AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Exhibit
10.ii
AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED
Amendment No. 1 to
Third Amended and Restated Receivables Purchase Agreement (this “Amendment”) is
entered into as of May 5, 2009, by and among Energizer Receivables Funding
Corporation, a Delaware corporation (“Seller”), Energizer
Battery, Inc., a Delaware corporation (“EBI”), as servicer
(in such capacity, the “Servicer”) Energizer
Personal Care, LLC, a Delaware limited liability company (“EPC”), as
sub-servicer (in such capacity, the “Sub-Servicer” and,
together with Seller and Servicer, the “Seller Parties” and
each a “Seller
Party”), Three Pillars Funding LLC (“Three Pillars”),
Gotham Funding Corporation (“Gotham”), Victory
Receivables Corporation (“Victory” and,
together with Three Pillars and Gotham, the “Conduits” and each, a
“Conduit”), The
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch (“BTMU”), as an agent
(in such capacity, an “Agent”) and as
administrative agent for the Purchasers (as defined in the Purchase Agreement
(as defined below)) (in such capacity, the “Administrative
Agent”), and SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. (“STRH”), as an agent
(in such capacity, an “Agent”).
RECITALS
The Seller Parties,
Gotham, Victory and BTMU entered into that certain Third Amended and Restated
Receivables Purchase Agreement, dated as of May 4, 2009, as amended, restated or
otherwise modified from time to time and in effect immediately prior to the date
hereof (the “Purchase
Agreement”).
Each of the parties hereto now desires to amend
the Purchase Agreement upon the terms and subject to the conditions set forth
herein. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth for such terms in the
Purchase Agreement.
Three Pillars
desires to become a Conduit and a Committed Purchaser under the Purchase
Agreement and STRH desires to become an Agent under the Purchase Agreement,
effective upon the execution of this Amendment.
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1) Amendment to Purchase
Agreement.
(a) Section
1.2 of the Purchase Agreement is hereby amended by inserting the following new
sentence at the end of such section:
For the avoidance
of doubt, the Incremental Purchase initially funded by Three Pillars hereunder
shall be based upon a calculation of the relevant Purchase Pro Rata Share giving
effect to the aggregate Capital of BTMU, Gotham and Victory outstanding
hereunder immediately prior to the effectiveness of such Incremental Purchase in
order to calculate the Purchase Pro Rata Share of Three Pillars for purposes of
such Incremental Purchase.
(b) Section
1.4 of the Purchase Agreement is hereby amended by inserting the phrase “or c/o
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or an account or address designated from time to time by
STRH (in the case of a Purchaser in the Conduit Group with STRH as an Agent), as
applicable” following the parenthetical “(in the case of a Purchaser in the
Conduit Group with BTMU as an Agent)” in such section.
(c) Section
2.4 of the Purchase Agreement is hereby amended and restated in its entirety to
read as follows:
Section
2.4 Application of
Collections
. If
there shall be insufficient funds on deposit for Servicer to distribute funds in
payment in full of the aforementioned amounts pursuant to Section 2.2 or 2.3 (as applicable),
Servicer shall distribute such funds:
first, to the payment
of Servicer’s reasonable out-of-pocket costs and expenses in connection with
servicing, administering and collecting the Receivables , including the
Servicing Fee, if Seller or one of its Affiliates is not then acting as
Servicer,
second, to the
reimbursement of the Administrative Agent’s or each of the Agents’ (as the case
may be) costs of collection and enforcement of this Agreement,
third, to the ratable
payment of all unpaid CP Costs and Yield,
fourth, to the
ratable payment of all other unpaid Obligations , provided that to the
extent such Obligations relate to the payment of Servicer costs and expenses,
including the Servicing Fee, when Seller or one of its Affiliates is acting as
Servicer, such costs and expenses will not be paid until after the payment in
full of all other Obligations,
fifth, (to the extent
applicable) to the ratable reduction of the Aggregate Capital (without regard to
any Termination Percentage) and
sixth, after the
Aggregate Unpaids have been indefeasibly reduced to zero, to
Seller.
Collections applied
to the payment of Aggregate Unpaids shall be distributed in accordance with the
aforementioned provisions, and, giving effect to each of the priorities set
forth in Section
2.4 above, shall be shared ratably (within each priority) among the
Administrative Agent, the Agents and the Purchasers in accordance with the
amount of such Aggregate Unpaids owing to each of them in respect of each such
priority.
