Kenya		Authorized: 210,000 Issued: 210,000 Energizer International, Inc. (14%) 29,390
Eveready Battery Company, Inc.	Delaware	Qualified in all U.S. states	Authorized: 1,000 Issued: 1,000 Energizer Holdings, Inc.
Eveready de Chile S.A.	Chile		Authorized: 47,300 Issued: 47,300 Energizer Argentina S.A. (99%) 46,827 shares (4 Individuals) 473 Shares


	- 118 -

	Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
	Eveready de Colombia, S.A.	Colombia		Authorized: 500,000 Issued: 67,802 Energizer International, Inc. (90%) 61,002 Eveready Battery Co. Inc. (10%) 6,800
	Eveready de Mexico S.A. de C.V.	Mexico		Authorized: 1,000 Issued: 1,000 Energizer International, Inc
	Eveready de Venezuela, C.A.	Venezuela		Authorized: 2,282,757 Issued: 2,282,757 Energizer International, Inc.
	Eveready Ecuador C.A.	Ecuador		Authorized: 996,186,111 Issued: 996,186,111 Energizer International, Inc.
	Energizer Egypt S.A.E.	Egypt		Authorized: 655,060 Issued: 655,060 Energizer International, Inc. (63.4%)
*	Eveready Energizer Miniatures Limited	India		Authorized: 1,000,000 Issued: 490,000 EBC (India) Co. Private Ltd. (49%) 240,100	Joint Venture
*	Eveready Ghana Limited	Ghana		Class A Authorized: 98,301,344 Issued: 98,301,344 Energizer International, Inc. (66%, holds 100% of Class A shares) Class B Authorized: 49,150,672 Issued: 49,150,672


	- 119 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Eveready Hong Kong Company	Hong Kong		50/50 Partnership between Sonca Products Limited & Energizer Hong Kong Limited
Energizer NZ Limited	New Zealand		Authorized: 1,000,000 Issued: 1,000,000 Energizer International, Inc.
Eveready NZ Limited	New Zealand		Authorized: 100 Issued: 100 Energizer NZ Ltd.
Energizer Singapore Pte. Ltd.	Singapore		Authorized: 1,000,000 Issued: 700,000 Energizer Cayman Islands, Ltd.
P.T. Energizer Indonesia	Indonesia		Authorized: 23,000 Issued: 23,000 Energizer International, Inc. (80%) P.T. Bintang Niagu Sukses (20%) (held in trust) (Energizer International, Inc. 100% beneficial owner)

	- 120 -

	Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
	P.T. Energizer Trading Indonesia	Indonesia		Authorized: 1,000 Issued: 1,000 PT Energizer Indonesia (80%) P.T. Bintang Niagu Sukses (20%) (Energizer Indonesia 100% owner)
*	Energizer Austria Ges.m.b.H.	Austria		Capital: 1,200,000 Austrian Schillings Energizer International, Inc.
	Energizer Belgium S.A.	Belgium		Authorized: 24,000 Issued: 23,993 Energizer International, Inc. 7 – Eveready Battery Co., Inc.
	Energizer Deutschland G.m.b.H.	Germany		Authorized: DM 18,700,000 Issued: DM 18,700,000 Energizer International, Inc. (99.9%) 18,698,000 Energizer SA (0.1%) 2000
	Halde Zweiunddreißigste Verwaltungsgesellschaft mbH	Germany		Authorized: Euro 25,000 Issued: Euro 25,000.00 – one share Halde Einunddreißigste Verwaltungsgesellschaft mbH
	Halde Einunddreißigste Verwaltungsgesellschaft mbH	Germany		Authorized: Euro 25,000 Issued: Euro 25,000.00 – one share Energizer Deutschland GmbH


	- 121 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Energizer Management Holding Verwaltungs GmbH	Germany		Authorized: Euro 25,000 Issued: Euro 25,000 Energizer International, Inc. 2 shares: Euro 500 and Euro 24,500
Energizer Finanzierungs GbR	Germany		Contributions: $1,000,000 Energizer Holdings, Inc.: $900,000 Energizer Group, Inc.: $100,000	Partnership
Energizer France	France		Authorized: 1,750,450 shares Issued: 1,750,450 Energizer International, Inc. (99.9%) 1,750,389
Wilkinson Sword France SAS	France		Authorized: 796,060 shares at 10 euros each Issued: 7,960,000 Euro Halde Zweiunddreißigste Verwaltungsgesellschaft mbH
Energizer Czech, spol. s.r.o.	Czech Republic		Authorized: 300,000,000 CZK Issued: 300,000,000 CZK Energizer International, Inc.
Energizer Financial Service Centre Limited	UK		Authorized: 50,000 Issued: 50,000 Energizer Holdings UK Company
Energizer Argentina S.A.	Argentina		Authorized: 17,479.163 Issued: 17,479,163 Energizer International, Inc. – 17,314,163 Eveready Battery Co., Inc. – 165,000

	- 122 -

	Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
*	Energizer do Brasil Ltda.	Brazil		Authorized: 9,000,000 quotas Issued: 9,000,000 quotas Energizer International, Inc.
	MKTE, Inc.	Delaware (holding company)		Authorized: 1,000 Issued: 1,000 Eveready Battery Company, Inc.
	Energizer Trust Ltd.	UK		Authorized: 100 Issued: 2 Energizer Holdings UK Company
	Sonca Products Limited	Hong Kong		Authorized: 120,000 Issued: 117,000 Energizer International, Inc.
*	WER (MVL) (1998) Limited	UK		Authorized: 11,000,000 Issued: 7,000,000 Energizer Holdings UK Company

	- 123 -

	Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
	Energizer Receivables Funding Corporation	Delaware	Missouri	Authorized: 1,000 Issued: 100 Energizer Battery, Inc.
	Schick & Energizer Perú S.A.	Peru		Authorized: 50 Issued: 50 Energizer International, Inc. (98%) 49 shares Eveready Ecuador C.A. (2%) 1 share
	Energizer Battery Manufacturing, Inc.	Delaware	Qualified in AK, GA, CA, PA, HI, TN, FL, MO, OH, VT, NC & TX	Authorized: 100 Issued: 100 Eveready Battery Company, Inc.
	Energizer Battery, Inc.	Delaware	Qualified in all US states and DC	Authorized: 100 Issued: 100 Eveready Battery Company, Inc.
** +	FIBAT SA	France		Authorized: 2,500 Issued: 2,500 Energizer France (20%)
**	Ecobat s.r.o	Czech Republic		Capitalization: CZK 300,000 Energizer Czech Spol. sr.o.: CZK 100,000 (33-1/3%)
**	Ecopilhas Lda.	Portugal		Capitalization: 60,000 Euros Energizer SA (20%)


	- 124 -

	Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
**	Reba Organizacja Odzysku S.A.	Poland		Authorized: 500,000 shares Issued: 500,000 shares Energizer Polska sp. zo.o (25%)
	Schick Manufacturing, Inc.	Delaware	Qualified in CT, IL & PA	Authorized: 100 shares Issued: 100 shares Eveready Battery Company, Inc.
	Schick Taiwan Ltd.	Delaware	Qualified in Taiwan	Authorized: 100 shares Issued: 100 shares Energizer International, Inc.
	Energizer Group, Inc.	Delaware		Authorized: 1,000 Issued: 1,000 Energizer Holdings, Inc.
	Energizer Cayman Islands, Ltd.	Cayman Islands		Authorized: 50,000 Issued: 1,001 shares to Energizer International, Inc.
	Schick Cayman Islands, Ltd.	Cayman Islands		Authorized: 50,000 Issued: 1 share to Energizer Cayman Islands, Ltd.
	Schick Japan K.K.	Japan		Authorized: 800 Issued: 200 Energizer International, Inc.
	Energizer Investments U.K. Limited	United Kingdom		Authorized: 2 Issued: 2 shares to Energizer International, Inc.


	- 125 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Energizer Asia Investments Pte. Ltd.	Singapore		Authorized: 500,000 Issued: 2 shares to Energizer Cayman Islands, Ltd.
Schick North America, Inc.	Delaware		Authorized: 100 Issued: 100 Eveready Battery Company, Inc.
Wilkinson Sword Ges.m.b.H	Austria		Authorized: 50,000 Euros Issued: one share (50.00 Euros) Halde Zweiunddreißigste Verwaltungsgesellschaft mbH
Wilkinson Sword GmbH	Germany		Registered Capital: 12,340,000 Euro. 2 shares in the amounts of Euro 7,328,650 and Euro 5,011,350 held by Halde Zweiunddreißigste Verwaltungsgesellschaft mbH
Wilkinson Sword Verwaltungs GmbH	Germany		Registered Capital: 4,602,500 Euro. 2 shares in the amounts of Euro 4,602,000 and Euro 500 held by Halde Zweiunddreißigste Verwaltungsgesellschaft mbH
N.V. Wilkinson Sword S.A.	Belgium		Authorized: 461 shares (115,000 Euros) Issued: Energizer Belgium S.A. (460 shares) Energizer International, Inc. (1 share)


	- 126 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Wilkinson Sword S.p.A.	Italy		Authorized: 100,000 Issued: 100,000 Energizer Italia S.p.A. (98%) Energizer International, Inc. (2%)
Wilkinson Sword B.V.	Netherlands		Authorized: 2,000 shares (par value 500 Euro) Issued: 400 shares Halde Zweiunddreißigste Verwaltungsgesellschaft mbH
Schick Asia Limited	Hong Kong		Ordinary Authorized: 5,944 Issued:5,600 Schick Cayman Islands Ltd.: 5,599 Baker & McKenzie (Nominees): 1 share Preferred Authorized: 5,600 Issued:5,600 Schick Cayman Islands Ltd.: 5,599 Baker & McKenzie (Nominees): 1 share
Schick (Guangzhou) Company Limited	China		Schick Asia Limited US$7,500,000 (Fully paid up)
Wilkinson Sword Artigos de Higiene Lda.	Portugal		Authorized: 821,000 Euros Issued: 821,000 Euros (3 shares) Halde Zweiunddreißigste Verwaltungsgesellschaft mbH


	- 127 -

Subsidiary Name	Jurisdictions of Incorporation	Foreign Qualification	Shares Authorized and Issued and Outstanding; Owner	Interests in any Person not a Corporation
Wilkinson Sword S.A.E.	Spain		Authorized: 1,572,426 Euros Issued: 262,071 shares Halde Zweiunddreißigste Verwaltungsgesellschaft mbH
Wilkinson Sword Limited	United Kingdom		Ordinary Authorized: 6,350,000 Issued: 6,350,000 Energizer Holdings UK Company Ordinary A: 19,882,283 Issued: 19,882,283 Energizer Holdings UK Company
Wilkinson Sword (1999) Ltd.	United Kingdom		Ordinary Authorized: 100 Issued: 1 Wilkinson Sword Limited
Wilkinson Sword Tras Urunleri Ticarat Limited Sirketi	Turkey		Ordinary Authorized: 600 Issued: 600 Wilkinson Sword GmbH: 599 shares Wilkinson Sword Verwaltungs GmbH 1 share
Wilkinson Sword Sp. Zo. o.	Poland		Authorized: 51,500 shares Issued: 51,500 shares Wilkinson Sword GmbH


	- 128 -

SCHEDULE 10

Standing Payment Instructions 

Bank of America, N.A.
For payment in US$
Bank	:	Bank of America, N.A., New York
CHIPS	:	046346
For Account of	:	Bank of America, N.A., Singapore
Account No.	:	97492
For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	Bank of America, N.A., Singapore
Bank Code	:	7065
Reference	:	Energizer syndicated credit facility
Attention	:	Credit Services & Note Dept

Bank of China, Singapore Branch
For payment in US$
Bank	:	Bank of China, New York Branch
CHIPS	:	102595
For Account of	:	Bank of China, Singapore Branch
Account No.	:	7001-1000144-007-001
Reference	:	Credit Admin-"Credit Admin-Energizer"
For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	Bank of China, Singapore Branch
Bank Code	:	7083
Reference	:	Syndicated Loan: Energizer Asia Investment Pte Ltd
Attention	:	Ms Low Wai Munn - Credit Administration Department

Citibank, N.A., Singapore Branch
For payment in US$
Bank	:	Citibank, N.A. New York
CHIPS ABA	:	0008
CHIPS UID	:	033180
SWIFT	:	CITISGSG
For Account of	:	Citibank N.A., Singapore Branch
Account No.	:	10991581


	- 129 -

For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	Citibank N.A., Singapore Branch
Bank Code	:	7214
Reference	:	Energizer Syndicated Loan

Credit Lyonnais, Singapore Branch
For payment in US$
Bank	:	Credit Lyonnais New York
SWIFT	:	CRLY US 33
For Account of	:	Credit Lyonnais Singapore
Account No.	:	01-09377-0001-00
Reference	:	Energizer Asia
Attention	:	Linda Seah/Serene Teo

For payment in S$
Bank	:	Monetary Authority of Singapore
SWIFT	:	MASGSGSG
For Account of	:	Credit Lyonnais Singapore
Bank Code	:	7861
Reference	:	Energizer Asia
Attention	:	Linda Seah/Serene Teo

DBS Bank Ltd.
For payment in US$
Bank	:	Bank of New York, New York
CHIPS ABA	:	0001
CHIPS UID	:	034675
For Account of	:	DBS Bank Ltd
Reference	:	Energizer US$250 Million Guaranteed Credit Facilities
Attention	:	Ms Tey Bee Kuan
For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	DBS Bank Ltd.
Bank Code	:	7171
Reference	:	Energizer US$250 Million Guaranteed Credit Facilities
Attention	:	Ms Tey Bee Kuan


	- 130 -

Mizuho Corporate Bank, Ltd., Singapore Branch
For payment in US$
Bank	:		JPMorgan Chase Bank, New York
CHIPS UID	:		125179
For Account of	:		Mizuho Corporate Bank, Ltd., Singapore Branch
Account No.	:		400928140
For payment in S$
Bank	:		Monetary Authority of Singapore
For Account of	:		Mizuho Corporate Bank, Ltd., Singapore Branch
Bank Code	:		7621

Norddeutsche Landesbank Girozentrale, Singapore Branch
For payment in US$
Bank	:	JP Morgan Chase Bank, New York
CHIPS	:	340328
For Account of	:	Nord/LB S'pore
Account No.	:	001-1-746-500
Reference	:	Energizer
Attention	:	Ms Lim Huey Ling/Ms Sarah Lim
For payment in S$
Bank	:	DBS Bank Ltd, Singapore
SWIFT	:	DBSSSGSG
For Account of	:	Nord/LB S'pore
Account No.	:	001-052218-3
Reference	:	Energizer
Attention	:	Ms Lim Huey Ling/Ms Sarah Lim

Oversea-Chinese Banking Corporation Limited
For payment in US$
Bank	:	JP Morgan Chase NY
CHIPS UID	:	010275
For Account of	:	OCBC Singapore
Reference	:	Energizer Asia Investments PL
Attention	:	Ms Chee Hwee Hoon & Annie Kho


	- 131 -

For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	OCBC Singapore
Bank Code	:	7339
Reference	:	Principal and Interest Settlement - Loan Settlement

SANPAOLO IMI S.p.A., Singapore Branch
For payment in US$
Bank	:	Wachovia Bank N.A., New York International Branch, New York
CHIPS UID	:	242335
For Account of	:	SANPAOLO IMI S.p.A., Singapore
For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	SANPAOLO IMI S.p.A., Singapore
Bank Code	:	8350

Standard Chartered Bank
For payment in US$
Bank	:	Standard Chartered Bank, New York
CHIPS UID	:	057220
SWIFT	:	SCBLSGSG
For Account of	:	Standard Chartered Bank, Singapore
Account No.	:	3582-088503-001
Reference	:	Loan Syndications Unit / Energizer
For payment in S$
Bank	:	The Monetary Authority of Singapore
For Account of	:	Standard Chartered Bank, Singapore
Bank Code	:	7144
Branch Code	:	001
Reference	:	Loan Syndications Unit / Energizer

Sumitomo Mitsui Banking Corporation, Singapore Branch
For payment in US$
Bank	:	JP Morgan Chase Bank, New York (CHASUS33)
CHIPS UID	:	141695
For Account of	:	Sumitomo Mitsui Banking Corporation, Singapore Branch
Account No.	:	001-1-746468


	- 132 -

For payment in S$
Bank	:	The Monetary Authority of Singapore
For Account of	:	Sumitomo Mitsui Banking Corporation, Singapore Branch
Bank Code	:	7472

The Bank of Nova Scotia Asia Limited
For payment in US$
Bank	:	The Bank of Nova Scotia New York City, New York
SWIFT	:	NOSCUS33
For Account of	:	The Bank of Nova Scotia, Singapore
Account No.	:	6020-35
CHIPS UID	:	089795
For payment in S$
Bank	:	Oversea-Chinese Banking Corporation, Singapore
SWIFT	:	OCBCSGSG
For Account of	:	The Bank of Nova Scotia, Singapore Branch Favouring The Bank of Nova Scotia Asia Limited

Account No.	:	501-010920-001

The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
For payment in US$
Bank	:	The Bank of Tokyo-Mitsubishi Ltd, New York Branch
CHIPS UID	:	077082
For Account of	:	The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
Account No.	:	30006550
For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
Bank Code	:	7126


	- 133 -

United Overseas Bank Limited
For payment in US$
Bank	:	Deutsche Bank Trust Co. Americas New York
CHIPS UID	:	010762
For Account of	:	United Overseas Bank Limited (Singapore)
Account No.	:	CP0103
Reference	:	Payment for Energizer Asia Investment Pte Ltd for value xxxx
Attention	:	Mr Daniel Tay/Loans Admin
For payment in S$
Bank	:	Monetary Authority of Singapore
For Account of	:	United Overseas Bank Limited
Bank Code	:	7375
Reference	:	Payment for Energizer Asia Investment Pte Ltd for value xxxx
Attention	:	Mr Daniel Tay/Loans Admin

Westpac Banking Corporation
For payment in US$
Bank	:	Chase Manhattan Bank N.A., New York, USA
SWIFT	:	CHASUS33
CHIPS UID	:	142544
For Account of	:	Westpac Banking Corporation, Singapore Branch
Account No.	:	001-1-910213
Reference	:	Energizer Syndication, Attention Daniel Chee
For payment in S$
Bank	:	Oversea-Chinese Banking Corporation Ltd
SWIFT	:	OCBCSGSG
For Account of	:	Westpac Banking Corporation, Singapore Branch
Account No.	:	501-050777-001


	- 134 -

The Borrower
ENERGIZER ASIA INVESTMENTS PTE LTD
Address	:
Fax No	:
Attention	:

By:

The Guarantors
ENERGIZER HOLDINGS, INC.
Address	:
Fax No	:
Attention	:

By:
By:

ENERGIZER SINGAPORE PTE LTD.
Address:
Fax No:
Attention:

By:
By:

SONCA PRODUCTS LTD
Address	:
Fax No	:
Attention	:

By:
By:


	- 135 -

The Arranger
CITIGROUP GLOBAL MARKETS SINGAPORE MERCHANT BANK LTD

By:

STANDARD CHARTERED BANK

By:

The Original Lenders
BANK OF AMERICA, N.A.
Address	:	9 Raffles Place
		#18-00
		Republic Plaza Tower 1
		Singapore 048619
Fax No	:	+65 6239 3266
Tel No	:	+65 6239 3192/+65 6239 3208
Emai:	:	kathy.chew@bankofamerica.com/joy.h.tan@bankofamerica.com
Attention	:	Kathy Chew/Joy Tan

By:

BANK OF CHINA, SINGAPORE BRANCH
Address	:	4 Battery Road
		Bank of China Building
		Singapore 049908
Fax No	:	+65 6535 0567
Tel No	:	+65 6439 8462/+65 6439 8837/+65 6439 8836
Email	:	cmsg@bank-of-china.com
Attention	:	Ms Tho Huey Pin/Ms Cecilia Yeong/Ms Neo Sze Wee
		Credit Administration Department

By:


	- 136 -

CITIBANK, N.A., SINGAPORE BRANCH
Address	:	3 Temasek Avenue
		#12-00 Centennial Tower
		Singapore 039190
Fax No	:	+65 6328 5893
Tel No	:	+65 6328 5669
Email	:	sok.leng.ang@citigroup.com
Attention	:	Ang Sok Leng/Michael Nelson

By:

CREDIT LYONNAIS, SINGAPORE BRANCH
Address	:	No. 3 Temasek Avenue
		#11-01 Centennial Tower
		Singapore 039190
Fax No	:	+65 6333 8541
Tel No	:	+65 6832 0958/+65 6832 0793
Email	:	linda.seah@creditlyonnais.fr/serene.teo@creditlyonnais.fr
Attention	:	Linda Seah/Serene Teo

By:

DBS BANK LTD.
Address	:	6 Shenton Way
		DBS Building Tower One
		Singapore 068809
Fax No	:	+65 6224 2742
Tel No	:	+65 6878 6170/+65 6878 2013
Email	:	cynthiatan@dbs.com/beekuan@dbs.com
Attention	:	Ms Cynthia Tan/Ms Tey Bee Kuan

By:


	- 137 -

MIZUHO CORPORATE BANK, LTD., SINGAPORE BRANCH
Address	:	168 Robinson Road
		#13-00 Capital Tower
		Singapore 068912
Fax No	:	+65 6416 0590/+65 6416 0379
Tel No	:	+65 6416 0350/+65 6416 0576/+65 6416 0586
Email	:	jonathan.tan@mizuho-cb.com/jennie.ang@mizuho-cb.com/yvonne.lim@mizuho-cb.com
Attention	:	Jonathan Tan/Jennie Ang/Yvonne Lim

By:

NORDDEUTSCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
Address	:	6 Shenton Way
		#16-00
		DBS Building Tower 2
Fax No	:	Singapore 068809
Tel No	:	+65 6324 7090
Email	:	+65 6420 3853/+65 6420 3858
Attention	:	Ms Lim Huey Ling/Ms Sarah Lim

By:

OVERSEA-CHINESE BANKING CORPORATION LIMITED
Address	:	65 Chulia Street
		#10-00 OCBC Centre
		Singapore 049513
Fax No	:	+65 6536 9327/+65 6536 6449
Tel No	:	+65 6530 6019/+65 6530 6188
Email	:	Tanksalex@ocbc.com.sg/Leewljuana@ocbc.com.sg
Attention	:	Alex Tan/Juana Lee

By:


	- 138 -

SANPAOLO IMI S.P.A., SINGAPORE BRANCH
Address	:	6 Temasek Boulevard
		#42-04/05 Suntec Tower Four
		Singapore 038986
Fax No	:	+65 6333 8252
Tel No	:	+65 6333 8270/+65 6335 9109
Email	:	singapore.sg@sanpaoloimi.com
Attention	:	Ms Gwee Siew Lan, Vice President/Ms Vivien Liew, Loan Administration Officer

By:

STANDARD CHARTERED BANK
Address	:	6 Battery Road #07-00
		Singapore 049909
		+65 6538 9363/+65 6222 1990
Fax No	:	+65 6530 3072
Tel No	:	Debbie.Chan@sg.standardchartered.com/Anny.Rodjito@sg.standardchartered.com
Email	:	Anny Rodjito/Debbie Chan

By:

SUMITOMO MITSUI BANKING CORPORATION, SINGAPORE BRANCH
Address	:	3 Temasek Avenue
		#06-01 Centennial Tower
		Singapore 039190
Fax No	:	+65 6882 0023
Tel No	:	+65 6882 0530
Email	:	cathrine_lai@sg.smbc.co.jp/veronica_lee@sg.smbc.co.jp/hazel_wong@sg.smbc.co.jp
Attention	:	Catherine Lai/Veronica Lee/Hazel Wong

By:


	- 139 -

THE BANK OF NOVA SCOTIA ASIA LIMITED
Address	:	10 Collyer Quay
		#15-01
		Ocean Building
Fax No	:	Singapore 049315
Tel No	:	+65 6532 7554
Email	:	+65 6535 8688
Attention	:	kok_ang_low@scotiacapital.com
Address	:	Mr Low Kok Ang/Gabriel Low

By:

THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
Address	:	9 Raffles Place
		#01-01 Republic Plaza
		Singapore 048619
Fax No	:	+65 6231 1460
Tel No	:	+65 6231 1594/+65 6231 1596/+65 6231 1595
Email	:	ricky_lui@btmspr.com.sg/daniel_aw@btmspr.com.sg
Attention	:	Ms Beatrice Chan/Ms Penny Teoh/Mr Baby Teo

By:

UNITED OVERSEAS BANK LIMITED
Address	:	1 Raffles Place
		#10-00 OUB Centre
		Singapore 048616
Fax No	:	+65 6538 2449/+65 6538 4945
Tel No	:	+65 6530 2286/+65 6530 2653/+65 6530 2550/+65 6530 2549
Email	:	Jeffrey.LingOC@UOBgroup.com/Wong.WaiHoong@UOBgroup.com/ Philip.PhuaTP@UOBgroup.com
Attention	:	Jeffrey Ling/Wong Wai Hoong/Philip Phua/Lynnette Ning

By:


	- 140 -

WESTPAC BANKING CORPORATION
Address	:	77 Robinson Road
		#19-00 SIA Building
		Singapore 068896
Fax No	:	+65 6532 6781
Tel No	:	+65 6530 9547/+65 6530 9545
Email	:	dchee@westpac.com.au/jong@westpac.com.au
Attention	:	Daniel Chee/Josephine Ong

By:

The Agent
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
Address	:	300 Tampines Avenue 5
		#07-00 Tampines Junction
		Singapore 529653
Fax No	:	+65 6787 0026
Attention	:	Mr Arthur Lee/Mr Ng Kim Tat

By:


	- 141 -

EX-10.(VII) 8 ex10-vii.htm EXHIBIT 10.VII Exhibit 10.(vii)

Exhibit 10(vii) 

EXECUTION COPY 

REVOLVING CREDIT AGREEMENT 

Dated as of June 27, 2003 

Among 

ENERGIZER HOLDINGS, INC.

THE INSTITUTIONS FROM TIME TO TIME 

PARTIES HERETO AS LENDERS 

BANK ONE, NA, 

as Administrative Agent, 

CITIBANK, N.A., 

as Syndication Agent 

and

BANK OF AMERICA, N.A., 

as Documentation Agent 

BANC ONE CAPITAL MARKETS, INC., 

and

CITIGROUP GLOBAL MARKETS INC.

as Co-Lead Arrangers and Joint Bookrunners 

SIDLEY AUSTIN BROWN & WOOD 

Bank One Plaza 

10 South Dearborn Street 

Chicago, Illinois 60603 




TABLE OF CONTENTS

Page
TABLE OF CONTENTS

ARTICLE I:
DEFINITIONS		1

1.1	Certain Defined Terms	1
1.2	References	24

ARTICLE II:
THE REVOLVING LOAN FACILITY		24

2.1	Revolving Loans	24
2.2	Swing Line Loans	25
2.3	Rate Options for all Advances; Maximum Interest Periods	26
2.4	Optional Payments	27
2.5	Reduction of Revolving Loan Commitments	27
2.6	Method of Borrowing	27
2.7	Method of Selecting Types and Interest Periods for Advances	27
2.8	Minimum Amount of Each Advance	28
2.9	Method of Selecting Types and Interest Periods for Conversion and Continuation of Advances	28
2.10	Default Rate	29
2.11	Method of Payment	29
2.12	Evidence of Debt; Noteless Agreement	29
2.13	Telephonic Notices	30
2.14	Promise to Pay; Interest and Facility Fees; Interest Payment Dates; Interest and Fee Basis; Loan and Control Accounts	30
2.15	Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving Loan Commitment Reductions	33
2.16	Lending Installations	33
2.17	Non-Receipt of Funds by the Administrative Agent	33
2.18	Termination Date	34
2.19	Replacement of Certain Lenders	34

ARTICLE III
THE LETTER OF CREDIT FACILITY		35

3.1	Obligation to Issue Letters of Credit	35
3.2	Transitional Letters of Credit	35
3.3	Types and Amounts	35
3.4	Conditions	35
3.5	Procedure for Issuance of Letters of Credit	36
3.6	Letter of Credit Participation	36


	i

TABLE OF CONTENTS (continued)
Page

3.7	Reimbursement Obligation	37
3.8	Letter of Credit Fees	37
3.9	Issuing Bank Reporting Requirements	38
3.10	Indemnification; Exoneration	38
3.11	Cash Collateral	39

ARTICLE IV:
YIELD PROTECTION; TAXES		39

4.1	Yield Protection	39
4.2	Changes in Capital Adequacy Regulations	40
4.3	Availability of Types of Advances	41
4.4	Funding Indemnification	41
4.5	Taxes	41
4.6	Lender Statements; Survival of Indemnity	43

ARTICLE V:
CONDITIONS PRECEDENT		43

5.1	Initial Advances and Letters of Credit	43
5.2	Each Advance and Letter of Credit	45

ARTICLE VI:
REPRESENTATIONS AND WARRANTIES		45

6.1	Organization; Corporate Powers	45
6.2	Authority	46
6.3	No Conflict; Governmental Consents	46
6.4	Financial Statements	47
6.5	No Material Adverse Change	47
6.6	Taxes	47
6.7	Litigation; Loss Contingencies and Violations	48
6.8	Subsidiaries	48
6.9	ERISA	49
6.10	Accuracy of Information	49
6.11	Securities Activities	50
6.12	Material Agreements	50
6.13	Compliance with Laws	50
6.14	Assets and Properties	50
6.15	Statutory Indebtedness Restrictions	50
6.16	Insurance	50
6.17	Labor Matters	50
6.18	Environmental Matters	51
6.19	Solvency	51
6.20	Benefits	51


	ii

TABLE OF CONTENTS (continued)
Page


ARTICLE VII:
COVENANTS		52

7.1	Reporting	52
7.2	Affirmative Covenants	55
7.3	Negative Covenants	58
7.4	Financial Covenants	64

ARTICLE VIII:
DEFAULTS		65

8.1	Defaults	65

ARTICLE IX:
ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES		68

9.1	Termination of Revolving Loan Commitments; Acceleration	68
9.2	Defaulting Lender	68
9.3	Amendments	70
9.4	Preservation of Rights	71

ARTICLE X:
GENERAL PROVISIONS		71

10.1	Survival of Representations	71
10.2	Governmental Regulation	71
10.3	Performance of Obligations	71
10.4	Headings	72
10.5	Entire Agreement	72
10.6	Several Obligations; Benefits of this Agreement	72
10.7	Expenses; Indemnification	72
10.8	Numbers of Documents	74
10.9	Accounting	74
10.10	Severability of Provisions	75
10.11	Nonliability of Lenders	75
10.12	GOVERNING LAW	75
10.13	CONSENT TO JURISDICTION; JURY TRIAL	75
10.14	Subordination of Intercompany Indebtedness	76

ARTICLE XI:
THE ADMINISTRATIVE AGENT		77

11.1	Appointment; Nature of Relationship	78

11.2 

Powers 

78


	iii

TABLE OF CONTENTS (continued)
Page

11.3	General Immunity	78
11.4	No Responsibility for Loans, Creditworthiness, Recitals, Etc	78
11.5	Action on Instructions of Lenders	79
11.6	Employment of Administrative Agents and Counsel	79
11.7	Reliance on Documents; Counsel	79
11.8	The Administrative Agent’s Reimbursement and Indemnification	79
11.9	Rights as a Lender	80
11.10	Lender Credit Decision	80
11.11	Successor Administrative Agent	80
11.12	No Duties Imposed Upon Syndication Agent, Documentation Agent or Arrangers	80

ARTICLE XII:
SETOFF; RATABLE PAYMENTS		81

12.1	Setoff	81
12.2	Ratable Payments	81
12.3	Application of Payments	81
12.4	Relations Among Lenders	82
12.5	Representations and Covenants Among Lenders	83

ARTICLE XIII:
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS		83

13.1	Successors and Assigns	83
13.2	Participations	83
13.3	Assignments	84
13.4	Confidentiality	86
13.5	Dissemination of Information	87
13.6	Tax Treatment	87

ARTICLE XIV:
NOTICES		87

14.1	Giving Notice	87
14.2	Change of Address	87

ARTICLE XV:
COUNTERPARTS		87


	iv

TABLE OF CONTENTS

Exhibits

EXHIBIT A	--	Revolving Loan Commitments
EXHIBIT B	--	Form of Borrowing/Election Notice
EXHIBIT C	--	Form of Request for Letter of Credit
EXHIBIT D	--	Form of Assignment Agreement
EXHIBIT E	--	Form of Borrower’s Counsel’s Opinion
EXHIBIT F	--	List of Closing Documents
EXHIBIT G	--	Form of Officer’s Certificate
EXHIBIT H	--	Form of Compliance Certificate
EXHIBIT I	--	Form of Supplement to Subsidiary Guaranty

Schedules

Schedule 1.1.1	--	Permitted Existing Investments
Schedule 1.1.2	--	Permitted Existing Liens
Schedule 1.1.3	--	Permitted Existing Contingent Obligations
Schedule 3.2	--	Transitional Letters of Credit
Schedule 6.3	--	Conflicts; Governmental Consents
Schedule 6.7	--	Litigation; Loss Contingencies
Schedule 6.8	--	Subsidiaries
Schedule 6.18	--	Environmental Matters
Schedule 7.3(G)	--	Transactions with Shareholders and Affiliates


	v

REVOLVING CREDIT AGREEMENT 

This Revolving Credit Agreement dated as of June 27, 2003 is entered into among ENERGIZER HOLDINGS, INC., a Missouri corporation, the institutions from time to time parties hereto as Lenders, whether by execution of this Agreement or an Assignment Agreement pursuant to Section 13.3, and BANK ONE, NA, having its principal office in Chicago, Illinois, in its capacity as Administrative Agent, CITIBANK, N.A., as Syndication Agent and BANK OF AMERICA, N.A., as Documentation Agent. The parties hereto agree as follows: 

ARTICLE I: DEFINITIONS 

1.1  Certain Defined Terms.  In addition to the terms defined above, the following terms used in this Agreement shall have the following meanings, applicable both to the singular and the plural forms of the terms defined. 

As used in this Agreement: 

"Accounting Change" is defined in Section 10.9 hereof. 

"Acquisition" means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the Borrower or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of any firm, corporation or division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election 
of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage of voting power) of the outstanding equity interests of another Person. 

"Administrative Agent" means Bank One in its capacity as contractual representative for itself and the Lenders pursuant to Article XI hereof and any successor Administrative Agent appointed pursuant to Article XI hereo
f. 

"Advance" means a borrowing hereunder consisting of the aggregate amount of the several Loans made by the Lenders to the Borrower of the same Type and, in the case of Eurodollar Rate Advances, for the same Interest Period. 

"Affected Lender" is defined in Section 2.19 hereof. 

"Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person is the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of greater than ten percent (10%) or more of any class of voting securities (or other voting interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownersh
ip of Capital Stock, by contract or otherwise. 

"Aggregate Revolving Loan Commitment" means the aggregate of the Revolving Loan Commitments of all the Lenders, as may be reduced from time to time pursuant to the terms hereof. The initial Aggregate Revolving Loan Commitment is Three Hundred Million and 00/100 Dollars ($300,000,000.00). 

"Agreement" means this Revolving Credit Agreement, as it may be amended, restated or otherwise modified and in effect from time to time. 

"Agreement Accounting Principles" means generally accepted accounting principles as in effect in the United States from time to time, applied in a manner consistent with that used in preparing the financial statements of the Borrower referred to in Section 6.4 hereof; provided, however, except as provided in Section 10.9, that with respect to the calculation of financial ratios and other financial tests required by this Agreement, "Agreement Accounting Principles" means generally accepted accounting principles as in effect in the United States as of the date of this Agreement, applied in a manner consistent with that used in preparing the financial statements of the Borrower referred to in Section 6.4 hereof. 

"Alternate Base Rate" means, for any day, a fluctuating rate of interest per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of (a) the Federal Funds Effective Rate for such day and (b) one-half of one percent (0.5%) per annum. 

"Applicable Facility Fee Percentage" means, as at any date of determination, the rate per annum then applicable in the determination of the amount payable under Section 2.14(C)(i) hereof determined in accordance with the provisions of Section 2.14(D)(ii) hereof. 

"Applicable Margin" means, as at any date of determination, the rate per annum then applicable to Advances of any Type at such time, determined in accordance with the provisions of Section 2.14(D)(ii) hereof. 

"Applicable L/C Fee Percentage" means, as at any date of determination, the rate per annum then applicable in the determination of the amount payable under Section 3.8(i) hereof determined in accordance with the provisions of Section 2.14(D)(ii) hereof. 

"Applicable Utilization Fee Percentage" means, as at any date of determination, the rate per annum then applicable in the determination of the amount payable under Section 2.14(C)(ii) hereof determined in accordance with the provisions of Section 2.14(D)(ii) hereof. 

"Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. 

"Arrangers" means Banc One Capital Markets, Inc. and Citigroup Global Markets Inc., in their respective capacities as the co-lead arrangers and joint bookrunners for the loan transaction evidenced by this Agreement. 

"Assignment Agreement" means an assignment and assumption agreement entered into in connection with an assignment by a Lender pursuant to Section 13.3 hereof in substantially the form of Exhibit D. 


	2

"Asset Sale" means, with respect to any Person, the sale, lease, conveyance, disposition or other transfer by such Person of any of its assets (including by way of a sale-leaseback transaction, and including the sale or other transfer of any of the Equity Interests of any Subsidiary of such Person) other than (i) the sale of Inventory in the ordinary course of business and (ii) the sale or other disposition of any obsolete manufacturing Equipment disposed of in the ordinary course of business. 

