Agent shall request, a listing by Obligor of all Receivables together with an aging of such Receivables and (iii) on the twenty-second day of each month and at such times as the Agent shall request, an Interim Report.
(a) Any Seller Party shall fail (i) to make any payment or deposit required hereunder when due, or (ii) to perform or observe any term, covenant or agreement hereunder (other than as referred to in clause (i) of this paragraph (a) and paragraph 9.1(e)) and such failure shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by any Seller Party or Provider in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect when made or deemed made.
(c) Failure of Seller to pay any Indebtedness when due or the failure of any other Seller Party or Provider to pay Indebtedness (other than Indebtedness hereunder), which individually or together with other such Indebtedness as to which any failure exists (other than Indebtedness hereunder) has an aggregate outstanding principal amount equal to or greater than $30,000,000, when due; or the default by any Seller Party in the performance of any term, provision or condition contained in any agreement under which any such Indebtedness was created or is governed, the effect of which is to cause, or to permit the holder or holders of such Indebtedness to cause, such Indebtedness to become due prior to its stated maturity; or any such Indebtedness of any Seller Party or Provider shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment) prior to the date of maturity thereof.
(d) Any Seller Party, any Subsidiary of Seller, Provider or any Material Provider Subsidiary shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against any Seller Party, any Subsidiary of Seller, Provider or any Material Provider Subsidiary seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property; provided that in the event any such proceeding shall have been instituted against such Seller Party, Subsidiary of Seller, Provider or Material Provider Subsidiary, such proceeding shall have continued undismissed, or unstayed and in effet, for a period of 60 consecutive days or (iii) any Seller Party, any Subsidiary of Seller, Provider or any Material Provider Subsidiary shall take any corporate action to authorize any of the actions set forth in clauses (i) or (ii) above in this subsection (d).
month rolling average of the Dilution Ratio shall exceed 25.0%, (v) any calendar month between and including the months of June and October, the three month rolling average of the Dilution Ratio shall exceed 32.0%, and (vi) any calendar month, the three month rolling average of the Payment Rate shall be less than 38.0%.
(g) A Change of Control with respect to Originator, Provider or any Seller Party shall occur.
(h) (i) One or more final judgments for the payment of money shall be entered against Seller or (ii) one or more final judgments for the payment of money in an amount in excess of $30,000,000, individually or in the aggregate, shall be entered against the Servicer on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for fifteen (15) consecutive days without a stay of execution.
(i) The "Termination Date" under and as defined in the Receivables Sale Agreement shall occur under the Receivables Sale Agreement or Originator shall for any reason cease to transfer, or cease to have the legal capacity to transfer, or otherwise be incapable of transferring Receivables to Seller under the Receivables Sale Agreement.
(j) This Agreement shall terminate in whole or in part (except in accordance with its terms), or shall cease to be effective or to be the legally valid, binding and enforceable obligation of Seller, or any Obligor shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability, or the Agent for the benefit of the Purchasers shall cease to have a valid and perfected first priority security interest in the Receivables, the Related Security and the Collections with respect thereto and the Collection Accounts.
(k) Provider shall fail to perform or observe any term, covenant or agreement required to be performed by it under the Performance Undertaking, or the Performance Undertaking shall cease to be effective or to be the legally valid, binding and enforceable obligation of Provider, or Provider shall directly or indirectly contest in any manner such effectiveness, validity, binding nature or enforceability.
(l) Provider shall fail to perform or observe the covenants set forth in Section 7.4 of the 5-Year Revolving Credit Agreement, dated as of March 30, 2000,November 16, 2004, as such revolving credit agreement may be amended, restated, supplemented or otherwise modified from time to time, among Ralston Purina Company, Bank Onethe Provider, JPMorgan Chase Bank, NA N.A., asadministrative agent, Bank of America, N.A., as syndication agent, Citibank, N.A., as documentation agent, and the financial institutions parties thereto, which agreement has been assigned by Ralston Purina Company to, and assumed by, Provider pursuant to the Debt Assignment, Assumption and Release Agreement, dated as of April 1, 2000, among Ralston Purina Company, Provider and Bank One, NA. For the purposes of this Agreement, such covenants shall survive the termination of such revolving credit agreement and any amendment, restatement, supplement or other modification thereof occurring while JPMorgan Chase Bank, N.A. is not the agent thereunder shall have no effect.