(d) Section
12.1 of the Purchase Agreement is hereby amended by inserting the phrase “
“Three Pillars” ” following the phrase “as if the terms
“Gotham,” “Victory,” ” where such phrase appears in such
section.
(e) Article
XIV of the Purchase Agreement is hereby amended by inserting the following new
Section 14.18 at the end of such Article:
Section 14.18 Limitation on
Payments. Notwithstanding any provisions contained in this Agreement to
the contrary, no Committed Purchaser shall, nor shall it be obligated to, pay
any amount pursuant to this Agreement unless (a) such Committed Purchaser has
received funds which may be used to make such payment and which funds are not
required to repay its Commercial Paper notes and advances under its Funding
Agreements when due and (b) after giving effect to such payment, either (i)
there is sufficient liquidity availability (determined in accordance with the
Commercial Paper program documents and agreements of such Committed Purchaser),
under all of the liquidity facilities for such Committed Purchaser’s commercial
paper program, to pay the “Face Amount” (as defined below) of all its
outstanding Commercial Paper notes and advances under its Funding Agreements
when due or (ii) all of its Commercial Paper notes and advances under its
Funding Agreements are paid in full. Any amount which any Committed Purchaser
does not pay pursuant to the operation of the preceding sentence shall not
constitute a claim (as defined in §101 of the Bankruptcy Code) against or an
obligation of any Committed Purchaser for any such insufficiency unless and
until such payment may be made in accordance with clauses (a) and (b) above. The
agreements in this Section 14.18 shall survive termination of this Agreement and
payment of all obligations hereunder. As used in this Section 14.18, the term
“Face Amount” means, with respect to outstanding Commercial Paper notes or
advances under Funding Agreements, (x) the face amount of any such Commercial
Paper notes issued on a discount basis, and (y) the principal amount of, plus
the amount of all interest accrued and to accrue thereon to the stated maturity
date of, any such Commercial Paper notes issued on an interest-bearing basis or
any such advances under a Funding Agreement.
(f) Exhibit
I to the Purchase Agreement is hereby amended as follows:
(i) by
amending the definition of “CP Costs” by (i) inserting the text “(A)” after the
word “means,” at the beginning of such definition and (ii) inserting the
following clause at the end of such definition:
, and (B) for any
Purchaser Interest purchased by Three Pillars, for any day, the Capital of such
Purchaser Interest multiplied by the per annum rate equivalent to the weighted
average of the per annum rates paid or payable by Three Pillars from time to
time as interest on or otherwise (taking into consideration any incremental
carrying costs associated with short-term promissory notes issued by Three
Pillars maturing on dates other than those certain dates on which Three Pillars
is to receive funds) in respect of the promissory notes issued by Three Pillars
that are allocated, in whole or in part, by STRH (on behalf of Three Pillars) to
fund or maintain Three Pillars’ Capital of such Purchaser Interest, as
determined by STRH (on behalf of Three Pillars) and reported to Seller, which
rates shall reflect and give effect to (1) the commissions of placement agents
and dealers in respect of such promissory notes, to the extent such commissions
are allocated, in whole or in part, to such promissory notes by STRH (on behalf
of Three Pillars) and (2) other borrowings by Three Pillars, including, without
limitation, borrowings to fund small or odd dollar amounts that are not easily
accommodated in the commercial paper market; provided, however, that if any
component of such rate is a discount rate, in calculating the CP Costs, STRH
shall for such component use the rate resulting from converting such discount
rate to an interest bearing equivalent rate per annum, and for each Settlement
Period, Three Pillars shall calculate its aggregate CP Costs for such Settlement
Period and report such CP Costs to the Seller pursuant to Section 3.3 of this
Agreement.
(ii) by
amending the definition of “Federal Funds Effective Rate” by (i) inserting the
clause “(i) with respect to BTMU and its Conduit Group,” after the word “means,”
at the beginning of such definition and (ii) inserting the following clause at
the end of such definition:
and (ii) with
respect to Three Pillars, for any day the greater of (x) the average rate per
annum as determined by SunTrust Bank at which overnight Federal funds are
offered to SunTrust Bank for such day by major banks in the interbank market,
and (y) if SunTrust Bank is borrowing overnight funds from a Federal Reserve
Bank that day, the average rate per annum at which such overnight borrowings are
made on that day. Each determination of the Federal Funds Rate by SunTrust Bank
shall be conclusive and binding on the Seller except in the case of manifest
error.