"Authorized Officer" means any of the president, any vice president (including any executive vice president), the chief financial officer or the treasurer of the Borrower, acting singly. 

"Bank One" means Bank One, NA, having its principal office in Chicago, Illinois, in its individual capacity, and its successors. 

"Benefit Plan" means a defined benefit plan as defined in Section 3(35) of ERISA (other than a Multiemployer Plan or Foreign Pension Plan) in respect of which the Borrower or any other member of the Controlled Group is, or within the immediately preceding six (6) years was, an "employer" as defined in Section 3(5) of ERISA. 

"Borrower" means Energizer Holdings, Inc., a Missouri corporation, together with its successors and assigns, including a debtor-in-possession on behalf of the Borrower. 

"Borrowing Date" means a date on which an Advance or Swing Line Loan is made hereunder. 

"Borrowing/Election Notice" is defined in Section 2.7 hereof. 

"Business Day" means (i) with respect to any borrowing, payment or rate selection of Loans bearing interest at the Eurodollar Rate, a day (other than a Saturday or Sunday) on which banks are open for business in Chicago, Illinois and New York, New York and on which dealings in Dollars are carried on in the London interbank market and (ii) for all other purposes a day (other than a Saturday or Sunday) on which banks are open for business in Chicago, Illinois and New York, New York. 

"Capital Stock" means (i) in the case of a corporation, capital stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership, partnership interests (whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. 

"Capitalized Lease" of a Person means any lease of property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles. 

"Capitalized Lease Obligations" of a Person means the amount of the obligations of such Person under Capitalized Leases which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles. 


	3

"Cash Equivalents" means (i) marketable direct obligations issued or unconditionally guaranteed by the United States government and backed by the full faith and credit of the United States government; (ii) domestic and Eurodollar certificates of deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations for any such deposits with a term of more than
 ninety (90) days); (iii) shares of money market, mutual or similar funds having assets in excess of $100,000,000 and at least 95% of the investments of which are limited to investment grade securities (i.e., securities rated at least Baa by Moody’s Investors Service, Inc. or at least BBB by Standard & Poor’s Ratings Group); and (iv) commercial paper of United States and foreign banks and bank holding companies and their subsidiaries and United States and foreign finance, commercial industrial or utility companies which, at the time of acquisition, are rated A-1 (or better) by Standard & Poor’s Ratings Group or P-1 by Moody’s Investors Service, Inc.; provided that the maturities of such Cash Equivalents described in the foregoing clauses (i) through (iv) shall not exceed 365 days; (v) repurchase obligations of any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies having a term not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government; (vi) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth, territory, political subdivision, taxing authority or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or fo
reign government (as the case may be) are rated at least BBB by Standard & Poor’s Ratings Group or at least Baa by Moody’s Investors Service, Inc.; (vii) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank organized under the laws of the United States, any state thereof or the District of Columbia (which commercial bank shall have a short-term debt rating of A-1 (or better) by Standard & Poor’s Ratings Group or P-1 by Moody’s Investors Service, Inc.), or by any foreign bank (which foreign bank shall have a rating of B or better from Thomson BankWatch Global Issuer Rating or, if not rated by Thomson BankWatch Global Issuer Rating, which foreign bank shall be an institution acceptable to the Administrative Agent), or its branches or agencies; or (viii) shares of money market mutual or similar funds at least 95% of the assets of which are invested in the types of investments satisfying the requi
rements of clauses (i) through (vii) of this definition. 

"Change" is defined in Section 4.2 hereof. 

"Change of Control" means an event or series of events by which: 

(i) any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of thirty percent (30%) or more of the voting power of the then outstanding Capital Stock of the Borrower entitled to vote generally in the election of the directors of the Borrower; 

(ii) during any period of 12 consecutive calendar months, the board of directors of the Borrower shall cease to have as a majority of its members individuals who either: 


	4

(a) were directors of the Borrower on the first day of such period, or 

(b) were elected or nominated for election to the board of directors of the Borrower at the recommendation of or other approval by at least a majority of the directors then still in office at the time of such election or nomination who were directors of the Borrower on the first day of such period, or whose election or nomination for election was so approved; 

(iii) other than as a result of a transaction not prohibited under the terms of this Agreement, the Borrower (a) shall cease to own, of record and beneficially, with sole voting and dispositive power, 100% of the outstanding shares of Capital Stock of each of the Subsidiary Guarantors or (b) shall cease to have the power, directly or indirectly, to elect all of the members of the board of directors of each of the Subsidiary Guarantors; or 

(iv) the Borrower consolidates with or merges into another corporation or conveys, transfers or leases all or substantially all of its property to any Person, or any corporation consolidates with or merges into the Borrower, in either event pursuant to a transaction in which the outstanding Capital Stock of the Borrower is reclassified or changed into or exchanged for cash, securities or other property. 

"Citibank" means, Citibank, N.A., in its individual capacity, and its successors. 

"Closing Date" means the date of this Agreement. 

"Code" means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. 

"Commission" means the Securities and Exchange Commission of the United States of America and any Person succeeding to the functions thereof. 

"Consolidated Assets" means the total assets of the Borrower and its Subsidiaries on a consolidated basis. 

"Consolidated Domestic Assets" means the total assets of the Borrower and each of its consolidated Subsidiaries that is incorporated under the laws of any jurisdiction in the United States. 

"Consolidated Net Worth" means, as of any date, all amounts which would be included under shareholders’ equity (including capital stock, additional paid-in capital and retained earnings) on the consolidated balance sheet for the Borrower and its consolidated Subsidiaries determined in accordance with Agreement Accounting Principles. 

"Consolidated Total Capitalization" means, as of any date, the sum of (i) Indebtedness of the Borrower and its consolidated Subsidiaries and (ii) Consolidated Net Worth, all determined in accordance with Agreement Accounting Principles. 

"Contaminant" means any waste, pollutant, hazardous substance, toxic substance, hazardous waste, special waste, petroleum or petroleum-derived substance or waste, asbestos or

5

polychlorinated biphenyls ("PCBs"), and includes but is not limited to these terms as defined in Environmental, Health or Safety Requirements of Law. 

"Contingent Obligation", as applied to any Person, means any Contractual Obligation, contingent or otherwise, of that Person with respect to any Indebtedness of another or other obligation or liability of another, including, without limitation, any such Indebtedness, obligation or liability of another directly or indirectly guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business), co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable, including Contractual Obligations (co
ntingent or otherwise) arising through any agreement to purchase, repurchase, or otherwise acquire such Indebtedness, obligation or liability or any security therefor, or to provide funds for the payment or discharge thereof (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, or other financial condition, or to make payment other than for value received. The amount of any Contingent Obligation shall be equal to the present value of the portion of the obligation so guaranteed or otherwise supported, in the case of known recurring obligations, and the maximum reasonably anticipated liability in respect of the portion of the obligation so guaranteed or otherwise supported assuming such Person is required to perform thereunder, in all other cases. 

"Contractual Obligation", as applied to any Person, means any provision of any equity or debt securities issued by that Person or any indenture, mortgage, deed of trust, security agreement, pledge agreement, guaranty, contract, undertaking, agreement or instrument, in any case in writing, to which that Person is a party or by which it or any of its properties is bound, or to which it or any of its properties is subject. Without in any way limiting the foregoing, as used with respect to the Borrower or any of its Subsidiaries, Contractual Obligations shall include, without limitation, the Financi
ng Facilities and any instruments, documents or agreements executed or delivered in connection therewith by which the Borrower or such Subsidiaries are bound. 

"Controlled Group" means the group consisting of (i) any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership or other trade or business (whether or not incorporated) which is under common control (within the meaning of Section 414(c) of the Code) with the Borrower; and (iii) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Borrower, any corporation described in clause (i) above or any partnership or trade or business described in clause (ii) above. 

"Cure Loan" is defined in Section 9.2(iii) hereof. 

"Customary Permitted Liens" means: 

(i) Liens (other than Environmental Liens and Liens in favor of the IRS or the PBGC or any Plan) with respect to the payment of taxes, assessments or governmental charges in all cases which are not yet due or (if foreclosure, distraint, sale or other similar proceedings shall not have been commenced or any such proceeding after being commenced is stayed) which are being contested in good faith by appropriate


	6

proceedings properly instituted and diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained as may be required in accordance with Agreement Accounting Principles; 

(ii) statutory Liens of landlords and Liens of suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other similar Liens imposed by law created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings properly instituted and diligently conducted and with respect to which adequate reserves or other appropriate provisions are being maintained as may be required in accordance with Agreement Accounting Principles; 

(iii) Liens (other than Environmental Liens and Liens in favor of the IRS or the PBGC or any Plan) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security benefits or to secure the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money), surety, appeal and performance bonds; provided that (A) all such Liens do not in the aggregate materially detract from the value of the Borrower’s or such Subsidiary’s assets or property taken as a whole or materially impair the use thereof in the operation of the Borrower’s or such Subsidiary’s businesses taken as a whole, and (B) all Liens securing bonds to stay judgments or in connection with appeal
s do not secure at any time an aggregate amount exceeding $30,000,000; 

(iv) Liens arising with respect to zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar charges or encumbrances on the use of real property which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Borrower or any of its Subsidiaries; 

(v) Liens of attachment or judgment with respect to judgments, writs or warrants of attachment, or similar process against the Borrower or any of its Subsidiaries which do not constitute a Default under Section 8.1(H) hereof; 

(vi) any interest or title of the lessor in the property subject to any operating lease entered into by the Borrower or any of its Subsidiaries in the ordinary course of business; and 

(vii) Liens of commercial depository institutions arising in the ordinary course of business constituting a statutory or common law right of setoff against amounts on deposit with any such institution. 

"Default" means an event described in Article VIII hereof. 

"Disclosed Litigation" is defined in Section 6.7 hereof. 

"Disqualified Stock" means any preferred stock and any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking

7

fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the Revolving Loan Termination Date. 

"DOL" means the United States Department of Labor and any Person succeeding to the functions thereof. 

"Dollar" and "$" means dollars in the lawful currency of the United States. 

"EBIT" means, for any period, on a consolidated basis for the Borrower and its Subsidiaries, the sum of the amounts for such period, without duplication, of (i) Net Income, plus (ii) Interest Expense to the extent deducted in computing Net Income, plus (iii) charges against income for foreign, federal, state and local taxes to the extent deducted in computing Net Income, plus (iv) non-cash charges (except any non-cash charges that require accrual of a reserve for anticipated future cash payments for any period) to the extent deducted in computing Net Income, plus (v) other extraordinary non-cash charges to the extent deducted in computing Net Income, minus 
(vi) extraordinary gains to the extent added in computing Net Income. 

"EBITDA" means, for any period, on a consolidated basis for the Borrower and its Subsidiaries, the sum of the amounts for such period, without duplication, of (i) EBIT, plus (ii) depreciation expense to the extent deducted in computing Net Income, plus (iii) amortization expense, including, without limitation, amortization of goodwill and other intangible assets, to the extent deducted in computing Net Income. 

"Environmental, Health or Safety Requirements of Law" means all applicable foreign, federal, state and local laws or regulations relating to or addressing pollution or protection of the environment, or protection of worker health or safety, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., in each case including any amendments thereto, any successor statutes, and any regulations promulgated thereunder, and any state or local equivalent thereof. 

"Environmental Lien" means a lien in favor of any Governmental Authority for (a) any liability under Environmental, Health or Safety Requirements of Law, or (b) damages arising from, or costs incurred by such Governmental Authority in response to, a Release or threatened Release of a Contaminant into the environment. 

"Environmental Property Transfer Act" means any applicable requirement of law that conditions, restricts, prohibits or requires any notification or disclosure triggered by the closure of any property or the transfer, sale or lease of any property or deed or title for any property for environmental reasons, including, but not limited to, any so-called "Industrial Site Recovery Act" or "Responsible Property Transfer Act." 

"Equipment" means all of the Borrower’s and its Subsidiaries’ present and future (i) equipment, including, without limitation, machinery, manufacturing, distribution, selling, data processing and office equipment, assembly systems, tools, molds, dies, fixtures, appliances, furniture, furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures, (ii) other tangible personal property (other than the Borrower’s or Subsidiary’s Inventory), and (iii) any

8

and all accessions, parts and appurtenances attached to any of the foregoing or used in connection therewith, and any substitutions therefor and replacements, products and proceeds thereof. 

"Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). 

"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, including (unless the context otherwise requires) any rules or regulations promulgated thereunder. 

"Eurodollar Base Rate" means, with respect to a Eurodollar Rate Advance for the relevant Interest Period, the applicable British Bankers’ Association LIBOR rate for deposits in Dollars as reported by any generally recognized financial information service as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, provided that, if no such British Bankers’ Association LIBOR rate is available to the Administrative Agent, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the rate determined by the Administrative Agent to be the rate at which Bank One or one of its Affiliate banks offers to place deposits in Dollars with first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, in the approximate amount of Bank One’s relevant Eurodollar Rate Loan and having a maturity equal to such Interest Period. 

"Eurodollar Rate" means, with respect to a Eurodollar Rate Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest Period, divided by (b) one minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period plus (ii) the then Applicable Margin; provided, however, that the foregoing adjustment for Reserve Requirements shall only be made with respect to that portion of a Eurodollar Rate Loan made by a Lender which is subject to such Reserve Requirements. 

"Eurodollar Rate Advance" means an Advance which bears interest at the Eurodollar Rate. 

"Eurodollar Rate Loan" means a Loan, or portion thereof, which bears interest at the Eurodollar Rate. 

"Excluded Taxes" means, in the case of each Lender or applicable Lending Installation and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Administrative Agent is incorporated or organized or (ii) the jurisdiction in which the Administrative Agent’s or such Lender’s principal executive office or such Lender’s applicable Lending Installation is located. 

"Existing Bridge Credit Agreement" means that certain 364-Day Bridge Term Loan Credit Agreement, dated as of January 17, 2003, among the Borrower, the institutions from time to time parties thereto as lenders, Bank One, as the administrative agent and Bank of America,

9

N.A., as the syndication agent, as amended by Amendment No. 1 thereto dated as of January 24, 2003 and by Amendment No. 2 thereto dated as of March 24, 2003. 

"Existing Credit Agreements" means, collectively, the Existing Bridge Credit Agreement, the Existing 5-Year Credit Agreement and the Existing 364-Day Credit Agreement. 

"Existing 5-Year Credit Agreement" means that certain 5-Year Revolving Credit Agreement, dated as of March 30, 2000, among the Borrower (as the successor by assignment and assumption to Ralston Purina Company), the institutions from time to time parties thereto as lenders, Bank One, as the administrative agent, Bank of America, N.A., as the syndication agent, and Wachovia Bank, National Association (formerly known as Wachovia Bank, N.A.), as the documentation agent, as amended by Amendment No. 1 thereto dated as of March 24, 2003. 

"Existing 364-Day Credit Agreement" means that certain 364-Day Credit Agreement, dated as of March 30, 2000, among the Borrower (as the successor by assignment and assumption to Ralston Purina Company), the institutions from time to time parties thereto as lenders, Bank One, as the administrative agent, Bank of America, N.A., as the syndication agent, and Wachovia Bank, National Association (formerly known as Wachovia Bank, N.A.), as the documentation agent, as the same has been amended and restated pursuant to the Amendment and Restatement of 364-Day Credit Agreement dated as of March 29, 2001,
 by the Second Amendment and Restatement of 364-Day Credit Agreement dated as of March 28, 2002 and by the Third Amendment and Restatement of 364-Day Credit Agreement dated as of March 24, 2003. 

"Facility Fee" is defined in Section 2.14(C)(i) hereof. 

"Federal Funds Effective Rate" means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago time) on such day on such transactions received by the Admi
nistrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent in its reasonable discretion. 

"Financing Facilities" means the Receivables Purchase Facility, the Senior Notes and the Singapore Credit Facility. 

"Floating Rate Advance" means an Advance which bears interest by reference to the Alternate Base Rate. 

"Floating Rate Loan" means a Loan, or portion thereof, which bears interest by reference to the Alternate Base Rate. 

"Foreign Employee Benefit Plan" means any employee benefit plan as defined in Section 3(3) of ERISA which is maintained or contributed to for the benefit of the employees of the Borrower or any member of the Controlled Group, but which is not covered by ERISA pursuant to Section 4(b)(4) of ERISA. 


	10

"Foreign Pension Plan" means any employee pension benefit plan (as defined in Section 3(2) of ERISA) which (i) is maintained or contributed to for the benefit of employees of the Borrower or any other member of the Controlled Group, (ii) is not covered by ERISA pursuant to Section 4(b)(4) thereof and (iii) under applicable local law, is required to be funded through a trust or other funding vehicle. 

"Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business. 

"Governmental Acts" is defined in Section 3.10(A) hereof. 

"Governmental Authority" means any nation or government, any federal, state, local or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative authority or functions of or pertaining to government, including any authority or other quasi-governmental entity established to perform any of such functions. 

"Hedging Arrangements" is defined in the definition of "Hedging Obligations" below. 

"Hedging Agreements" means Hedging Arrangements permitted under Section 7.3(O) that are entered into by the Borrower and any Lender or any affiliate of any Lender. 

"Hedging Obligations" of a Person means any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all agreements, devices or arrangements designed to protect at least one of the parties thereto from the fluctuations of interest rates, commodity prices, exchange rates or forward rates applicable to such party’s assets, liabilities or exchange transactions, including, but not limited to, dollar-denominate
d or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants or any similar derivative transactions ("Hedging Arrangements"), and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any of the foregoing. 

"Holders of Obligations" means the holders of the Obligations from time to time and the holders of the Hedging Obligations arising from time to time under Hedging Agreements and shall include their respective successors, transferees and assigns. 

"Indebtedness" of any Person means, without duplication, such Person’s (a) obligations for borrowed money, (b) obligations representing the deferred purchase price of property or services (other than accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade), which purchase price is due more than six (6) months from the date of incurrence of the obligation in respect thereof, provided that the related obligations are not interest bearing, (c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or p
roduction from property or assets now or hereafter owned or acquired by such Person, (d) obligations which are evidenced by notes, acceptances or other instruments, (e) Capitalized Lease Obligations, (f) Contingent Obligations in respect of Indebtedness, (g) obligations with respect to letters of credit, (h) Off-Balance Sheet Liabilities,

11

(i) Receivables Facility Attributed Indebtedness and (j) Disqualified Stock. The amount of Indebtedness of any Person at any date shall be without duplication (1) the outstanding balance at such date of all unconditional obligations as described above and the maximum liability of any such Contingent Obligations at such date and (2) in the case of Indebtedness of others secured by a Lien to which the property or assets owned or held by such Person is subject, the lesser of the fair market value at such date of any asset subject to a Lien securing the Indebtedness of others and the amount of the Indebtedness secured. 

"Indemnified Matters" is defined in Section 10.7(B) hereof. 

"Indemnitees" is defined in Section 10.7(B) hereof. 

"Initial Fee Letters" means (i) that certain letter agreement dated May 5, 2003 among the Arrangers and the Borrower and (ii) that certain letter agreement dated May 5, 2003 between the Administrative Agent and the Borrower, in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time. 

"Initial Funding Date" means the date on which the initial Revolving Loans are advanced and Letters of Credit are issued or deemed issued hereunder. 

"Insolvency Event" is defined in Section 10.14 hereof. 

"Intercompany Indebtedness" is defined in Section 10.14 hereof. 

"Interest Expense" means, for any period, the total interest expense of the Borrower and its consolidated Subsidiaries, whether paid or accrued, including, without duplication, Off-Balance Sheet Liabilities (including Receivables Facility Financing Costs) and the interest component of Capitalized Leases, all as determined in conformity with Agreement Accounting Principles. 

"Interest Expense Coverage Ratio" is defined in Section 7.4(B) hereof. 

"Interest Period" means, with respect to a Eurodollar Rate Loan, a period of one (1), two (2), three (3) or six (6) months and, to the extent available to all of the Lenders, nine (9) or twelve (12) months, or any other period agreed to between the Borrower and the Administrative Agent (acting on the instructions of all of the Lenders), commencing on a Business Day selected by the Borrower on which a Eurodollar Rate Advance is made to Borrower pursuant to this Agreement. Such Interest Period shall end on (but exclude) the day which corresponds numerically to such date one, two, three, six, nine 
or twelve months (or such other period) thereafter; provided, however, that if there is no such numerically corresponding day in such next, second, third, sixth, ninth or twelfth succeeding month (or other period), such Interest Period shall end on the last Business Day of such next, second, third, sixth, ninth or twelfth succeeding month (or other period). If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day, provided, however, that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day. 


	12

"Inventory" shall mean any and all goods, including, without limitation, goods in transit, wheresoever located, whether now owned or hereafter acquired by the Borrower or any of its Subsidiaries, which are held for sale or lease, furnished under any contract of service or held as raw materials, work in process or supplies, and all materials used or consumed in the business of Borrower or any of its Subsidiaries, and shall include all right, title and interest of the Borrower or any of its Subsidiaries in any property the sale or other disposition of which has given rise to Receivables and which 
has been returned to or repossessed or stopped in transit by the Borrower or any of its Subsidiaries. 

"Investment" means, with respect to any Person, (i) any purchase or other acquisition by that Person of any Indebtedness, Equity Interests or other securities, or of a beneficial interest in any Indebtedness, Equity Interests or other securities, issued by any other Person, (ii) any purchase by that Person of all or substantially all of the assets of a business conducted by another Person, and (iii) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable, advances to employees and similar items made or incurred 
in the ordinary course of business) or capital contribution by that Person to any other Person, including all Indebtedness to such Person arising from a sale of property by such Person other than in the ordinary course of its business. 

"IRS" means the Internal Revenue Service and any Person succeeding to the functions thereof. 

"Issuing Bank(s)" means (i) Bank One in its separate capacity as an issuer of Letters of Credit pursuant to Section 3.1 or 3.2 hereunder with respect to each Letter of Credit issued or deemed issued by Bank One upon th
e Borrower’s request and (ii) any Lender (other than Bank One) reasonably acceptable to the Administrative Agent, in such Lender’s separate capacity as an issuer of Letters of Credit pursuant to Section 3.1 hereunder with respect to any and all Letters of Credit issued by such Lender in its sole discretion upon the Borrower’s request. All references contained in this Agreement and the other Loan Documents to the "Issuing Bank" shall be deemed to apply equally to each of the institutions referred to in clauses (i) and (ii) of this definition in their respective capacities as issuers of any and all Letters of Credit issued by each such institution. 

"L/C Documents" is defined in Section 3.4 hereof. 

"L/C Draft" means a draft drawn on an Issuing Bank pursuant to a Letter of Credit. 

"L/C Interest" shall have the meaning ascribed to such term in Section 3.6 hereof. 

"L/C Obligations" means, without duplication, an amount equal to the sum of (i) the aggregate of the amount then available for drawing under each of the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C Drafts have been accepted by an Issuing Bank, (iii) the aggregate outstanding amount of all Reimbursement Obligations at such time and (iv) the aggregate face amount of all Letters of Credit requested by the Borrower but not yet issued (unless the request for an unissued Letter of Credit has been denied). 


	13

"Lenders " means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns. 

"Lending Installation" means, with respect to a Lender or the Administrative Agent, any office, branch, subsidiary or affiliate of such Lender or the Administrative Agent. 

"Letter of Credit" means the standby letters of credit (a) to be issued by an Issuing Bank pursuant to Section 3.1 hereof or (b) deemed issued by the Issuing Bank pursuant to Section 3.2 hereof. 

"Leverage Ratio" is defined in Section 7.4(A) hereof. 

"Lien" means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement). 

"Loan(s)" means, with respect to a Lender, such Lender’s portion of any Advance made pursuant to Section 2.1 hereof, and in the case of the Swing Line Bank, any Swing Line Loan made pursuant to Section 2.2 hereof,
 and collectively, all Revolving Loans and Swing Line Loans, whether made or continued as or converted to Floating Rate Loans or Eurodollar Rate Loans. 

"Loan Account" is defined in Section 2.12(a) hereof. 

"Loan Documents" means this Agreement, the Subsidiary Guaranty, any promissory notes issued pursuant to Section 2.12, the L/C Documents and all other documents, instruments and agreements executed in connection therewith or contemplated thereby, as the same may be amended, restated or otherwise modified and in effect from time to time. 

"Loan Parties" is defined in Section 5.1 hereof. 

"Margin Stock" shall have the meaning ascribed to such term in Regulation U. 

"Material Adverse Effect" means a material adverse effect upon (a) the business, condition (financial or otherwise), operations, performance, properties or prospects of the Borrower and its Subsidiaries, taken as a whole, (b) the ability of the Borrower and its Subsidiaries, taken as a whole, to perform their obligations under the Loan Documents in any material respect, or (c) the ability of the Lenders, the Issuing Banks or the Administrative Agent to enforce in any material respect the Obligations. 

"Material Domestic Subsidiary" means each consolidated Subsidiary (other than any SPV) of the Borrower (a) incorporated under the laws of any jurisdiction in the United States and (b) the total assets of which exceed, as at the end of any calendar quarter or, in the case of consummation of a Permitted Acquisition, at the time of consummation of such Permitted Acquisition (calculated by the Borrower on a pro forma b
asis taking into account the consummation of such Permitted Acquisition), three percent (3.0%) of the Consolidated Domestic Assets of the Borrower and its consolidated Subsidiaries (other than SPVs). 


	14

"Material Foreign Subsidiary" means each consolidated Subsidiary (other than any SPV) of the Borrower (a) incorporated or organized under the laws of any foreign jurisdiction and (b) the total assets of which exceed, as at the end of any calendar quarter or, in the case of consummation of a Permitted Acquisition, at the time of consummation of such Permitted Acquisition (calculated by the Borrower on a pro forma ba
sis taking into account the consummation of such Permitted Acquisition), five percent (5.0%) of the Consolidated Assets of the Borrower and its consolidated Subsidiaries (other than SPVs). 

"Material Indebtedness" means (a) any Indebtedness evidenced by the Financing Facilities or (b) any other Indebtedness (other than the Indebtedness hereunder) of a single class with an aggregate outstanding principal amount equal to or greater than $30,000,000. 

"Material Subsidiaries" means each of the Borrower’s Material Domestic Subsidiaries and Material Foreign Subsidiaries. 

"Multiemployer Plan" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years was, contributed to by either the Borrower or any member of the Controlled Group. 

"Net Income" means, for any period, the net earnings (or loss) after taxes of the Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with Agreement Accounting Principles. 

"New Subsidiary" is defined in Section 7.3(F). 

"Non-ERISA Commitments" means 

(i) each pension, medical, dental, life, accident insurance, disability, group insurance, sick leave, profit sharing, deferred compensation, bonus, stock option, stock purchase, retirement, savings, severance, stock ownership, performance, incentive, hospitalization or other insurance, or other welfare, benefit or fringe benefit plan, policy, trust, understanding or arrangement of any kind; and 

(ii) each employee collective bargaining agreement and each agreement, understanding or arrangement of any kind, with or for the benefit of any present or prior officer, director, employee or consultant (including, without limitation, each employment, compensation, deferred compensation, severance or consulting agreement or arrangement and any agreement or arrangement associated with a change in ownership of the Borrower or any member of the Controlled Group); 

to which the Borrower or any member of the Controlled Group is a party or with respect to which the Borrower or any member of the Controlled Group is or will be required to make any payment other than any Plans. 

"Non Pro Rata Loan" is defined in Section 9.2 hereof. 

"Non-U.S. Lender" is defined in Section 4.5(iv) hereof. 


	15

"Notice of Assignment" is defined in Section 13.3(B) hereof. 

"Obligations" means all Loans, L/C Obligations, advances, debts, liabilities, obligations, covenants and duties owing by the Borrower or any of its Subsidiaries to the Administrative Agent, any Lender, the Swing Line Bank, the Arrangers, any Affiliate of the Administrative Agent or any Lender, the Issuing Banks or any Indemnitee, of any kind or nature, present or future, arising under this Agreement, the L/C Documents or any other Loan Document, whether or not evidenced by any note, guaranty or other instrument, whether or not for the payment of money, whether arising by reason of an extension o
f credit, loan, guaranty, indemnification, or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired. The term includes, without limitation, all interest, charges, expenses, fees, reasonable attorneys’ fees and disbursements, reasonable paralegals’ fees (and, after the occurrence and during the continuance of a Default, all attorney’s fees and disbursements and paralegals’ fees, whether or not reasonable), and any other sum chargeable to the Borrower or any of its Subsidiaries under this Agreement or any other Loan Document. 

"Off-Balance Sheet Liabilities" of a Person means, without duplication, (a) any Receivables Facility Attributed Indebtedness and repurchase obligation or liability of such Person or any of its Subsidiaries with respect to Receivables or notes receivable sold by such Person or any of its Subsidiaries (calculated to include the unrecovered investment of purchasers or transferees of Receivables or notes receivable or any other obligation of the Borrower or such transferor to purchasers/transferees of interests in Receivables or notes receivables or the agent for such purchasers/transferees), (b) an
y liability under any sale and leaseback transactions which do not create a liability on the consolidated balance sheet of such Person, (c) any liability under any financing lease or so-called "synthetic" lease transaction, or (d) any obligations arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheets of such Person and its Subsidiaries. 

"Originators" means the Borrower and/or any of its Subsidiaries in their respective capacities as parties to any Receivables Purchase Documents, as sellers or transferors of any Receivables and Related Security in connection with a Permitted Receivables Transfer. 

"Other Taxes" is defined in Section 4.5 hereof. 

"Participants" is defined in Section 13.2(A) hereof. 

"Payment Date" means the last day of each March, June, September and December. 

"PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto. 

"Permitted Acquisition" is defined in Section 7.3(F) hereof. 

"Permitted Existing Contingent Obligations" means the Contingent Obligations of the Borrower and its Subsidiaries as of the Closing Date identified on Schedule 1.1.3 to this Agreement. 


	16

"Permitted Existing Investments" means the Investments of the Borrower and its Subsidiaries as of the Closing Date identified on Schedule 1.1.1 to this Agreement. 

"Permitted Existing Liens" means the Liens on assets of the Borrower and its Subsidiaries as of the Closing Date identified on Schedule 1.1.2 to this Agreement. 

"Permitted Receivables Transfer" means (i) a sale or other transfer by an Originator to a SPV of Receivables and Related Security for fair market value and without recourse (except for limited recourse typical of such structured finance transactions), and/or (ii) a sale or other transfer by a SPV to (a) purchasers of or other investors in such Receivables and Related Security or (b) any other Person (including a SPV) in a transaction in which purchasers or other investors purchase or are otherwise transferred such Receivables and Related Security, in each case pursuant to and in accordance with 
the terms of the Receivables Purchase Documents. 

"Person" means any individual, corporation, firm, enterprise, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, limited liability company or other entity of any kind, or any government or political subdivision or any agency, department or instrumentality thereof. 

"Plan" means an employee benefit plan defined in Section 3(3) of ERISA in respect of which the Borrower or any member of the Controlled Group is, or within the immediately preceding six (6) years was, an "employer" as defined in Section 3(5) of ERISA. 

"Prime Rate" means a rate per annum equal to the prime rate of interest announced from time to time by Bank One or its parent (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes. 

"Pro Rata Share" means, with respect to any Lender, the percentage obtained by dividing (A) such Lender’s Revolving Loan Commitment at such time (in each case, as adjusted from time to time in accordance with the provisions of this Agreement) by (B) the Aggregate Revolving Loan Commitment at such time; provided, however, if all of the Revolving Loan Commitments are terminated pursuant to the terms of this Agreement, then "Pro Rata Share" means the percentage obtained by dividing (x) the sum of (A) such Lender’s Revolving Loans, plus (B) such Lender’s share of the obligations to purchase participations in Swing Line Loans and Letters of Credit, by (y) the sum of (A) the aggregate outstanding amount of Revolving Loans, plus (B) the aggregate outstanding amount of all Swing Line Loans and Letters of Credit. 

"Purchasers" is defined in Section 13.3(A) hereof. 

"Receivable(s)" means and includes all of the Borrower’s and its Subsidiaries’ presently existing and hereafter arising or acquired accounts, accounts receivable, and all present and future rights of the Borrower and its Subsidiaries to payment for goods sold or leased or for services rendered (except those evidenced by instruments or chattel paper), whether or not they have been earned by performance, and all rights in any merchandise or goods which any of the same may represent, and all rights, title, security and guaranties with respect to each of the foregoing, including, without l
imitation, any right of stoppage in transit. 


	17

"Receivables and Related Security" means the Receivables and the related security and collections with respect thereto which are sold or transferred by any Originator or SPV in connection with any Permitted Receivables Transfer. 

"Receivables Facility Attributed Indebtedness" means the amount of obligations outstanding under a receivables purchase facility on any date of determination that would be characterized as principal if such facility were structured as a secured lending transaction rather than as a purchase. 

"Receivables Facility Financing Costs" means such portion of the cash fees, service charges, and other costs, as well as all collections or other amounts retained by purchasers of receivables pursuant to a receivables purchase facility, which are in excess of amounts paid to the Borrower and its consolidated Subsidiaries under any receivables purchase facility for the purchase of receivables pursuant to such facility and are the equivalent of the interest component of the financing if the transaction were characterized as an on-balance sheet transaction. 

"Receivables Purchase Documents" means (i) the 2000 Receivables Sale Agreement and (ii) the 2000 Receivables Purchase Agreement, or any other series of receivables purchase or sale agreements generally consistent with terms contained in comparable structured finance transactions pursuant to which an Originator or Originators sell or transfer to SPVs all of their respective right, title and interest in and to certain Receivables and Related Security for further sale or transfer to other purchasers of or investors in such assets (in any such case, together with the other documents, instruments and
 agreements executed in connection therewith), as any such agreements may be amended, restated, supplemented or otherwise modified from time to time, or any replacement or substitution therefor. 

"Receivables Purchase Facility" means the securitization facility made available to the Borrower, pursuant to which the Receivables and Related Security of the Originators are transferred to one or more SPVs, and thereafter to certain investors, pursuant to the terms and conditions of the Receivables Purchase Documents. 

"Register" is defined in Section 13.3(C) hereof. 

"Regulation D" means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System. 

"Regulation T" means Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by and to brokers and dealers of securities for the purpose of purchasing or carrying margin stock (as defined therein). 

"Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks, non-banks and non-broker lenders for the purpose of purchasing or carrying Margin Stock applicable to member banks of the Federal Reserve System. 


	18

"Regulation X" means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by foreign lenders for the purpose of purchasing or carrying margin stock (as defined therein). 

"Reimbursement Obligation" is defined in Section 3.7 hereof. 

"Release" means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the environment, including the movement of Contaminants through or in the air, soil, surface water or groundwater. 

"Replacement Lender" is defined in Section 2.19 hereof. 

"Reportable Event" means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days after such event occurs. 

"Required Lenders" means Lenders whose Pro Rata Shares, in the aggregate, are greater than fifty percent (50%); provided, however, that, if any Lender shall have failed to fund its Pro Rata Share of (i) any Revolving L
oan requested by the Borrower, (ii) any Revolving Loan required to be made in connection with reimbursement for any L/C Obligations or (iii) any Swing Line Loan as requested by the Administrative Agent, which such Lender is obligated to fund under the terms of this Agreement and any such failure has not been cured, then for so long as such failure continues, "Required Lenders" means Lenders (excluding all Lenders whose failure to fund their respective Pro Rata Shares of such Revolving Loans or Swing Line Loans has not been so cured) whose Pro Rata Shares represent greater than fifty percent (50%) of the aggregate Pro Rata Shares of such Lenders; provided further, however, that, if the Revolving Loan Commitments have been terminated pursuant to the terms of this Agreement, "Required Lenders" means Lenders (without regard to such Lenders’ performance of their respective obligations hereunder) whose aggregate ratable shares (stated as a percentage) of the aggregate outstanding principal balance of all Loans and L/C Obligations are greater than fifty percent (50%). 

"Requirements of Law" means, as to any Person, the charter and by-laws or other organizational or governing documents of such Person, and any law, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject including, without limitation, the Securities Act of 1933, the Securities Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act, Americans
 with Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance, building, environmental or land use requirement or permit or environmental, labor, employment, occupational safety or health law, rule or regulation, including Environmental, Health or Safety Requirements of Law. 


	19

"Reserve Requirement" means, with respect to an Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on "Eurocurrency liabilities". 

"Revolving Credit Availability" means, at any particular time, the amount by which the Aggregate Revolving Loan Commitment at such time exceeds the Revolving Credit Obligations outstanding at such time. 

"Revolving Credit Obligations" means, at any particular time, the sum of (i) the outstanding principal amount of the Revolving Loans at such time, plus (ii) the outstanding principal amount of the Swing Line Loans at such time, plus (iii) the outstanding L/C Obligations at such time. 

"Revolving Loan" is defined in Section 2.1 hereof. 

"Revolving Loan Commitment" means, for each Lender, the obligation of such Lender to make Revolving Loans and to purchase participations in Letters of Credit and to participate in Swing Line Loans not exceeding the amount set forth on Exhibit A to this Agreement opposite its name thereon under the heading "Revolving Loan Commitment" or in the Assignment Agreement by which it became a Lender, as such amount 
may be modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable Assignment Agreement. 

"Revolving Loan Termination Date" means June 27, 2006. 

"Risk-Based Capital Guidelines" is defined in Section 4.2 hereof. 