Section 9.2 Remedies. Upon the occurrence and during the continuation of an Amortization Event, the Agent may, or upon the direction of any Funding Agent on behalf of the Required Financial Institutionsin its Conduit Groups shall, take any of the following actions: (i) replace the Person then acting as Servicer, (ii) declare the Amortization Date to have occurred, whereupon the Amortization Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are hereby expressly waived by each Seller Party; provided, however, that upon the occurrence of an Amortization Event described in Section 9.1(d)(ii), or of an actual or deemed entry of an order for relief with respect to any Seller Party under the Federal Bankruptcy Code, the Amortization Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by each Seller Party, (iii) to the fullest extent permitted by applicable law, declare that the Default Fee shall accrue with respect to any of the Aggregate Unpaids outstanding at such time, (iv) deliver the Collection Notices to the Collection Banks, and (v) notify Obligors of the Purchasers' interest in the Receivables. The aforementioned rights and remedies shall be without limitation, and shall be in addition to all other rights and remedies of the Agent, the Funding Agents and the Purchasers otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including, without limitation, all rights and remedies provided under the UCC, all of which rights shall be cumulative.
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ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnities by The Seller Parties. Without limiting any other rights that the Agent or any Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to) the Agent, each Funding Agent, each Funding Source and each Purchaser and their respective assigns, officers, directors, agents and employees (each an "Indemnified Party") from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys' fees (which attorneys may be employees of the Agent, such Funding Agent, such Funding Source or such Purchaser) and disbursements (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or as a result of this Agreement or the acquisition, either directly or indirectly, by a Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify (and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded against or incurred by any of them arising out ofthe Servicer's activities as Servicer hereunder excluding, however, in all of the foregoing instances under the preceding clauses (A) and (B):
(i) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party's principal executive office is located, on or measured by the overall net income of such Indemnified Party to the extent that the computation of such taxes is consistent with the characterization for income tax purposes of the acquisition by the Purchasers of Purchaser Interests as a loan or loans by the Purchasers to Seller secured by the Receivables, the Related Security, the Collection Accounts and the Collections;
provided, however, that nothing contained in this sentence shall limit the liability of any Seller Party or limit the recourse of the Purchasers to any Seller Party for amounts otherwise specifically provided to be paid by such Seller Party under the terms of this Agreement. Without limiting the generality of the foregoing indemnification, Seller shall indemnify each Indemnified Party for Indemnified Amounts (including, without limitation, losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would constitute recourse to Seller or the Servicer) relating to or resulting from:
(i) any representation or warranty made by any Seller Party, Provider or Originator (or any officers of any such Person) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(ii) the failure by Seller, the Servicer, Provider or Originator to comply with any applicable law, rule or regulation with respect to any Receivable or Contract related thereto, or the nonconformity of any Receivable or Contract included therein with any such applicable law, rule or regulation or any failure of Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;
(iii) any failure of Seller,the Servicer, Provider or Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
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(iv) any products liability, personal injury or damage suit, or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Receivable;
(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or service related to such Receivable or the furnishing or failure to furnish such merchandise or services;
(vi) the commingling of Collections of Receivables at any time with other funds;
(vii)any investigation, litigation or proceeding related to or arising from this Agreement or any other Transaction Document, the transactions contemplated hereby, the use of the proceeds of an Incremental Purchase or a Reinvestment, the ownership of the Purchaser Interests or any other investigation, litigation or proceeding relating to Seller, the Servicer, Provider or Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;
| (ix) | any Amortization Event described in Section 9.1(d); |
(x) any failure of Seller to acquire and maintain legal and equitable title to, and ownership of any Receivable and the Related Security and Collections with respect thereto from Originator, free and clear of any Adverse Claim (other than as created hereunder); or any failure of Seller to give reasonably equivalent value to Originator under the Receivables Sale Agreement in consideration of the transfer by Originator of any Receivable, or any attempt by any Person to void such transfer under statutory provisions or common law or equitable action;
(xi) any failure to vest and maintain vested in the Agent for the benefit of the Purchasers, or to transfer to the Agent for the benefit of the Purchasers, legal and equitable title to, and ownership of, a first priority perfected undivided percentage ownership interest (to the extent of the Purchaser Interests contemplated hereunder) or security interest in the Receivables, the Related Security and the Collections, free and clear of any Adverse Claim (except as created by the Transaction Documents);
(xii)the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Receivable, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of any Incremental Purchase or Reinvestment or at any subsequent time;
(xiii) any action or omission by any Seller Party or Provider which reduces or impairs the rights of the Agent or the Purchasers with respect to any Receivable or the value of any such Receivable;
(xiv) any attempt by any Person to void any Incremental Purchase or Reinvestment hereunder under statutory provisions or common law or equitable action; and
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(xv)the failure of any Receivable included in the calculation of the Net Receivables Balance as an Eligible Receivable to be an Eligible Receivable at the time so included.