(iii) by
amending the definition of “Interim Report” by inserting the phrase “, which
form may be amended or supplemented by either Agent from time to time.” at the
end of such definition.
(iv) by
amending the definition of “Relevant Conduit” by (i) inserting the text “(i)”
after the word “means” at the beginning of such definition and (ii) inserting
the clause “and (ii) Three Pillars.” at the end of such definition.
(v) by
amending and restating the definitions of “Fee Letter,” “Group Purchase Limit,”
“Prime Rate” and “Purchase Limit” in their entirety to read as
follows:
“Fee Letter” means one
or more letter agreements from time to time among or between any of Seller, the
Administrative Agent, STRH, Victory, Gotham and Three Pillars, as any of them
may be amended, modified or amended and restated and in effect from time to
time.
“Group Purchase Limit”
means (i) in the case of the Conduit Group related to Gotham and Victory,
$100,000,000 and (ii) in the case of the Conduit Group related to Three Pillars,
$100,000,000.
“Prime Rate” means a
rate per annum equal to the prime rate of interest determined from time to time
by BTMU, SunTrust Bank or any other Committed Purchaser from time to time, each
as applicable with respect to it (which is not necessarily the lowest rate
charged to any customer), changing when and as each said prime rate
changes.
“Purchase Limit” means
$200,000,000.
(vi) by
adding thereto the following new defined terms in proper alphabetical
order:
“STRH” means SunTrust
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., a Tennessee corporation, and its successors and
assigns.
“SunTrust Bank” means
SunTrust Bank, a Georgia banking corporation.
“Three Pillars” means
Three Pillars Funding LLC and its successors and assigns.
(g) Exhibit
II to the Purchase Agreement is hereby amended and restated in its entirety to
read as set forth on Annex A
hereto.
(h) Exhibit
XII to the Purchase Agreement is hereby amended and restated in its entirety to
read as set forth on Annex B
hereto.
(i) Exhibit
XIII to the Purchase Agreement is hereby amended and restated in its entirety to
read as set forth on Annex C
hereto.
(j) Schedule
A to the Purchase Agreement is hereby amended and restated in its entirety to
read as set forth on Annex D
hereto.
(k) The
portion of the Table of Contents relating to Article XI of the Purchase
Agreement is hereby amended by inserting the word “Administrative” immediately
prior to each occurrence of the word “Agent” therein.
Section 2) Waiver. Each
of the parties hereto by their signature hereto hereby waives Seller’s
compliance with the Required Notice Period solely with respect to the Capital
Reduction (as defined below).
Section 3) Conditions to Effectiveness
of Amendment. This Amendment shall become effective upon the
satisfaction of the conditions precedent that:
(a) Amendment. Each
Agent shall have received, on or before the date hereof, executed counterparts
of this Amendment, duly executed by each of the parties hereto.
(b) Fee
Letter. Each Agent shall have received, on or before the date
hereof, executed counterparts of the Fee Letter, duly executed by each of the
parties thereto.
(c) Performance
Undertaking. Each Agent shall have received, on or before the
date hereof, a Performance Undertaking duly executed by Provider and in form and
substance reasonably acceptable to the Agents.
(d) Reliance
Letters. STRH as Agent shall have received, on or before the
date hereof, reliance letters, in form and substance satisfactory to STRH as
Agent, addressed to STRH, Three Pillars and SunTrust Bank in respect of all
opinions dated as of May 4, 2009 previously delivered on behalf of Provider and
Seller Parties in connection with the Purchase Agreement and related Transaction
Documents.
(e) Representations and
Warranties. As of the date hereof, both before and after
giving effect to this Amendment, all of the representations and warranties
contained in the Purchase Agreement and in each other Transaction Document shall
be true and correct as though made on and as of the date hereof (and by its
execution hereof, each of Seller and EBI shall be deemed to have represented and
warranted such).
(f) No Amortization Event or
Potential Amortization Event. As of the date hereof, after
giving effect to this Amendment, no Amortization Event or Potential Amortization
Event shall have occurred and be continuing (and by its execution hereof, each
of Seller and EBI shall be deemed to have represented and warranted
such).