"Schick Acquisition" means the acquisition by certain Subsidiaries of the Borrower of substantially all of the stock or assets constituting a division of Pfizer Inc., a Delaware corporation, on the terms and conditions set forth in that certain Stock and Asset Purchase Agreement dated as of January 20, 2003 by and between the Borrower and Pfizer, Inc., including all schedules and exhibits thereto, as the same has been amended, supplemented or otherwise modified. 

"Senior Management Team" means (a) each Authorized Officer, the chief executive officer, secretary or any other member of management of the Borrower and (b) any chief executive officer, president, vice president, chief financial officer, treasurer, secretary or any other member of management of any Subsidiary Guarantor. 

"Senior Note Purchase Agreements" means, collectively, the 2000 Note Purchase Agreement and the 2003 Note Purchase Agreement. 

"Senior Notes" means, collectively, the 2000 Senior Notes and the 2003 Senior Notes. 

"Singapore Credit Agreement" means that certain Facility Agreement, to be dated after the Closing Date, substantially in the form delivered to the Administrative Agent prior to the execution of this Agreement, with such changes prior to the effective date thereof as are acceptable to the Administrative Agent, among Energizer Asia Investments Pte. Ltd., a company

20

organized under the laws of Singapore and a wholly-owned Subsidiary of the Borrower, as the borrower thereunder, the financial institutions from time to time parties thereto, arranged by Citigroup Global Markets Singapore Merchant Bank Ltd. and Standard Chartered Bank, with Citicorp Investment Bank (Singapore) Limited, as the agent, under which the financial institutions party thereto have committed to make loans and other extensions of credit to Energizer Asia Investments Pte. Ltd. in an original aggregate principal amount of $125,000,000 in Dollars and the U.S. Dollar equivalent (determined as of the effective date thereof) of $125,000,000 in Singapore Dollars, as the same may be amended, modified or supplemented from time to time in a manner that is not materially adverse to the interests of the L
enders. 

"Singapore Credit Facility" means the credit facility evidenced by the Singapore Credit Agreement, the Singapore Guarantees and the other instruments, documents and agreements executed or delivered in connection therewith. 

"Singapore Guarantees" means those certain guarantees of the Indebtedness and other obligations of the borrower under the Singapore Credit Agreement by each of the Borrower, Energizer Singapore Pte. Ltd., a company organized under the laws of Singapore, and Sonca Products Ltd., a company organized under the laws of Hong Kong, as the same may be amended, modified or supplemented from time to time in a manner that is not materially adverse to the interests of the Lenders. 

"Singapore Regional Group" means each of Energizer Asia Investments Pte. Ltd., a company organized under the laws of Singapore, Energizer Singapore Pte. Ltd., a company organized under the laws of Singapore, and Sonca Products Ltd., a company organized under the laws of Hong Kong. 

"Solvent" means, when used with respect to any Person, that at the time of determination: 

(i) the fair value of its assets (both at fair valuation and at present fair saleable value) is equal to or in excess of the total amount of its liabilities, including, without limitation, contingent liabilities; and 

(ii) it is then able and believes that it will be able to pay its debts as they mature; and 

(iii) it has capital sufficient to carry on its business as conducted and as proposed to be conducted. 

With respect to contingent liabilities (such as litigation and guarantees), such liabilities shall be computed at the amount which, in light of all the facts and circumstances existing at the time, represent the amount which can be reasonably be expected to become an actual or matured liability. 


	21

"SPV" means any special purpose entity established for the purpose of purchasing receivables in connection with a receivables securitization transaction permitted under the terms of this Agreement. 

"Subsidiary" of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references here
in to a "Subsidiary" means a Subsidiary of the Borrower. 

"Subsidiary Guarantors" means (i) as of the Closing Date, all of the Borrower’s Material Domestic Subsidiaries; (ii) all New Subsidiaries which are Material Domestic Subsidiaries and which have satisfied the provisions of Section 7.2(K)(a); (iii) all of the Borrower’s Subsidiaries which become Material Domestic Subsidiaries and which have satisfied the provisions of S ection 7.2(K)(b); and (iv) all other domestic Subsidiaries which become Subsidiary Guarantors in satisfaction of the provisions of Section 7.2(K)(c)(i) or any Subsidiaries which become Subsidiary Guarantors in satisfaction of the provisions of Section 7.2(K)(c)(ii), in each case with respect to clauses (i) through (iv) above, other than the SPVs and together with their respective successors and assigns. 

"Subsidiary Guaranty" means that certain Guaranty dated as of the Closing Date, executed by the Subsidiary Guarantors in favor of the Administrative Agent, for the ratable benefit of the Lenders, the Swing Line Bank and the Issuing Banks, as it may be amended, modified, supplemented and/or restated (including to add new Subsidiary Guarantors), and as in effect from time to time. 

"Supplement" shall have the meaning set forth in Section 7.2(K). 

"Swing Line Bank" means Bank One pursuant to the terms hereof. 

"Swing Line Commitment" means the commitment of the Swing Line Bank, in its discretion, to make Swing Line Loans up to a maximum principal amount of $10,000,000 at any one time outstanding. 

"Swing Line Loan" means a Loan made available to the Borrower by the Swing Line Bank pursuant to Section 2.2 hereof. 

"Taxes" means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes. 

"Termination Date" means the earliest of (a) the Revolving Loan Termination Date and (b) the date of termination in whole of the Aggregate Revolving Loan Commitment pursuant to Section 2.5 hereof or the Revolving Loan Commitments pursuant to Section 9.1 hereof. 


	22

"Termination Event" means (i) a Reportable Event with respect to any Benefit Plan; (ii) the withdrawal of the Borrower or any member of the Controlled Group from a Benefit Plan during a plan year in which the Borrower or such Controlled Group member was a "substantial employer" as defined in Section 4001(a)(2) of ERISA with respect to such plan; (iii) the imposition of an obligation under Section 4041 of ERISA to provide affected parties written notice of intent to terminate a Benefit Plan in a distress termination described in Section 4041(c) of ERISA; (iv) the institution by the PBGC or any fo
reign governmental authority of proceedings to terminate or appoint a trustee to administer a Benefit Plan or Foreign Pension Plan; (v) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Benefit Plan; or (vi) the partial or complete withdrawal of the Borrower or any member of the Controlled Group from a Multiemployer Plan. 

"Transferee" is defined in Section 13.5 hereof. 

"Transitional Letters of Credit" is defined in Section 3.2 hereof. 

"2000 Note Purchase Agreement" means that certain Note Purchase Agreement dated as of April 1, 2000 among the Borrower and the "Purchasers" referred to therein, under which the Borrower has issued senior unsecured notes in the aggregate principal amount of $175,000,000 (the "2000 Senior Notes"), which shall be pari passu  with the Obligations hereunder and the Hedging Obligations, as such Note Purchase Agreement may be amended, modified or supplemented from time to time in a manner that is not materially adverse to the interests of the Lenders. 

"2000 Receivables Purchase Agreement" means that certain Receivables Purchase Agreement, dated as of April 4, 2000, as amended, extended or replaced in a manner permitted by this Agreement, among Energizer Receivables Funding Corporation, a Delaware corporation, as the seller thereunder, Eveready Battery Company, a Delaware Corporation, as the servicer thereunder, Falcon Asset Securitization Corporation and Bank One, as the agent thereunder 

"2000 Receivables Sale Agreement" means that certain Receivables Sale Agreement, dated as of April 4, 2000, as amended, extended or replaced in a manner permitted by this Agreement, between Eveready Battery Company, Inc., a Delaware corporation, and Energizer Receivables Funding Corporation, a Delaware corporation and an SPV. 

"2000 Senior Notes" is defined in the definition of "2000 Note Purchase Agreement" above. 

"2003 Note Purchase Agreement" means that certain Note Purchase Agreement dated as of June 1, 2003 among the Borrower and the "Purchasers" referred to therein, under which the Borrower has issued senior unsecured notes in the aggregate principal amount of $700,000,000 (the "2003 Senior Notes"), which shall be pari p
assu with the Obligations hereunder and the Hedging Obligations, as such Note Purchase Agreement may be amended, modified or

23

supplemented from time to time in a manner that is not materially adverse to the interests of the Lenders. 

"2003 Senior Notes" is defined in the definition of "2003 Note Purchase Agreement" above. 

"Type" means, with respect to any Loan, its nature as a Floating Rate Loan or a Eurodollar Rate Loan. 

"Unmatured Default" means an event which, but for the lapse of time or the giving of notice, or both, would constitute a Default. 

"Utilization Fee" is defined in Section 2.14(c)(ii) hereof. 

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. Any accounting terms used in this Agreement which are not specifically defined herein shall have the meanings customarily given them in accordance with generally accepted accounting principles in existence as of the date hereof. 

1.2  References. Any references to Subsidiaries of the Borrower shall not in any way be construed as consent by the Administrative Agent or any Lender to the establishment, maintenance or acquisition of any Subsidiary, except as may otherwise be permitted hereunder. 

ARTICLE II: THE REVOLVING LOAN FACILITY 

2.1  Revolving Loans. (a) Upon the satisfaction of the conditions precedent set forth in Sections 5.1
 and 5.2, as applicable, from and including the Initial Funding Date and prior to the Termination Date, each Lender severally and not jointly agrees, on the terms and conditions set forth in this Agreement, to make revolving loans to the Borrower from time to time, in Dollars, in an amount not to exceed such Lender’s Pro Rata Share of Revolving Credit Availability at such time (each individually, a "Revolving Loan" and, collectively, the "Revolving Loans"); provided, however, at no time shall the Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow Revolving Loans at any time prior to the Termination Date. The Revolving Loans made on the Initial Funding Date or on or before the third (3rd) Business Day thereafter shall initially be Floating Rate Loans and thereafter may be continued as Floating Rate Loans or converted into Eurodollar Rate Loans in the manner provided in Section 2.9 and subject to the other conditions and limitations therein set forth and set forth in this Article II and set forth in the definition of Interest Period; provided, however, that if the Borrower delivers a Borrowing/Election Notice, signed by it, together with appropriate doc
umentation in form and substance satisfactory to the Administrative Agent indemnifying the Lenders for the amounts described in Section 4.4 on or before the third (3rd) Business Day prior to the Initial Funding Date, the Revolving Loans made on the Initial Funding Date may be Eurodollar Rate Loans. Revolving Loans made after the Initial Funding Date shall be, at the option of the Borrower, selected in accordance with Section 2.9, either Floating Rate Loans or Eurodollar Rate Loans. On the Termination Date, the Borrower shall repay in full the outstanding principal balance of the Revolving Loans. Each Advance under this Section 2.1 


	24

shall consist of Revolving Loans made by each Lender ratably in proportion to such Lender’s respective Pro Rata Share. 

(b)  Borrowing/Election Notice; Making of Revolving Loans. The Borrower shall deliver to the Administrative Agent a Borrowing/Election Notice, signed by it, in accordance with the terms of Section 2.7. Promptly after receipt of the Borrowing/Election Notice under Section 2.7 in respect of Revolving Loans, the Administrative Agent shall notify each Lender by telex or telecopy, or other similar form of transmission, of the requested Revolving Loan. Each Lender shall make available its Revolving Loan in accordance with the terms of Section 2.6. The Administrative Agent will promptly make the funds so received from the Lenders available to the Borrower at the Administrative Agent’s office in Chicago, Illinois on the applicable Borrowing Date and shall disburse such proceeds in accordance with the Borrower’s disbursement instructions set forth in such Borrowing/Election Notice. The failure of any Lender to deposit the amo
unt described above with the Administrative Agent on the applicable Borrowing Date shall not relieve any other Lender of its obligations hereunder to make its Revolving Loan on such Borrowing Date. 

2.2  Swing Line Loans. (A) Amount of Swing Line Loans. Upon the satisfaction of the conditions precedent set forth in Section 5.1 and 5.2, as applicable, from and including the Initial Funding Date and prior to the Termination Date, the Swing Line Bank may, in its discretion, on the terms and conditions set forth in this Agreement, make swing line loans to the Borrower from time to time, in Dollars, in an amount not to exceed the Swing Line Commit
ment (each, individually, a "Swing Line Loan" and collectively, the "Swing Line Loans"); provided, however, at no time shall the Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment; and provided, further, that at no time shall the sum of (a) the outstanding amount of the Swing Line Lender’s Pro Rata Share of the Swing Line Loans, plus (b) the outstanding amount of Revolving Loans made by the Swing Line Bank pursuant to Section 2.1, exceed the Swing Line Bank’s Revolving Loan Commitment at such time. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at any time prior to the Termination Date. 

(B) Borrowing/Election Notice for Swing Line Loans. The Borrower shall deliver to the Administrative Agent and the Swing Line Bank a Borrowing/Election Notice, signed by it, not later than 11:00 a.m. (Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (i) the applicable Borrowing Date (which date shall be a Business Day and which may be the same date as the date the Borrowing/Election Notice is given), and (ii) the aggregate amount of the requested Swing Line Loan which shall be an amount not less than $1,000,000 and increments of $100,000 in excess thereof. The Swing Line Loans shall at all t
imes be Floating Rate Loans or shall bear interest at such other rate as shall be agreed to between the Borrower and the Swing Line Bank at the time of the making of such Swing Line Loans. 

(C) Making of Swing Line Loans. Promptly after receipt of the Borrowing/Election Notice under Section 2.2(B) in respect of Swing Line Loans, the Swing Line Bank may, in its sole discretion make available its Swing Line Loan, in funds immediately available in Chicago to the Administrative Agent at its address specified pursuant to Article XIV. The Administrative Agent will promptly make the funds so received from the Swing Line Bank available to the Borrower on the Borrowing Date at the Administrative Agent’s aforesaid address. 


	25

(D) Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in full by the Borrower on or before the fifth (5th) Business Day after the Borrowing Date for such Swing Line Loan. The Borrower may at any time pay, without penalty or premium, all outstanding Swing Line Loans or, in a minimum amount of $1,000,000 and increments of $100,000 in excess thereof, any portion of the outstanding Swing Line Loans, upon notice to the Administrative Agent and the Swing Line Bank. In addition, the Administrative Agent (i) may at any time in its sole discretion with respect to any outstanding Swing Line Loan, or (ii) sha
ll, in the event the Borrower shall not have otherwise repaid such Loan, on the fifth (5th) Business Day after the Borrowing Date of any Swing Line Loan, require each Lender (including the Swing Line Bank) to make a Revolving Loan in the amount of such Lender’s Pro Rata Share of such Swing Line Loan, for the purpose of repaying such Swing Line Loan. The making of such Revolving Loans by the Lenders shall discharge the Borrower’s obligation under the first sentence of this Section 2.2(D) and such failure to pay shall not constitute a Default by the Borrower. Promptly following receipt of notice pursuant to this Section 2.2(D) from the Administrative Agent, each Lender shall make available its required Revolving Loan or Revolving Loans, in funds immediately available in Chicago to the Administrative Agent at its address specified pursuant to Article XIV. Revolving Loans made pursuant to this Section 2.2(D) shall initially be Floating Rate Loans and thereafter may be continued as Floating Rate Loans or converted into Eurodollar Rate Loans in the manner provided in Section 2.9 and subject to the other conditions and limitations therein set forth and set forth in this Article II. Unless a Lender shall have notified the Swing Line Bank, prior to its making any Swing Line Loan, that any applicable condition precedent set forth in Sections 5.1 and 5.2, as applicable, had not then been satisfied, such Lender’s obligation to make Revolving Loans pursuant to this Section 2.2(D) to repay Swing Line Loans shall be unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including, without limitation, (a) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Administrative Agent, the Swing Line Bank or any other Person, (b) the occurrence or continuance of a Default or Unmatured Default, (c) any adverse change in the condition (financial or otherwise) of the Borrower or (d) any other circumstances, happening or event whatsoever. In the event that any Lender fails to make payment to the Administrative Agent of any amount due under this Section 2.2(D), the Administrative Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the Administrative Agent receives such payment from such Lender or such obligation is otherwise fully satisfied. In addition to the foregoing, if for any reason any Lender fails to make payment to the Administrative Agent of any amount due under this Section 2.2(D), such Lender shall be deemed, at the option of the Administrative Agent, to have unconditionally and irrevocably purchased from the Swing Line Bank, without recourse or warranty, an undivided interest and participation in the applicable Swing Line Loan in the amount of such Revolving Loan, and such interest and participation may be recovered from such Lender together with interest the
reon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand and ending on the date such amount is received. On the Termination Date, the Borrower shall repay in full the outstanding principal balance of the Swing Line Loans. 

2.3  Rate Options for all Advances; Maximum Interest Periods. The Swing Line Loans shall be Floating Rate Loans at all times or shall bear interest at such other rate as may be agreed to between the Borrower and the Sw
ing Line Bank at the time of the making of any such Swing Line Loan. The Revolving Loans may be Floating Rate Advances or Eurodollar Rate

26

Advances, or a combination thereof, selected by the Borrower in accordance with Section 2.10. The Borrower may select, in accordance with Section 2.9, rate options and Interest Periods applicable to the Revolving Loa
ns; provided that there shall be no more than eight (8) Interest Periods in effect with respect to all of the Loans at any time. 

2.4  Optional Payments. The Borrower may from time to time and at any time upon at least one (1) Business Day’s prior written notice repay or prepay, without penalty or premium all or any part of outstanding Float
ing Rate Advances in an aggregate minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof. Eurodollar Rate Advances may be voluntarily repaid or prepaid prior to the last day of the applicable Interest Period, subject to the indemnification provisions contained in Section 4.4, provided, that the Borrower may not so prepay Eurodollar Rate Advances unless it shall have provided at least three (3) Business Days’ prior written notice to the Administrative Agent of such prepayment and provide
d, further, that optional prepayments of Eurodollar Rate Advances made pursuant to Section 2.1 shall be for the entire amount of the outstanding Eurodollar Rate Advance. 

2.5  Reduction of Revolving Loan Commitments. The Borrower may permanently reduce the Aggregate Revolving Loan Commitment in whole, or in part ratably among the Lenders, in an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess of that amount (unless the Aggregate Revolving Loan Commitment is reduced in whole), upon at least three (3) Business Day’s prior written notice to the Administrative Agent, which notice shall specify the amount of any such reduction; provided, however, that the amount of the Aggregate Revolving Loan Commitment may not be reduced below the aggregate principal amount of the outstanding Revolving Credit Obligations. All accrued Facility Fees and Utilization Fees shall be payable on the effective date of any termination of the obligations of the Lenders to make Loans hereunder and all accrued Facility Fees shall be payable upon any reduction of the Aggregate Revolving Loan Commitment on the amount so reduced. 

2.6  Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on each Borrowing Date, each Lender shall make available its Revolving Loan, in immediately available funds, to the Administrative Agent at its address 
specified pursuant to Article XIV. The Administrative Agent will promptly make the funds so received from the Lenders available to the Borrower at the Administrative Agent’s aforesaid address. 

2.7  Method of Selecting Types and Interest Periods for Advances. The Borrower shall select the Type of Advance and, in the case of each Eurodollar Rate Advance, the Interest Period applicable to each Advance from time
 to time. The Borrower shall give the Administrative Agent irrevocable notice in substantially the form of Exhibit B hereto (a "Borrowing/Election Notice") not later than 11:00 a.m. (Chicago time) (a) on or before the Borrowing Date of each Floating Rate Advance and (b) three (3) Business Days before the Borrowing Date for each Eurodollar Rate Advance specifying: (i) the Borrowing 
Date (which shall be a Business Day) of such Advance; (ii) the aggregate amount of such Advance; (iii) the Type of Advance selected; and (iv) in the case of each Eurodollar Rate Advance, the Interest Period applicable thereto; provided, however, that with respect to the borrowing on the Initial Funding Date, such notice shall be delivered in accordance with the terms of Section 2.1(a) and shall be accompanied by the documentation specified in 
such Section, if applicable. The Borrower shall select Interest Periods so that, to the best of the Borrower’s knowledge, it will not

27

be necessary to prepay all or any portion of any Eurodollar Rate Advance prior to the last day of the applicable Interest Period in order to make mandatory prepayments as required pursuant to the terms hereof. Each Floating Rate Advance and all Obligations other than Loans shall bear interest from and including the date of the making of such Advance, in the case of Floating Rate Advances, and the date such Obligation is due and owing in the case of such other Obligations, to (but not including) the date of repayment thereof at the Alternate Base Rate, changing when and as such Alternate Base Rate changes. Changes in the rate of interest on that portion of the Loans maintained as Floating Rate Loans will take effect simultaneously with each change in the Alternate Base Rate. Each Eurodollar Rate Advance shall bear interest from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such Eurodollar Rate Advance, changing when and as the Applicable Margin changes. Changes in the rate of interest on that portion of the Loans maintained as Eurodollar Rate Advances will take effect simultaneously with each change in the Applicable Margin. 

2.8             Minimum Amount of Each Advance. Each Advance (other than an Advance to repay Swing Line Loans or a Reimbursement Obligation) shall be in the minimum amount of $10,000,000 (and in multiples of $1,000,000 if in excess thereof); provided, however, that any Floating Rate Advance may be in the amount of the unused Aggregate Revolving Loan Commitment. 

2.9  Method of Selecting Types and Interest Periods for Conversion and Continuation of Advances. 

(A)  Right to Convert. The Borrower may elect from time to time, subject to the provisions of Section 2.3 and this Section 2.9, to convert all or any part of a Loan of any Type into any other Type or Types of Loans; provided that any conversion of any Eurodollar Rate Advance shall be made on, and only on, the last day of the Interest Period applicable thereto. 

(B)  Automatic Conversion and Continuation. Floating Rate Loans shall continue as Floating Rate Loans unless and until such Floating Rate Loans are repaid or converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall continue as Eurodollar Rate Loans until the end of the then applicable Interest Period therefor, at which time such Eurodollar Rate Loans shall be automatically converted into Floating Rate Loans unless the Borrower shall have repaid such Loans or given the Administrat
ive Agent a Borrowing/Election Notice in accordance with Section 2.9(D) requesting that, at the end of such Interest Period, such Eurodollar Rate Loans continue as a Eurodollar Rate Loan. 

(C)  No Conversion Post-Default. Notwithstanding anything to the contrary contained in Section 2.9(A) or Section 2.9(B), no Loan may be converted into or continued as a Eurodollar Rate Loan (except with the consent of the Required Lenders) when any Default has occurred and is continuing. 

(D)  Borrowing/Election Notice. The Borrower shall give the Administrative Agent an irrevocable Borrowing/Election Notice of each conversion of a Floating Rate Loan into a Eurodollar Rate Loan or continuation of a Eurodollar Rate Loan not later than 11:00 a.m. (Chicago time) three (3) Business Days prior to the date of the requested conversion or


	28

continuation, specifying: (i) the requested date (which shall be a Business Day) of such conversion or continuation; (ii) the amount and Type of the Loan to be converted or continued; and (iii) the amount of Eurodollar Rate Loan(s) into which such Loan is to be converted or continued, and the duration of the Interest Period applicable thereto. 

2.10  Default Rate. After the occurrence and during the continuance of a Default, the Administrative Agent or the Required Lenders may, at their option, by notice to the Borrower declare that, (a) the interest rate(s) 
applicable to the Obligations (other than Eurodollar Rate Advances, Letter of Credit fees under Section 3.8(i), Facility Fees and Utilization Fees) shall be equal to the Alternate Base Rate, changing as and when the Alternate Base Rate changes, or, for Eurodollar Rate Advances, the then highest Eurodollar Rate (utilizing the highest Applicable Margin in effect from time to time), in each case, plus two percent (2.00%) per annum for all Loans and other Obligations, (b) the fees payable under Section 3.8(i) with respect to Letters of Credit shall be calculated using the highest Applicable L/C Fee Percentage plus two percent (2.00%) per annum and (c) the Facility Fees and Utilization Fees shall be calculated using the highest Applicable Facility Fee Percentage or Applicable Utilization Fee Percentage, as applicable; provided, that after the occurrence and during the continuance of a Default under Sections 8.1(F), (G) or (I), the interest rate described in clause (a) above, the Letter of Credit Fee described in clause (b) <
FONT style="DISPLAY: inline; FONT-SIZE: 10pt; FONT-FAMILY: ms sans serif">above and the Facility Fee and Utilization Fee described in clause (c) above shall be applicable without any election or action on the part of the Administrative Agent or any other Lender. 

2.11  Method of Payment. All payments of principal, interest, fees, commissions and L/C Obligations hereunder shall be made, without setoff, deduction or counterclaim, in immediately available funds to the Administrati
ve Agent at the Administrative Agent’s address specified pursuant to Article XIV or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by 2:00 p.m. (Chicago time) on the date when due and shall be made ratably among the Lenders (unless such amount is not to be shared ratably in accordance with the terms hereof). Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds which the Administrative Agent received at its address specified pursuant to Article XIV or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender. The Borrower authorizes the Administrative Agent to charge the account of the Borrower maintained with Bank One for each payment of principal, interest, fees, commissions and L/C Obligations as it becomes due hereunder. Each reference to the Administrative Agent in this Section 2.11 shall also be deemed to refer, and shall apply equally, to each Issuing Bank, in the case of payments required to be made by the Borrower to such Issuing Bank pursuant to Article III. 

2.12  Evidence of Debt; Noteless Agreement. 

(a)  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. 


	29

(b)  The Administrative Agent shall also maintain accounts in which it will record (a) the amount of each Loan made hereunder, the Type thereof and the Interest Period, if any, with respect thereto, (b) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, (c) the original stated amount of each Letter of credit and the amount of the L/C Obligations outstanding at any time and (d) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof. 

(c)  The entries made in the accounts maintained pursuant to clauses (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded unless the Borrower objects to information contained therein within thirty (30) days of the Borrower’s receipt of such information; provided, however, that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner af
fect the obligation of the Borrower to repay the Obligations in accordance with the terms of this Agreement. 

(d)  Any Lender may request that its Loans be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note for such Loans payable to the order of such Lender and in a form approved by the Administrative Agent in its reasonable discretion and consistent with the terms of this Agreement. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (prior to any assignment pursuant to Section 13.3<
/FONT>) be represented by one or more promissory notes in such form, payable to the order of the payee named therein, except to the extent that any such Lender subsequently returns any such note for cancellation and requests that such Loans once again be evidenced as described in clauses (a) and (b) above. 

2.13  Telephonic Notices. The Borrower authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notic
es made by any person or persons the Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower. The Borrower agrees to deliver promptly to the Administrative Agent a written confirmation, signed by an Authorized Officer of the Borrower, if such confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice. If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders with respect to such telephonic notice shall govern absent manifest error. In case of disagreement concerning such notices, if the Administrative Agent has recorded telephonic Borrowing/Election Notices, such recordings will be made available to the Borrower upon the Borrower’s request therefor. 

2.14  Promise to Pay; Interest and Facility Fees; Interest Payment Dates; Interest and Fee Basis; Loan and Control Accounts. 

(A)  Promise to Pay. The Borrower unconditionally promises to pay when due the principal amount of each Loan and all other Obligations incurred by it, and to pay all unpaid interest accrued thereon, in accordance with the terms of this Agreement and the other Loan Documents. 


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(B)  Interest Payment Dates. Interest accrued on each Floating Rate Loan shall be payable on each Payment Date, commencing with the first such date to occur after the date hereof and on any date on which such Floating Rate Loan is prepaid, whether by acceleration or otherwise (including at maturity). Interest accrued on each Eurodollar Rate Loan shall be payable on the last day of its applicable Interest Period, on any date on which the Eurodollar Rate Loan is prepaid, whether by accelera
tion or otherwise, and at maturity. Interest accrued on each Eurodollar Rate Loan having an Interest Period longer than three months shall also be payable on the last day of each three-month interval during such Interest Period. Interest accrued on the principal balance of all other Obligations shall be payable in arrears (i) on each Payment Date, commencing on the first such day following the incurrence of such Obligation, (ii) upon repayment thereof in full or in part, and (iii) if not theretofore paid in full, at the time such other Obligation becomes due and payable (whether by acceleration or otherwise). 

(C)  Facility Fees, Utilization Fees and Administrative Agent’s Fees. 

(i)  The Borrower shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, from and after the Closing Date until the Termination Date, a facility fee (the "Facility Fee") accruing at the per annum rate of the then Applicable Facility Fee Percentage, on the Aggregate Revolving Loan Commitment (whether used or unused). All such Facility Fees payable under this clause (C)(i) shall be payable quarterly in arrears on each Payment Date occurring after the Closing Date (with the first such payment being calculated for the period from the Closing Date and ending on June 30, 2003), and on the Termination Date. 

(ii)  If, at the end of any fiscal quarter, the average daily amount of the Revolving Credit Obligations during such quarter exceeded fifty percent (50%) of the average daily amount of the Aggregate Revolving Loan Commitment during such quarter, the Borrower shall pay to the Administrative Agent, for the account of the Lenders in accordance with their Pro Rata Shares, a utilization fee (the "Utilization Fee") accruin
g at the per annum rate of the then Applicable Utilization Fee Percentage, on the average daily Revolving Credit Obligations for such quarter. All such Utilization Fees payable under this clause (C)(ii) shall be payable quarterly in arrears on each applicable Payment Date occurring after the Closing Date (with the first such payment being calculated for the period from the Closing Date and ending on June 30, 2003), and on the Termination Date. 

(iii)  The Borrower shall pay to the Administrative Agent for the sole account of the Administrative Agent and the Arrangers (unless otherwise agreed between the Administrative Agent and the Arrangers and any Lender) the fees set forth in the Initial Fee Letters, payable at the times and in the amounts set forth therein. 

(D)  Interest and Fee Basis; Applicable Margin, Applicable Facility Fee Percentage, Applicable L/C Fee Percentage and Applicable Utilization Fee Percentage. 

(i)  Interest accrued on Eurodollar Rate Advances, fees payable with respect to Letters of Credit, Facility Fees and Utilization Fees shall be calculated for actual days elapsed on the basis of a year of 360 days, and interest accrued on Floating Rate Advances and Swing Line Loans where the basis for calculation is the Alternate Base Rate shall be calculated for actual

31

days elapsed on the basis of a year of 365, or when appropriate 366, days. Interest shall be payable for the day an Obligation is incurred but not for the day of any payment on the amount paid if payment is received prior to 2:00 p.m. (Chicago time) at the place of payment. If any payment of principal of or interest on a Loan or any payment of any other Obligations shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest, fees and commissions in connection with such payment. 

(ii)  The Applicable Margin, Applicable Facility Fee Percentage, Applicable L/C Fee Percentage and the Applicable Utilization Fee Percentage shall be determined from time to time by reference to the table set forth below, on the basis of the then applicable Leverage Ratio as described in this Section 2.14(D)(ii): 

	Applicable Fees

Leverage Ratio	Applicable Margin	Applicable L/C Fee Percentage	Applicable Facility Fee Percentage	Applicable Utilization Fee Percentage

Level I =1.5 to 1.0	0.600%	0.600%	0.150%	0.125%
Level II >1.5 to 1.0 and =2.0 to 1.0	0.700%	0.700%	0.175%	0.125%
Level III >2.0 to 1.0 and =2.5 to 1.0	0.800%	0.800%	0.200%	0.125%
Level IV >2.5 to 1.0 and =3.0 to 1.0	1.000%	1.000%	0.250%	0.125%
Level V >3.0 to 1.0 and =3.25 to 1.0	1.200%	1.200%	0.300%	0.125%
Level VI >3.25 to 1.0	1.400%	1.400%	0.350%	0.125%

For purposes of this Section 2.14(D)(ii), the Leverage Ratio shall be calculated as provided in Section 7.4(A). Upon receipt of the financial statements delivered pursuant to Section 7.1(A)(i) and (ii), as applicable, the Applicable Margi
n, Applicable Facility Fee Percentage, Applicable L/C Fee Percentage and Applicable Utilization Fee Percentage shall be adjusted, such adjustment being effective five (5) Business Days following the Administrative Agent’s receipt of such financial statements and the compliance certificate required to be delivered in connection


	32

therewith pursuant to Section 7.1(A)(iii); provided, that if the Borrower shall not have timely delivered its financial statements in accordance with Section 7.1(A)(i) or (ii), as applicable, then commencing on the date upon which such financial statements should have been delivered and continuing until five (5) Business Days following the date such financial statements are actually delivered, it shall be assumed for purposes of determining the Applicable Margin, Applicable Facility Fee Percentage, Applicable L/C Fee Percentage and Applicable Utilization Fee Percentage that the Leverage Ratio was greater than 3.25 to 1.0 and Level VI pricing shall be applicable. 

(iii)  Notwithstanding anything herein to the contrary, from the Closing Date to but not including the fifth Business Day following receipt of the Borrower’s financial statements delivered pursuant to Section 7.1(A)(i) for the fiscal quarter ending June 30, 2003, the Applicable Margin, Applicable Facility Fee Percentage, Applicable L/C Fee Percentage and Applicable Utilization Fee Percentage shall be se
t at Level III. 

2.15  Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Aggregate Revolving Loan Commitment reduction notice, Borrowing/Election Notice repayment notice and issuance of Letter of Credit notice received by it hereunder. The Administrative Agent will notify each Lender of the interest rate applicable to each Eurodollar Rate Loan promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate. 

2.16  Lending Installations. Each Lender may book its Loans or Letters of Credit at any Lending Installation selected by such Lender and may change its Lending Installation from time to time. All terms of this Agreemen
t shall apply to any such Lending Installation. Subject to the provisions of Section 4.6, each Lender may, by written or facsimile notice to the Administrative Agent and the Borrower, designate a Lending Installation through which Loans will be made by it and for whose account Loan payments and/or payments of L/C Obligations are to be made. 

2.17  Non-Receipt of Funds by the Administrative Agent. Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administr
ative Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date su
ch amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan. 


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2.18  Termination Date. This Agreement shall be effective until the Termination Date. Notwithstanding the termination of this Agreement, until all of the Obligations (other than contingent indemnity obligations) shall have been fully and indefeasibly paid and satisfied in cash (to the full extent that such Obligations are payable in cash), all financing arrangements among the Borrower and the Lenders under or in connection with this Agreement, the other Loan Documents or the Hedging Agreements shall have been terminated and all of the Letters of Credit shall have expired, been canceled or terminated, all of the rights and remedies under this Agreement and the other Loan Documents shall survive. 

2.19  Replacement of Certain Lenders. In the event a Lender ("Affected Lender") shall have: (i) failed to fund its Pro Rata Share of any Advance requested by the Borrower, or to fund a Revolving Loan in order to repay Swing Line Loans or Reimbursement Obligations, which such Lender is obligated to fund under the terms of this Agreement and which failure has not been cured, (ii) requested compensation from the Borrower under Sections 4.1, 4.2 or 4.5 to recover Taxes, Other Taxes
 or other additional costs incurred by such Lender which are not being incurred generally by the other Lenders, (iii) delivered a notice pursuant to Section 4.3 claiming that such Lender is unable to extend Eurodollar Rate Loans to the Borrower for reasons not generally applicable to the other Lenders or (iv) has invoked Section 10.2, then, in any such case, the Borrower or the Administrative Agent may make written demand on such Affected Lender (with a copy to the Administrative Agent in the case of a demand by the Borrower and a copy to the Borrower in the case of a demand by the Administrative Agent) for the Affected Lender to assign, and such Affected Lender shall use commercially reasonable efforts to assign pursuant to one or more duly executed Assignment Agreements five (5) Business Days after the date of such demand, to one or more financial institutions that comply with the provisions of Section 13.3 which the Borrower or the Administrative Agent, as the case may be, s
hall have engaged for such purpose ("Replacement Lender"), all of such Affected Lender’s rights and obligations under this Agreement and the other Loan Documents (including, without limitation, its Revolving Loan Commitment, all Loans owing to it, all of its participation interests in existing Letters of Credit, and its obligation to participate in additional Letters of Credit and Swing Line Loans hereunder) in accordance with Section 13.3. The Administrative Agent agrees, upon the occurrence of such events with respect to an Affected Lender and upon the written request of the Borrower, to use its reasonable efforts to obtain the commi
tments from one or more financial institutions to act as a Replacement Lender. The Administrative Agent is authorized to execute one or more of such Assignment Agreements as attorney-in-fact for any Affected Lender failing to execute and deliver the same within five (5) Business Days after the date of such demand. Further, with respect to such assignment the Affected Lender shall have concurrently received, in cash, all amounts due and owing to the Affected Lender hereunder or under any other Loan Document, including, without limitation, the aggregate outstanding principal amount of the Loans owed to such Lender, together with accrued interest thereon through the date of such assignment, amounts payable under Sections 4.1, 4.2 and 4.5 with respect to such Affected Lender and compensation payable under Section 2.14(C) in the event of any replacement of any Affected Lender under clause (ii) or clause (iii) of this Section 2.19; provided that upon such Affected Lender’s replacement, such Affected Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.1, 4.2, 4.4, 4.5 and 10.7, as well as to any fees accrued for its account hereunder and not yet paid, and shall continue to be obligated under Section 11.8 with respect to losses, obligations, liabilities, damages, penalties, actions, judgments, costs, expenses or disbursements for matters which occurred prior to the date

34

the Affected Lender is replaced. Upon the replacement of any Affected Lender pursuant to this Section 2.19, the provisions of Section 9.2 shall continue to apply with respect to Loans which are then outstanding with respect to which the Affected Lender failed to fund its Pro Rata Share and which failure has not been cured. 

ARTICLE III: THE LETTER OF CREDIT FACILITY 

3.1  Obligation to Issue Letters of Credit. Subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties and covenants of the Borrower herein set forth, each Issuing Bank h
ereby agrees to issue for the account of the Borrower through such Issuing Bank’s branches as it and the Borrower may jointly agree, one or more standby Letters of Credit denominated in Dollars in accordance with this Article III, from time to time during the period, commencing on the Initial Funding Date and ending on the fifth Business Day prior to the Revolving Loan Termination Date. 