Section 10.2 Increased Cost and Reduced Return. If after the date hereof, any Funding Source shall be charged any fee, expense or increased cost on account of the adoption of any applicable law, rule or regulation (including any applicable law, rule or regulation regarding capital adequacy), any accounting principles or any change in any of the foregoing, or any change in the interpretation or administration thereof by the Financial Accounting Standards Board ("FASB"), any governmental authority, any central bank or any comparable agency charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law) of any such authority or agency (a "Regulatory Change"): (i) that subjects any Funding Source to any charge or withholding on or with respect to any Funding Agreement or a Funding Source's obligations under a Funding Agreement, or on or with respect to the Receivables, or changes the basis of taxation of payments to any Funding Source of any amounts payable under any Funding Agreement (except for changes in the rate of tax on the overall net income of a Funding Source or taxes excluded by Section 10.1) or (ii) that imposes, modifies or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of a Funding Source, or credit extended by a Funding Source pursuant to a Funding Agreement or (iii) that imposes any other condition the result of which is to increase the cost to a Funding Source of performing its obligations under a Funding Agreement, or to reduce the rate of return on a Funding Source's capital as a consequence of its obligations under a Funding Agreement, or to reduce the amount of any sum received or receivable by a Funding Source under a Funding Agreement or to require any payment calculated by reference to the amount of interests or loans held or interest received by it, then, upon demand by the Agent, Seller shall pay to the relevant Funding Agent, for the benefit of the relevant Funding Sourcewith respect to such Funding Agent's Conduit Group, such amounts charged to such Funding Source or such amounts to otherwise compensate such Funding Source for such increased cost or such reduction. For the avoidance of doubt, if the issuance of FASB Interpretation No. 46, or any other change in accounting standards or the issuance of any other pronouncement, release or interpretation, causes or required the consolidation of all or a portion of the assets and liabilities of Company or Seller with the assets and liabilities of the Agent, any Financial Institution or any other Funding Source, such event shall constitute a circumstance on which such Funding Source may base a claim for reimbursement under this Section.
Section 10.3 Other Costs and Expenses. Seller shall pay to the Agent, the Funding Agents andeach Conduit on demand all reasonable out-of-pocket costs and expenses in connection with the preparation, execution, delivery and administration of this Agreement, the transactions contemplated hereby and the other documents to be delivered hereunder, including without limitation, the cost of each Conduit's auditors auditing the books, records and procedures of Seller, reasonable fees and out-of-pocket expenses of legal counsel for Conduit the Conduits, the Funding Agents and the Agent (which such counsel may be employees of any Conduit, a Funding Agent or the Agent) with respect thereto and with respect to advising Conduit the Conduits, the Funding Agents and the Agent as to their respective rights and remedies under this Agreement. Seller shall pay to the Agent (in the case of costs and expenses incurred by the Agent) or the relevant Funding Agent (in the case of costs and expenses incurred by the Purchasers in the related Conduit Group) on demand any and all costs and expenses of the Agent and the Purchasers, if any, including reasonable counsel fees and expenses in connection with the enforcement of this Agreement and the other documents delivered hereunder and in connection with any restructuring or workout of this Agreement or such documents, or the administration of this Agreement following an Amortization Event. Seller shall reimburse any Conduit on demand for all other costs and expenses incurred bysuch Conduit ("Other Costs"), including, without limitation, the cost of auditing such Conduit's books by certified public accountants, the cost of rating the its Commercial Paper by independent financial rating agencies, and the reasonable fees and out-of-pocket expenses of counsel for such Conduit or any counsel for any shareholder of such Conduit with respect to advisingsuch Conduit or such shareholder as to matters relating tosuch Conduit's operations.
Section 10.4 Allocations. Each Conduit shall allocate the liability for Other Costs among Seller and other Persons with whom Conduit has entered into agreements to purchase interests in receivables ("Other Sellers"). If any Other Costs are attributable to Seller and not attributable to any Other Seller, Seller shall be solely liable for such Other Costs. However, if Other Costs are attributable to Other Sellers and not attributable to Seller, such Other Sellers shall be solely liable for such Other Costs. All allocations to be made pursuant to the foregoing provisions of this Article X shall be made by the relevant Conduit in its sole discretion on a reasonable basis and shall be binding on Seller andthe Servicer.