(g) Payment of
Fees. On or before the date hereof, Seller shall have paid all
fees required to be paid by it under any Transaction Document.
(h) Capital
Payment. On the date hereof, BTMU, as Agent for the BTMU
Conduit Group, shall have received, pursuant to the terms and conditions of the
Purchase Agreement, an Aggregate Reduction of Aggregate Capital in an amount
equal to $20,847,500 (the “Capital
Reduction”).
Section 4) Miscellaneous.
(a)) Effect;
Ratification. The amendments set forth herein are effective
solely for the purposes set forth herein and shall be limited precisely as
written, and shall not be deemed to (i) be a consent to, or an acknowledgement
of, any amendment, waiver or modification of any other term or condition of the
Purchase Agreement or any other Transaction Document or of any other instrument
or agreement referred to therein or (ii) prejudice any right or remedy which the
Administrative Agent, any Agent or any Purchaser may now have or may have in the
future under or in connection with the Purchase Agreement, as amended hereby, or
any other instrument or agreement referred to therein. Each reference
in the Purchase Agreement to “this Agreement,” “herein,” “hereof” and words of
like import and each reference in the other Transaction Documents to the “Third
Amended and Restated Receivables Purchase Agreement,” the “Receivables Purchase
Agreement” or the “Purchase Agreement” shall mean the Purchase Agreement, as
amended hereby. This Amendment shall be construed in connection with
and as part of the Purchase Agreement and all terms, conditions,
representations, warranties, covenants and agreements set forth in the Purchase
Agreement and each other instrument or agreement referred to therein, except as
herein amended, are hereby ratified and confirmed and shall remain in full force
and effect.
(b)) Transaction
Documents. This Amendment is a Transaction Document executed
pursuant to the Purchase Agreement and shall be construed, administered and
applied in accordance with the terms and provisions thereof.
(c)) Costs, Fees and
Expenses. Seller agrees to reimburse the Administrative Agent,
each Agent and each Committed Purchaser upon demand for all of the
Administrative Agent’s, such Agent’s and such Committed Purchaser’s reasonable
costs, fees and expenses incurred in connection with the preparation, execution
and delivery of this Amendment (including the reasonable fees and expenses of
counsel to the Administrative Agent, such Agent or such Committed
Purchaser).
(d)) Counterparts. This
Amendment may be executed in any number of counterparts, each such counterpart
constituting an original and all of which when taken together shall constitute
one and the same instrument.
(e)) Severability. Any
provision contained in this Amendment which 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
of this Amendment in that jurisdiction or the operation, enforceability or
validity of such provision in any other jurisdiction.
(f)) GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK.
(g) CONSENT TO
JURISDICTION. EACH SELLER PARTY HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY DOCUMENT EXECUTED
BY SUCH PERSON PURSUANT TO THIS AMENDMENT, AND EACH SELLER PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE
AGENT, ANY AGENT OR ANY COMMITTED PURCHASER TO BRING PROCEEDINGS AGAINST ANY
SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY ANY SELLER PARTY AGAINST THE ADMINISTRATIVE AGENT, ANY AGENT OR
ANY COMMITTED PURCHASER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY AGENT
OR ANY COMMITTED PURCHASER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT OR ANY DOCUMENT
EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AMENDMENT SHALL BE BROUGHT ONLY
IN A COURT IN THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK.
[Signature
pages to follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their respective duly authorized officers as of the date
hereof.
ENERGIZER
RECEIVABLES FUNDING CORPORATION
By:
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇
Title: Vice
President and Treasurer
ENERGIZER BATTERY,
INC.
By:
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇
Title: Vice
President and Treasurer
ENERGIZER PERSONAL
CARE, LLC
By:
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇
Title: Vice
President and Treasuer
THREE PILLARS
FUNDING LLC
By:
Name:
Title:
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AMACAR Group,
L.L.C.
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Attention:
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Telephone:
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GOTHAM FUNDING CORPORATION
By:
Name:
Title:
VICTORY RECEIVABLES CORPORATION
By:
Name:
Title:
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Administrative Agent and as an
Agent
By:
Name:
Title:
THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Committed
Purchaser
By:
Name:
Title:
SUNTRUST ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, INC., as an Agent
By:
Name:
Title:
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SunTrust
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