3.2  Transitional Letters of Credit. Schedule 3.2 contains a schedule of certain letters of credit issued for the account of the Borrower prior to the Initial Funding Date (the "Transitional Letters of Credit"), all of which have been issued pursuant to the Existing 5-Year Credit Agreement. Subject to the satisfaction of the conditions contained in Sections 5.1 and 5.2, from and after the Initial Funding Date such letters of credit shall be deemed to be Letters of Credit issued by the Issuing Bank pursuant to this Article III for all purposes hereunder. For purposes of clarification, each term or provision applicable to the issuance of a Letter of Credit (including conditions applicable thereto) shall be deemed to include the deemed issuance of the Transitional Letters of Credit on the Initial Funding Date. 

3.3  Types and Amounts. No Issuing Bank shall have any obligation to and no Issuing Bank shall: 

(i)  issue any Letter of Credit if on the date of issuance, before or after giving effect to the Letter of Credit requested hereunder, (a) the Revolving Credit Obligations at such time would exceed the Aggregate Revolving Loan Commitment at such time, or (b) the aggregate outstanding amount of the L/C Obligations would exceed $10,000,000; or 

(ii)  issue any Letter of Credit which has an expiration date later than the date which is the earlier of (a) one (1) year after the date of issuance thereof or (b) five (5) Business Days immediately preceding the Revolving Loan Termination Date; provided that any Letter of Credit with a one-year tenor may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond
 the date referred to in clause (b) above). 

3.4  Conditions. In addition to being subject to the satisfaction of the conditions contained in Sections 5.
1 and 5.2, the obligation of any Issuing Bank to issue any Letter of Credit is subject to the satisfaction in full of the following conditions: 

(i)  the Borrower shall have delivered to such Issuing Bank (with copies delivered simultaneously to the Administrative Agent) at such times and in such manner as such Issuing Bank may reasonably prescribe, a request for issuance of such Letter of Credit in substantially the form of Exhibit C hereto, duly executed applications for such


	35

Letter of Credit, and such other documents, instructions and agreements as may be required pursuant to the terms thereof (all such applications, documents, instructions, and agreements being referred to herein as the "L/C Documents"), and the proposed Letter of Credit shall be reasonably satisfactory to such Issuing Bank as to form and content; and 

(ii)  as of the date of issuance no order, judgment or decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain such Issuing Bank from issuing such Letter of Credit and no law, rule or regulation applicable to such Issuing Bank and no request or directive (whether or not having the force of law) from a Governmental Authority with jurisdiction over such Issuing Bank shall prohibit or request that such Issuing Bank refrain from the issuance of Letters of Credit generally or the issuance of that Letter of Credit. 

3.5  Procedure for Issuance of Letters of Credit. (a) Subject to the terms and conditions of this Article II
I and provided that the applicable conditions set forth in Sections 5.1 and 5.2 hereof have been satisfied, the applicable Issuing Bank shall, on the requested date, issue a Letter of Credit on behalf of the Borrower in accordance with such Issuing Bank’s usual and customary business practices and, in this connection, such Issuing Bank may assume that the appli
cable conditions set forth in Section 5.2 hereof have been satisfied unless it shall have received notice to the contrary from the Administrative Agent or a Lender or has knowledge that the applicable conditions have not been met. 

(b) Immediately upon such issuance, the applicable Issuing Bank shall give the Administrative Agent written or telex notice, or telephonic notice confirmed promptly thereafter in writing, of the issuance of a Letter of Credit, provided, however, that the failure to provide such notice shall not result in any liability on the part of such Issuing Bank. 

(c) The applicable Issuing Bank shall not extend (including as a result of any evergreen provision) or amend any Letter of Credit unless the requirements of this Section 3.5 are met as though a new Letter of Credit was being requested and issued. 

3.6  Letter of Credit Participation. On the date of this Agreement, with respect to the Transitional Letters of Credit, and immediately upon the issuance of each additional Letter of Credit hereunder, each Lender with 
a Pro Rata Share shall be deemed to have automatically, irrevocably and unconditionally purchased and received from each Issuing Bank an undivided interest and participation in and to each Letter of Credit, the obligations of the Borrower in respect thereof, and the liability of the applicable Issuing Bank thereunder (collectively, an "L/C Interest") in an amount equal to the amount available for drawing under such Letter of Credit multiplied by such Lender’s Pro Rata Share. If the Borrower fails at any time to repay a Reimbursement Obligation pursuant to Section 3.7, promptly following receipt of notice from the Administrative Agent o
r the applicable Issuing Bank, each Lender shall make payment to the Administrative Agent, for the account of the applicable Issuing Bank, in immediately available funds in an amount equal to such Lender’s Pro Rata Share of the amount of any unreimbursed payment of an L/C Draft or other draw under a Letter of Credit. The obligation of each Lender to reimburse the applicable Issuing Bank under this Section 3.6 shall be unconditional, continuing, irrevocable and absolute. In the event that any Lender fails to make payment to the Administrative Agent of any amount due under this Section 3.6, the Administrative Agent shall


	36

be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the Administrative Agent receives such payment from such Lender or such obligation is otherwise fully satisfied; provided, however, that nothing contained in this sentence shall relieve such Lender of its obligation to reimburse the applicable Issuing Bank for such amount in accordance with this Section 3.6. 

3.7  Reimbursement Obligation. The Borrower agrees unconditionally, irrevocably and absolutely to pay immediately to the Administrative Agent, for the account of the Lenders, the amount of each advance drawn under or p
ursuant to a Letter of Credit or an L/C Draft related thereto (such obligation of the Borrower to reimburse the Administrative Agent for an advance made under a Letter of Credit or L/C Draft being hereinafter referred to as a "Reimbursement Obligation" with respect to such Letter of Credit or L/C Draft), each such reimbursement to be made by the Borrower no later than the Business Day on which the applicable Issuing Bank makes payment of each such L/C Draft or, in the case of any other draw on a Letter of Credit, the date specified in the demand of the applicable Issuing Bank. If the Borrower at any time fails to repay a Reimbursement Obligation pursuant to this Section 3.7, such failure shall not constitute a Default if the Revolving Credit Obligations do not, and after making Revolving Loans in repayment of such Reimbursement Obligation would not, exceed the Aggregate Revolving Loan Commitments and the conditions set forth in Sections 5.2(i
) and (ii) have been satisfied, and the Borrower shall be deemed to have elected to borrow Revolving Loans from the Lenders, as of the date of the advance giving rise to the Reimbursement Obligation, equal in amount to the amount of the unpaid Reimbursement Obligation. Such Revolving Loans shall be made as of the date of the payment giving rise to such Reimbursement Obligation, automatically, without notice and without any requirement to satisfy the conditions precedent otherwise 
applicable to an Advance of Revolving Loans. Such Revolving Loans shall constitute a Floating Rate Advance, the proceeds of which Advance shall be used to repay such Reimbursement Obligation. If, for any reason, the Borrower fails to repay a Reimbursement Obligation on the day such Reimbursement Obligation arises and, for any reason, the Lenders are unable to make or have no obligation to make Revolving Loans, then such Reimbursement Obligation shall bear interest from and after such day, until paid in full, at the interest rate applicable to a Floating Rate Advance. 

3.8  Letter of Credit Fees. The Borrower agrees to pay: 

(i)  quarterly, in arrears, to the Administrative Agent for the ratable benefit of the Lenders, except as set forth in Section 9.2, a letter of credit fee at a rate per annum equal to the Applicable L/C Fee Percentage on the average daily outstanding face amount available for drawing under all standby Letters of Credit; 

(ii)  quarterly, in arrears, to the applicable Issuing Bank, a letter of credit fronting fee in an amount or at a rate per annum to be negotiated by the Borrower and the applicable Issuing Bank at the time of issuance of each standby Letter of Credit on the average daily outstanding face amount available for drawing under all Letters of Credit issued by such Issuing Bank; and 

(iii)  to the applicable Issuing Bank, all customary fees and other issuance, amendment, cancellation, document examination, negotiation, transfer and presentment

 
37
 
expenses and related charges in connection with the issuance, amendment, cancellation, presentation of L/C Drafts, negotiation, transfer and the like customarily charged by such Issuing Bank with respect to standby Letters of Credit, payable at the time of invoice of such amounts.

3.9  Issuing Bank Reporting Requirements. Upon the request of any Lender, each Issuing Bank shall furnish to such Lender copies of any Letter of Credit and any application for or reimbursement agreement with respect to
 a Letter of Credit to which such Issuing Bank is party. 

3.10  Indemnification; Exoneration. In addition to amounts payable as elsewhere provided in this Article III
, the Borrower hereby agrees to protect, indemnify, pay and save harmless the Administrative Agent, each Issuing Bank and each Lender from and against any and all liabilities and costs which the Administrative Agent, such Issuing Bank or such Lender may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit other than, in the case of such Issuing Bank, as a result of its gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, or (ii) the failure of such Issuing Bank to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority (all such acts or omissions herein called "Governmental Acts"). 

(B) As among the Borrower, the Lenders, the Administrative Agent and each Issuing Bank, the Borrower assumes all risks of the acts and omissions of, or misuse of such Letter of Credit by, the beneficiary of any Letters of Credit. In furtherance and not in limitation of the foregoing, subject to the provisions of the Letter of Credit applications and Letter of Credit reimbursement agreements executed by the Borrower at the time of request for any Letter of Credit, neither the Administrative Agent, any Issuing Bank nor any Lender shall be responsible (in the absence of gross negligence or willful misconduct in connection therewith, as determined by the final judgment of a court of competent jurisdiction): (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submi
tted by any party in connection with the application for and issuance of the Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit to comply duly with conditions required in order to draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, or other similar form of teletransmission or otherwise; (v) for errors in interpretation of technical trade terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or o
f the proceeds thereof; (vii) for the misapplication by the beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit; and (viii) for any consequences arising from causes beyond the control of the Administrative Agent, the Issuing Banks and the Lenders, including, without limitation, any Governmental Acts. None of the above shall affect, impair, or prevent the vesting of any Issuing Bank’s rights or powers under this Section 3.10. 


	38

(C) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by any Issuing Bank under or in connection with the Letters of Credit or any related certificates shall not, in the absence of gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, put such Issuing Bank, the Administrative Agent or any Lender under any resulting liability to the Borrower or relieve the Borrower of any of its obligations hereunder to any such Person. 

(D) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 3.10 shall survive the payment in full of principal and interest hereunder, the termination of the Letters of Credit and the termination of this Agreement. 

3.11  Cash Collateral. Notwithstanding anything to the contrary herein or in any application for a Letter of Credit, after the occurrence and during the continuance of a Default, the Borrower shall, upon the Administrative Agent’s demand, deliver to the Administrative Agent for the benefit of the Lenders and the Issuing Banks, cash, or other collateral of a type satisfactory to the Required Lenders, having a value, as determined by such Lenders, equal to 105% of the aggregate outstanding L/C Obligations. In addition, but without duplication of amounts deposited pursuant to the foregoing sentence, if the Revolving Credit Availability is at any time less than the amount of contingent L/C Obligations outstanding at any time, the Borrower shall deposit cash collateral with the Administrative Agent in an amount equal to 105% of the amount by which suc
h L/C Obligations exceed such Revolving Credit Availability. Any such collateral shall be held by the Administrative Agent in a separate account appropriately designated as a cash collateral account in relation to this Agreement and the Letters of Credit and retained by the Administrative Agent for the benefit of the Lenders and the Issuing Banks as collateral security for the Borrower’s obligations in respect of this Agreement and each of the Letters of Credit and L/C Drafts. Such amounts shall be applied to reimburse the Issuing Banks for drawings or payments under or pursuant to Letters of Credit or L/C Drafts, or if no such reimbursement is required, to payment of such of the other Obligations as the Administrative Agent shall determine. If
 no Default shall be continuing, amounts remaining in any cash collateral account established pursuant to this Section 3.11 which are not to be applied to reimburse the Issuing Banks for amounts actually paid or to be paid by the Issuing Banks in respect of a Letter of Credit or L/C Draft, shall be returned promptly to the Borrower (after deduction of the Administrative Agent’s reasonable out-of-pocket expenses incurred in connection with such cash collateral account) as the Letters of Credit expire. 

ARTICLE IV: YIELD PROTECTION; TAXES 

4.1  Yield Protection. If, on or after the date of this Agreement, the adoption of any law or any governmental or quasi-governmental rule, regulation, policy, guideline or directive (whether or not having the force of 
law), or any change in the interpretation or administration thereof by any governmental or quasi-governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or applicable Lending Installation with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: 


	39

(i)  subjects any Lender or any applicable Lending Installation to any Taxes, or changes the basis of taxation of payments (other than with respect to Excluded Taxes) to any Lender in respect of its Loans or L/C Interests, or 

(ii)  imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Eurodollar Rate Advances), or 

(iii)  imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation of making, funding or maintaining its Loans or L/C Interests or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with its Loans or L/C Interests, or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of Loans or L/C Interests held or interest received by it, by an amount deemed material by such Lender, 

and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation of making or maintaining its Loans, L/C Interests or Revolving Loan Commitment or to reduce the return received by such Lender or applicable Lending Installation in connection with such Loans, L/C Interests or Revolving Loan Commitment, then, within fifteen (15) days of demand by such Lender, the Borrower shall pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received. 

Notwithstanding the foregoing provisions of this Section 4.1, if any Lender fails to notify the Borrower of any event or circumstance which will entitle such Lender to compensation pursuant to this Section 4.1 within ninety (90) days after such Lender obtains knowledge of such event or circumstance, then such Lender shall not be entitled to compensation from the Borrower for any amount arising prior to the date which is ninet
y (90) days before the date on which such Lender notifies the Borrower of such event or circumstance. 

4.2  Changes in Capital Adequacy Regulations. If a Lender determines the amount of capital required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling su
ch Lender is increased as a result of a Change, then, within fifteen (15) days of demand by such Lender, the Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender reasonably determines is attributable to this Agreement, its Loans, L/C Interests or its Revolving Loan Commitment hereunder (after taking into account such Lender’s customary policies as to capital adequacy). "Change" means (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change in any other law, governmental or quasi-governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the date of this Agreement which affects the amount
 of capital required or expected to be maintained by any Lender or any Lending Installation or any corporation controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital


	40

regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basle Committee on Banking Regulation and Supervisory Practices Entitled "International Convergence of Capital Measurements and Capital Standards," including transition rules, and any amendments to such regulations adopted prior to the date of this Agreement. 

4.3  Availability of Types of Advances. If any Lender determines that maintenance of its Eurodollar Rate Loans at a suitable Lending Installation would violate any applicable law, rule, regulation, or directive, whethe
r or not having the force of law, or if the Required Lenders determine that (i) deposits of a type and maturity appropriate to match fund Eurodollar Rate Advances are not available or (ii) the interest rate applicable to Eurodollar Rate Advances does not accurately reflect the cost of making or maintaining Eurodollar Rate Advances, then the Administrative Agent shall suspend the availability of Eurodollar Rate Advances and require any affected Eurodollar Rate Advances to be repaid or converted to Floating Rate Advances, subject to the payment of any funding indemnification amounts required by Section 4.4. 

4.4  Funding Indemnification. If any payment of a Eurodollar Rate Advance occurs on a date which is not the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a Eur
odollar Rate Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom (excluding loss of margin), including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain such Eurodollar Rate Advance. 

4.5  Taxes. 

(i)  All payments by the Borrower to or for the account of any Lender or the Administrative Agent hereunder or under any of the other Loan Documents shall be made free and clear of and without deduction for any and all Taxes. If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender, any Issuing Bank or the Administrative Agent, (a) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.5) such Lender, such Issuing Bank or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (b) the Borrower shall make such deductions, (c) the Borrower shall pay the full amount deducted to the relevant authority in accordance with applicable law and (d) the Borrower shall furnish to the Administrative Agent the original copy of a receipt evidencing payment thereof within thirty (30) days after such payment is made. Such Lender, such Issuing Bank or the Administrative Agent, as the case may be, shall promptly reimburse the Borrower for such payments to the extent such Lender, such Issuing Bank or the Administrative Agent receives actual knowledge that it has received any tax credit or other benefit in connection with such tax payments and that such tax credit or b
enefit is clearly attributable to this Agreement. 

(ii)  In addition, the Borrower hereby agrees to pay any present or future stamp or documentary taxes and any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any promissory note issued hereunder or from the


	41

execution or delivery of, or otherwise with respect to, this Agreement or any promissory note issued hereunder ("Other Taxes"). 

(iii)  The Borrower hereby agrees to indemnify the Administrative Agent and each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 4.5) paid by the Administrative Agent or such Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. Payments due unde
r this indemnification shall be made within thirty (30) days of the date the Administrative Agent or such Lender makes demand therefor pursuant to Section 4.6. 

(iv)  Each Lender that is not incorporated or organized under the laws of the United States of America or a state thereof (each a "Non-U.S. Lender") agrees that it will, not less than ten (10) Business Days after the date of this Agreement, or, if later, the date on which such Non-U.S. Lender becomes a party hereto, deliver to each of the Borrower and the Administrative Agent a United States Internal Revenue Form W-8 or W-9, as th
e case may be, and deliver to the Administrative Agent two duly completed copies of United States Internal Revenue Forms W-8BEN and W-8ECI, certifying in either case that it is entitled to an exemption from United States backup withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and the Administrative Agent (x) renewals or additional copies of such form (or any successor form) on or before the date that such form expires or becomes obsolete, and (y) after the occurrence of any event requiring a change in the most recent forms so delivered by it, such additional forms or amendments thereto as may be reasonably requested by the Borrower or the Administrative Agent. All forms or amendments described in the preceding sentence shall certify that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has 
occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form or amendment with respect to it and such Lender advises the Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. 

(v)  For any period during which a Non-U.S. Lender has failed to provide the Borrower with an appropriate form pursuant to clause (iv), above (unless such failure is due to a change in treaty, law or regulation, or any change in the interpretation or administration thereof by any governmental authority, occurring subsequent to the date on which a form originally was required to be provided), such Non-U.S. Le
nder shall not be entitled to indemnification under this Section 4.5 with respect to Taxes imposed by the United States; provided that, should a Non-U.S. Lender which is otherwise exempt from or subject to a reduced rate of withholding tax become subject to Taxes because of its failure to deliver a form required under clause (iv), above, the Borrower shall take such steps as such Non-U.S. Lender shall reasonably request (without cost to the Borrower) to assist such Non-U.S. Lender to recover such Taxes. 

(vi)  Any Lender that is entitled to an exemption from or reduction of withholding tax with respect to payments under this Agreement or any promissory note issued hereunder pursuant to the law of any relevant jurisdiction or any treaty shall deliver to the Borrower (with a

42

copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate. 

(vii)  If the U.S. Internal Revenue Service or any other governmental authority of the United States or any other country or any political subdivision thereof asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or properly completed, because such Lender failed to notify the Administrative Agent of a change in circumstances which rendered its exemption from withholding ineffective, or for any other reason other than as a result of the gross negligence or willful misconduct of the Adminis
trative Agent), such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax, withholding therefor, or otherwise, including penalties and interest, and including taxes imposed by any jurisdiction on amounts payable to the Administrative Agent under this subsection, together with all costs and expenses related thereto (including attorneys fees and time charges of attorneys for the Administrative Agent, which attorneys may be employees of the Administrative Agent). The obligations of the Lenders under this Section 4.5(vii) shall survive the payment of the Obligations, the termination of the Letters of Credit and termination of this Agreement. 

4.6  Lender Statements; Survival of Indemnity. To the extent reasonably possible, each Lender shall designate an alternate Lending Installation with respect to its Eurodollar Rate Loans to reduce any liability of the Borrower to such Lender under Sections 4.1, 4.2 and 4.5 or to avoid the unavailability of Eurodollar Rate Advances under Section 4.3, so long as such designation is not, in the reasonable judgment of such Lender, disadvantageous to such Lender. Each Lender shall deliver a written statement of such Lender to the Borrower (with a copy to the Administrative Agent) as to the amount due, if any, under Section 4.1, 4.2, 4.4 or 4.5. Such written statement shall set forth in reasonable detail the calculations upon which such Lender determined such amount and shall be final, conclusive and binding on the Borrower in the absence of manifest error. Determination of amounts payable under such Sections in connection with a Eurodollar Rate Loan shall be calculated as though each Lender funded its Eurodollar Rate Loan through the purchase of a deposit of the type and maturity corresponding to the deposit used as a reference in determining the Eurodollar Rate applicable to such Loan, whether in fact that is the case or not, and without regard to loss of margin. Unless otherwise pr
ovided herein, the amount specified in the written statement of any Lender shall be payable on demand after receipt by the Borrower of such written statement. The obligations of the Borrower under Sections 4.1, 4.2, 4.4 and 4.5 shall survive payment of th
e Obligations, termination of the Letters of Credit and termination of this Agreement. 

ARTICLE V: CONDITIONS PRECEDENT 

5.1  Initial Advances and Letters of Credit. The Lenders shall not be required to make the initial Loans or issue any Letters of Credit (including the deemed issuance of the Transitional Letters of Credit) unless the B
orrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders: 


	43

(1)  Copies of the Certificate of Incorporation of the Borrower and each of the Subsidiary Guarantors (collectively, the "Loan Parties"), together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation; 

(2)  Copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Lender) authorizing the execution of the Loan Documents entered into by it; 

(3)  An incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower; 

(4)  A certificate, in form and substance satisfactory to the Administrative Agent signed by the treasurer of the Borrower, stating that on the Initial Funding Date (both before and after giving effect to any proposed Loan to be made and/or Letter of Credit to be issued thereon), all of the representations in this Agreement are true and correct and no Default or Unmatured Default has occurred and is continuing; 

(5)  The written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent and the Lenders, in substantially the form attached hereto as Exhibit E and containing assumptions and qualifications acceptable to the Administrative Agent and the Lenders; provided, that in the event that the Singapore Credit Agreement and related facility documents are not effective as of the Closing Date, such opinion shall include, without limitation, an opinion as to the absence of conflict between this Agreement and the then most recent draft of the Singapore Credit Agreement and other material facility documents to be executed in connection therewith, in form and substance satisfactory to the Administrative Agent, to be followed by delivery of a confirmation and update of such opinion, as and when required by Section 7.2(L)); 

(6)  Written money transfer instructions reasonably requested by the Administrative Agent, addressed to the Administrative Agent and signed by an Authorized Officer of the Borrower; 

(7)  Evidence satisfactory to the Administrative Agent that the Borrower had paid to the Administrative Agent and the Arrangers the fees agreed to in the Initial Fee Letters; 

(8)  Evidence satisfactory to the Administrative Agent that the Existing Credit Agreements have terminated and that all obligations, indebtedness and liabilities outstanding under the Existing Credit Agreements have been repaid in full (it being understood and agreed that the Transitional Letters of Credit shall be evidenced hereby in accordance with Section 3.2), or the Borrower has arranged for such termination and

44

repayment from the proceeds of the initial Loans hereunder (in each case, as documented in a payoff letter in form and substance reasonably satisfactory to the Administrative Agent); and 

(9)  Such other documents as the Administrative Agent or any Lender or its counsel may have reasonably requested, including, without limitation, the Subsidiary Guaranty, opinions of counsel, an officer’s no-default certificate and each other document reflected on the List of Closing Documents attached as Exhibit F to this Agreement. 

5.2  Each Advance and Letter of Credit. The Lenders shall not be required to make any Advance, or issue any Letter of Credit, unless on the applicable Borrowing Date, or in the case of a Letter of Credit, the date on w
hich the Letter of Credit is to be issued, both before and after taking into account the proposed borrowing or Letter of Credit: 

(i)  There exists no Default or Unmatured Default; 

(ii)  The representations and warranties contained in Article VI are true and correct in all material respects as of such Borrowing Date or issuance date, as applicable; and 

(iii)  The Revolving Credit Obligations do not, and after making such proposed Advance or issuing such Letter of Credit would not, exceed the Aggregate Revolving Loan Commitment. 

Each Borrowing/Election Notice with respect to each such Advance and the letter of credit application with respect to each Letter of Credit shall constitute a representation and warranty by the Borrower that the conditions contained in Sections 5.2(i) and (ii) have been satisfied. Any Lender may require a duly completed officer’s certificate in substantially the form of Exhibit G hereto and/or a duly completed compliance certificate in substantially the form of Exhibit H hereto as a condition to making an Advance. 

ARTICLE VI: REPRESENTATIONS AND WARRANTIES 

In order to induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans and the other financial accommodations to the Borrower, and to issue the Letters of Credit described herein, the Borrower represents and warrants as follows to each Lender and the Administrative Agent as of the Closing Date and thereafter on each date as required by Sections 5.1 and 5.2: 

6.1  Organization; Corporate Powers. Each of the Borrower and each of its Material Subsidiaries (i) is a corporation, limited liability company, partnership or other commercial entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) is duly qualified to do business as a foreign entity and is in good standing under the laws of each jurisdiction in which failure to be so qualified and in good standing could reasonably be expected to have a Material Adverse Effect, and (iii) has all requisite power and authority to own, operate and encumber its property and to conduct its business as presently conducted and as proposed to be conducted. 


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6.2  Authority. 

(A)  Each of the Borrower and each of its Subsidiaries has the requisite power and authority to execute, deliver and perform each of the Loan Documents which are to be executed by it or which have been executed by it as required by this Agreement and the other Loan Documents and (ii) to file the Loan Documents, if any, which must be filed by it or which have been filed by it as required by this Agreement, the other Loan Documents or otherwise with any Governmental Authority. 

(B)  The execution, delivery, performance and filing, as the case may be, of each of the Loan Documents which must be executed or filed by the Borrower or any of its Subsidiaries or which have been executed or filed as required by this Agreement, the other Loan Documents or otherwise and to which the Borrower or any of its Subsidiaries is a party, and the consummation of the transactions contemplated thereby, have been duly approved by the respective boards of directors and, if necessary, the shareholders of the Borrower and its Subsidiaries, and such approvals have not been rescinded. No other action or proce
edings on the part of the Borrower or its Subsidiaries are necessary to consummate such transactions. 

(C)  Each of the Loan Documents to which the Borrower or any of its Subsidiaries is a party has been duly executed, delivered or filed, as the case may be, by such party and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms (except as enforceability may be limited by bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles, including concepts of reasonableness, materiality, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief o
r other equitable remedies (whether enforcement is sought by proceedings in equity or at law)), is in full force and effect and no material term or condition thereof has been amended, modified or waived from the terms and conditions contained in the Loan Documents delivered to the Administrative Agent pursuant to Section 5.1 without the prior written consent of the Required Lenders (or all of the Lenders if required by Section 9.3), and the Borrower and its Subsidiaries have performed and complied with all the material terms, provisions, agreements and conditions set forth therein and required to be performed or compl
ied with by the Borrower or its Subsidiaries on or before the Initial Funding Date, and no unmatured default, default or breach of any covenant by any such party exists thereunder. 

6.3  No Conflict; Governmental Consents. The execution, delivery and performance of each of the Loan Documents to which the Borrower or any of its Subsidiaries is a party do not and will not (i) conflict with the certi
ficate or articles of incorporation or by-laws (or equivalent constituent documents) of the Borrower or any of its Subsidiaries, (ii) constitute a tortious interference with any Contractual Obligation of any Person or conflict with, result in a breach of or constitute (with or without notice or lapse of time or both) a default under any Requirement of Law (including, without limitation, any Environmental Property Transfer Act) or Contractual Obligation of the Borrower or any of its Subsidiaries, or require termination of any Contractual Obligation, except such interference, breach or default which individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect, (iii) result in or require the creation or imposition of any Lien whatsoever upon any of the property or assets of the Borrower 
or any of its Subsidiaries, other than Liens permitted or created by the Loan Documents, or (iv)

46

require any approval of the Borrower’s or any of its Subsidiaries’ Board of Directors (or equivalent governing body) or shareholders, as applicable, except such as have been obtained. Except as set forth on Schedule 6.3 to this Agreement, the execution, delivery and performance of each of the Loan Documents to which the Borrower or any of its Subsidiaries is a party do n
ot and will not require any registration with, consent or approval of, or notice to, or other action to, with or by any Governmental Authority, including under any Environmental Property Transfer Act, except filings, consents or notices which have been made, obtained or given, or which, if not made, obtained or given, individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. 

6.4  Financial Statements. 

The September 30, 2002 consolidated financial statements of the Borrower and its Subsidiaries heretofore delivered to the Lenders were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present the consolidated financial condition and operations of the Borrower and its Subsidiaries at such date and the consolidated results of their operations for the period then ended. 

6.5  No Material Adverse Change. Since September 30, 2002 (determined by reference to the financial statements prepared with respect to the Borrower and its Subsidiaries), there has occurred no change in the business, 
properties, condition (financial or otherwise), performance, results of operations or prospects of the Borrower, or the Borrower and its Subsidiaries taken as a whole or any other event which has had or would reasonably be expected to have a Material Adverse Effect. 

6.6  Taxes. 

(A)  Tax Examinations. All deficiencies which have been asserted against the Borrower or any of the Borrower’s Subsidiaries as a result of any federal, state, local or foreign tax examination for each taxable year in respect of which an examination has been conducted have been fully paid or finally settled or are being contested in good faith, and no issue has been raised by any taxing authority in any such examination which, by application of similar principles, reasonably can be ex
pected to result in assertion by such taxing authority of a material deficiency for any other year not so examined which has not been reserved for in the Borrower’s consolidated financial statements to the extent, if any, required by Agreement Accounting Principles. Except as permitted pursuant to Section 7.2(D), neither the Borrower nor any of the Borrower’s Subsidiaries anticipates any material tax liability with respect to the years which have not been closed pursuant to applicable law. 

(B)  Payment of Taxes. All tax returns and reports of the Borrower and its Subsidiaries required to be filed have been timely filed, and all taxes, assessments, fees and other governmental charges thereupon and upon their respective property, assets, income and franchises which are shown in such returns or reports to be due and payable have been paid except those items which are being contested in good faith and have been reserved for in accordance with Agreement Accounting Principles. Th
e Borrower has no knowledge of any proposed tax assessment against the Borrower or any of its Subsidiaries that will have or could reasonably be expected to have a Material Adverse Effect, except for any such liability in respect


	47

of other members of the consolidated group of which the Borrower previously was a member as a Subsidiary of Ralston Purina Company, in respect of which and solely to the extent that (i) the Borrower is entitled to be indemnified by Ralston Purina Company or its successors pursuant to that certain Tax Sharing Agreement, dated as of April 1, 2000, between Ralston Purina Company and the Borrower (as the same has been or may hereafter be amended or otherwise modified) and (ii) the Borrower’s right to indemnification for such liability is not being contested by Ralston Purina Company (or, if previously contested, any such contest has not been resolved in favor of Ralston Purina Company). 

6.7  Litigation; Loss Contingencies and Violations. Except as set forth in Schedule 6.7 (the "Disclosed Litigation"), as of the Closing Date, there is no action, suit, proceeding, arbitration or, to the knowledge of any member of the Borrower’s Senior Management Team, investigation before or by any Governmental Authority or private arbitrator pending or, to the knowledge of any member of the Borrower’s Senior Management Team, threatened against the Borrower, any of its Subsidiaries or any property of any of them. Neither (a) any of the Disclosed Litigation nor (b) from and after the Closing Date, any other action, suit, proceeding, ar
bitration or, to the knowledge of any member of the Borrower’s Senior Management Team, investigation before or by any Governmental Authority or private arbitrator pending or, to the knowledge of any member of the Borrower’s Senior Management Team, threatened against the Borrower, any of its Subsidiaries or any property of any of them (i) challenges the validity or the enforceability of any material provision of the Loan Documents or (ii) has had or could reasonably be expected to have a Material Adverse Effect. There is no material loss contingency within the meaning of Agreement Accounting Principles which has not been reflected in the consolidated financial statements of the Borrower prepared and delivered pursuant to Section 7.1(A) for the fiscal period during which such material loss contingency was incurr
ed. Neither the Borrower nor any of its Subsidiaries is (A) in violation of any applicable Requirements of Law which violation will have or could reasonably be expected to have a Material Adverse Effect, or (B) subject to or in default with respect to any final judgment, writ, injunction, restraining order or order of any nature, decree, rule or regulation of any court or Governmental Authority which will have or could reasonably be expected to have a Material Adverse Effect. 

6.8  Subsidiaries. Schedule 6.8 to this Agreement (i) contains, as of the Closing Date, a description of the corporate structure of the Borrower, its Subsidiaries and any other Person in which the Borrower or any of its Subsidiaries holds an Equity Interest in excess of 5%; and (ii) accurately sets forth, as of the Closing Date, (A) the correct legal name, the jurisdiction of incorporation or organization and the jurisdictions in which each of the Borrower and the direct and indirect Subsidiaries of the Borrower are qualified to transact business as a foreign corporation, (B) the authorized, issued and outstanding shares of each class of Capital Stock of the Borrower and each of its Subsidiaries and the owners of such shares (on a fully-diluted basis), and (C) a summary of the direct and indirect partnership, joint venture, or other Equity Interests, if any, of the Borrower and each Subsidiary of the Borrower in any Person that is not a corporation. After the formation or acquisition of any New Subsidiary permitted under Section 7.3(F), if requested by the Administrative Agent, the Borrower shall provide a supplement to Schedule 6.8 to this Agreement reflecting the addition of such New Subsidiary. Except as disclosed on Schedule 6.8, none of the issued and outstanding Capital Stock of the Borrower or any of its Subsidiaries is subject to any vesting, redemption, or repurchase agreement, and there are no warrants or options outstanding with respect to such Capital Stock. The outstanding

48

Capital Stock of the Borrower and each of its Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and the stock of the Borrower’s Subsidiaries is not Margin Stock. 

6.9  ERISA. No Benefit Plan has incurred any material accumulated funding deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code) whether or not waived. Neither the Borrower nor any member of the 
Controlled Group has incurred any material liability to the PBGC which remains outstanding other than the payment of premiums. As of the last day of the most recent prior plan year, the market value of assets under each Benefit Plan, other than any Multiemployer Plan, was not by a material amount less than the present value of benefit liabilities thereunder (determined in accordance with the actuarial valuation assumptions described therein). Neither the Borrower nor any member of the Controlled Group has (i) failed to make a required contribution or payment to a Multiemployer Plan of a material amount or (ii) incurred a material complete or partial withdrawal under Section 4203 or Section 4205 of ERISA from a Multiemployer Plan. Neither the Borrower nor any member of the Controlled Group has failed to make an installment or any other payment of a material amount required under Section 412 of the Code on or before the due date for such installment or other payment. Each Plan, Foreign Employee Benefit Plan and Non-ERISA Commitment complies in all material respects in form, and has been administered in all material respects in accordance with its terms and, in accordance with all applicable laws and regulations, including but not limited to ERISA and the Code. There have been no and there is no prohibited transaction described in Sections 406 of ERISA or 4975 of the Code with respect to any Plan for which a statutory or administrative exemption does not exist which could reasonably be expected to subject the Borrower or any of is Subsidiaries to material liability. Neither the Borrower nor any member of the Controlled Group has taken or failed to take any action which would constitute or result in a Termination Event, which action or inaction could reasonably be expected to subject the Borrower or any of its Subsidiaries to material liability. Neither the Borrower nor any member of the Controlled Group is subject to any material liability under, or has any potential material liability under, Section 4063, 4064, 4069
, 4204 or 4212(c) of ERISA. The present value of the aggregate liabilities to provide all of the accrued benefits under any Foreign Pension Plan do not exceed the current fair market value of the assets held in trust or other funding vehicle for such plan by a material amount. With respect to any Foreign Employee Benefit Plan other than a Foreign Pension Plan, reasonable reserves have been established in accordance with prudent business practice or where required by ordinary accounting practices in the jurisdiction in which such plan is maintained. For purposes of this Section 6.9, "material" means any amount, noncompliance or other basis for liability which could reasonably be expected to subject the Borrower or any of its Subsidiaries to liability, individually or in the aggregate with each other basis for liability u
nder this Section 6.9, in excess of $30,000,000. 

6.10  Accuracy of Information. The information, exhibits and reports furnished by or on behalf of the Borrower and any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation
 of, or compliance with, the Loan Documents, the representations and warranties of the Borrower and its Subsidiaries contained in the Loan Documents, and all certificates and documents delivered to the Administrative Agent and the Lenders pursuant to the terms thereof, taken as a whole, do not contain as of the date furnished any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. 


	49

6.11  Securities Activities. Neither the Borrower nor any of its Subsidiaries is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock. 

6.12  Material Agreements. Neither the Borrower nor any Subsidiary is a party to any Contractual Obligation or subject to any charter or other corporate or similar restriction which individually or in the aggregate will have or could reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries has received notice or has knowledge that (i) it is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Contractual Obligation applicable to it, or (ii) any condition exists which, with the giving of notice or the lapse of time or both, would constitute a default with respect to any such Contractual Obligation, in each case, except where such default or defaults, if any, individually or in the agg
regate will not have or could not reasonably be expected to have a Material Adverse Effect. 

6.13  Compliance with Laws. The Borrower and its Subsidiaries are in compliance with all Requirements of Law applicable to them and their respective businesses, in each case where the failure to so comply individually 
or in the aggregate could reasonably be expected to have a Material Adverse Effect. 