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ARTICLE XI
THE AGENT
Section 11.1 Authorization and Action. Each Purchaser hereby designates and appoints JPMorgan Chase Bank, N.A. to act as its agent hereunder and under each other Transaction Document, and authorizes the Agent to take such actions as agent on its behalf and to exercise such powers as are delegated to the Agent by the terms of this Agreement and the other Transaction Documents together with such powers as are reasonably incidental thereto. The Agent shall not have any duties or responsibilities, except those expressly set forth herein or in any other Transaction Document, or any fiduciary relationship with any Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Agent shall be read into this Agreement or any other Transaction Document or otherwise exist for the Agent. In performing its functions and duties hereunder and under the other Transaction Documents, the Agent shall act solely as agent for the Purchasers and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for any Seller Party or any of such Seller Party's successors or assigns. The Agent shall not be required to take any action that exposes the Agent to personal liability or that is contrary to this Agreement, any other Transaction Document or applicable law. The appointment and authority of the Agent hereunder shall terminate upon the indefeasible payment in full of all Aggregate Unpaids. Each Purchaser hereby authorizes the Agent to execute each of the Uniform Commercial Code financing statements on behalf of such Purchaser (the terms of which shall be binding on such Purchaser).
Section 11.2 Delegation of Duties. The Agent may execute any of its duties under this Agreement and each other Transaction Document by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
Section 11.3 Exculpatory Provisions. Neither the Agent nor any of its directors, officers, agents or employees shall be (i) liable for any action lawfully taken or omitted to be taken by it or them under or in connection with this Agreement or any other Transaction Document (except for its, their or such Person's own gross negligence or willful misconduct), or (ii) responsible in any manner to any of the Purchasers for any recitals, statements, representations or warranties made by any Seller Party or Provider contained in this Agreement, any other Transaction Document or any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement, or any other Transaction Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, or any other Transaction Document or any other document furnished in connection herewith or therewith, or for any failure of any Seller Party or Provider to perform its obligations hereunder or thereunder, or for the satisfaction of any condition specified in Article VI, or for the perfection, priority, condition, value or sufficiency of any collateral pledged in connection herewith. The Agent shall not be under any obligation to any Purchaser to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement or any other Transaction Document, or to inspect the properties, books or records of the Seller Parties or Provider. The Agent shall not be deemed to have knowledge of any Amortization Event or Potential Amortization Event unless the Agent has received notice from Seller or a Purchaser.
Section 11.4 Reliance by Agent. The Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to Seller), independent accountants and other experts selected by the Agent. The Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document unless it shall first receive such advice or concurrence of Conduit or the Requiredthe Funding Agents on behalf of the Financial Institutionsin their respective Conduit Groups or all of the Purchasers, as applicable, as it deems appropriate and it shall first be indemnified to its satisfaction by the Purchasers, provided that unless and until the Agent shall have received such advice, the Agent may take or refrain from taking any action, as the Agent shall deem advisable and in the best interests of the Purchasers. The Agent shall in all cases be fully protected in acting, or in refraining from acting, in accordance with a request of Conduit or the Requiredall Funding Agents on behalf of the Financial Institutionsin their respective Conduit Groups or all of the Purchasers, as applicable, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Purchasers.
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Section 11.5 Non-Reliance on Agent and Other Purchasers. Each Purchaser expressly acknowledges that neither the Agent, nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by the Agent hereafter taken, including, without limitation, any review of the affairs of any Seller Party or Provider, shall be deemed to constitute any representation or warranty by the Agent. Each Purchaser represents and warrants to the Agent that it has and will, independently and without reliance upon the Agent or any other Purchaser and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of Seller and made its own decision to enter into this Agreement, the other Transaction Documents and all other documents related hereto or thereto.
Section 11.6 Reimbursement and Indemnification. The Financial Institutions agree to reimburse and indemnify the Agent and its officers, directors, employees, representatives and agents ratably according to their Pro Rata Sharesand the Purchase Pro Rata Shares of their respective Conduit Groups, to the extent not paid or reimbursed by the Seller Parties (i) for any amounts for which the Agent, acting in its capacity as Agent, is entitled to reimbursement by the Seller Parties hereunder and (ii) for any other expenses incurred by the Agent, in its capacity as Agent and acting on behalf of the Purchasers, in connection with the administration and enforcement of this Agreement and the other Transaction Documents.
