Exhibit
10.ii
AMENDMENT NO.
1
TO THIRD
AMENDED AND RESTATED
RECEIVABLES
PURCHASE AGREEMENT
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 Robinson Humphrey, 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 Robinson Humphrey, Inc., 23rd Floor,
MC 3950, 303 Peachtree Street NE, Atlanta, Georgia 30308 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 prom