6.14  Assets and Properties. The Borrower and each of its Subsidiaries has legal title to all of its material assets and properties (tangible and intangible, real or personal) owned by it or a valid leasehold interest 
in all of its leased assets (except insofar as marketability may be limited by any laws or regulations of any Governmental Authority affecting such assets), and all such assets and property are free and clear of all Liens, except Liens permitted under Section 7.3(C). Substantially all of the assets and properties owned by, leased to or used by the Borrower and/or each such Subsidiary of the Borrower are in adequate operating condition and repair, ordinary wear and tear excepted. Neither this Agreement nor any other Loan Document, nor any transaction contemplated under any such agreement, will affect any right, title or interest of the
 Borrower or such Subsidiary in and to any of such assets in a manner that has or could reasonably be expected to have a Material Adverse Effect. 

6.15  Statutory Indebtedness Restrictions. Neither the Borrower nor any of its Subsidiaries is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce 
Act, or the Investment Company Act of 1940, or any other federal or state statute or regulation which limits its ability to incur indebtedness or its ability to consummate the transactions contemplated hereby. 

6.16  Insurance. The insurance policies and programs in effect with respect to the respective properties, assets, liabilities and business of the Borrower and its Subsidiaries reflect coverage that is reasonably consis
tent with prudent industry practice. 

6.17  Labor Matters. No attempt to organize the employees of the Borrower or any of its Subsidiaries, and no labor disputes, strikes or walkouts affecting the operations of the Borrower or any of its Subsidiaries, is p
ending, or, to the Borrower’s knowledge, threatened, planned or contemplated, which has or could reasonably be expected to have a Material Adverse Effect. 


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6.18  Environmental Matters. (A) Except as disclosed on Schedule 6.18 to this Agreement: 

(i)  the operations of the Borrower and its Subsidiaries comply in all material respects with Environmental, Health or Safety Requirements of Law; 

(ii)  the Borrower and its Subsidiaries have all material permits, licenses or other authorizations required under Environmental, Health or Safety Requirements of Law and are in material compliance with such permits; 

(iii)  neither the Borrower, any of its Subsidiaries nor any of their respective present property or operations, or, to the Borrower’s or any of its Subsidiaries’ knowledge, any of their respective past property or operations, are subject to or the subject of, any investigation known to the Borrower or any of its Subsidiaries, any judicial or administrative proceeding, order, judgment, decree, settlement or other agreement respecting: (A) any material violation of Environmental, Health or Safety Requirements of Law; (B) any material remedial action; or (C) any material claims or liabilities arising 
from the Release or threatened Release of a Contaminant into the environment; 

(iv)  there is not now, nor to the Borrower’s or any of its Subsidiaries’ knowledge has there ever been, on or in the property of the Borrower or any of its Subsidiaries any landfill, waste pile, underground storage tanks, aboveground storage tanks, surface impoundment or hazardous waste storage facility of any kind, any polychlorinated biphenyls (PCBs) used in hydraulic oils, electric transformers or other equipment, or any asbestos containing material that would result in material remediation costs or material penalties to the Borrower or any of its Subsidiaries; and 

(v)  neither the Borrower nor any of its Subsidiaries has any material Contingent Obligation in connection with any Release or threatened Release of a Contaminant into the environment. 

(B) For purposes of this Section 6.18 "material" means any noncompliance or other basis for liability which could reasonably be likely to subject the Borrower or any of its Subsidiaries to liability, individually or in the aggregate with each other basis for liability under this Section 6.18, in excess of $30,000,000. 

6.19  Solvency. After giving effect to (i) the Loans to be made (or, if applicable, Letters of Credit to be issued) on the Initial Funding Date or such other date as Loans requested hereunder are made (or Letters of Cr
edit are issued), (ii) the other transactions contemplated by this Agreement and the other Loan Documents, (iii) the issuance of the 2003 Senior Notes and the consummation of the transactions contemplated by the Singapore Credit Facility (including the Singapore Guarantees) and (iv) the payment and accrual of all transaction costs with respect to the foregoing, the Borrower is, and the Borrower and its Subsidiaries taken as a whole are, Solvent. 

6.20  Benefits. Each of the Borrower and its Subsidiaries will benefit from the financing arrangement established by this Agreement. The Administrative Agent and the

51

Lenders have stated and the Borrower acknowledges that, but for the agreement by each of the Subsidiary Guarantors to execute and deliver the Subsidiary Guaranty, the Administrative Agent and the Lenders would not have made available the credit facilities established hereby on the terms set forth herein. 

ARTICLE VII: COVENANTS 

The Borrower covenants and agrees that so long as any Revolving Loan Commitments are outstanding and thereafter until all of the Obligations (other than contingent indemnity obligations) shall have been fully and indefeasibly paid and satisfied in cash, all financing arrangements among the Borrower and the Lenders shall have been terminated and all of the Letters of Credit shall have expired, been canceled or terminated, unless the Required Lenders shall otherwise give prior written consent: 

7.1  Reporting. The Borrower shall: 

(A)  Financial Reporting. Furnish to the Administrative Agent (with sufficient copies for each of the Lenders, which the Administrative Agent shall promptly deliver to the Lenders): 

(i)  Quarterly Reports. As soon as practicable, and in any event within forty-five (45) days after the end of each of the Borrower’s first three fiscal quarters, the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such period and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarte
r, certified by the chief financial officer of the Borrower on behalf of the Borrower as fairly presenting the consolidated financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and cash flows for the periods indicated in accordance with Agreement Accounting Principles, subject to normal year-end audit adjustments and the absence of footnotes. 

(ii)  Annual Reports. As soon as practicable, and in any event within ninety (90) days after the end of each fiscal year, (a) the consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year and the related consolidated and consolidating statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, and in comparative form the corresponding figures for the previous fiscal yea
r along with consolidating schedules in form and substance sufficient to calculate the financial covenants set forth in Section 7.4, and (b) an audit report on the consolidated financial statements (but not the consolidating financial statements or schedules) listed in clause (a) hereof of independent certified public accountants of recognized national standing, which audit report shall be unqualified and shall state that such financial statements fairly present the consolidated financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and cash flows for the periods indica
ted in conformity with Agreement Accounting Principles and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. 


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(iii)  Officer’s Compliance Certificate. Together with each delivery of any financial statement (a) pursuant to clauses (i) and (ii) of this Section 7.1(A), an Officer’s Certificate from the chief financial officer or treasurer of the Borrower, substantially in the form of Exhibit G attached hereto and made a part hereof, stating that (x) the representations and warranties of the Borrower contained in Article VI hereof shall have been true and correct in all material respects as of the date of such Officer’s Certificate and (y) as of 
the date of such Officer’s Certificate no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof and (b) pursuant to clauses (i) and (ii) of this Section 7.1(A), a compliance certificate, substantially in the form of Exhibit H attached hereto and made a part hereof, signed by the Borrower’s chief financial officer or treasurer setting forth calculations for the period which demonstrate compliance, when applicable, with the provisions of Sections 7.3(A) through (Q) and Section 7.4, and which calculate the Leverage Ratio for purposes of determining the then Applicable Margin, Applicable Facility Fee Percentage, Applicab
le Utilization Fee Percentage and Applicable L/C Fee Percentage. 

(B)  Notice of Default and Adverse Developments. Promptly upon any of the chief executive officer, chief operating officer, chief financial officer, treasurer or controller of the Borrower obtaining actual knowledge (i) of any condition or event which constitutes a Default or Unmatured Default, or becoming aware that any Lender or Administrative Agent has given any written notice with respect to a claimed Default or Unmatured Default under this Agreement, (ii) that any Person having the a
uthority to give such a notice has given any written notice to the Borrower or any Subsidiary of the Borrower or taken any other action with respect to a claimed default or event or condition of the type referred to in Section 8.1(E), or (iii) that any other development, financial or otherwise, which could reasonably be expected to have a Material Adverse Effect has occurred specifying (a) the nature and period of existence of any such claimed default, Default, Unmatured Default, condition or event, (b) the notice given or action taken by such Person in connection therewith, and (c) what action the Borrower has taken, is taking and proposes to take with respect thereto. 

(C)  ERISA Notices. Deliver or cause to be delivered to the Administrative Agent and the Lenders, at the Borrower’s expense, the following information and notices as soon as reasonably possible, and in any event: 

(i)  within ten (10) Business Days after any member of the Controlled Group obtains knowledge that a Termination Event has occurred which could reasonably be expected to subject the Borrower to liability individually or in the aggregate in excess of $25,000,000, a written statement of the chief financial officer of the Borrower describing such Termination Event and the action, if any, which the member of the Controlled Group has taken, is taking or proposes to take with respect thereto, and when known, any action taken or threatened by the IRS, DOL or PBGC with respect thereto; 

(ii)  within ten (10) Business Days after the filing of any funding waiver request with the IRS, a copy of such funding waiver request and thereafter all communications received by the Borrower or a member of the Controlled Group with respect to such request within ten (10) Business Days after such communication is received; and 


	53

(iii)  within ten (10) Business Days after the Borrower or any member of the Controlled Group knows or has reason to know that (a) a Multiemployer Plan has been terminated, (b) the administrator or plan sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan, or (c) the PBGC has instituted or will institute proceedings under Section 4042 of ERISA to terminate a Multiemployer Plan, a notice describing such matter. 

For purposes of this Section 7.1(C), the Borrower and any member of the Controlled Group shall be deemed to know all facts known by the administrator of any Plan of which the Borrower or any member of the Controlled Group is the plan sponsor. 

(D)  Other Indebtedness. Deliver to the Administrative Agent (i) a copy of each regular report, notice or communication regarding potential or actual defaults (including any accompanying officer’s certificate) delivered by or on behalf of the Borrower to the holders of funded Material Indebtedness, including, without limitation holders of Indebtedness under any Financing Facility, pursuant to the terms of the agreements governing such Indebtedness, such delivery to be made at the sam
e time and by the same means as such notice or other communication is delivered to such holders, and (ii) a copy of each notice received by the Borrower from the holders of funded Material Indebtedness who are authorized and/or have standing to deliver such notice pursuant to the terms of such Indebtedness, such delivery to be made promptly after such notice is received by Borrower. 

(E)  Other Reports. Deliver or cause to be delivered to the Administrative Agent and the Lenders copies of all financial statements, reports and notices, if any, sent by the Borrower to its securities holders or filed with the Commission by the Borrower, other than Reports on Form 8-K which contain only information furnished pursuant to Item 12 thereof. 

(F)  Environmental Notices. As soon as possible and in any event within ten (10) days after receipt by the Borrower, deliver or cause to be delivered to the Administrative Agent a copy of (i) any notice or claim to the effect that the Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the Release by the Borrower, any of its Subsidiaries, or any other Person of any Contaminant into the environment, and (ii) any notice alleging any violation of any Environm
ental, Health or Safety Requirements of Law by the Borrower or any of its Subsidiaries if, in either case, such notice or claim relates to an event which could reasonably be expected to subject the Borrower and each of its Subsidiaries to liability individually or in the aggregate in excess of $25,000,000. 

(G)  Amendments to Financing Facilities. Promptly after the execution thereof, deliver or cause to be delivered to the Administrative Agent copies of all material amendments to any of the documents evidencing Indebtedness extended to the Borrower or any of its Subsidiaries under any of the Financing Facilities. 

(H)  Other Information. Promptly upon receiving a request therefor from the Administrative Agent, prepare and deliver to the Administrative Agent and the Lenders such other information with respect to the Borrower, any of its Subsidiaries, or their respective businesses and assets, including, without limitation, schedules identifying and describing any

54

Asset Sale (and the use of the net cash proceeds thereof), as from time to time may be reasonably requested by the Administrative Agent. 

7.2  Affirmative Covenants. 

(A)  Corporate Existence, Etc. Except as permitted pursuant to Section 7.3(H), the Borrower shall, and shall cause each of its Subsidiaries to, at all times maintain its existence and preserve and keep, or cause to be preserved and kept, in full force and effect its rights and franchises material to 
its businesses. 

(B)  Corporate Powers; Conduct of Business. The Borrower shall, and shall cause each of its Material Subsidiaries to, qualify and remain qualified to do business in each jurisdiction in which the nature of its business requires it to be so qualified and where the failure to be so qualified will have or would reasonably be expected to have a Material Adverse Effect. the Borrower will, and will cause each Material Subsidiary to, carry on and conduct its business in substantially the same ma
nner and in substantially the same fields of enterprise as it is presently conducted unless the failure of the Borrower or its Material Subsidiaries to carry on and conduct its business as so described would not reasonably be expected to have a Material Adverse Effect. 

(C)  Compliance with Laws, Etc. The Borrower shall, and shall cause its Subsidiaries to, (a) comply with all Requirements of Law and all restrictive covenants affecting such Person or the business, properties, assets or operations of such Person, and (b) obtain as needed all permits necessary for its operations and maintain such permits in good standing unless, in either case, failure to comply or obtain such permits would not reasonably be expected to have a Material Adverse Effect. 

(D)  Payment of Taxes and Claims; Tax Consolidation. The Borrower shall pay, and cause each of its Subsidiaries to pay, (i) all taxes, assessments and other governmental charges imposed upon it or on any of its properties or assets or in respect of any of its franchises, business, income or property before any penalty or interest accrues thereon, and (ii) all claims (including, without limitation, claims for labor, services, materials and supplies) for sums which have become due and payab
le and which by law have or may become a Lien (other than a Lien permitted by Section 7.3(C)) upon any of the Borrower’s or such Subsidiary’s property or assets, prior to the time when any penalty or fine shall be incurred with respect thereto; provided, however, that no such taxes, assessments and governmental charges referred to in clause (i) above or claims referred to in clause (ii) above (and interest, penalties or fines relating thereto) need be paid if being contested in good faith by appropriate proceedings diligently instituted and conducted and if such reserve or other appropriate provision, if any, as shall be required in conformity with Agreement Accounting Principles shall have been made therefor. 

(E)  Insurance. The Borrower shall maintain for itself and its Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force and effect, insurance policies and programs, with such deductibles or self-insurance amounts as reflect coverage that is reasonably consistent with prudent industry practice as determined by the Borrower. 


	55

(F)  Inspection of Property; Books and Records; Discussions. The Borrower shall permit and cause each of the Borrower’s Subsidiaries to permit, any authorized representative(s) designated by either the Administrative Agent or any Lender to visit and inspect any of the properties of the Borrower or any of its Subsidiaries, to examine their respective financial and accounting records and other material data relating to their respective businesses or the transactions contemplated hereby
 (including, without limitation, in connection with environmental compliance, hazard or liability), and to discuss their affairs, finances and accounts with their officers and independent certified public accountants, all upon reasonable notice and at such reasonable times during normal business hours, as often as may be reasonably requested (provided that an officer of the Borrower or any of its Subsidiaries may, if it so desires, be present at and participate in any such discussion). The Borrower shall keep and maintain, and cause each of the Borrower’s Subsidiaries to keep and maintain, in all material respects, proper books of record and account in which entries in conformity with Agreement Accounting Principles shall be made of all dealings and transactions in relation to their respective businesses and activities. If a Default has occurred and is continuing, the Borrower, upon the Administrative Agent’s request, shall turn over copies of any such records to the Administrative Agent or its rep
resentatives. 

(G)  ERISA Compliance. The Borrower shall, and shall cause each of the Borrower’s Subsidiaries to, establish, maintain and operate all Plans to comply in all material respects with the provisions of ERISA and shall operate all Plans and Non-ERISA Commitments to comply in all material respects with the applicable provisions of the Code, all other applicable laws, and the regulations and interpretations thereunder and the respective requirements of the governing documents for such Plan
s and Non-ERISA Commitments, except for any noncompliance which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 

(H)  Maintenance of Property. The Borrower shall cause all property necessary for the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Borrower may be necessary for the conduct of its business; provided, however, that nothing in this Section 7.2(H) shall prevent the Borrower from discontinuing the operation or maintenance of any of such property if such discontinuance is, in the judgment of the Borrower, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Administrative Agent or the Lenders. 

(I)  Environmental Compliance. The Borrower and its Subsidiaries shall comply with all Environmental, Health or Safety Requirements of Law, except where noncompliance will not have or is not reasonably likely to subject the Borrower or any of its Subsidiaries, individually or in the aggregate, to liability in excess of $30,000,000. 

(J)  Use of Proceeds. The Borrower shall use the proceeds of the Loans solely for the general corporate purposes of the Borrower and its Subsidiaries, including, without limitation, to finance Permitted Acquisitions and to refinance indebtedness outstanding under the Existing Credit Agreements. 


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(K)  Addition of Subsidiary Guarantors. 

(a)  New Subsidiaries. The Borrower shall cause each New Subsidiary that is, at any time, a Material Domestic Subsidiary (other than a SPV) to deliver to the Administrative Agent an executed Supplement to become a Subsidiary Guarantor under the Subsidiary Guaranty in the form of Exhibit I attached he
reto (a "Supplement") and appropriate corporate resolutions, opinions and other documentation in form and substance reasonably satisfactory to the Administrative Agent, such Supplement and other documentation to be delivered to the Administrative Agent as promptly as possible upon the creation, acquisition of or capitalization thereof or if otherwise necessary to remain in compliance with Section 7.3(Q), but in any event within thirty (30) days of such creation, acquisition or capitalization. 

(b)  Additional Material Domestic Subsidiaries. If any consolidated Subsidiary of the Borrower (other than a New Subsidiary to the extent addressed in Section 7.2(K)(a) or a SPV) becomes a Material Domestic Subsidiary, the Borrower shall cause any such Material Domestic Subsidiary to deliver to the A
dministrative Agent an executed Supplement to become a Subsidiary Guarantor and appropriate corporate resolutions, opinions and other documentation in form and substance reasonably satisfactory to the Administrative Agent in connection therewith, such Supplement and other documentation to be delivered to the Administrative Agent as promptly as possible but in any event within thirty (30) days following the date on which such consolidated Subsidiary became a Material Domestic Subsidiary. 

(c)  Additional Subsidiary Guarantors. 

(i)  If at any time a member of the Senior Management Team of the Borrower has actual knowledge that the aggregate assets of all of the Borrower’s domestic consolidated Subsidiaries (other than SPVs) which are not Subsidiary Guarantors exceed ten percent (10%) of Consolidated Domestic Assets of the Borrower and its consolidated Subsidiaries (other than the SPVs), as calculated by the Borrower, the Borrower shall cause such domestic consolidated Subsidiaries as are necessary to reduce such aggregate assets to or below ten percent (10%) of such Consolidated Domestic Assets to deliver to the Administrative A
gent executed Supplements to become Subsidiary Guarantors and appropriate corporate resolutions, opinions and other documentation in form and substance reasonably satisfactory to the Administrative Agent in connection therewith, such Supplements and other documentation to be delivered to the Administrative Agent as promptly as possible but in any event within thirty (30) days following the initial date on which a member of the Senior Management Team of the Borrower obtained actual knowledge that such aggregate assets exceed ten percent (10%) of such Consolidated Domestic Assets. 

(ii)  If at any time any Subsidiary of the Borrower which is not a Subsidiary Guarantor guaranties any Indebtedness of the Borrower for which the Borrower is a primary obligor (other than solely as a guarantor of obligations of its Affiliates or other third parties), other than the Indebtedness hereunder, the Borrower shall cause such Subsidiary to deliver to the Administrative Agent an executed Supplement to become a Subsidiary Guarantor and appropriate corporate resolutions, opinions and other documentation in form and substance reasonably satisfactory to the Administrative Agent in connection therewith, suc
h Supplement and other documentation to be delivered to the Administrative Agent as promptly as possible but


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in any event within thirty (30) days following the delivery of the guaranty of such other Indebtedness. 

(L)  Singapore Facility No-Conflicts Opinion. In the event that the Singapore Credit Agreement and related facility documents are not effective as of the Closing Date, the Borrower shall deliver, within five (5) days following the effective date thereof, a written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent and the Lenders, which shall include a confirmation of the opinion as to the absence of a conflict between this Agreement and the Singapore Credit 
Agreement and related material facility documents to be delivered pursuant to Section 5.1(5) hereof (taking into account any changes from the draft versions thereof available as of the Closing Date to the final executed versions), in form and substance satisfactory to the Administrative Agent. 

7.3  Negative Covenants. 

(A)  Subsidiary Indebtedness. The Borrower shall not permit any of its Subsidiaries directly or indirectly to create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness, except: 

(i)  Indebtedness of the Subsidiaries under the Subsidiary Guaranty; 

(ii)  Indebtedness in respect of guaranties executed by any Subsidiary Guarantor with respect to any Indebtedness of the Borrower, provided such Indebtedness is not incurred by the Borrower in violation of this Agreement; 

(iii)  Indebtedness in respect of obligations secured by Customary Permitted Liens; 

(iv)  Indebtedness constituting Contingent Obligations permitted by Section 7.3(E); 

(v)  Indebtedness arising from loans (a) from any Subsidiary to any wholly-owned Subsidiary or (b) from the Borrower to any wholly-owned Subsidiary; provided, that if any Subsidiary Guarantor is the obligor on such Indebtedness, such Indebtedness shall be expressly subordinate to the payment in full in cash of the Obligations on terms satisfactory to the Administrative Agent; 

(vi)  Indebtedness in respect of Hedging Obligations permitted under Section 7.3(O); 

(vii)  Indebtedness with respect to surety, appeal and performance bonds obtained by any of the Borrower’s Subsidiaries in the ordinary course of business; 

(viii)  Indebtedness incurred in connection with the Receivables Purchase Documents, provided, that Receivables Facility Attributed Indebtedness incurred in connection therewith does not exceed $250,000,000 in the aggregate at any time; and 


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(ix)  Other Indebtedness in addition to that referred to elsewhere in this Section 7.3(A) incurred by the Borrower’s Subsidiaries; provided that no Default or Unmatured Default shall have occurred and be continuin
g at the date of such incurrence or would result therefrom; and provided further that the aggregate outstanding amount of all Indebtedness incurred by the Borrower’s Subsidiaries (other than Indebtedness incurred pursuant to clauses (i), (ii), (v), (vi) and (viii) of this Section 7.3(A)) shall not at any time exceed 20% of the Borrower’s Consolidated Total Capitalization. 

(B)  Sales of Assets. Neither the Borrower nor any of its Subsidiaries shall sell, assign, transfer, lease, convey or otherwise dispose of any property, whether now owned or hereafter acquired, or any income or profits therefrom, or enter into any agreement to do so, except: 

(i)  sales of Inventory in the ordinary course of business; 

(ii)  the disposition in the ordinary course of business of Equipment that is obsolete, excess or no longer used or useful in the Borrower’s or its Subsidiaries’ businesses; 

(iii)  any transfer of an interest in Receivables, Receivables Related Security, accounts or notes receivable on a limited recourse basis under the Receivables Purchase Documents, provided that such transfer qualifies as a legal sale and as a sale under Agreement Accounting Principles and that the amount of Receivables Facility Attributed Indebtedness does not exceed $250,000,000 at any one time outstanding
; and 

(iv)  sales, assignments, transfers, leases, conveyances or other dispositions of other assets (other than pursuant to clauses (i), (ii) and (iii) above) if such transaction (a) is for not less than fair market value, and (b) when combined with all such other transactions (each such transaction being valued at book value) occurring during the fiscal year in which such proposed transaction occurred represents the disposition of not greater than fifteen percent (15%) of the Borrower’s Consolidated Assets (such Consolidated Assets being calculated for the end of the fiscal year immediately preceding that in which such transaction is proposed to be entered into). 

(C)  Liens. Neither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or permit to exist any Lien on or with respect to any of their respective property or assets except: 

(i)  Liens, if any, created by the Loan Documents or otherwise securing the Obligations; 

(ii)  Customary Permitted Liens; 

(iii)  Liens arising under the Receivables Purchase Documents; and 

(iv)  other Liens, including Permitted Existing Liens, (a) securing Indebtedness of the Borrower and/or (b) securing Indebtedness of the Borrower’s Subsidiaries as permitted pursuant to Section 7.3(A), all of which, when taken together, secure

59

Indebtedness in an aggregate outstanding principal amount not to exceed five percent (5%) of Consolidated Assets at any time. 

In addition, neither the Borrower nor any of its Subsidiaries shall become a party to any agreement, note, indenture or other instrument, or take any other action, which would prohibit the creation of a Lien on any of its properties or other assets in favor of the Administrative Agent for the benefit of itself and the Holders of Obligations, as collateral for the Obligations; provided, that any agreement, note, indenture or other instrument in connection with purchase money indebtedness (including Capitalized Leases) may prohibit the creation of a Lien in favor of the Administrative Agent for the benefit of itself 
and the Holders of Obligations on the items of property obtained with the proceeds of such purchase money indebtedness; provided, further, that (a) the Senior Note Purchase Agreements in connection with the Senior Notes may prohibit the creation of a Lien in favor of the Administrative Agent for the benefit of itself and the Holders of Obligations, as collateral for the Obligations; (b) the Receivables Purchase Documents may prohibit the creation of a 
Lien with respect to all of the assets of the SPV and with respect to the Receivables and Related Security of any of the Originators in favor of the Administrative Agent for the benefit of itself and the Holders of Obligations, as collateral for the Obligations; and (c) the Singapore Credit Agreement may prohibit the creation of a Lien by the Borrower on the Capital Stock or assets of members of the Singapore Regional Group to secure the Obligations. 

(D)  Investments. Except to the extent permitted pursuant to paragraph (G) below, neither the Borrower nor any of its Subsidiaries shall directly or indirectly make or own any Investment except: 

(i)  Investments in cash and Cash Equivalents; 

(ii)  Permitted Existing Investments in an amount not greater than the amount thereof on the Closing Date; 

(iii)  Investments in trade receivables or received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business; 

(iv)  Investments consisting of deposit accounts maintained by the Borrower and its Subsidiaries; 

(v)  Investments consisting of non-cash consideration from a sale, assignment, transfer, lease, conveyance or other disposition of property permitted by Section 7.3(B); 

(vi)  Investments in any consolidated Subsidiaries (other than joint ventures); 

(vii)  Investments in joint ventures and nonconsolidated Subsidiaries in an aggregate amount not to exceed $50,000,000; 

(viii)  Investments constituting Permitted Acquisitions; 


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(ix)  Investments constituting Indebtedness permitted by Section 7.3(A) or Contingent Obligations permitted by Section 7.3(E); 

(x)  Investments in the SPVs (a) required in connection with the Receivables Purchase Documents and (b) resulting from the transfers permitted by Section 7.3(B)(iii); and 

(xi)  Investments in addition to those referred to elsewhere in this Section 7.3(D) in an aggregate amount not to exceed $50,000,000. 

(E)  Contingent Obligations. None of the Borrower’s Subsidiaries shall directly or indirectly create or become or be liable with respect to any Contingent Obligation, except: (i) recourse obligations resulting from endorsement of negotiable instruments for collection in the ordinary course of business; (ii) Permitted Existing Contingent Obligations; (iii) obligations, warranties, and indemnities, not relating to Indebtedness of any Person, which have been or are undertaken or made in
 the ordinary course of business and not for the benefit of or in favor of an Affiliate of the Borrower or such Subsidiary; (iv) Contingent Obligations with respect to surety, appeal and performance bonds obtained by the Borrower or any Subsidiary in the ordinary course of business; (v) Contingent Obligations of the Subsidiary Guarantors under the Subsidiary Guaranty; (vi) Contingent Obligations of Subsidiaries which are guarantors under a guaranty of the Indebtedness evidenced by the Senior Notes and the Senior Note Purchase Agreements; (vii) Contingent Obligations of the Borrower or any of its Subsidiaries arising under the Receivables Purchase Documents; (viii) Contingent Obligations of the Borrower, Energizer Singapore Pte. Ltd., a company organized under the laws of Singapore, and Sonca Products Ltd., a company organized under the laws of Hong Kong, under the Singapore Guarantees; (ix) Contingent Obligations of non-domestic Subsidiaries represented by guarantees of obligations of other non-domestic Subs
idiaries; and (x) Contingent Obligations incurred in the ordinary course of business by any of the Borrower’s Subsidiaries in respect of obligations of any Subsidiary. 

(F)  Conduct of Business; New Subsidiaries; Acquisitions. Except as expressly provided in clause (c) in the definition of "Permitted Acquisition" below, neither the Borrower nor any of its Subsidiaries shall engage in any business other than the businesses engaged in by the Borrower and its Subsidiar
ies on the date of such transaction and any business or activities which are substantially similar, related or incidental thereto. The Borrower may create, acquire in a Permitted Acquisition or capitalize any Subsidiary (a "New Subsidiary") after the date hereof if (i) no Default or Unmatured Default shall have occurred and be continuing or would result therefrom; (ii) after such creation, acquisition or capitalization, all of the representations and warranties contained herein shall be true and correct; and (iii) after such creation, acquisition or capitalization the Borrower shall be in compliance with the terms of Sections 7.2(K) and 7.3(Q). 

Without in any way limiting the foregoing, neither the Borrower nor any of its Subsidiaries shall make any Acquisitions, other than Acquisitions meeting the following requirements or otherwise approved by the Required Lenders (each such Acquisition constituting a "Permitted Acquisition"): 


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(a)  no Default or Unmatured Default shall have occurred and be continuing or would result from such Acquisition or the incurrence of any Indebtedness in connection therewith, and all of the representations and warranties contained herein shall be true and correct on and as of the date such Acquisition with the same effect as though made on and as of such date; 

(b)  the purchase is consummated pursuant to a negotiated acquisition agreement on a non-hostile basis pursuant to an acquisition agreement approved by the board of directors or other applicable governing body of the Seller prior to the commencement thereof; 

(c)  the businesses being acquired shall be consumer product companies or other businesses that are substantially similar, related or incidental to the businesses or activities engaged in by the Borrower and its Subsidiaries as of the Closing Date, as well as suppliers to or distributors of products similar to those of the Borrower and its Subsidiaries; provided, however, that the Borrower and its Subsidiaries shall be permitted to acquire businesses that do not satisfy the foregoing criteria in this clause (c) so long as the aggregate purchase price for all such acquisitions does not exceed five percent (5%) of the Borrower’s consolidated tangible net assets (on a pro forma  basis) as of the date of the consummation of such Acquisition; and 

(d)  prior to each such Acquisition, the Borrower shall determine that after giving effect to such Acquisition and the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries, to the extent permitted by Section 7.3(A), in connection therewith, on a pro forma  basis using historical audited and reviewed unaudited financial statements obtained from the seller, broken down by fiscal quarter in the Borrower’s reasonable judgment, as if the Acquisition and such incurrence of Indebtedness had occurred on the first day of the twelve-month period ending on the last day of the Borrower’s most recently completed fiscal quarter, the Borrower would have been in compliance with the financial covenants in Section 7.4 and not otherwise in Default. 

(G)  Transactions with Shareholders and Affiliates. Except for (a) the transactions set forth on Schedule 7.3(G), (b) Permitted Receivables Transfers and (c) Investments permitted by Section 
7.3(D), neither the Borrower nor any of its Subsidiaries shall directly or indirectly enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any holder or holders of any of the Equity Interests of the Borrower, or with any Affiliate of the Borrower which is not its Subsidiary, on terms that are less favorable to the Borrower or any of its Subsidiaries, as applicable, than those that might be obtained in an arm’s length transaction at the time from Persons who are not such a holder or Affiliate. 

(H)  Restriction on Fundamental Changes. Neither the Borrower nor any of its Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the Borrower’s or any such Subsidiary’s business or property, whether now or hereafter acquired, except (i) transactions permitted under 
Sections 7.3(B) or 7.3(F) (including the liquidation, winding up or dissolution of a Subsidiary in connection with a transaction permitted under Section 7.3(B)) and (ii) a Subsidiary of the Borrower may be merged into, liquidated into or consolidated with the Borrower (in which case the Borrower shall be the surviving corporation) or any wholly-owned

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Subsidiary of the Borrower, provided if a Subsidiary Guarantor is merged into, liquidated into or consolidated with another Subsidiary of the Borrower, the surviving Subsidiary shall also be or shall become a Subsidiary Guarantor to the extent required under Section 7.2(K) or 7.3(Q) hereunder. 

(I)  Sales and Leasebacks. Neither the Borrower nor any of its Subsidiaries shall become liable, directly, by assumption or by Contingent Obligation, with respect to any lease, whether an operating lease or a Capitalized Lease, of any property (whether real or personal or mixed), (i) which it or one of its Subsidiaries sold or transferred or is to sell or transfer to any other Person, or (ii) which it or one of its Subsidiaries intends to use for substantially the same purposes as any oth
er property which has been or is to be sold or transferred by it or one of its Subsidiaries to any other Person in connection with such lease, unless in either case the sale involved is not prohibited under Section 7.3(B) and the lease involved is not prohibited under Section 7.3(A). 

(J)  Margin Regulations; Use of Proceeds. Neither the Borrower nor any of its Subsidiaries, shall use all or any portion of the proceeds of any credit extended under this Agreement (i) to purchase or carry Margin Stock or (ii) for any purpose other than those set forth in Section 7.2(J). 

(K)  ERISA. The Borrower shall not: 

(i)  permit to exist any accumulated funding deficiency (as defined in Sections 302 of ERISA and 412 of the Code), with respect to any Benefit Plan, whether or not waived; 

(ii)  terminate, or permit any Controlled Group member to terminate, any Benefit Plan which would result in liability of the Borrower or any Controlled Group member under Title IV of ERISA; 

(iii)  fail, or permit any Controlled Group member to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; or 

(iv)  permit any unfunded liabilities with respect to any Foreign Pension Plan; 

except where such transactions, events, circumstances, or failures are not, individually or in the aggregate, reasonably expected to result in liability individually or in the aggregate in excess of $25,000,000 or have a Material Adverse Effect. 

(L)  Corporate Documents. Neither the Borrower nor any of its Subsidiaries shall amend, modify or otherwise change any of the terms or provisions in any of their respective constituent documents as in effect on the date hereof in any manner adverse to the interests of the Lenders, without the prior written consent of the Required Lenders. 

(M)  Fiscal Year. Neither the Borrower nor any of its consolidated Subsidiaries shall change its fiscal year for accounting or tax purposes from a twelve-month period ending September 30 of each year. 


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(N)  Subsidiary Covenants. The Borrower will not, and will not permit any Subsidiary to, create or otherwise cause to become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary to pay dividends or make any other distribution on its stock, redeem or repurchase its stock, make any other similar payment or distribution, pay any Indebtedness or other Obligation owed to the Borrower or any other Subsidiary, make loans or advances or other Investment
s in the Borrower or any other Subsidiary, to sell, transfer or otherwise convey any of its property to the Borrower or any other Subsidiary or merge, consolidate with or liquidate into the Borrower or any other Subsidiary other than pursuant to (i) this Agreement, (ii) the Receivables Purchase Documents and (iii) the Singapore Credit Agreement; provided, that the Singapore Credit Agreement shall not in any way prohibit any member of the Singapore Regional Group from paying dividends or making any other distribution on its stock, redeeming or repurchasing its stock, making any other similar payment or distribution, or paying any Indebtedness or other Obligation owed to the Borrower or any Subsidiary Guarantor. 

(O)  Hedging Obligations. The Borrower shall not and shall not permit any of its Subsidiaries to enter into any Hedging Arrangements other than Hedging Arrangements entered into by the Borrower or its Subsidiaries pursuant to which the Borrower or such Subsidiary has hedged its or its Subsidiaries’ reasonably estimated interest rate, foreign currency or commodity exposure and which are of a non-speculative nature. 

(P)  Issuance of Disqualified Stock. From and after the Closing Date, neither the Borrower, nor any of its Subsidiaries shall issue any Disqualified Stock. All issued and outstanding Disqualified Stock shall be treated as Indebtedness for borrowed money for all purposes of this Agreement, and the amount of such deemed Indebtedness shall be the aggregate amount of the liquidation preference of such Disqualified Stock. 

(Q)  Non-Guarantor Subsidiaries. The Borrower will not at any time permit the aggregate assets of all of the Borrower’s domestic consolidated Subsidiaries (other than the SPVs) which are not Subsidiary Guarantors to exceed ten percent (10%) of Consolidated Domestic Assets of the Borrower and its consolidated Subsidiaries (other than the SPVs). The Borrower shall not permit any of its Subsidiaries (including non-domestic Subsidiaries) to guaranty any Indebtedness of the Borrower other
 than the Indebtedness hereunder unless each such Subsidiary is a Subsidiary Guarantor under the Subsidiary Guaranty. 

7.4  Financial Covenants. The Borrower shall comply with the following: 

(A)  Maximum Leverage Ratio. The Borrower shall not permit the ratio (the "Leverage Ratio") of (i) the sum of (a) all Indebtedness of the Borrower and its Subsidiaries to (ii) EBITDA at any time to be greater than 3.50 to 1.00. The Leverage Ratio shall be calculated, in each case, determined as of the last da
y of each fiscal quarter based upon (a) for Indebtedness, Indebtedness as of the last day of each such fiscal quarter; and (b) for EBITDA, the actual amount for the four-quarter period ending on such day, calculated, with respect to Permitted Acquisitions, on a pro forma  basis using unadjusted historical audited and reviewed unaudited financial statements obtained from the seller (with the EBITDA component thereof broken down by fiscal quarter in the Borrower’s reasonable judgment). 