Section 11.7 Agent in its Individual Capacity. The Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with Seller or any Affiliate of Seller as though the Agent were not the Agent hereunder. With respect to the acquisition of Purchaser Interests pursuant to this Agreement, the Agent shall have the same rights and powers under this Agreement in its individual capacity as any Purchaser and may exercise the same as though it were not the Agent, and the terms "Financial Institution," "Purchaser," "Financial Institutions" and "Purchasers" shall include the Agent in its individual capacity.
Section 11.8 Successor Agent. The Agent may, upon thirty days' notice to Seller and the Purchasers, and the Agent will, upon the direction of all of the Purchasers (other than the Agent, in its individual capacity) resign as Agent. If the Agent shall resign, then the Required Funding Agents, acting on behalf of the Financial Institutionsin their respective Conduit Groups, during such thirty-day period shallcollectively appoint from among the Purchasers a successor agent. If for any reason no successor Agent is collectively appointed by the Required Funding Agents, acting on behalf of the Financial Institutionsin their respective Conduit Groups, during such thirty-day period, then effective upon the termination of such thirty-day period, the Purchasers shall perform all of the duties of the Agent hereunder and under the other Transaction Documents and Seller andthe Servicer (as applicable) shall make all payments in respect of the Aggregate Unpaids directly to the applicable Purchasers and for all purposes shall deal directly with the Purchasers. After the effectiveness of any retiring Agent's resignation hereunder as Agent, the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Transaction Documents and the provisions of this Article XI and Article X shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while it was Agent under this Agreement and under the other Transaction Documents.
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Assignments. (a) Seller, the Servicer, Agent and each Financial Institution hereby agree and consent to the complete or partial assignment by a Conduit of all or any portion of its rights under, interest in, title to and obligations under this Agreement to any Funding Source or, with the consent of the Seller (which consent shall not be unreasonably withheld), to any other Person, and upon such assignment, such Conduit shall be released from its obligations so assigned. Further, Seller, the Servicer, the Agent and each Financial Institution hereby agree that any assignee of such Conduit of this Agreement or all or any of the Purchaser Interests ofsuch Conduit shall have all of the rights and benefits under this Agreement as if the term terms "Falcon," "Gotham," "Victory, and/or "Conduit" ," as applicable, explicitly referred to such party (provided that the Purchaser Interests of any such assignee shall accrue Yield pursuant to Section 4.1), and no such assignment shall in any way impair the rights and benefits of such Conduit hereunder. Neither Seller northe Servicer shall have the right to assign its rights or obligations under this Agreement.
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(b) Any Financial Institution may at any time and from time to time assign to one or more Persons ("Purchasing Financial Institutions") all or any part of its rights and obligations under this Agreement pursuant to an assignment agreement, substantially in the form set forth in Exhibit VII hereto (the "Assignment Agreement") executed by such Purchasing Financial Institution and such selling Financial Institution. The consent of each Conduit shall be required prior to the effectiveness of any such assignment; and, in the event of any such assignment by any Financial Institution, other than to an Affiliate of such Financial Institution, another Financial Institution or an Affiliate of another Financial Institution, the consent of Seller (which consent shall not be unreasonably withheld) shall be required prior to the effectiveness of any such assignment. Each assignee of a Financial Institution must (i) have a short-term debt rating of A-1 or better by Standard & Poor's Ratings Group and P-1 by Moody's Investor Service, Inc. and (ii) agree to deliver to the Agent, promptly following any request therefor by the Agent or any Conduit, an enforceability opinion in form and substance satisfactory to the Agent andsuch Conduit. Upon delivery of the executed Assignment Agreement to the Agent, such selling Financial Institution shall be released from its obligations hereunder to the extent of such assignment. Thereafter the Purchasing Financial Institution shall for all purposes be a Financial Institution party to this Agreement and shall have all the rights and obligations of a Financial Institution under this Agreement to the same extent as if it were an original party hereto and no further consent or action by Seller, the Purchasers or the Agent shall be required.
(c) Each of the Financial Institutions agrees that in the event that it shall cease to have a short-term debt rating of A-1 or better by Standard & Poor's Ratings Group and P-1 by Moody's Investor Service, Inc. (an "Affected Financial Institution"), such Affected Financial Institution shall be obliged, at the request of any Conduit or the Agent, to assign all of its rights and obligations hereunder to (x) another Financial Institution or (y) another funding entity nominated by the Agent and acceptable tosuch Conduit, and willing to participate in this Agreement through the Liquidity Termination Date in the place of such Affected Financial Institution; provided that the Affected Financial Institution (or the relevant Funding Agent on behalf of the Affected Financial Institution) receives payment in full, pursuant to an Assignment Agreement, of an amount equal to such Financial Institution's Pro Rata Share of the Aggregate Capital and Yield owing to the Financial Institutions in the same Conduit Group and all accrued but unpaid fees and other costs and expenses payable in respect of its Pro Rata Share of the Purchaser Interests of the such Financial Institutions.