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(B)  Minimum Interest Expense Coverage Ratio. The Borrower shall maintain a ratio (the "Interest Expense Coverage Ratio") for any applicable period of (a) EBIT for such period to (b) Interest Expense for such period of greater than 3.00 to 1.00 for each fiscal quarter. The Interest Expense Coverage Ratio shal
l be calculated as of the last day of each fiscal quarter for the four-quarter period ending on such day, calculated, with respect to Permitted Acquisitions, on a pro forma  basis using unadjusted historical audited and reviewed unaudited financial statements obtained from the seller (with the EBITDA component thereof broken down by fiscal quarter in the Borrower’s reasonable judgment). 

ARTICLE VIII: DEFAULTS 

8.1  Defaults. Each of the following occurrences shall constitute a Default under this Agreement: 

(A)  Failure to Make Payments When Due. The Borrower shall (i) fail to pay when due any of the Obligations consisting of principal with respect to the Loans or (ii) shall fail to pay within five (5) Business Days of the date when due any of the other Obligations under this Agreement or the other Loan Documents. 

(B)  Breach of Certain Covenants. The Borrower shall fail duly and punctually to perform or observe any agreement, covenant or obligation binding on the Borrower or there shall otherwise be a breach of any covenant under: 

(i)  Sections 7.1 or 7.2 (other than Section 7.2(K) and (L)) and such failure or breach shall continue unremedied for thirty (30) days after the earlier to occur of (a) the date on which written notice from the Administrative Agent or any Lender is received by the Borrower of such breach and (b) the date on which a member of the Senior Management Team of the Borrower or any Subsidiary Guarantor had knowledge of the existence of such breach or should have known of the existence of such breach; or 

(ii)  Sections 7.2(K) and (L), 7.3 or 7.4. 

(C)  Breach of Representation or Warranty. Any representation or warranty made or deemed made by the Borrower to the Administrative Agent or any Lender herein or by the Borrower or any of its Subsidiaries in any of the other Loan Documents or in any statement or certificate at any time given by any such Person pursuant to any of the Loan Documents shall be false or misleading in any material respect on the date as of which made (or deemed made). 

(D)  Other Defaults. The Borrower shall default in the performance of or compliance with any term contained in this Agreement (other than as covered by paragraphs (A) or (B) of this Section 8.1), or the Borrower or any of its Subsidiaries shall default in the performance of or compliance with any term contained in any of the other Loan Documents, and such default shall continue for thirty (30) days after the earlier to occur of (a) the date on which written notice from the Administrative Agent or any Lender is received by the Borrower of such breach and (b) the date on which a member of the Senior Management Team of the Borrower or any Subsidiary Guarantor had knowledge of the existence of such breach or should have known of the existence of such breach. 


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(E)  Default as to Other Indebtedness. The Borrower or any of its Subsidiaries shall fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), beyond any period of grace provided, with respect to any Indebtedness (other than Indebtedness hereunder) which individually or together with other such Indebtedness as to which any such failure exists (other than hereunder) constitutes Material Indebtedness; or any breach, default or
 event of default (including any "Amortization Event" or event of like import in connection with the Receivables Purchase Facility) shall occur, or any other condition shall exist under any instrument, agreement or indenture pertaining to any such Material Indebtedness having such aggregate outstanding principal amount, beyond any period of grace, if any, provided with respect thereto, if the effect thereof is to cause an acceleration, mandatory redemption, a requirement that the Borrower or any of its Subsidiaries offer to purchase such Material Indebtedness or other required repurchase of such Material Indebtedness, or permit the holder(s) of such Material Indebtedness to accelerate the maturity of any such Material Indebtedness or require a redemption or other repurchase of such Material Indebtedness; or any such Material Indebtedness shall be otherwise declared to be due and payable (by acceleration or otherwise) or required to be prepaid, redeemed or otherwise repurchased by the Borrower or any of its S
ubsidiaries (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof. 

(F)  Involuntary Bankruptcy; Appointment of Receiver, Etc. 

(i)  An involuntary case shall be commenced against the Borrower or any of the Borrower’s Material Subsidiaries and the petition shall not be dismissed, stayed, bonded or discharged within sixty (60) days after commencement of the case; or a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Borrower or any of the Borrower’s Material Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or any other similar relief shall be granted under any applicable federal, state, local 
or foreign law. 

(ii)  A decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower or any of the Borrower’s Material Subsidiaries or over all or a substantial part of the property of the Borrower or any of the Borrower’s Material Subsidiaries shall be entered; or an interim receiver, trustee or other custodian of the Borrower or any of the Borrower’s Material Subsidiaries or of all or a substantial part of the property of the Borrower or any of the Borrower’s Materia
l Subsidiaries shall be appointed or a warrant of attachment, execution or similar process against any substantial part of the property of the Borrower or any of the Borrower’s Material Subsidiaries shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within sixty (60) days after entry, appointment or issuance. 

(G)  Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or any of the Borrower’s Material Subsidiaries shall (i) commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, (iii) consent to the appointment of or taking possession by a

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receiver, trustee or other custodian for all or a substantial part of its property, (iv) make any assignment for the benefit of creditors, (v) take any corporate action to authorize any of the foregoing or (vi) is generally not paying, or admits in writing its inability to pay, its debts as they become due. 

(H)  Judgments and Attachments. Any money judgment(s) (other than a money judgment covered by insurance as to which the insurance company has not disclaimed or reserved the right to disclaim coverage), writ or warrant of attachment, or similar process against the Borrower or any of its Subsidiaries or any of their respective assets involving in any single case or in the aggregate an amount in excess of $30,000,000 is or are entered and shall remain undischarged, unvacated, unbonded or uns
tayed for a period of sixty (60) days or in any event later than fifteen (15) days prior to the date of any proposed sale thereunder. 

(I)  Dissolution. Any order, judgment or decree shall be entered against the Borrower decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of sixty (60) days; or the Borrower shall otherwise dissolve or cease to exist except as specifically permitted by this Agreement. 

(J)  Loan Documents. At any time, for any reason, any Loan Document as a whole that materially affects the ability of the Administrative Agent, or any of the Lenders to enforce the Obligations ceases to be in full force and effect or the Borrower or any of the Borrower’s Subsidiaries party thereto seeks to repudiate its obligations under any Loan Document. 

(K)  Termination Event. Any Termination Event occurs which the Required Lenders believe is reasonably likely to subject either the Borrower or any of its Subsidiaries to liability individually or in the aggregate in excess of $30,000,000. 

(L)  Waiver of Minimum Funding Standard. If the plan administrator of any Plan applies under Section 412(d) of the Code for a waiver of the minimum funding standards of Section 412(a) of the Code and the Required Lenders believe the substantial business hardship upon which the application for the waiver is based could reasonably be expected to subject either the Borrower or any of its Subsidiaries to liability individually or in the aggregate in excess of $30,000,000. 

(M)  Change of Control. A Change of Control shall occur. 

(N)  Hedging Agreements. Nonpayment by the Borrower of any material obligation under any Hedging Agreement or the breach by the Borrower of any material term, provision or condition contained in any such Hedging Agreement. 

(O)  Environmental Matters. The Borrower or any of its Subsidiaries shall be the subject of any proceeding or investigation pertaining to (i) the Release by the Borrower or any of its Subsidiaries of any Contaminant into the environment, (ii) the liability of the Borrower or any of its Subsidiaries arising from the Release by any other Person of any Contaminant into the environment, or (iii) any violation of any Environmental, Health or Safety Requirements of Law which by the Borrower or 
any of its Subsidiaries, which, in any case, has or is reasonably likely to subject either the Borrower or its Subsidiaries to liability individually or in the aggregate in excess of $30,000,000. 


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(P)  Subsidiary Guarantor Revocation. Any Subsidiary Guarantor shall terminate or revoke any of its obligations under the Subsidiary Guaranty or breach any of the material terms of such Subsidiary Guaranty. 

(Q)  Receivables Purchase Document Events. A "Termination Event" (as defined in the 2000 Receivables Sale Agreement), an "Amortization Event" (as defined in the 2000 Receivables Purchase Agreement) or any other breach or event of like import under any replacement Receivables Purchase Documents permitted hereby (any such event, a "Receivables Facility Trigger Event") shall (i) occur with respect to the conduct or performance of (a) any Originator, (b) any servicer of the Receivables (so long as such servicer is the Borrower or a Subsidiary thereof) under the Receivables Purchase Documents, (c) any guarantor of the obligations of any Originator or servicer under the Receivables Purchase Documents or (d) any of their respective Subsidiaries other than an SPV and (ii) result in the termination of reinvestments of collections or proceeds of Receivables and Related Security under any agreements evidencing Receivables Facility Attributed Indebtedness (it being understood and agreed that the occurrence of a Receivables Facility Trigger Event resulting solely from (x) the conduct or performance of an SPV and/or (y) the performance or quality of the Receivables securing the obligations under the Receivables Purchase Documents, taken together with the circumstances described in the foregoing clause (ii), shall not give rise to a Default under this Section 8.1(Q)). 

A Default shall be deemed "continuing" until cured or until waived in writing in accordance with Section 9.3. 

ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES 

9.1  Termination of Revolving Loan Commitments; Acceleration. If any Default described in Section 8.1(F), (G) or (I) occurs with respect to the Borrower, the obligations of the Lenders to make Loans hereunder and the obligation of the Issuing Banks to issue Letters of Credit hereunder shall automatically terminate and the Obligations shall immediately become due and payable without any election or action on the part of the Administrative Agent or any Lender. If any other Default occurs, the Required Lenders may terminate or suspend the obligations of the Lenders to make Loans hereunder and the obligation of the Issuing Banks to issue Letters of Credit hereu
nder, or declare the Obligations to be due and payable, or both, whereupon the Obligations shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrower expressly waives. Without in any way limiting the foregoing, after the occurrence and during the continuance of a Default, the Administrative Agent shall be entitled to exercise its right to require cash collateral in support of 105% of the then aggregate outstanding L/C Obligations in accordance with Section 3.11. 

9.2  Defaulting Lender. In the event that any Lender fails to fund its Pro Rata Share of any Advance requested or deemed requested by the Borrower (or an Advance to repay Swing Line Loans to the Swing Line Bank or Reim
bursement Obligations to the Issuing Banks), which such Lender is obligated to fund under the terms of this Agreement (the funded portion of such Advance being hereinafter referred to as a "Non Pro Rata Loan"), until the earlier of such Lender’s cure of such failure and the termination of the Revolving Loan Commitments, the


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proceeds of all amounts thereafter repaid to the Administrative Agent by the Borrower and otherwise required to be applied to such Lender’s share of all other Obligations pursuant to the terms of this Agreement shall be advanced to the Borrower by the Administrative Agent on behalf of such Lender to cure, in full or in part, such failure by such Lender, but shall nevertheless be deemed to have been paid to such Lender in satisfaction of such other Obligations. Notwithstanding anything in this Agreement to the contrary: 

(i)  the foregoing provisions of this Section 9.2shall apply only with respect to the proceeds of payments of Obligations and shall not affect the conversion or continuation of Loans pursuant to Section 2.9;
(ii)  any such Lender shall be deemed to have cured its failure to fund its Pro Rata Share, of any Advance at such time as an amount equal to such Lender’s original Pro Rata Share of the requested principal portion of such Advance is fully funded to the Borrower, whether made by such Lender itself or by operation of the terms of this Section 9.2, and whether or not the Non Pro Rata Loan with respect th
ereto has been repaid, converted or continued; 

(iii)  amounts advanced to the Borrower to cure, in full or in part, any such Lender’s failure to fund its Pro Rata Share of any Advance ("Cure Loans") shall bear interest at the rate applicable to Floating Rate Loans in effect from time to time, and for all other purposes of this Agreement shall be treated as if they were Floating Rate Loans; 

(iv)  regardless of whether or not a Default has occurred or is continuing, and notwithstanding the instructions of the Borrower as to its desired application, all repayments of principal which, in accordance with the other terms of this Agreement, would be applied to the outstanding Floating Rate Loans shall be applied first, ratably to all Floating Rate Loans constituting Non Pro Rata Loans, second, ratably to Floating Rate Loans other than those constituting Non Pro Rata Loans or Cure Loans and, third, ratably to Floating Rate Loans constituting Cure Loans; 

(v)  for so long as and until the earlier of any such Lender’s cure of the failure to fund its Pro Rata Share of any Advance and the termination of the Revolving Loan Commitments, the term "Required Lenders" for purposes of this Agreement shall mean Lenders (excluding all Lenders whose failure to fund their respective Pro Rata Share of such Advance have not been so cured) whose Pro Rata Shares represent greater than fifty percent (50%) of the aggregate Pro Rata Shares of such Lenders; and 

(vi)  for so long as and until any such Lender’s failure to fund its Pro Rata Share of any Advance is cured in accordance with Section 9.2(ii), (A) such Lender shall not be entitled to any Facility Fees or Utilization Fees with respect to its Revolving Loan Commitment and (B) such Lender shall not be entitled to any letter of credit fees, which Facility Fees, Utilization Fees and letter of credit fees 
shall accrue in favor of the Lenders which have funded their respective Pro Rata Share of such requested Advance, shall be allocated among such performing Lenders ratably based upon their relative Revolving Loan Commitments, and shall be calculated based upon the average amount by which the aggregate Revolving Loan Commitments of such performing Lenders exceeds the sum of
 
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(I) the outstanding principal amount of the Loans owing to such performing Lenders, plus (II) the outstanding Reimbursement Obligations owing to such performing Lenders, plus (III) the aggregate participation interests of such performing Lenders arising pursuant to Section 3.6 with respect to undrawn and outstanding Letters of Credit. 

9.3  Amendments. Subject to the provisions of this Article IX, the Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders) and the Borrower may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to the Loan Documents or changing in any manner the rights of the Lenders or the Borrower hereunder or waiving any Default hereunder; provided, however, that no such supplemental agreement shall, without the consent of each Lender (which is not a defaulting Lender under the provisions of Section 9.2) affected thereby: 

(i)  Postpone or extend the Revolving Loan Termination Date or any other date fixed for any payment of principal of, or interest on, the Loans, the Reimbursement Obligations or any fees or other amounts payable to such Lender (other than any modifications of the provisions relating to amounts, timing or application of prepayments of the Loans and other Obligations, which modifications shall require the approval only of the Required Lenders). 

(ii)  Reduce the principal amount of any Loans or L/C Obligations, or reduce the rate or extend the time of payment of interest or fees thereon (other than (a) a waiver of the application of the default rate of interest pursuant to Section 2.10 hereof and (b) as a result of a change in the definition of Leverage Ratio or any of the components thereof or the method of calculation thereof). 

(iii)  Reduce the percentage specified in the definition of Required Lenders or any other percentage of Lenders specified to be the applicable percentage in this Agreement to act on specified matters or amend the definitions of "Required Lenders" or "Pro Rata Share". 

(iv)  Increase the amount of the Revolving Loan Commitment of such Lender hereunder or increase such Lender’s Pro Rata Share. 

(v)  Permit the Borrower to assign its rights under this Agreement. 

(vi)  Other than pursuant to a transaction permitted by the terms of this Agreement, release any guarantor from its obligations under the Subsidiary Guaranty. 

(vii)   Waive or amend any of the conditions set forth in Section 5.1. 

(viii)  Amend this Section 9.3. 

No amendment of any provision of this Agreement relating to (a) the Administrative Agent shall be effective without the written consent of the Administrative Agent, (b) Swing Line Loans shall be effective without the written consent of the Swing Line Bank and (c) any Issuing Bank shall be effective without the written consent of such Issuing Bank. The Administrative Agent may
 
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waive payment of the fee required under Section 13.3(B) without obtaining the consent of any of the Lenders. 

9.4  Preservation of Rights. No delay or omission of the Lenders or the Administrative Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an ac
quiescence therein, and the making of a Loan or the issuance of a Letter of Credit notwithstanding the existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such Loan or issuance of such Letter of Credit shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 9.3, and t
hen only to the extent in such writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Administrative Agent and the Lenders until all of the Obligations (other than contingent indemnity obligations) shall have been fully and indefeasibly paid and satisfied in cash, all financing arrangements among the Borrower and the Lenders shall have been terminated and all of the Letters of Credit shall have expired, been canceled or terminated. 

ARTICLE X: GENERAL PROVISIONS 

10.1  Survival of Representations. All representations and warranties of the Borrower contained in this Agreement shall survive delivery of this Agreement and the making of the Loans herein contemplated. 

10.2  Governmental Regulation. Anything contained in this Agreement to the contrary notwithstanding, no Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided 
by any applicable statute or regulation. 

10.3  Performance of Obligations. The Borrower agrees that after the occurrence and during the continuance of a Default, the Administrative Agent may, but shall have no obligation to, make any payment or perform any ac
t required of the Borrower under any Loan Document to the extent the Administrative Agent determines that such action shall be necessary or advisable in order to protect or preserve the rights of the Lenders and Issuing Banks hereunder. The Administrative Agent shall use its reasonable efforts to give the Borrower notice of any action taken under this Section 10.3 prior to the taking of such action or promptly thereafter provided the failure to give such notice shall not affect the Borrower’s obligations in respect thereof. The Borrower agrees to pay the Administrative Agent, upon demand, the principal amount of all funds advanced by the Administrative Agent under this Section 10.3, together with interest thereon at the rate from time to time applicable to Floating Rate Loans from the date of such advance until the outstanding principal balance thereof is paid in full. If the Borrower fails to make payment in respect of any such advance under this Section 10.3 within one (1) Business Day after
 
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the date the Borrower receives written demand therefor from the Administrative Agent, the Administrative Agent shall promptly notify each Lender and each Lender agrees that it shall thereupon make available to the Administrative Agent, in Dollars in immediately available funds, the amount equal to such Lender’s Pro Rata Share of such advance. If such funds are not made available to the Administrative Agent by such Lender within one (1) Business Day after the Administrative Agent’s demand therefor, the Administrative Agent will be entitled to recover any such amount from such Lender together with interest the
reon at the Federal Funds Effective Rate for each day during the period commencing on the date of such demand and ending on the date such amount is received. The failure of any Lender to make available to the Administrative Agent its Pro Rata Share of any such unreimbursed advance under this Section 10.3 shall neither relieve any other Lender of its obligation hereunder to make available to the Administrative Agent such other Lender’s Pro Rata Share of such advance on the date such payment is to be made nor increase the obligation of any other Lender to make such payment to the Administrative Agent. All outstanding principal of, and interest on, advances made under this Section 10.3 shall constitute Obligations subject to the terms of this Agreement until paid in full by the Borrower. 

10.4  Headings. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents. 

10.5  Entire Agreement. The Loan Documents embody the entire agreement and understanding among the Borrower, the Administrative Agent and the Lenders and supersede all prior agreements and understandings among the Borr
ower, the Administrative Agent and the Lenders relating to the subject matter thereof other than the Fee Letters or any other prior agreements or understandings which are expressly stated to survive the execution and delivery of this Agreement. 

10.6  Several Obligations; Benefits of this Agreement. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other Lender (except to the extent to which the Administrative Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and assigns. 

10.7  Expenses; Indemnification. 

(A)  Expenses. The Borrower shall reimburse the Administrative Agent and the Arrangers for any reasonable costs, internal charges and out-of-pocket expenses (including reasonable attorneys’ and paralegals’ fees and time charges of attorneys and paralegals for the Administrative Agent and the Arrangers, which attorneys and paralegals may be employees of the Administrative Agent or the Arrangers) paid or incurred by the Administrative Agent or the Arrangers in connection with the 
preparation, negotiation, execution, delivery, syndication, review, amendment modification and, after the occurrence and during the continuance of a Default or an Unmatured Default, administration of the Loan Documents. The Borrower also agrees to reimburse the Administrative Agent and the Arrangers and the Lenders for any reasonable costs and out-of-pocket expenses (including reasonable attorneys’ and paralegals’ fees and time charges of attorneys and paralegals for the Administrative Agent ad the Arrangers and the Lenders, which attorneys and paralegals may be employees of the Administrative Agent or the Arrangers or the Lenders) paid or incurred by the Administrative Agent or the Arrangers or any Lender in connection with the collection of the Obligations and enforcement of the Loan
 
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Documents; provided, that after the occurrence and during the continuance of a Default, the Borrower agrees to reimburse the Administrative Agent, the Arrangers and the Lenders for all such costs and out-of-pocket expenses, whether or not reasonable. 

(B)  Indemnity. The Borrower further agrees to defend, protect, indemnify, and hold harmless the Administrative Agent, each Arranger, the Syndication Agent and each and all of the Lenders and each of their respective Affiliates, and each of such Administrative Agent’s, Syndication Agent’s, Arranger’s, Lender’s, or Affiliate’s respective officers, directors, trustees, investment advisors, employees, attorneys and agents (including, without limitation, those retaine
d in connection with the satisfaction or attempted satisfaction of any of the conditions set forth in Article V) (collectively, the "Indemnitees") from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses of any kind or nature whatsoever (including, without limitation, the fees and disbursements of counsel for such Indemnitees in connection with any investigative, administrative or judicial proceeding, whether or not such Indemnitees shall be designated a party thereto), imposed on, incurred by, or asserted against such Indemnitees in any manner relating to or arisi
ng out of: 

(i)  this Agreement, the other Loan Documents, or any act, event or transaction related or attendant thereto, the making of the Loans, and the issuance of and participation in Letters of Credit hereunder, the management of such Loans or Letters of Credit, the use or intended use of the proceeds of the Loans or Letters of Credit hereunder, or any of the other transactions contemplated by the Loan Documents; or 

(ii)  any liabilities, obligations, responsibilities, losses, damages, personal injury, death, punitive damages, economic damages, consequential damages, treble damages, intentional, willful or wanton injury, damage or threat to the environment, natural resources or public health or welfare, costs and expenses (including, without limitation, attorney, expert and consulting fees and costs of investigation, feasibility or remedial action studies), fines, penalties and monetary sanctions, interest, direct or indirect, known or unknown, absolute or contingent, past, present or future relating to violation of any 
Environmental, Health or Safety Requirements of Law arising from or in connection with the past, present or future operations of the Borrower, its Subsidiaries or any of their respective predecessors in interest, or, the past, present or future environmental, health or safety condition of any respective property of the Borrower or its Subsidiaries, the presence of asbestos-containing materials at any respective property of the Borrower or its Subsidiaries or the Release or threatened Release of any Contaminant into the environment (collectively, the "Indemnified Matters"); 

provided, however, the Borrower shall have no obligation to an Indemnitee hereunder with respect to Indemnified Matters caused by or resulting from the willful misconduct or gross negligence of such Indemnitee with respect to the Loan Documents, as determined by the final non-appealed judgment of a court of competent jurisdiction. If the undertaking to indemnify, pay and hold harmless set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Borrower s
hall contribute the maximum portion which it is permitted to pay and satisfy under applicable law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees. 

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Each Indemnitee, with respect to any action against it in respect of which indemnity may be sought under this Section, shall give written notice of the commencement of such action to the Borrower within a reasonable time after such Indemnitee is made a party to such action. Upon receipt of any such notice by the Borrower, unless such Indemnitee shall be advised by its counsel that there are or may be legal defenses available to such Indemnitee that are different from, in addition to, or in conflict with, the defenses available to the Borrower or any of its Subsidiaries, the Borrower may participate with the Indemnitee in the defense of such Indemnified Matter, including the employment of counsel consented to by such Indemnitee (which consent shall not be unreasonably withheld); provided, however, nothing provided herein shall entitle (a) the Borrower or any of its Subsidiaries to assume the defense of such Indemnified Matter or (b) any Indemnitee to effect any settlement in respect of any indemnified matter without the Borrower’s consent, such consent not to be unreasonably withheld or delayed. 

(C)  Waiver of Certain Claims; Settlement of Claims. The Borrower further agrees to assert no claim against any of the Indemnitees on any theory of liability seeking consequential, special, indirect, exemplary or punitive damages. No settlement of any claim asserted against or likely to be asserted against an Indemnitee shall be entered into by the Borrower or any if its Subsidiaries with respect to any claim, litigation, arbitration or other proceeding relating to or arising out of the t
ransactions evidenced by this Agreement or the other Loan Documents (whether or not the Administrative Agent or any Lender or any other Indemnitee is a party thereto) unless such settlement releases such Indemnitee from any and all liability with respect thereto. 

(D)  Survival of Agreements. The obligations and agreements of the Borrower under this Section 10.7 shall survive the termination of this Agreement. 

10.8  Numbers of Documents. All statements, notices, closing documents, and requests hereunder shall be furnished to the Administrative Agent with sufficient counterparts so that the Administrative Agent may furnish on
e to each of the Lenders. 

10.9  Accounting. Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with Agreement Accounting Princ
iples. If any changes in generally accepted accounting principles are hereafter required or permitted and are adopted by the Borrower or any of its Subsidiaries with the agreement of its independent certified public accountants and such changes result in a change in the method of calculation of any of the financial covenants, tests, restrictions or standards herein or in the related definitions or terms used therein ("Accounting Changes"), the parties hereto agree, at the Borrower’s request, to enter into negotiations, in good faith, in order to amend such provisions in a credit neutral manner so as to reflect equitably such changes with the desired result that the criteria for evaluating the Borrower’s and its Subsidiaries’ financial condition shall be the same after such changes as if such changes had not
 been made; provided, however, until such provisions are amended in a manner reasonably satisfactory to the Administrative Agent and the Required Lenders, no Accounting Change shall be given effect in such calculations and all financial statements and reports required to be delivered hereunder shall be prepared in accordance with Agreement Accounting Principles without taking into account such Accounting Changes. In the event such amendment is entered
 
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into, all references in this Agreement to Agreement Accounting Principles shall mean generally accepted accounting principles as of the date of such amendment. 

10.10  Severability of Provisions. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable. 

10.11   Nonliability of Lenders. The relationship between the Borrower and the Lenders and the Administrative Agent shall be solely that of borrower and lender. Neither the Administrative Agent nor any Lender shall have any fiduciary respo
nsibilities to the Borrower. Neither the Administrative Agent nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower’s business or operations. 

10.12  GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISP
UTE BETWEEN THE BORROWER AND THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS. 

10.13  CONSENT TO JURISDICTION; JURY TRIAL. 

(A)  EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS 
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE. 

(B)   OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER
 
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OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON BUT SHALL ONLY BE PERMITTED TO BRING ANY SUCH PERMISSIVE COUNTERCLAIM IN A PROCEEDING BROUGHT PURSUANT TO CLAUSE (A). THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCA
TION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B). 

(C)   VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUM
ENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE. 

(D)  WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONS
ENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. 

(E)  ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF SECTION 10.7 AND THIS SECTION 10.13
, WITH ITS COUNSEL. 

10.14  Subordination of Intercompany Indebtedness. The Borrower agrees that any and all claims of the Borrower against any of its Subsidiaries that is a Subsidiary Guarantor with respect to any "Intercompany Indebtedne
ss" (as hereinafter defined), any endorser, obligor or any other guarantor of all or any part of the Obligations, or against any of its properties shall be subordinate and subject in right of payment to the prior payment, in full and in cash, of all Obligations and Hedging Obligations under Hedging Agreements; provided that, and not in contravention of the foregoing, so long as no Default has occurred and is continuing the 
 
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Borrower may make loans to and receive payments in the ordinary course with respect to such Intercompany Indebtedness from each such Subsidiary Guarantor to the extent permitted by the terms of this Agreement and the other Loan Documents. Notwithstanding any right of the Borrower to ask, demand, sue for, take or receive any payment from any Subsidiary Guarantor, all rights, liens and security interests of the Borrower, whether now or hereafter arising and howsoever existing, in any assets of any Subsidiary Guarantor shall be and are subordinated to the rights of the Holders of Obligations and the Administrative Agent 
in those assets. The Borrower shall have no right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Obligations (other than contingent indemnity obligations) and the Hedging Obligations under Hedging Agreements shall have been fully paid and satisfied (in cash) and all financing arrangements pursuant to any Loan Document or Hedging Agreement among the Borrower and the Holders of Obligations (or any affiliate thereof) have been terminated. If all or any part of the assets of any Subsidiary Guarantor, or the proceeds thereof, are subject to any distribution, division or application to the creditors of such Subsidiary Guarantor, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrange
ment, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Subsidiary Guarantor is dissolved or if substantially all of the assets of any such Subsidiary Guarantor are sold, then, and in any such event (such events being herein referred to as an "Insolvency Event"), any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any Subsidiary Guarantor to the Borrower ("Intercompany Indebtedness") shall be paid or delivered directly to the Administrative Agent for application on any of the Obligations and Hedging Obligations under the Hedging Agreements, due or to become due, until such Obligations and Hedging Obligations (other than contingent indemnity obligations) shall have first been fully paid and satisfied (in cash). Should any payment, distribution, security or instrument or proceeds thereof be received by the Borrower upon or with respect to the Intercompany Indebtedness after an Insolvency Event prior to the satisfaction of all of the Obligations (other than contingent indemnity obligations) and Hedging Obligations under Hedging Agreements and the termination of all financing arrangements pursuant to any Loan Document or Hedging Agreement among the Borrower and the Holders of Obligations (and their affiliates), the Borrower shall receive and hold the same in trust, as trustee, for the benefit of the Holders of Obligations and shall forthwith deliver the same to the Administrative Agent, for the benefit of such Persons, in precisely the form received (except for the endorsement or assignment of the Borrower where necessary), for application to any of the Obligations and such Hedging Obligations, due or not due, and, until so delivered, the same shal
l be held in trust by the Borrower as the property of the Holders of Obligations. If the Borrower fails to make any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its officers or employees are irrevocably authorized to make the same. The Borrower agrees that until the Obligations (other than the contingent indemnity obligations) and such Hedging Obligations have been paid in full (in cash) and satisfied and all financing arrangements pursuant to any Loan Document or Hedging Agreement among the Borrower and the Holders of Obligations (and their affiliates) have been terminated, the Borrower will not assign or transfer to any Person (other than the Administrative Agent) any claim the Borrower has or may have against any Subsidiary Guarantor. 

ARTICLE XI: THE ADMINISTRATIVE AGENT 

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11.1  Appointment; Nature of Relationship. Bank One, NA, having its principal office in Chicago, Illinois is appointed by the Lenders as the Administrative Agent hereunder and under each other Loan Document, and each o
f the Lenders irrevocably authorizes the Administrative Agent to act as the contractual representative of such Lender with the rights and duties expressly set forth herein and in the other Loan Documents. The Administrative Agent agrees to act as such contractual representative upon the express conditions contained in this Article XI. Notwithstanding the use of the defined term "Administrative Agent," it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Holder of Obligations by reason of this Agreement and that the Administrative Agent is merely acting as the representative of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity as the Lenders’ contractual representative, the Administrative Agent (i) does not assume any fiduciary duties to any of the Holders of Obligations, (ii) is a "representative" of the Holders of Obligations within the meaning of "secured party" as defined in 9-102 of Revised Article 9 of the Uniform Commercial Code of the State of Illinois and (iii) is acting as an independent contractor, the rights and duties of which are limi
ted to those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders, for itself and on behalf of its affiliates as Holders of Obligations, agrees to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary duty, all of which claims each Holder of Obligations waives. 

11.2  Powers. The Administrative Agent shall have and may exercise such powers under the Loan Documents as are specifically delegated to the Administrative Agent by the terms of each thereof, together with such powers 
as are reasonably incidental thereto. The Administrative Agent shall have no implied duties or fiduciary duties to the Lenders, or any obligation to the Lenders to take any action hereunder or under any of the other Loan Documents except any action specifically provided by the Loan Documents required to be taken by the Administrative Agent. 

11.3  General Immunity. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable to the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by
 it or them hereunder or under any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is found in a final judgment by a court of competent jurisdiction to have arisen solely from the gross negligence or willful misconduct of such Person. 

11.4  No Responsibility for Loans, Creditworthiness, Recitals, Etc. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (i) any statement, warranty or representation made in connection with any Loan Document or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of any obligor under any Loan Document; (iii) the satisfaction of any condition specified in Article V, except receipt of items required to be delivered solely to the Administrative Agent; (iv) the existence or possible existence of any Default or (v) the validity, effectiveness or genuineness of any Loan Document or any other instrument or writing furnished in connection therewith. The Administrative Agent shall not be responsibl
e to any Lender for any recitals, statements, representations or warranties herein or in any of the other Loan Documents, for the perfection or priority of the Liens on
 
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collateral, if any, or for the execution, effectiveness, genuineness, validity, legality, enforceability, collectibility, or sufficiency of this Agreement or any of the other Loan Documents or the transactions contemplated thereby, or for the financial condition of any guarantor of any or all of the Obligations, the Borrower or any of its Subsidiaries. 

11.5  Action on Instructions of Lenders. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder and under any other Loan Document in accordance with written in
structions signed by the Required Lenders (or all of the Lenders in the event that and to the extent that this Agreement expressly requires such), and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders and on all owners of Loans and on all Holders of Obligations. The Administrative Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action. 

11.6  Employment of Administrative Agents and Counsel. The Administrative Agent may execute any of its duties as the Administrative Agent hereunder and under any other Loan Document by or through employees, agents, and
 attorney-in-fact and shall not be answerable to the Lenders, except as to money or securities received by it or its authorized agents, for the default or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall be entitled to advice of counsel concerning the contractual arrangement between the Administrative Agent and the Lenders and all matters pertaining to the Administrative Agent’s duties hereunder and under any other Loan Document. 

11.7  Reliance on Documents; Counsel. The Administrative Agent shall be entitled to rely upon any notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it to be genuine and
 correct and to have been signed or sent by the proper person or persons, and, in respect to legal matters, upon the opinion of counsel selected by the Administrative Agent, which counsel may be employees of the Administrative Agent. 

11.8  The Administrative Agent’s Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify the Administrative Agent ratably in proportion to their respective Pro Rata Shares (i) for any amoun
ts not reimbursed by the Borrower for which the Administrative Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any other expenses incurred by the Administrative Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the Loan Documents and (iii) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents or any other document delivered in connection therewith or the transactions contemplated thereby, or the enforcement of any of the terms thereof or of any such other documents, <
FONT style="DISPLAY: inline; FONT-SIZE: 10pt; FONT-FAMILY: ms sans serif; TEXT-DECORATION: underline">provided that no Lender shall be liable for any of the foregoing to the extent any of the foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to have arisen solely from the gross negligence or willful misconduct of the Administrative Agent. 

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11.9  Rights as a Lender. With respect to its Revolving Loan Commitment, Loans made by it, and Letters of Credit issued by it, the Administrative Agent shall have the same rights and powers hereunder and under any othe
r Loan Document as any Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and the term "Lender" or "Lenders" or "Issuing Bank" or "Issuing Banks" shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. The Administrative Agent may accept deposits from, lend money to, and generally engage in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan Document, with the Borrower or any of its Subsidiaries in which such Person is not prohibited hereby from engaging with any other P
erson. 

11.10  Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent, the Arrangers or any other Lender and based on the financial statements prepared by
 the Borrower and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arrangers or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents. 

11.11  Successor Administrative Agent. The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the ri
ght to appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty days after the retiring Administrative Agent’s giving notice of resignation, then the retiring Administrative Agent may appoint, on behalf of the Borrower and the Lenders, a successor Administrative Agent. Notwithstanding anything herein to the contrary, so long as no Default has occurred and is continuing, each such successor Administrative Agent shall be subject to approval by the Borrower, which approval shall not be unreasonably withheld or delayed. Such successor Administrative Agent shall be a commercial bank having capital and retained earnings of at least $500,000,000. Upon th
e acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article XI shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent hereunder and under the other Loa
n Documents. 

11.12  No Duties Imposed Upon Syndication Agent, Documentation Agent or Arrangers. None of the Persons identified on the cover page to this Agreement, the signature pages to this Agreement or otherwise in this Agreemen
t as a "Syndication Agent, " "Documentation Agent" or "Arranger" shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than if such Person is a Lender, those applicable to all Lenders as such.
 
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Without limiting the foregoing, none of the Persons identified on the cover page to this Agreement, the signature pages to this Agreement or otherwise in this Agreement as a "Syndication Agent," "Documentation Agent" or "Arranger" shall have or be deemed to have any fiduciary duty to or fiduciary relationship with any Lender. In addition to the agreement set forth in Section 11.10, each of the Lenders acknowledges that it has not relied, and will not rely, on any of the Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder. 

ARTICLE XII: SETOFF; RATABLE PAYMENTS 

12.1  Setoff. In addition to, and without limitation of, any rights of the Lenders under applicable law, if any Default occurs and is continuing, any indebtedness from any Lender to the Borrower (including all account 
balances, whether provisional or final and whether or not collected or available) may be offset and applied toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part hereof, shall then be due. 

12.2  Ratable Payments. If any Lender, whether by setoff or otherwise, has payment made to it upon its Loans (other than payments received pursuant to Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Loans held by the other Lenders so that after such purchase each Lender will hold its ratable proportion of Loans. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligation or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in proportion to the obligations owing to them. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made. 