Section 12.2 Participations. Any Financial Institution may, in the ordinary course of its business at any time sell to one or more Persons (each a "Participant") participating interests in its Pro Rata Share of the Purchaser Interests of the Financial Institutionsin the same Conduit Group, its obligation hereunderor any other interest of such Financial Institution hereunder. Notwithstanding any such sale by a Financial Institution of a participating interest to a Participant, such Financial Institution's rights and obligations under this Agreement shall remain unchanged, such Financial Institution shall remain solely responsible for the performance of its obligations hereunder, and Seller, each Conduit, the relevant Funding Agent and the Agent shall continue to deal solely and directly with such Financial Institution in connection with such Financial Institution's rights and obligations under this Agreement. Each Financial Institution agrees that any agreement between such Financial Institution and any such Participant in respect of such participating interest shall not restrict such Financial Institution's right to agree to any amendment, supplement, waiver or modification to this Agreement, except for any amendment, supplement, waiver or modification described in Section 14.1(b)(i).
ARTICLE XIII
{RESERVED}
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Waivers and Amendments. (a) No failure or delay on the part of the Agent or any Purchaser in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any
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rights or remedies provided by law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given.
(b) No provision of this Agreement may be amended, supplemented, modified or waived except in writing in accordance with the provisions of this Section 14.1(b). Each Conduit, Seller, the Funding Agents and the Agent, at the direction of all Funding Agents on behalf of theRequired Financial Institutionsin their respective Conduit Groups, may enter into written modifications or waivers of any provisions of this Agreement, provided, however, that no such modification or waiver shall:
(i) without the consent of each affected Purchaser, (A) extend the Liquidity Termination Date or the date of any payment or deposit of Collections by Seller or the Servicer, (B) reduce the rate or extend the time of payment of Yield or any CP Costs (or any component of Yield or CP Costs), (C) reduce any fee payable to the Agent for the benefit of the Purchasers, (D) except pursuant to Article XII hereof, change the amount of the Capital of any Purchaser, any Financial Institution's Pro Rata Share (other than, to the extent applicable in each case, pursuant to Section 4.6 or the terms of the Liquidity Agreement or any other Funding Agreement), any Conduit Group's Purchase Pro Rata Share (other than, to the extent applicable, pursuant to Section 4.6) or Reduction Pro Rata Share or any Financial Institution's Commitment, (E) amend, modify or waive any provision of the definition of Required Financial Institutions, Section 4.6 or this Section 14.1(b)or any provision relating to the number of Conduits or Conduit Groups required to take any action under or waive any provision in this Agreement, (F) consent to or permit the assignment or transfer by Seller of any of its rights and obligations under this Agreement, (G) change the definition of "Eligible Receivable," "Loss Reserve," "Loss-to-Liquidation Ratio,"or "Loss Percentage" or (H) amend or modify any defined term (or any defined term used directly or indirectly in such defined term) used in clauses (A) through (G) above in a manner that would circumvent the intention of the restrictions set forth in such clauses;
(ii) without the written consent of the then Agent, amend, modify or waive any provision of this Agreement if the effect thereof is to affect the rights or duties of such Agent; or
(iii) without the written consent of the then Servicer, amend, modify or waive any provision of Article VIII if the effect thereof is to affect the rights or duties of such Servicer.
Notwithstanding the foregoing, (i) without the consent of the Financial Institutions, but with the consent of Seller, the Agent may amend this Agreement solely to add additional Persons as Financial Institutions hereunderand ; (ii) the Agent, the Required Funding Agents on behalf of the Financial Institutions and in their respective Conduit Groups and each Conduit may enter into amendments to modify any of the terms or provisions of Article XI, Article XII, Article XIII, Section 14.13 or any other provision of this Agreement without the consent of Seller, provided that such amendment has no negative impact upon Seller. Any modification or waiver made in accordance with this Section 14.1 shall apply to each of the Purchasers equally and shall be binding upon Seller, the Purchasersand the Agent, the Funding Agents and the Agent; and (iii) the Agent, acting upon the direction of both Funding Agents on behalf of the Financial Institutions in their respective Conduit Groups, may waive the occurrence of an Amortization Event.