12.3  Application of Payments. Subject to the provisions of Section 9.2, the Administrative Agent shall, unless otherwise specified at the direction of the Required Lenders which direction shall be consistent with the last sentence of this Section 12.3, apply all payments and prepayments in respect of any Obligations received after the occurrence and during the continuance of a Default or Unmatured Default in the following order: 

(A)  first, to pay interest on and then principal of any portion of the Loans which the Administrative Agent may have advanced on behalf of any Lender for which the Administrative Agent has not then been reimbursed by such Lender or the Borrower; 

(B)  second, to pay interest on and then principal of any advance made under Section 10.3 for which the Administrative Agent has not then been paid by the Borrower or reimbursed by the Lenders; 

(C)  third, to pay Obligations in respect of any fees, expenses, reimbursements or indemnities then due to the Administrative Agent; 

(D)  fourth, to pay Obligations in respect of any fees, expenses, reimbursements or indemnities then due to the Lenders and the issuer(s) of Letters of Credit; 

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(E)  fifth, to pay interest due in respect of Swing Line Loans; 

(F)  sixth, to pay interest due in respect of Loans (other than Swing Line Loans) and L/C Obligations; 

(G)  seventh, to the ratable payment or prepayment of principal outstanding on Swing Line Loans; 

(H)  eighth, to the ratable payment or prepayment of principal outstanding on Loans (other than Swing Line Loans), Reimbursement Obligations and Hedging Obligations under Hedging Agreements in such order as the Administrative Agent may determine in its sole discretion; 

(I)  ninth, to provide required cash collateral, if required pursuant to Section 3.11; and 

(J)  tenth, to the ratable payment of all other Obligations. 

Unless otherwise designated (which designation shall only be applicable prior to the occurrence of a Default) by the Borrower, all principal payments in respect of Loans (other than Swing Line Loans) shall be applied to the outstanding Revolving Loans first, to repay outstanding Floating Rate Loans, and then to repay outstanding Eurodollar Rate Loans with those Eurodollar Rate Loans which have earlier expiring Interest Periods being repaid prior to those which have later expiring Interest Periods. The order of priority set forth in this Section 12.3 and the related provisions of this Agreement are set forth solely to determine the rights and priorities of the Administrative Agent, the Lenders, the Swing Line Bank and the issuer(s) of Letters of Credit as among themselves. The order of priority set forth in clauses (D) through (J) of this Section 12.3 may at any tim
e and from time to time be changed by the Required Lenders without necessity of notice to or consent of or approval by the Borrower, or any other Person; provided, that the order of priority of payments in respect of Swing Line Loans may be changed only with the prior written consent of the Swing Line Bank. The order of priority set forth in clauses (A) through (C) of this Section 12.3 may be changed only with the prior written consent of the Administrative Agent. 

12.4  Relations Among Lenders. 

(A)  Except with respect to the exercise of set-off rights of any Lender in accordance with Section 12.1, the proceeds of which are applied in accordance with this Agreement, and except as set forth in the following sentence, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or any other obligor hereunder or with respect to any Loan Document, 
without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, at the direction of the Administrative Agent. 

(B)  The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Administrative Agent) authorized to act for, any other Lender. The Administrative Agent shall have the exclusive right on behalf of the Lenders, at the direction of the Required Lenders, to enforce on the payment
 
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of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement. 

12.5  Representations and Covenants Among Lenders. Each Lender represents and covenants for the benefit of all other Lenders and the Administrative Agent that such Lender is not satisfying and shall not satisfy any of 
its obligations pursuant to this Agreement with any assets considered for any purposes of ERISA or Section 4975 of the Code to be assets of or on behalf of any "plan" as defined in section 3(3) of ERISA or section 4975 of the Code, regardless of whether subject to ERISA or Section 4975 of the Code. 

ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 

13.1  Successors and Assigns. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borro
wer and the Lenders and their respective successors and assigns permitted hereby, except that (i) the Borrower shall not have the right to assign its rights or obligations under the Loan Documents without the prior written consent of each Lender, (ii) any assignment by any Lender must be made in compliance with Section 13.3, and (iii) any transfer by participation must be made in compliance with Section 13.2. Any attempted assignment or transfer by any party not made in compliance with this Section 13.1 shall be null and void, unless such attempted assignment or transfer is treated as a participation in accordance with Section 13.3(C). The parties to this Agreement acknowledge that clause (ii) of this Section 13.1 relates only to absolute assignments and this Section 13.1 does not prohibit assignments creating security interests, including, without limitation, (x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any promissory note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or assignment of all or any portion of its rights under this Agreement and any note to its trustee in support of its obligations to its trustee; provided, however, that no such pledge or assignment creating a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 13.3. The Administrative Agent may treat the Person which made any Loan or which holds any note as the owner thereof for all purpose
s hereof unless and until such Person complies with Section 13.3; provided, however, that the Administrative Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds any 
note to direct payments relating to such Loan or note to another Person. Any assignee of the rights to any Loan or any note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan. 

13.2  Participations. 

(A)  Permitted Participants; Effect. Subject to the terms set forth in this Section 13.2, any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Revolving Loan Commitment of such Lender, any L/C Interest of such Lender or any other interest of such Lender under the Loan Documents on a pro rata or
 
83
 
non-pro rata basis. Notice of such participation to the Borrower and the Administrative Agent shall be required prior to any participation becoming effective with respect to a Participant which is not a Lender or an Affiliate thereof. In the event of any such sale by a Lender of participating interests to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the owner of all Loans made by it for all purposes under the Loan Documents, all amounts payable by the Borrower under this Agreement shall be determined as if such Lender had not sold such participating interests, and the Borrower and the Administrative Agent shall continu
e to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under the Loan Documents except that, for purposes of Article IV hereof, the Participants shall be entitled to the same rights as if they were Lenders. 

(B)  Voting Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification or waiver of any provision of the Loan Documents other than any amendment, modification or waiver with respect to any Loan, Letter of Credit or Revolving Loan Commitment in which
 such Participant has an interest which forgives principal, interest or fees or reduces the interest rate or fees payable pursuant to the terms of this Agreement with respect to any such Loan or Revolving Loan Commitment, postpones any date fixed for any regularly-scheduled payment of principal of, or interest or fees on, any such Loan or Revolving Loan Commitment, releases any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, or releases all or substantially all of the collateral, if any, securing any such Loan or Letter of Credit. 

(C)  Benefit of Setoff. The Borrower agrees that each Participant shall be deemed to have the right of setoff provided in Section 12.1 hereof in respect to its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall retain the right of setoff provided in Section 12.1 hereof with respect to the amount of participating interests sold to each Participant except to the extent such Participant exercises its right of setoff. The Lenders agree to share with each Participant, and each Participant, by exercising the right of setoff provided in Section 12.1 hereof, agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared in accordance with Section 12.2 as if each Participant were a Lender. 

13.3  Assignments. 

(A)  Permitted Assignments. Any Lender may at any time assign to one or more banks or other entities ("Purchasers") all or any part of its rights and obligations under the Loan Documents. Such assignment shall be evidenced by an Assignment Agreement. Each such assignment with respect to a Purchaser which is not a Lender or an Affiliate of a Lender or an Approved Fund shall either (i) be in an amount equal to the entire applicable Revolving Loan Commitment and participation interests or obligations to purchase participations in existing or future Letters of Credit and Swingline Loans (or, if the Aggregate Revolving Loan Commitment has terminated, Loans and L/C Obligations) or (ii) unless each of the Administrative Agent and, if no Default has occurred and is continuing, the Borrower, otherwise consents, be in an aggregate amount not less than $5,000,000. The amount of the assignment shall be based on the
 
84
 
Revolving Loan Commitment and participation interests or obligations to purchase participations in existing or future Letters of Credit and Swingline Loans (or, if the Aggregate Revolving Loan Commitment has terminated, Loans and L/C Obligations) subject to the assignment, determined as of the date of such assignment or as of the "Trade Date," if the "Trade Date" is specified in the Assignment Agreement. 

(B)  Consents. The consent of the Borrower shall be required prior to an assignment becoming effective unless the Purchaser is a Lender, an Affiliate of a Lender or an Approved Fund, provided that the consent of the Borrower shall not be required if a Default has occurred and is continuing. The conse
nt of the Administrative Agent shall be required prior to an assignment becoming effective unless the Purchaser is a Lender, an Affiliate of a Lender or an Approved Fund. Any consent required under this Section 13.3(B) shall not be unreasonably withheld or delayed. 

(C)  Effect; Effective Date. Upon (i) delivery to the Administrative Agent of an Assignment Agreement, together with any consents required by Sections 13.3(A) and (B), and (ii) payment of a $3,500 fee to the Administrative Agent for processing such assignment (unless such fee is waived by the Administrative Agent or unless such assignment is made to the assigning Lender’s Affiliate or successor by merger or consolidation), such assignment shall become effective on the effective date specified in such Assignment Agreement. The Assignment Agreement shall contain a representation and warranty by the Purchaser to the effect that none of the consideration used to make the purchase of the Revolving Loan Commitment and participation interests or obligations to purchase participations in existing or future Letters of Credit and Swingline Loans (or, if the Aggregate Revolving Loan Commitment has terminated, Loans and L/C Obligations) under the applicable Assignment Agreement constitutes "plan assets" as defined under ERISA and that the rights and interests of the Purchaser in and under the Loan Documents will not be "p
lan assets" under ERISA. On and after the effective date of such assignment, such Purchaser shall for all purposes be a Lender party to this Agreement and any other Loan Document executed by or on behalf of the Lenders and shall have all the rights, benefits and obligations of a Lender under the Loan Documents, to the same extent as if it were an original party thereto, and the transferor Lender shall be released with respect to the Revolving Loan Commitment and participation interests or obligations to purchase participations in existing or future Letters of Credit and Swingline Loans (or, if the Aggregate Revolving Loan Commitment has terminated, Loans and L/C Obligations) assigned to such Purchaser without any further consent or action by the Borrower, the Lenders or the Administrative Agent. In the case of an assignment covering all of the assigning Lender’s rights, benefits and obligations under this Agreement, such Lender shall cease to be a Lender hereunder but shall continue to be entitled to th
e benefits of, and subject to, those provisions of this Agreement and the other Loan Documents which survive payment of the Obligations and termination of the applicable agreement. Any assignment or transfer by a Lender of rights, benefits or obligations under this Agreement that does not comply with this Section 13.3 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights, benefits and obligations in accordance with Section 13.2. Upon the consummation of any assignment to a Purchaser pursuant to this Section 13.3(C), the transferor Lender, the Administrative Agent and the Borrower shall, if the transferor Lender or the Purchaser desires that its Revolving Loans be evidenced by promissory notes, make appropriate arrangements so that new notes or, as
 
85
 
appropriate, replacement notes are issued to such transferor Lender and new notes or, as appropriate, replacement notes, are issued to such Purchaser, in each case in principal amounts reflecting their respective Revolving Loan Commitments (or, if the Aggregate Revolving Loan Commitment has terminated, their respective Loans), as adjusted pursuant to such assignment. 

(D)  The Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and the Borrower hereby designates the Administrative Agent to act in such capacity), shall maintain at one of its offices in Chicago, Illinois a copy of each Assignment Agreement delivered to it and a register (the "Register") for the recordation of the names and addresses of the Lenders, and the Revolving Loan Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time and whether such Lender is an original Lender or the assignee of another Lender pursuant to an Assignment Agreement under this Section 13.3. The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior
 notice 

13.4  Confidentiality. 

(a)  Subject to Section 13.5, the Administrative Agent and the Lenders and their respective representatives shall hold all nonpublic information obtained pursuant to the requirements of this Agreement and identified as such by the Borrower in accordance with such Person’s customary procedures for handling confidential information of this nature and in accordance with safe and sound commercial lending or
 investment practices and in any event may make disclosure reasonably required by a prospective Transferee in connection with the contemplated participation or assignment or as required or requested by any Governmental Authority or any securities exchange or similar self-regulatory organization or representative thereof or pursuant to a regulatory examination or legal process, or to any direct or indirect contractual counterparty in swap agreements or such contractual counterparty’s professional advisor, and shall require any such Transferee to agree (and require any of its Transferees to agree) to comply with this Section 13.4. In no event shall the Administrative Agent or any Lender be obligated or required to return any materials furnished by the Borrower; provided, however, each prospective Transferee shall be required to agree that if it does not become a participant or assignee it shall return all materials furnished to it by or on behalf of the Borrower in connection with this Agreement. 

(b)  Notwithstanding anything herein to the contrary, confidential information shall not include, and each Lender (and each employee, representative or other agent of any Lender) may disclose to any and all Persons, without limitation of any kind, the "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are or have been provided to such Lender relating to such tax treatment or tax structure; provided that (i) this authorization is not intended to permit disclosure of any other information to the extent not related to such tax treatment or tax structure and (ii) with respect to any document or similar item that in either case contains information concerning such tax treatment or tax structure of the transactions contemplated hereby as well as other information,
 
86
 
this sentence shall only apply to such portions of the document or similar item that relate to such tax treatment or tax structure. 

13.5  Dissemination of Information. The Borrower authorizes each Lender to disclose to any Participant or Purchaser or any other Person acquiring an interest in the Loan Documents by operation of law (each a "Transferee") and any prospective Transferee any and all information in such Lender’s possession concerning the Borrower and its Subsidiaries; provided that prior to any such disclosure, such prospective Transferee shall agree to preserve in accordance with Section 13.4 the confidentiality of any confidential information described therein. 

13.6  Tax Treatment. If any interest in any Loan Document is transferred to any Transferee which is not
 incorporated under the laws of the United States or any State thereof, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to comply with the provisions of Section 4.5(iv). 

ARTICLE XIV: NOTICES 

14.1  Giving Notice. Except as otherwise permitted by Section 2.13 with respect to Borrowing/Election Notices, all notices and other communications provided to any party hereto under this Agreement or any other Loan Documents shall be in writing or by telex or by facsimile and addressed or delivered to such party at its address set forth below its signature hereto or at such other address as may be designated by such party in a notice to the other parties. Any notice, if mailed and properly addressed with postage prepaid, shall be deemed given three (3) Business Days after mailed; any notice, if transmitted by telex or facsimile, shall be deemed given when transmitted (answerback confirmed in the case of telexes); or, any notice, if transmitted by courier, one (1) Business Day after deposit with a reputable overnight carrier services, with all char
ges paid. 

14.2  Change of Address. The Borrower, the Administrative Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto. 

ARTICLE XV: COUNTERPARTS 

This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be effective when it has been executed by the Borrower, the Administrative Agent and the Lenders and each party has notified the Administrative Agent by telex or telephone, that it has taken such action. 

[ Remainder of This Page Intentionally Blank ] 

87
 
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have executed this Agreement as of the date first above written. 

[ SIGNATURE PAGES TO BE POSTED SEPARATELY ] 

88

EX-10.(VIII) 9 ex10-viii.htm EXHIBIT 10.(VIII) Ex10.(vii)

Exhibit 10(viii)

CONFORMED COPY 

ENERGIZER HOLDINGS, INC. 

$700,000,000 

Senior Notes 

$15,000,000 2.31% Senior Notes, Series A, Tranche 1, due June 30, 2006 

$10,000,000 2.72% Senior Notes, Series A, Tranche 2, due June 30, 2007 

$35,000,000 3.12% Senior Notes, Series A, Tranche 3, due June 30, 2008 

$20,000,000 3.40% Senior Notes, Series A, Tranche 4, due June 30, 2009 

$45,000,000 3.63% Senior Notes, Series A, Tranche 5, due June 30, 2010 

$25,000,000 3.86% Senior Notes, Series A, Tranche 6, due June 30, 2011 

$100,000,000 4.10% Senior Notes, Series A, Tranche 7, due June 30, 2012 

$125,000,000 4.25% Senior Notes, Series A, Tranche 8, due June 30, 2013 

$50,000,000 Floating Rate Senior Notes, Series B, Tranche 1, due June 30, 2008 

$115,000,000 Floating Rate Senior Notes, Series B, Tranche 2, due June 30, 2010 

$160,000,000 Floating Rate Senior Notes, Series B, Tranche 3, due June 30, 2013 

_________ 

NOTE PURCHASE AGREEMENT 

_________ 

Dated as of June 1, 2003 

Series A, Tranche 1 PPN: 29266R B@ 6 

Series A, Tranche 2 PPN: 29266R B# 4 

Series A, Tranche 3 PPN: 29266R C* 7 

Series A, Tranche 4 PPN: 29266R C@ 5 

Series A, Tranche 5 PPN: 29266R C# 3 

Series A, Tranche 6 PPN: 29266R D* 6 

Series A, Tranche 7 PPN: 29266R D@ 4 

Series A, Tranche 8 PPN: 29266R D# 2 

Series B, Tranche 1 PPN: 29266R E* 5 

Series B, Tranche 2 PPN: 29266R E@ 3 

Series B, Tranche 3 PPN: 29266R E# 1 

TABLE OF CONTENTS 

Section			Page

1.	AUTHORIZATION OF NOTES		1
	1.1.	The Notes	1
	1.2.	Floating Interest Rate Provisions for Series B Notes	2

2.	SALE AND PURCHASE OF NOTES.		3

3.	CLOSING		4

4.	CONDITIONS TO CLOSING		4
	4.1.	Representations and Warranties	4
	4.2.	Performance; No Default	4
	4.3.	Compliance Certificates	5
	4.4.	Opinions of Counsel	5
	4.5.	Purchase Permitted By Applicable Law, etc	5
	4.6.	Sale of Other Notes	5
	4.7.	Payment of Special Counsel Fees	5
	4.8.	Private Placement Numbers	6
	4.9.	Changes in Corporate Structure	6
	4.10.	Subsidiary Guaranty	6
	4.11.	Proceedings and Documents.	6

5.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY		6
	5.1.	Organization; Power and Authority	6
	5.2.	Authorization, etc	7
	5.3.	Disclosure	7
	5.4.	Organization and Ownership of Shares of Subsidiaries	7
	5.5.	Financial Statements	8
	5.6.	Compliance with Laws, Other Instruments, etc	8
	5.7.	Governmental Authorizations, etc.	9
	5.8.	Litigation; Observance of Statutes and Orders	9
	5.9.	Taxes	9
	5.10.	Title to Property; Leases	9
	5.11.	Licenses, Permits, etc	10
	5.12.	Compliance with ERISA	10
	5.13.	Private Offering by the Company	11
	5.14.	Use of Proceeds; Margin Regulations	11
	5.15.	Existing Indebtedness	11
	5.16.	Foreign Assets Control Regulations, Anti-Terrorism Order, etc	12
	5.17.	Status under Certain Statutes	12
	5.18.	Solvency of Subsidiary Guarantors	12
	5.19.	Environmental Matters	12


	i

6.	REPRESENTATIONS OF THE PURCHASERS.		13
	6.1.	Purchase for Investment	13
	6.2.	Source of Funds	13

7.	INFORMATION AS TO COMPANY		15
	7.1.	Financial and Business Information	15
	7.2.	Officer’s Certificate	17
	7.3.	Inspection	18

8.	PREPAYMENT OF THE NOTES.		19
	8.1.	No Scheduled Prepayments	19
	8.2.	Optional Prepayments of Series A Notes with Make-Whole Amount	19
	8.3.	Optional Prepayments of Series B Notes	19
	8.4.	Allocation of Partial Prepayments	19
	8.5.	Maturity; Surrender, etc	20
	8.6.	Purchase of Notes	20
	8.7.	Make-Whole Amount	20
	8.8.	LIBOR Breakage Amount	22
9.	AFFIRMATIVE COVENANTS		22

	9.1.	Compliance with Law	22
	9.2.	Insurance	23
	9.3.	Maintenance of Properties	23
	9.4.	Payment of Taxes and Claims	23
	9.5.	Corporate Existence, etc	23

10.	NEGATIVE COVENANTS		24
	10.1.	Consolidated Indebtedness; Indebtedness of Restricted Subsidiaries.	24
	10.2.	Liens.	24
	10.3.	Sale of Assets.	26
	10.4.	Mergers, Consolidations, etc.	26
	10.5.	Disposition of Stock of Restricted Subsidiaries.	27
	10.6.	Designation of Restricted and Unrestricted Subsidiaries.	27
	10.7.	Restricted Subsidiary Guaranties	28
	10.8.	Nature of Business.	28
	10.9.	Transactions with Affiliates	28

11.	EVENTS OF DEFAULT		28

12.	REMEDIES ON DEFAULT, ETC		31
	12.1.	Acceleration	31
	12.2.	Other Remedies	31
	12.3.	Rescission	32
	12.4.	No Waivers or Election of Remedies, Expenses, etc	32


	ii

13.	REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES		32
	13.1.	Registration of Notes	32
	13.2.	Transfer and Exchange of Notes	33
	13.3.	Replacement of Notes	33

14.	PAYMENTS ON NOTES.		34
	14.1.	Place of Payment	34
	14.2.	Home Office Payment	34

15.	EXPENSES, ETC		34
	15.1.	Transaction Expenses	34
	15.2.	Survival	35

16.	SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT		35

17.	AMENDMENT AND WAIVER		35
	17.1.	Requirements	35
	17.2.	Solicitation of Holders of Notes	36
	17.3.	Binding Effect, etc	36
	17.4.	Notes held by Company, etc	37

18.	NOTICES		37

19.	REPRODUCTION OF DOCUMENTS		37

20.	CONFIDENTIAL INFORMATION		38

21.	SUBSTITUTION OF PURCHASER		39

22.	RELEASE OF SUBSIDIARY GUARANTOR		39

23.	MISCELLANEOUS		40
	23.1.	Successors and Assigns	40
	23.2.	Payments Due on Non-Business Days	40
	23.3.	Severability	40
	23.4.	Construction	40
	23.5.	Counterparts	40
	23.6.	Governing Law	40


	iii

SCHEDULE A	--	Information Relating to Purchasers
SCHEDULE B	--	Defined Terms
SCHEDULE B-1	--	Investments
SCHEDULE 4.9	--	Changes in Corporate Structure
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
SCHEDULE 10.2	--	Liens

EXHIBIT 1.1(a)	--	Form of Series A, Tranche 1, Note
EXHIBIT 1.1(b)	--	Form of Series A, Tranche 2, Note
EXHIBIT 1.1(c)	--	Form of Series A, Tranche 3, Note
EXHIBIT 1.1(d)	--	Form of Series A, Tranche 4, Note
EXHIBIT 1.1(e)	--	Form of Series A, Tranche 5, Note
EXHIBIT 1.1(f)	--	Form of Series A, Tranche 6, Note
EXHIBIT 1.1(g)	--	Form of Series A, Tranche 7, Note
EXHIBIT 1.1(h)	--	Form of Series A, Tranche 8, Note
EXHIBIT 1.1(i)	--	Form of Series B, Tranche 1, Note
EXHIBIT 1.1(j)	--	Form of Series B, Tranche 2, Note
EXHIBIT 1.1(k)	--	Form of Series B, Tranche 3, Note
EXHIBIT 1.1(l)	--	Form of Subsidiary Guaranty
EXHIBIT 4.4(a)	--	Form of Opinion of Counsel for the Company and the Subsidiary Guarantors
EXHIBIT 4.4(b)	--	Form of Opinion of Special Counsel for the Purchasers


	iv

ENERGIZER HOLDINGS, INC. 

800 Chouteau Avenue 

St. Louis, MO 63102 

(314) 982-2970 

Fax: (314) 982-1334 

$700,000,000 

Senior Notes 

$15,000,000 2.31% Senior Notes, Series A, Tranche 1, due June 30, 2006 

$10,000,000 2.72% Senior Notes, Series A, Tranche 2, due June 30, 2007 

$35,000,000 3.12% Senior Notes, Series A, Tranche 3, due June 30, 2008 

$20,000,000 3.40% Senior Notes, Series A, Tranche 4, due June 30, 2009 

$45,000,000 3.63% Senior Notes, Series A, Tranche 5, due June 30, 2010 

$25,000,000 3.86% Senior Notes, Series A, Tranche 6, due June 30, 2011 

$100,000,000 4.10% Senior Notes, Series A, Tranche 7, due June 30, 2012 

$125,000,000 4.25% Senior Notes, Series A, Tranche 8, due June 30, 2013 

$50,000,000 Floating Rate Senior Notes, Series B, Tranche 1, due June 30, 2008 

$115,000,000 Floating Rate Senior Notes, Series B, Tranche 2, due June 30, 2010 

$160,000,000 Floating Rate Senior Notes, Series B, Tranche 3, due June 30, 2013 

Dated as of June 1, 2003 

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. 

1.1.    The Notes. 

The Company has authorized the issue and sale of $700,000,000 aggregate principal amount of its Senior Notes consisting of: (i) $15,000,000 aggregate principal amount of 2.31% Senior Notes, Series A, Tranche 1, due June 30, 2006 (the "Series A, Tranche 1, Notes"); (ii) $10,000,000 aggregate principal amount of 2.72% Senior Notes, Series A, Tranche 2, due June 30, 2007 (the "Series A, Tranche 2, Notes"); (iii) $35,000,000 aggregate principal amount of 3.12% Senior Notes, Series A, Tranche 3, due June 30, 2008 (the "Series A, Tranche 3, Notes"); (iv) $20,000,000 aggregate principal amount of 3.40% Senior Notes, Series A, Tranche 4, due June 30, 2009 (the "Series A, Tranche 4, Notes"); (v) $45,000,000 aggregate principal amount of 3.63% Senior Notes, Series A, Tranche 5, due June 30, 2010 (the "Series A, 

Tranche 5, Notes"); (vi) $25,000,000 aggregate principal amount of 3.86% Senior Notes, Series A, Tranche 6, due June 30, 2011 (the "Series A, Tranche 6, Notes"); (vii) $100,000,000 aggregate principal amount of 4.10% Senior Notes, Series A, Tranche 7, due June 30, 2012 (the "Series A, Tranche 7 Notes"); (viii) $125,000,000 aggregate principal amount of 4.25% Senior Notes, Series A, Tranche 8, due June 30, 2013 (the "Series A, Tranche 8 Notes" and, collectively with the Series A, Tranche 1, Tranche 2, Tranche 3, Tranche 4, Tranche 5, Tranche 6 and Tranche 7 Notes, the "Series A Notes"); (ix) $50,000,000 aggregate principal amount of Floating Rate Senior Notes, Series B, Tranche 1, due June 30, 2008 (the "Series B, Tranche 1, Notes"); (x) $115,000,000 aggregate principal amount of Floati
ng Rate Senior Notes, Series B, Tranche 2, due June 30, 2010 (the "Series B, Tranche 2, Notes"); $160,000,000 aggregate principal amount of Floating Rate Senior Notes, Series B, Tranche 3, due June 30, 2013 (the "Series B, Tranche 2, Notes" and, collectively with the Series B, Tranche 1 and Tranche 2 Notes, the "Series B Notes"). The Series A Notes and Series B Notes are collectively referred to as the "Notes," such term to include any such Notes issued in substitution therefor pursuant to Section 13 of this Agreement, and will be substantially in the forms set out in Exhibits 1(a) through 1(k), with such changes therefrom, if any, as may be approved by the purchasers of such Notes, or series or tranche 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 in substantially the form of Exhibit 1(l) (the "Subsidiary Guaranty"). 

1.2.    Floating Interest Rate Provisions for Series B Notes. 

(a)    Adjusted LIBOR Rate . "Adjusted LIBOR Rate" means, for each Interest Period, the rate per annum equal to LIBOR for such Interest Period plus the percentage applicable to each tranche of Series B Notes as specified below. 

Series B Notes	Applicable Percentage

Tranche 1	0.65%
Tranche 2	0.70%
Tranche 3	0.75%

For purposes of determining Adjusted LIBOR Rate, the following terms have the following meanings: 

"LIBOR" means, for any Interest Period, the rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in U.S. Dollars for a 3-month period that appears on the Bloomberg Financial Markets Service Page BBAM-1 (or if such page is not available, the Reuters Screen LIBO Page) as of 11:00 a.m. (London, England time) on the date two Business Days before the commencement of such Interest Period (or three Business Days before the commencement of the first Interest Period). 


	2

"Reuters Screen LIBO Page" means the display designated as the "LIBO" page on the Reuters Monitory Money Rates Service (or such other page as may replace the LIBO page on that service or such other service as may be nominated by the British Bankers’ Association as the information vendor for the purpose of displaying British Bankers’ Association Interest Settlement Rates for U.S. Dollar deposits). 

(b)    Determination of the Adjusted LIBOR Rate . The Adjusted LIBOR Rate shall be determined by the Company, and notice thereof shall be given to the holders of the tranche of Series B Notes affected, within two Business Days after the beginning of each Interest Period, together with (i) a copy of the relevant screen used for the determination of LIBOR, (ii) a calculation of the Adjusted LIBOR Rate for such Interest Period, (iii) the number of days in such Interest Period, (iv) the date on which interest for such Interest Peri
od will be paid and (v) the amount of interest to be paid to each holder of affected Notes on such date. If the holders of a majority in principal amount of the tranche of Series B Notes affected do not concur with such determination by the Company, as evidenced by a single written notice delivered to the Company within 10 Business Days after receipt by such holders of the notice delivered by the Company pursuant to the immediately preceding sentence, the determination of the Adjusted LIBOR Rate shall be made by such holders of the Notes, and any such determination made in accordance with the provisions of this Agreement shall be conclusive and binding absent manifest error. 

(c)    Interest Period . "Interest Period" means, for any tranche of Series B Notes and for any period for which interest is to be calculated or paid, the period commencing on the Interest Payment Date on the Series B Notes and continuing up to, but not including, the next March 31, June 30, September 30 or December 31, as the case may be; pro
vided, however, that the first Interest Period shall commence on the date of Closing and continue up to, but not include, September 30, 2003. 

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 tranche and in the principal amount specified opposite your names 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. 


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3.    CLOSING. 

The sale and purchase of the Notes to be purchased by you and the Other Purchasers shall occur at the offices of Gardner Carton & Douglas LLC, 191 North Wacker Drive, Suite 3700, Chicago, Illinois 60606-1698, at 9:00 a.m., Chicago time, at a closing (the "Closing") on June 26, 2003 or on such other Business Day thereafter on or prior to June 30, 2003 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 $500,000 as you may request) dated the date of the Closing and registered in your name (or in the name of your no
minee), 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. 121000358. 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. 


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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 Gardner Carton & Douglas LLC, 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, without limitation, 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 r
equested 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 Gardner Carton & Douglas LLC for each tranche of the Notes. 


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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. 

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 No
tes and to perform the provisions hereof and thereof. 

5.2.    Authorization, etc. 

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). 


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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). 

5.3.    Disclosure. 

The Company, through its agents, Banc of America Securities LLC and Banc One Capital Markets, Inc., has delivered to you and each Other Purchaser a copy of a Private Placement Memorandum, dated May 2003 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, 2002, 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. 


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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 t
he 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. 


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5.8.    Litigation; Observance of Statutes and Orders. 

(a)    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. 

(b)    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. 

5.9.    Taxes. 

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 liabilitie
s 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, 1992. 

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. 


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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 th
e 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. 


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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 34 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 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 mo
re 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 March 31, 2003 (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. 


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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 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 Public Utility Holding Company Act of 1935, 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; 


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(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. 

6.2.    Source of Funds. 

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 


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(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 th
e 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. 


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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, 


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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 Subsidiari
es 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: 


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(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. 


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7.3.    Inspection. 

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 a
ccounts 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 of Series A Notes 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 Series A Notes, 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 to be prepaid on s
uch date, the principal amount of each Note 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 a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date. 


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8.3.    Optional Prepayments of Series B Notes. 

The Series B Notes are not subject to prepayment prior to June 30, 2005. The Company may on or after June 30, 2005, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, any tranche of the Series B Notes, 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 and if such prepayment is to occur on any date other than an Interest Payment Date, the LIBOR Breakage Amount, if any. The Company will give each holder of the tranche or tranches of Series B Notes to be prepaid written notice of each optional prepayment under this Section 8.3 not less than 30 days and not more than 60 d
ays prior to the date fixed for such prepayment. Each such notice shall specify such date, the aggregate principal amount of the tranche of Series B Notes to be prepaid on such date, the principal amount of each Series B Note 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. 

8.4.    Allocation of Partial Prepayments. 

In the case of each partial prepayment of the Series A Notes, the principal amount of the Series A Notes to be prepaid shall be allocated among all of the Series A Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment. In the case of each partial prepayment of a tranche of Series B Notes, the principal amount of the Notes of such tranche to be prepaid shall be allocated among all of the Notes of such tranche at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment. 

8.5.    Maturity; Surrender, etc. 

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, and LIBOR Breakage 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, and LIBOR Breakage 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. 


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8.6.    Purchase of Notes. 

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 except (a) upon the payment or prepayment of the Notes 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 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 then outstanding accept such offer, the Company shall pr
omptly notify the remaining holders of such fact and the expiration date for the acceptance by holders of Notes 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. 

8.7.    Make-Whole Amount. 

The term "Make-Whole Amount" means, with respect to any Series A 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 Series A 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 Series A Note, the principal of such Series A 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 Series A 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 Series A 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 Series A 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 the "PX Screen" on the Bloomberg Financial Market Service (or such other display as may replace the PX Screen on Bloomberg Financial Market Service) for actively traded U.S. Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal as of such S
ettlement Date, or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable, 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 the Remaining Average Life and (2) the actively traded U.S. Treasury security with the maturity cl
osest to and less than the Remaining Average Life. 


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"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 Series A 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 Series A 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 Series A 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. 

8.8.    LIBOR Breakage Amount. 

The term " LIBOR Breakage Amount " means any loss, cost or expense reasonably incurred by any holder of a Series B Note as a result of any payment or prepayment of such Note (whether voluntary, mandatory, automatic, by reason of acceleration or otherwise) on a day other than an Interest Payment Date or at scheduled
 maturity thereof, and any loss or expense arising from the liquidation or reemployment of funds obtained by such holder or from fees payable to terminate the deposits from which such funds were obtained. Any such loss, cost or expense shall be limited to the time period from the date of such prepayment through the earlier of the next Interest Payment Date or the maturity of such Series B Note. Each holder of a Series B Note shall determine the LIBOR Breakage Amount with respect to the principal amount of its Series B Notes then being paid or prepaid (or required to be paid or prepaid) by written notice to the Company setting forth such determination in reasonable detail not less than two Business Days prior to the date of prepayment. Each such determination shall be conclusive absent manifest error. 


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9.    AFFIRMATIVE COVENANTS. 

The Company covenants that so long as any of the Notes are outstanding: 

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, ind
ividually 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. 

9.2.    Insurance. 

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. 

9.3.    Maintenance of Properties. 

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 th
e 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. 

9.5.    Corporate Existence, etc. 

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, fi
nancial condition, properties or assets of the Company and its Restricted Subsidiaries taken as a whole. 

10.    NEGATIVE COVENANTS. 

The Company covenants that so long as any of the Notes are outstanding: 

10.1.    Consolidated Indebtedness; Indebtedness of Restricted Subsidiaries. 

The Company will not permit: 

(a)    the ratio of Consolidated Indebtedness (as of the date of determination) to EBITDA (for the Company’s then most recently completed four fiscal quarters) to be greater than 3.5 to 1.0 at any time ; 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 20% 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. 


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10.2.    Liens. 

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 Re
stricted Subsidiary of, 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; 


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(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 (h) 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 20% of Consolidated Total Capitalization. 

10.3.    Sale of Assets. 

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 pu
rsuant 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 or 8.3, as applicable, and Section 8.4 without regard to the minimum prepayment requirements of Section 8.2 or 8.3, as applicable. 


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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) sh
all 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 e
ffect 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 time such Restricted Subsidiary ceases to be a Restricted Subsidiary. 

10.6.    Designation of Restricted and Unrestricted Subsidiaries. 

The Company may designate any Restricted Subsidiary as an Unrestricted Subsidiary and any Unrestricted Subsidiary as a Restricted Subsidiary; provided that, (a) if such Subsidiary initially is designated a Restricted Subsidiary, then such Restricted Subsidiary may be subsequently designated as an Unrestricted Subsidiary and such Unrestricted Subsidiary may be subsequently designated as a Restricted Subsidiary, but no further changes in designation may be made, (b) if such Subsidiary initially is designated an Unrestricted Subsidiary, then such Unrestricted Subsidiary may be subsequently designated as a Restricted Subsidiary and such Restricted Subsidiary may be subsequently designated as an Unrestricted Subs
idiary, but no further changes in designation may be made, (c) immediately before and after designation of a Restricted Subsidiary as an Unrestricted Subsidiary there exists no Default or Event of Default and (d) a Subsidiary Guarantor may not be designated an Unrestricted Subsidiary. If a Restricted Subsidiary at any time ceases to be such as a result of a redesignation, any Liens on property of the Company or any other Restricted Subsidiary securing Indebtedness owed to such Restricted Subsidiary that 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 time such Restricted Subsidiary ceases to be a Restricted Subsidiary. 

10.7.    Restricted Subsidiary Guaranties. 

The Company will not permit any Restricted Subsidiary to become a party to the Bank Guarantees or to directly or indirectly guarantee any of the Company’s obligations under the Credit Agreement unless such Restricted Subsidiary is, or concurrently therewith becomes, a party to the Subsidiary Guaranty. 

10.8.    Nature of Business. 

The Company will not, and will not permit any Restricted Subsidiary to, engage in any business if, as a result, the general nature of the business in which the Company and its Restricted Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Company and its Restricted Subsidiaries, taken as a whole, are engaged on the date of this Agreement as described in the Memorandum; provided, that the foregoing shall not be deemed to prohibit acquisitions by the Company or its Restricted Subsidiaries as long as the acquired companies are consumer products companies or other companies operating in businesses similar to or related to the c
urrent and future businesses conducted by the Company and its Subsidiaries, as well as suppliers to or distributors of products similar to those of the Company and its Subsidiaries. 


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10.9.    Transactions with Affiliates. 

The Company will not and will not permit any Restricted Subsidiary to enter into directly or indirectly any Material transaction or Material group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Company or another Restricted Subsidiary), except upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate. 