Section 14.2 Notices. Except as provided in this Section 14.2, all communications and notices provided for hereunder shall be in writing (including bank wire, telecopy or electronic facsimile transmission or similar writing) and shall be given to the other parties hereto at their respective addresses or telecopy numbers set forth on the signature pages hereof or at such other address or telecopy number as such Person may hereafter specify for the purpose of notice to each of the other parties hereto. Each such notice or other communication shall be effective if given by telecopy, upon the receipt thereof, if given by mail, three (3) Business Days after the time such communication is deposited in the mail with first class postage prepaid or if given by any other means, when received at the address specified in this Section 14.2. Seller hereby authorizes the Agent and the Funding Agents to effect purchases and Tranche Period and Discount Rate selections, as applicable, based on telephonic notices made by any Person whom the Agent or the relevant Funding Agent, as applicable, in good faith believes to be acting on behalf of Seller. Seller agrees to deliver promptly to the Agentor the relevant Funding Agent, as applicable, a written confirmation of each telephonic notice signed by an authorized officer of Seller; provided, however, the absence of such confirmation shall
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not affect the validity of such notice. If the written confirmation differs from the action taken by the Agentor the relevant Funding Agent, as applicable, the records of the Agentor such Funding Agent, as applicable, shall govern absent manifest error.
Section 14.3 Ratable Payments. If any Purchaser, whether by setoff or otherwise, has payment made to it with respect to any portion of the Aggregate Unpaids owing to such Purchaser (other than payments received pursuant to Section 10.2 or 10.3) in a greater proportion than that received by any other Purchaser entitled to receive a ratable share of such Aggregate Unpaids, such Purchaser agrees, promptly upon demand, to purchase for cash without recourse or warranty a portion of such Aggregate Unpaids held by the other Purchasers so that after such purchase each Purchaser will hold its ratable proportion of such Aggregate Unpaids; provided that if all or any portion of such excess amount is thereafter recovered from such Purchaser, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.
Section 14.4 Protection of Ownership Interests of the Purchasers. (a) Seller agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents, and take all actions, that may be necessary or desirable, or that the Agent may request, to perfect, protect or more fully evidence the Purchaser Interests, or to enable the Agent or the Purchasers to exercise and enforce their rights and remedies hereunder. At any time upon the occurrence and during the continuance of a Potential Amortization Event, the Agent may, or the Agent may direct Seller or the Servicer to, notify the Obligors of Receivables, at Seller's expense, of the ownership or security interests of the Purchasers under this Agreement and may also direct that payments of all amounts due or that become due under any or all Receivables be made directly to the Agent Funding Agents or its a designeethereof . Seller orthe Servicer (as applicable) shall, at any Purchaser's request, withhold the identity of such Purchaser in any such notification.
(b) If any Seller Party fails to perform any of its obligations hereunder, the Agent or any Purchaser may (but shall not be required to) perform, or cause performance of, such obligations, and the Agent's or such Purchaser's reasonable costs and expenses incurred in connection therewith shall be payable by Seller as provided in Section 10.3. Each Seller Party irrevocably authorizes the Agent at any time and from time to time in the sole discretion of the Agent, and appoints the Agent as its attorney-in-fact, to act on behalf of such Seller Party (i) to execute on behalf of Seller as debtor and to file financing statements necessary or desirable in the Agent's sole discretion to perfect and to maintain the perfection and priority of the interest of the Purchasers in the Receivables and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Receivables as a financing statement in such offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Purchasers in the Receivables. This appointment is coupled with an interest and is irrevocable.
Section 14.5 Confidentiality. (a) Each Seller Party, each Funding Agent, the Agent and each Purchaser shall maintain and shall cause each of its employees and officers to maintain the confidentiality of the Transaction Documents and the other confidential or proprietary information with respect to the other parties hereto and their respective businesses obtained by it or them in connection with the structuring, negotiating and execution of the transactions contemplated herein, except that such Seller Party, such Funding Agent, the Agent and such Purchaser and its officers and employees may disclose such information to such Person's external accountants and attorneys and as required by any applicable law or order of any judicial or administrative proceeding. Anything herein to the contrary notwithstanding, each Seller Party, each Purchaser, each Funding Agent and the Agent, each Indemnified Party and any successor or assign of any of the foregoing (and each employee, representative or other agent of any of the foregoing) 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 herein and all materials of any kind (including opinions or other tax analyses) that are or have been provided to any of the foregoing relating to such tax treatment or tax structure, and it is hereby confirmed that each of the foregoing have been so authorized since the commencement of discussions regarding the transactions.