11.    EVENTS OF DEFAULT. 

An "Event of Default" shall exist if any of the following conditions or events shall occur and be continuing: 

(a)    the Company defaults in the payment of any principal or Make-Whole Amount, if any, or LIBOR Breakage Amount, if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or 

(b)    the Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due and payable; or 

(c)    the Company defaults in the performance of or compliance with any term contained in or Sections 10.1 through 10.9; or 

(d)    the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in paragraphs (a), (b) and (c) of this Section 11) and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) the Company receiving written notice of such default from any holder of a Note; or 

(e)    any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made; or 


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(f)    (i) the Company or any Significant Restricted Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness that is outstanding in an aggregate principal amount in excess of $30,000,000 beyond any period of grace provided with respect thereto, or (ii) the Company or any Significant Restricted Subsidiary is in default in the performance of or compliance with any term of any evidence of any Indebtedness that is outstanding in an aggregate principal amount in excess of $30,000,000 or of any mortgage, indenture or other agreement 
relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has been declared, due and payable before its stated maturity or before its regularly scheduled dates of payment; or 

(g)    the Company or any Significant Restricted Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powe
rs with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or 

(h)    a court or governmental authority of competent jurisdiction enters an order appointing, without consent by the Company or any Significant Restricted Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any Significant Restricted Subsidiary, or
 any such petition shall be filed against the Company or any Significant Restricted Subsidiary and such petition shall not be dismissed within 60 days; or 

(i)    a final judgment or judgments for the payment of money aggregating in excess of $30,000,000 are rendered against one or more of the Company and its Significant Restricted Subsidiaries, which judgments are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay; or 

(j)    if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the
 aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans determined in accordance with Title IV of ERISA, shall exceed $30,000,000, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur 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, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary thereunder; and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, would reasonably be expected to have a Material Adverse Effect; or 


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(k)    any Subsidiary Guarantor that is a Significant Restricted Subsidiary defaults in the performance of or compliance with any term contained in the Subsidiary Guaranty or the Subsidiary Guaranty ceases to be in full force and effect as a result of acts taken by the Company or any Subsidiary Guarantor, except as provided in Section 22, or is declared to be null and void in whole or in material part by a court or other governmental or regulatory authority having jurisdiction or the validity or enforceability thereof shall be contested by any of the Company or any Subsidiary Guarantor or any of them renounces any of the same or d
enies that it has any or further liability thereunder. 

As used in Section 11(j), the terms "employee benefit plan" and "employee welfare benefit plan" shall have the respective meanings assigned to such terms in Section 3 of ERISA. 

12.    REMEDIES ON DEFAULT, ETC. 

12.1.    Acceleration. 

(a)    If an Event of Default with respect to the Company described in paragraph (g) or (h) of Section 11 (other than an Event of Default described in clause (i) of paragraph (g) or described in clause (vi) of paragraph (g) by virtue of the fact that such clause encompasses clause (i) of paragraph (g)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable. 

(b)    If any other Event of Default has occurred and is continuing, any holder or holders of a majority or more in principal amount of the Notes at the time outstanding may at any time at its or their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable. 

(c)    If any Event of Default described in paragraph (a) or (b) of Section 11 has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable. 


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Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (w) all accrued and unpaid interest thereon, (x) any applicable Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law) and (y) any LIBOR Breakage Amount determined in respect of such principal amount, shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note has the right to m
aintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event any Series A Notes are prepaid or are accelerated as a result of an Event of Default is intended to provide compensation for the deprivation of such right under such circumstances. 

12.2.    Other Remedies. 

If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise. 

12.3.    Rescission. 

At any time after any Notes have been declared due and payable pursuant to clause (b) or (c) of Section 12.1, the holders of more than 67% in principal amount of the Notes then outstanding, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all principal of and any Make-Whole Amount and LIBOR Breakage Amount on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and any Make-Whole Amount and LIBOR Breakage Amount and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the D
efault Rate, (b) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 17, and (c) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon. 

12.4.    No Waivers or Election of Remedies, Expenses, etc. 

No course of dealing and no delay on the part of any holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement or by any Note upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Company under Section 15, the Company will pay to the holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such holder incurred in any enforcement or col
lection under this Section 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements. 


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13.    REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES. 

13.1.    Registration of Notes. 

The Company shall keep at its principal executive office a register for the registration and registration of transfers of Notes. The name and address of each holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any holder of a Note that is an Institutional Investor, promptly upon request therefor, a complete and 
correct copy of the names and addresses of all registered holders of Notes. 

13.2.    Transfer and Exchange of Notes. 

Upon surrender of any Note at the principal executive office of the Company for registration of transfer or exchange (and in the case of a surrender for registration of transfer, duly endorsed or accompanied by a written instrument of transfer duly executed by the registered holder of such Note or his attorney duly authorized in writing and accompanied by the address for notices of each transferee of such Note or part thereof), the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes (as requested by the holder thereof) of the same series and tranche in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the
 surrendered Note. Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form of Note established for such series and tranche. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes. Notes shall not be transferred in denominations of less than $500,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than $500,000. Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representation set forth in Section 6.2. 

13.3.    Replacement of Notes. 

Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and 


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(a)    in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser or another Institutional Investor holder of a Note with a minimum net worth of at least $50,000,000, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or 

(b)    in the case of mutilation, upon surrender and cancellation thereof, 

the Company at its own expense shall execute and deliver, in lieu thereof, a new Note of the same series and tranche, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon. 

14.    PAYMENTS ON NOTES. 

14.1.    Place of Payment . 

Subject to Section 14.2, payments of principal, Make-Whole Amount, if any, LIBOR Breakage Amount, if any, and interest becoming due and payable on the Notes shall be made in Chicago, Illinois at the principal office of Bank of America in such jurisdiction. The Company may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction. 

14.2.    Home Office Payment. 

So long as you or your nominee shall be the holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, LIBOR Breakage Amount, if any, and interest by the method and at the address specified for such purpose below your name in Schedule A, or by such other method or at such other address as you shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after pay
ment or prepayment in full of any Note, you shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to any sale or other disposition of any Note held by you or your nominee you will, at your election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section 13.2. The Company will afford the benefits of this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by you under this Agreement and that has made the same agreement relating to such Note as you have made in this Section 14.2. 


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15.    EXPENSES, ETC. 

15.1.    Transaction Expenses. 

Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys’ fees of one special counsel for you and the Other Purchasers collectively and, if reasonably required, local or other counsel) incurred by you and each Other Purchaser or holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement or the Notes (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the reasonable costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any 
rights under this Agreement or the Notes or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement or the Notes, or by reason of being a holder of any Note, and (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes. The Company will pay, and will save you and each other holder of a Note harmless from, all claims in respect of any fees, costs or expenses if any, of brokers and finders (other than those retained by you). 

15.2.    Survival. 

The obligations of the Company under this Section 15 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement or the Notes, and the termination of this Agreement. 

16.    SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT. 

All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by you of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of you or any other holder of a Note. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company under this Agreement. Subject to the preceding sentence, this Agreement and the Notes embody the entire agreement and under
standing between you and the Company and supersede all prior agreements and understandings relating to the subject matter hereof. 


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17.    AMENDMENT AND WAIVER. 

17.1.    Requirements. 

This Agreement, the Notes and the Subsidiary Guaranty may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), with (and only with) the written consent of the Company and the Required Holders, except that (a) no amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used therein), will be effective as to you unless consented to by you in writing, and (b) no such amendment or waiver may, without the written consent of the holder of each Note at the time outstanding affected thereby, (i) subject to the provisions of Section 12 relating to acceleration or rescission, c
hange the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of interest or of Make-Whole Amount on, or LIBOR Breakage Amount in respect of, the Notes, (ii) change the percentage of the principal amount of the Notes the holders of which are required to consent to any such amendment or waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12, 17 or 20. 

17.2.    Solicitation of Holders of Notes. 

(a)    Solicitation . The Company will provide each holder of the Notes (irrespective of the amount of Notes then owned by it) with sufficient information, sufficiently far in advance of the date a decision is required, to enable such holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or of the Notes. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions 
of this Section 17 to each holder of outstanding Notes promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite holders of Notes. 

(b)    Payment . The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security, to any holder of Notes as consideration for or as an inducement to the entering into by any holder of Notes or any waiver or amendment of any of the terms and provisions hereof unless such remuneration is concurrently paid, or security is concurrently granted, on the same terms, ratably to each holder of Notes then outstanding even if su
ch holder did not consent to such waiver or amendment. 

(c)    Consent in Contemplation of Transfer . Any consent made pursuant to this Section 17 by a holder of Notes that has transferred or has agreed to transfer its Notes to the Company, any Subsidiary or any Affiliate of the Company and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or grante
d but for such consent (and the consents of other holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such holder. 


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17.3.    Binding Effect, etc. 

Any amendment or waiver consented to as provided in this Section 17 applies equally to all holders of Notes and is binding upon them and upon each future holder of any Note and upon the Company without regard to whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and the holder of any Note nor any delay in exercising any rights hereunder or under any Note shall operate as a waiver of any rights of any holder of such Note. As used herein, the term "this Agre
ement" or "the Agreement" and references thereto shall mean this Agreement as it may from time to time be amended or supplemented. 

17.4.    Notes held by Company, etc. 

Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement or the Notes, or have directed the taking of any action provided herein or in the Notes to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding. 

18.    NOTICES. 

All notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent: 

(i)    if to you or your nominee, to you or it at the address specified for such communications in Schedule A, or at such other address as you or it shall have specified to the Company in writing, 

(ii)    if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Company in writing, or 

(iii)    if to the Company, to the Company at its address set forth at the beginning hereof to the attention of the Office of the Treasurer, or at such other address as the Company shall have specified to the holder of each Note in writing. 

Notices under this Section 18 will be deemed given only when actually received. 


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19.    REPRODUCTION OF DOCUMENTS. 

This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by you at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to you, may be reproduced by you by any photographic, photostatic, microfilm, microcard, miniature photographic or other similar process and you may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or 
administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by you in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 19 shall not prohibit the Company or any other holder of Notes from contesting any such reproduction to the same extent that it would contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction. 

20.    CONFIDENTIAL INFORMATION. 

For the purposes of this Section 20, "Confidential Information" means information delivered to you by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified in writing when received by you as being confidential information of the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to you prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by you or any person acting on your behalf, (c)&nb
sp;otherwise becomes known to you other than through disclosure by the Company or any Subsidiary or (d) constitutes financial statements delivered to you under Section 7.1 that are otherwise publicly available. You will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by you in good faith to protect confidential information of third parties delivered to you, provided that you may deliver or disclose Confidential Information to (i) your directors, trustees officers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by your Notes), (ii) your financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 20, (iii) any other holder of any Note, (iv) any Institutional Investor to which you sell or offer to sell such Note or any part thereof or any p
articipation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 20), (v) any Person from which you offer to purchase any security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 20), (vi) any federal or state regulatory authority having jurisdiction over you, (vii) the National Association of Insurance Commissioners or any similar organization, or any nationally recognized rating agency that requires access to information about your investment portfolio or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to you, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which you are a party or (z) if an Eve
nt of Default has occurred and is continuing, to the extent you may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under your Notes and this Agreement. Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying the provisions of this Section 20. 


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Notwithstanding anything to the contrary set forth herein or in any other written or oral understanding or agreement to which the parties hereto are parties or by which they are bound, the parties acknowledge and agree that (i) any obligations of confidentiality contained herein and therein do not apply and have not applied from the commencement of discussions between the parties to the tax treatment and tax structure of the Notes (and any related transactions or arrangements), and (ii) each party (and each of its employees, representatives, or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Notes and all materials of any kind (inc
luding opinions or other tax analyses) that are provided to such party relating to such tax treatment and tax structure, all within the meaning of Treasury Regulations Section 1.6011-4. 

21.    SUBSTITUTION OF PURCHASER. 

You shall have the right to substitute any one of your Affiliates as the purchaser of the Notes that you have agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both you and such Affiliate, shall contain such Affiliate’s agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such notice, wherever the word "you" is used in this Agreement (other than in this Section 21), such word shall be deemed to refer to such Affiliate in lieu of you. In the event that such Affiliate is so substituted as a purchaser hereunder and such Affilia
te thereafter transfers to you all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, wherever the word "you" is used in this Agreement (other than in this Section 21), such word shall no longer be deemed to refer to such Affiliate, but shall refer to you, and you shall have all the rights of an original holder of the Notes under this Agreement. 

22.    RELEASE OF SUBSIDIARY GUARANTOR. 

You and each subsequent holder of a Note agree to release any Subsidiary Guarantor from the Subsidiary Guaranty (i) if such Subsidiary Guarantor ceases to be such as a result of a Disposition permitted by Section 10.3 or (ii) at such time as the banks party to the Credit Agreement release such Subsidiary from the Bank Guarantees; provided, however, that you and each subsequent holder will not be required to release a Subsidiary Guarantor from the Subsidiary Guaranty upon such Subsidiary’s release from the Bank Guarantees if (A) a Default or Event of Default has occurred and is continuing, (B) such Subsidiary Guarantor is to become a borrower under the Credit Agreement or (C) such release is part of
 a plan of financing that contemplates such Subsidiary Guarantor guaranteeing any other Indebtedness of the Company. Your obligation to release a Subsidiary Guarantor from the Subsidiary Guaranty is conditioned upon your prior receipt of a certificate from a Senior Financial Officer of the Company stating that none of the circumstances described in clauses (A), (B) and (C) above are true. 


	38

23.    MISCELLANEOUS. 

23.1.    Successors and Assigns. 

All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent holder of a Note) whether so expressed or not. 

23.2.    Payments Due on Non-Business Days. 

Anything in this Agreement or the Notes to the contrary notwithstanding, any payment of principal of or Make-Whole Amount or interest on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day. 

23.3.    Severability. 

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction. 

23.4.    Construction. 

Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person. 

23.5.    Counterparts. 

This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto. 


	39

23.6.    Governing Law. 

This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of Illinois excluding choice-of-law principles of the law of such State that would require the application of the laws of a jurisdiction other than such State. 

* * * * * 


	40

If you are in agreement with the foregoing, please sign the form of agreement on the accompanying counterpart of this Agreement and return it to the Company, whereupon the foregoing shall become a binding agreement between you and the Company. 

Very truly yours, 

ENERGIZER HOLDINGS, INC. 

By:     /s/ William C. Fox        

Name:     William C. Fox        

Title:     VP & Treasurer        


	S-1

The foregoing is agreed 

to as of the date thereof. 

GUIDEONE MUTUAL INSURANCE COMPANY 

By: Advantus Capital Management, Inc. 

By:   /s/ Theodore R. Hoxmeier    

Name:   Theodore R. Hoxmeier    

Title:   Vice President            

GUIDEONE PROPERTY & CASUALTY INSURANCE COMPANY 

By: Advantus Capital Management, Inc. 

By:   /s/ Theodore R. Hoxmeier    

Name:   Theodore R. Hoxmeier    

Title:   Vice President            

NATIONAL FARM LIFE INSURANCE COMPANY 

By: Advantus Capital Management, Inc. 

By:   /s/ Theodore R. Hoxmeier    

Name:   Theodore R. Hoxmeier    

Title:   Vice President            

TRUSTMARK INSURANCE COMPANY 

By: Advantus Capital Management, Inc. 

By:   /s/ Theodore R. Hoxmeier    

Name:   Theodore R. Hoxmeier    

Title:   Vice President            


	S-2

TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY

By:   /s/ Bill Henricksen        

Name:   Bill Henricksen        

Title:   Vice President            

MONUMENTAL LIFE INSURANCE COMPANY 

By:   /s/ Bill Henricksen        

Name:   Bill Henricksen        

Title:   Vice President            


	S-3

ALLIED IRISH BANKS PLC 

By:   /s/ Grace Gilligan        

Name:   Grace Gilligan            

Title:   Senior Vice President        

By:   /s/ Declan Fitzgerald        

Name:   Declan Fitzgerald        

Title:   Head of Investment Grade Credit    

In respect of Allied Irish Banks PLC $20,000,000 Floating Rate Senior Notes, Series B, Tranche 1, due June 30, 2008 


	S-4

ALLSTATE LIFE INSURANCE COMPANY 

By:  /s/ Jerry D. Zinkula        

Name:   Jerry D. Zinkula        

By:   /s/ Robert B. Bodett        

Name:   Robert B. Bodett        

Authorized Signatories 

ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK 

By:   /s/ Jerry D. Zinkula        

Name:   Jerry D. Zinkula        

By:   /s/ Robert B. Bodett        

Name:  Robert B. Bodett        

Authorized Signatories 


	S-5

IDS LIFE INSURANCE COMPANY 

By:   /s/ Lorraine R. Hart        

Name:   Lorraine R. Hart        

Title:  Vice President- Investments    

IDS LIFE INSURANCE COMPANY OF NEW YORK 

By:  /s/ Lorraine R. Hart        

Name:   Lorraine R. Hart        

Title:   Vice President- Investments    

AMERICAN ENTERPRISE LIFE INSURANCE COMPANY 

By:   /s/ Lorraine R. Hart        

Name:   Lorraine R. Hart        

Title:  Vice President- Investments    


	S-6

AMERICAN FAMILY LIFE INSURANCE COMPANY 

By:   /s/ Phillip Hannifan        

Name:   Phillip Hannifan        

Title:   Investment Director        


	S-7

AMERICAN UNITED LIFE INSURANCE COMPANY 

By:   /s/ Kent R. Adams        

Name:  Kent R. Adams        

Title: Vice President Fixed Income Securities 

THE STATE LIFE INSURANCE COMPANY 

By:  /s/ Kent R. Adams        

Name:  Kent R. Adams        

Title: Vice President Fixed Income Securities 

LAFAYETTE LIFE INSURANCE COMPANY 

By:  /s/ Kent R. Adams        

Name:  Kent R. Adams        

Title: Vice President Fixed Income Securities 

PIONEER MUTUAL LIFE INSURANCE COMPANY 

By:  /s/ Kent R. Adams        

Name:  Kent R. Adams        

Title: Vice President Fixed Income Securities 


	S-8

AMERUS LIFE INSURANCE COMPANY 

By: AmerUs Capital Management Group, Inc., its authorized attorney-in-fact 

By:  /s/ Roger D. Fors        

Name:  Roger D. Fors            

Title:   V.P. Investment Management & Research 

AMERICAN INVESTORS LIFE INSURANCE COMPANY 

By: AmerUs Capital Management Group, Inc., its authorized attorney-in-fact 

By:  /s/ Roger D. Fors        

Name:  Roger D. Fors            

Title:  V.P. Investment Management & Research 

INDIANAPOLIS LIFE INSURANCE COMPANY 

By: AmerUs Capital Management Group, Inc., its authorized attorney-in-fact 

By:  /s/ Roger D. Fors        

Name:  Roger D. Fors            

Title:  V.P. Investment Management & Research 


	S-9

CANADA LIFE INSURANCE COMPANY OF AMERICA 

By:  /s/ Kevin Phelan        

Name:  Kevin Phelan            

Title:   Assistant Treasurer        


	S-10

CONNECTICUT GENERAL LIFE INSURANCE COMPANY 

By: CIGNA Investments, Inc. (authorized agent) 

By:  /s/ Lori E. Hopkins        

Name:  Lori E. Hopkins        

Title:  Vice President            


	S-11

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY 

By: David L. Babson & Company Inc. as Investment Adviser 

By:  /s/ Mark A. Ahmed        

Name:  Mark A. Ahmed        

Title:  Managing Director        

MASSMUTUAL ASIA LIMITED 

By: David L. Babson & Company Inc. as Investment Adviser 

By:  /s/ Mark A. Ahmed        

Name:  Mark A. Ahmed        

Title:  Managing Director        

C.M. LIFE INSURANCE COMPANY 

By: David L. Babson & Company Inc. as Investment Adviser 

By:  /s/ Mark A. Ahmed        

Name:  Mark A. Ahmed        

Title:  Managing Director        


	S-12

THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES 

By:  /s/ Nantha Suppiah        

Name:  Nantha Suppiah        

Title:  Investment Officer        


	S-13

GE EDISON LIFE INSURANCE COMPANY 

By: GE Asset Management, Inc., its investment advisor 

By:  /s/ Morian C. Mooers        

Name:  Morian C. Mooers        

Title:  Vice President- Private Investments    

GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY 

By: GE Asset Management, Inc., its investment advisor 

By:  /s/ Morian C. Mooers        

Name:  Morian C. Mooers        

Title:  Vice President- Private Investments    

GE LIFE AND ANNUITY ASSURANCE COMPANY 

By: GE Asset Management, Inc., its investment advisor 

By:  /s/ Morian C. Mooers        

Name:  Morian C. Mooers        

Title:  Vice President- Private Investments    


	S-14

HARTFORD LIFE INSURANCE COMPANY 

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY 

HARTFORD LIFE AND ANNUITY INSURANCE COMPANY 

By: Hartford Investment Services, Inc., 

Its Agent and Attorney-in-Fact 

By:  /s/ Eva Konopka        

Name:  Eva Konopka            

Title:  Vice President            


	S-15

JEFFERSON-PILOT LIFE INSURANCE COMPANY 

By:  /s/ James E. McDonald, Jr.    

Name:  James E. McDonald, Jr.    

Title:  Vice President            

JEFFERSON PILOT FINANCIAL INSURANCE COMPANY 

By:  /s/ James E. McDonald, Jr.    

Name:  James E. McDonald, Jr.    

Title:  Vice President            


	S-16

METROPOLITAN LIFE INSURANCE COMPANY 

By:  /s/ Judith A. Gulotta        

Name:  Judith A. Gulotta        

Title:  Director            


	S-17

MODERN WOODMEN OF AMERICA 

By:  /s/ Clyde C. Schoeck        

Name:  Clyde C. Schoeck        

Title:  President            


	S-18

UNITED OF OMAHA LIFE INSURANCE COMPANY 

By:  /s/ Edwin H. Garrison, Jr.    

Name:  Edwin H. Garrison, Jr.    

Title:  First Vice President        


	S-19

NATIONWIDE LIFE INSURANCE COMPANY 

By:  /s/ Joseph P. Young        

Name:  Joseph P. Young        

Title:  Associate Vice President    

NATIONWIDE MUTUAL INSURANCE COMPANY 

By:  /s/ Joseph P. Young        

Name:  Joseph P. Young        

Title:  Associate Vice President    

NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA 

By:  /s/ Joseph P. Young        

Name:  Joseph P. Young        

Title:  Associate Vice President    

NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY 

By:  /s/ Joseph P. Young        

Name:  Joseph P. Young        

Title:  Associate Vice President    

NATIONWIDE MULTIPLE MATURITY SEPARATE ACCOUNT 

By:  /s/ Joseph P. Young        

Name:  Joseph P. Young        

Title:  Associate Vice President    

AMCO INSURANCE COMPANY 

By:  /s/ Joseph P. Young        

Name:  Joseph P. Young        

Title:  Associate Vice President    


	S-20

NEW YORK LIFE INSURANCE COMPANY 

By:  /s/ Kathleen Haberkern    

Name:  Kathleen Haberkern        

Title:  Investment Vice President    

NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION 

By: New York Life Investment Management LLC, Its Investment Manager 

By:  /s/ Kathleen Haberkern    

Name:  Kathleen Haberkern        

Title:  Director            


	S-21

THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY 

By:  /s/ David A. Barras        

Name:  David A. Barras        

Title:  Its Authorized Representative    


	S-22

PACIFIC LIFE INSURANCE COMPANY 

(Nominee: Mac & Co.) 

By:  /s/ Cathy Schwartz        

Name:  Cathy Schwartz        

Title:  Assistant Vice President    

By:  /s/ Diane W. Dales        

Name:  Diane W. Dales        

Title:                        


	S-23

JACKSON NATIONAL LIFE INSURANCE COMPANY 

By: PPM America, Inc., as attorney in fact, on behalf of Jackson National Life Insurance Company 

By:  /s/ Chris Raub            

Name:  Chris Raub            

Title:   Senior Managing Director    

JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK 

By: PPM America, Inc., as attorney in fact, on behalf of Jackson National Life Insurance Company of New York 

By:  /s/ Chris Raub            

Name:  Chris Raub            

Title:  Senior Managing Director    


	S-24

SECURITY FINANCIAL LIFE INSURANCE CO. 

By:  /s/ Kevin W. Hammond    

Name:  Kevin W. Hammond        

Title:   Vice President                    Chief Investment Officer        


	S-25

STATE FARM LIFE INSURANCE COMPANY 

By:  /s/ Julie Pierce            

Name:  Julie Pierce            

Title:  Investment Officer        

By:   /s/ Larry Rottunda        

Name:  Larry Rottunda        

Title:  Assistant Secretary        


	S-26

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA 

By:  /s/ Marietta Moshiashvili    

Name:  Marietta Moshiashvili        

Title:  Associate Director        


	S-27

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-----END PRIVACY-ENHANCED MESSAGE-----

MISSOURI	43-1863181

(State of Incorporation)	(I.R.S. Employer Identification No.)

ENERGIZER HOLDINGS, INC.
CONSOLIDATED BALANCE SHEET
(Condensed)
(Dollars in millions--Unaudited)

	June 30,			September 30,			June 30,
		2003			2002			2002


Assets

Current assets
Cash and cash equivalents	$	63.4		$	33.9		$	52.1
Trade receivables, less allowance for doubtful
accounts of $9.9, $6.9 and $8.6, respectively		384.8			189.0			183.1
Inventories
Raw materials and supplies		62.8			44.5			42.5
Work in process		149.0			98.6			112.1
Finished products		281.2			215.9			192.6

Total Inventory		493.0			359.0			347.2
Other current assets		254.0			306.0			230.4

Total current assets		1,195.2			887.9			812.8


Property at cost		1,327.7			1,040.3			1,045.5
Accumulated depreciation		(633.5	)		(584.6	)		(584.4	)

		694.2			455.7			461.1

Other assets		799.6			244.5			247.0


Total	$	2,689.0		$	1,588.1		$	1,520.9


Liabilities and Shareholders Equity

Current liabilities
Current maturities of long-term debt	$	-		$	15.0		$	15.0
Notes payable		52.1			94.6			65.8
Accounts payable		205.3			119.4			98.1
Other current liabilities		373.1			305.6			288.0

Total current liabilities		630.5			534.6			466.9

Long-term debt		1,008.0			160.0			160.0

Other liabilities		294.9			188.7			175.7

Shareholders equity

Common stock		1.0			1.0			1.0
Additional paid in capital		798.6			789.8			786.4
Retained earnings		336.2			202.4			147.7
Treasury stock		(295.4	)		(176.0	)		(105.9	)
Accumulated other comprehensive income		(84.8	)		(112.4	)		(110.9	)

Total shareholders equity		755.6			704.8			718.3

Total	$	2,689.0		$	1,588.1		$	1,520.9


See accompanying Notes to Condensed Financial Statements

ENERGIZER HOLDINGS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(Condensed)
(Dollars in millions - Unaudited)


	Nine Months Ended June 30,
		2003			2002

Cash flow from operations
Net earnings	$	136.9		$	130.2
Non-cash items included in income		59.5			48.7
Sale of accounts receivable, net		61.0			(36.2	)
Changes in assets and liabilities used in operations		52.5			29.3
Other, net		6.0			3.4

Net cash flow from operations		315.9			175.4

Cash flow from investing activities
Property additions		(34.2	)		(29.9	)
Proceeds from sale of property		7.1			1.2
Acquisition of Schick-Wilkinson Sword, net of cash acquired		(922.9	)		-
Other, net		-			(0.6	)

Net cash used by investing activities		(950.0	)		(29.3	)

Cash flow from financing activities
Net cash proceeds from issuance of long-term debt		1,058.1			-
Principal payments on long-term debt (including
current maturities)		(230.0	)		(50.0	)
Proceeds from acquisition bridge loan		550.0			-
Payment of acquisition bridge loan		(550.0	)		-
Net decrease in notes payable		(47.0	)		(45.1	)
Treasury stock purchases		(131.4	)		(26.3	)
Proceeds from issuance of common stock		13.4			1.8

Net cash provided/(used) by financing activities		663.1			(119.6	)


Effect of exchange rate changes on cash		0.5			2.6



Net increase in cash and cash equivalents		29.5			29.1

Cash and cash equivalents, beginning of period		33.9			23.0

Cash and cash equivalents, end of period	$	63.4		$	52.1



See accompanying Notes to Condensed Financial Statements

Acquired SWS Assets and Liabilities at March 28, 2003

Cash	$	14.9
Receivables		139.4
Inventories		198.4
Other current assets		23.5

Total current assets		376.2
Property, plant and equipment		252.1
Goodwill		412.2
Other intangible assets		116.4
Other assets		4.3

Total assets acquired		1,161.2

Accounts payable		51.2
Other current liabilities		87.6

Total current liabilities		138.8
Other liabilities		74.1

Total liabilities		212.9

Net assets acquired	$	948.3

ENERGIZER HOLDINGS, INC.
CONSOLIDATED STATEMENT OF EARNINGS
(Condensed)
(Dollars in millions--Unaudited)


	Quarter Ended June 30,						Nine Months Ended June 30,
		2003			2002			2003			2002


Net sales	$	594.0		$	389.9		$	1,529.0		$	1,297.3

Cost of products sold		359.0			220.5			874.0			715.3
Selling, general and administrative expense		107.9			71.8			252.9			232.8
Advertising and promotion expense		90.2			26.8			164.2			97.2
Research and development expense		16.0			8.9			34.1			27.2
Provisions for restructuring		-			-			-			5.9
Intellectual property rights income		(2.5	)		-			(8.5	)		-
Interest expense		10.2			4.7			19.3			16.2
Other financing items, net		-			(0.7	)		(1.1	)		0.8


Earnings before income taxes		13.2			57.9			194.1			201.9

Income tax benefit/(provision)		4.3			(18.1	)		(57.2	)		(71.7	)


Net earnings	$	17.5		$	39.8		$	136.9		$	130.2


Basic earnings per share	$	0.21		$	0.44		$	1.59		$	1.42
Diluted earnings per share	$	0.20		$	0.43		$	1.55		$	1.40

			For the nine months ended June 30,
	For the quarter ended
	June 30, 2002		2003		2002

Net sales	$	551.9	$	1,841.0	$	1,762.2
Net earnings	$	38.5	$	170.7	$	134.7
Basic earnings per share	$	0.42	$	1.98	$	1.47
Diluted earnings per share	$	0.41	$	1.93	$	1.45

	For the quarter ended June 30,				For the nine months ended June 30,

		2003		2002		2003		2002

Net Sales
North America Battery	$	217.0	$	231.2	$	765.6	$	767.3
International Battery		171.1		158.7		557.5		530.0

Total Battery		388.1		389.9		1,323.1		1,297.3
Razors & Blades		205.9		-		205.9		-

Total Net Sales	$	594.0	$	389.9	$	1,529.0	$	1,297.3

	Quarter Ended				Nine Months Ended
	June 30,				June 30,

		2003		2002		2003		2002

Numerator:
Net earnings for basic and dilutive earnings per share	$	17.5	$	39.8	$	136.9	$	130.2

Denominator:
Weighted-average shares for basic earnings per share		83.9		91.1		86.3		91.4

Effect of dilutive securities:
Stock options		1.8		1.5		1.6		0.9
Restricted stock equivalents		0.7		0.7		0.7		0.6

Total dilutive securities		2.5		2.2		2.3		1.5


Weighted-average shares for diluted earnings per share		86.4		93.3		88.6		92.9

Basic earnings per share	$	0.21	$	0.44	$	1.59	$	1.42

Diluted earnings per share	$	0.20	$	0.43	$	1.55	$	1.40

		Beginning							Ending
		Balance		Provision		Activity			Balance

Termination benefits	$	6.3	$	-	$	(3.4	)	$	2.9
Other cash costs		1.0		-		(0.6	)		0.4

Total	$	7.3	$	-	$	(4.0	)	$	3.3

	For the quarter ended June 30,
		2003			2002

Net earnings	$	17.5		$	39.8
Other comprehensive income items:
- Foreign currency translation adjustments		26.9			17.9
- Minimum pension liability adjustment		(0.1	)		-

Total comprehensive income	$	44.3		$	57.7


		For the nine months ended June 30,
		2003			2002

Net earnings	$	136.9		$	130.2
Other comprehensive income items:
- Foreign currency translation adjustments		33.7			4.8
- Minimum pension liability adjustment, net of taxes of $1.8 in fiscal 2003 and $0.3 in fiscal 2002		(6.1	)		(0.3	)

Total comprehensive income	$	164.5		$	134.7

		June 30, 2003	September 30, 2002			June 30, 2002

Total outstanding accounts receivable sold to SPE	$	133.9	$	164.6	$	162.5

Cash received by SPE from sale of receivables to a third party		61.0		-		50.0

Subordinated retained interest		72.9		164.6		112.5

Energizer's investment in SPE		72.9		164.6		112.5

	North American		International			Razors &
	Battery		Battery			Blades		Total

Balance at October 1, 2002	$	24.7	$	12.7	$	-	$	37.4
Acquisition of SWS		-		-		412.2		412.2
Cumulative translation adjustment		-		0.6		7.2		7.8

Balance at June 30, 2003	$	24.7	$	13.3	$	419.4	$	457.4

			Wtd-Average
			Amortization
	Amount Acquired		Period (in years)

To be amortized:
Tradenames	$	10.5	9.8
Technology and patents		34.3	11.1
Customer-related		10.9	10.0

		55.7
Indefinite-lived:

Tradenames		60.7

Total acquired intangible assets	$	116.4

	Gross		Accumulated
	Carrying Amount		Amortization				Net

To be amortized:
Tradenames	$	10.7	$	(0.3	)	$	10.4
Technology and patents		34.7		(0.8	)		33.9
Customer-related		11.0		(0.3	)		10.7

		56.4		(1.4	)		55.0
Indefinite-lived:

Tradenames		504.8		(365.9	)		138.9

Total intangible assets	$	561.2	$	(367.3	)	$	193.9

For the year ended September 30, 2003		$	2.7
For each year ended September 30, 2004 through 2008			5.6

		June 30,	September 30,			June 30,
		2003		2002		2002

Other current assets
Investment in SPE	$	72.9	$	164.6	$	112.5
Miscellaneous receivables		47.0		21.3		15.4
Deferred income tax benefits		59.2		56.6		44.9
Prepaid expenses		74.8		63.5		55.7
Other		0.1		-		1.9

Total other current assets	$	254.0	$	306.0	$	230.4

Other assets
Goodwill	$	457.4	$	37.4	$	37.3
Other intangible assets		193.9		73.9		74.4
Pension asset		119.0		117.9		114.3
Deferred charges and other assets		29.3		15.3		21.0

Total other assets	$	799.6	$	244.5	$	247.0

Other current liabilities
Accrued advertising, promotion and allowances	$	202.0	$	141.4	$	139.0
Accrued salaries, vacations and incentive compensation		77.9		69.4		60.7
Other		93.2		94.8		88.3

Total other current liabilities	$	373.1	$	305.6	$	288.0

Other non-current liabilities
Pension, other retirement benefits and deferred compensation	$	203.3	$	139.6	$	148.1
Deferred taxes		62.0		31.0		7.4
Other non-current liabilities		29.6		18.1		20.2

Total other non-current liabilities	$	294.9	$	188.7	$	175.7

		June 30, 2003	September 30, 2002			June 30, 2002

Private Placement, fixed interest rates ranging from 7.8% to 8.0%, due 2005 to 2010	$	160.0	$	175.0	$	175.0
Private Placement, fixed interest rates ranging from 2.3% to 4.3%, due 2006 to 2013		375.0
Private Placement, variable interest at LIBOR + 65 to 75 basis points, or currently
ranging from 1.7% to 1.8%, due 2008 to 2013		325.0
Revolving Credit Facility, variable interest rate currently 2.1%, due 2006		148.0		-		-

		1,008.0		175.0		175.0
Less current portion		-		15.0		15.0

Total long-term debt	$	1,008.0	$	160.0	$	160.0


		Total		Less than 1 year		1-3 years		3-5 years		More than 5 years

Long-term debt, including current maturities	$	1,008.0	$	-	$	273.0	$	120.0	$	615.0

Notes payable		52.1		52.1

Operating leases		79.5		13.0		24.0		17.5		25.0

Total	$	1,139.6	$	65.1	$	297.0	$	137.5	$	640.0

10(i)	Form of Amended Change of Control Employment Agreement dated May 19, 2003*
10(ii)	Form of Restricted Stock Equivalent Award Agreement dated May 19, 2003*
10(iii)	Form of Non-Qualified Stock Option dated May 19, 2003*
10(iv)	Form of Restricted Stock Equivalent Award Agreement dated May 19, 2003*
10(v)	Form of Indemnification Agreement dated May 19, 2003*
10(vi)	Facility Agreement dated July 25, 2003 for Energizer Asia Investments PTE, Ltd., with Citicorp Investment Bank (Singapore) Limited as Agent
10(vii)	Revolving Credit Agreement dated as of June 27, 2003 between Energizer Holdings, Inc. and Bank One, N.A. as Administrative Agent, Citibank, N.A. as Syndication Agent, and Bank of America, N.A. as Documentation Agent
10(viii)	Energizer Holdings, Inc. Note Purchase Agreement dated as of June 1, 2003
31(i)	Section 302 Certification of Chief Executive Officer
31(ii)	Section 302 Certification of Executive Vice President and Chief Financial Officer
32(i)	Section 1350 Certification of Chief Executive Officer
32(ii)	Section 1350 Certification of Executive Vice President and Chief Financial Officer


	ENERGIZER HOLDINGS, INC.
	Registrant

	By:
		Daniel J. Sescleifer
		Executive Vice President and Chief Financial Officer