(b) Anything herein to the contrary notwithstanding, each Seller Party hereby consents to the disclosure of any nonpublic information with respect to it (i) to the Agent, the Funding Agents, the Financial Institutions or Conduit the Conduits by each other, (ii) by the Agent, the Funding Agents or the Purchasers to any prospective or actual assignee or participant of any of them and (iii) by the Agent or a Conduit to any rating agency, Commercial Paper dealer, any Funding Source or other provider of a surety, guaranty or credit or liquidity enhancement to a Conduit or any entity organized for the purpose of purchasing, or making loans secured by, financial
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assets for which JPMorgan Chase Bank, N.A. or BTMU acts as the administrative agent and to any officers, directors, employees, outside accountants and attorneys of any of the foregoing. In addition, the Purchasers, the Funding Agents and the Agent may disclose any such nonpublic information pursuant to any law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or proceedings (whether or not having the force or effect of law).
Section 14.6 Bankruptcy Petition. Seller, the Servicer, the Funding Agents, the Agent and each Financial Institution hereby covenants and agrees that, prior to the date that is one year and one day after the payment in full of all outstanding senior indebtedness of a Conduit, it will not institute against, or join any other Person in instituting against,such Conduit any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
Section 14.7 Limitation of Liability. Except with respect to any claim arising out of the willful misconduct or gross negligence of a Conduit, a Funding Agent, the Agent or any Financial Institution, no claim may be made by any Seller Party or any other Person against a Conduit, a Funding Agent, the Agent or any Financial Institution or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each Seller Party hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
Section 14.8 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
Section 14.9 CONSENT TO JURISDICTION. EACH SELLER PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH PERSON PURSUANT TO THIS AGREEMENT 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 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 AGENT OR ANY PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST THE AGENT OR ANY PURCHASER OR ANY AFFILIATE OF THE AGENT OR ANY PURCHASER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
Section 14.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 14.11 | Integration; Binding Effect; Survival of Terms. |
(a) This Agreement and each other Transaction Document contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including any trustee in bankruptcy). This Agreement shall
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create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until terminated in accordance with its terms; provided, however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by any Seller Party pursuant to Article V, (ii) the indemnification and payment provisions of Article X, and Sections 14.5 and 14.6 shall be continuing and shall survive any termination of this Agreement.
Section 14.12 Counterparts; Severability; Section References. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Any provisions of this Agreement which are 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 not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise expressly indicated, all references herein to "Article," "Section," "Schedule" or "Exhibit" shall mean articles and sections of, and schedules and exhibits to, this Agreement.
Section 14.13 JPMorgan Chase Roles. Each of the Financial Institutions acknowledges that JPMorgan Chase Bank, N.A. acts, or may in the future act, (i) as administrative agent and/or funding agent forany Conduit or any Financial Institution or as a Funding Source or agent for any Funding Source, (ii) as issuing and paying agent for the Commercial Paper, (iii) to provide credit or liquidity enhancement for the timely payment for the Commercial Paper and (iv) to provide other services from time to time forany Conduit or any Financial Institution (collectively, the "JPMorgan Chase Roles"). Without limiting the generality of this Section 14.13, each Financial Institution hereby acknowledges and consents to any and all JPMorgan Chase Roles and agrees that in connection with any JPMorgan Chase Role, JPMorgan Chase Bank, N.A. may take, or refrain from taking, any action that it, in its discretion, deems appropriate, including, without limitation, in its role as administrative agent for Conduit Falcon.
Section 14.14 Characterization. (a) It is the intention of the parties hereto that each purchase hereunder shall constitute and be treated as an absolute and irrevocable sale, which purchase shall provide the applicable Purchaser with the full benefits of ownership of the applicable Purchaser Interest. Except as specifically provided in this Agreement, each sale of a Purchaser Interest hereunder is made without recourse to Seller; provided, however, that (i) Seller shall be liable to each Purchaser, each Funding Agent and the Agent for all representations, warranties, covenants and indemnities made by Seller pursuant to the terms of this Agreement, and (ii) such sale does not constitute and is not intended to result in an assumption by any Purchaser, any Funding Agent or the Agent or any assignee thereof of any obligation of Seller or Originator or any other person arising in connection with the Receivables, the Related Security, or the related Contracts, or any other obligations of Seller or Originator.
(b) In addition to any ownership interest which the Agent may from time to time acquire pursuant hereto, Seller hereby grants to the Agent for the ratable benefit of the Purchasers a valid and perfected security interest in all of Seller's right, title and interest in, to and under all Receivables now existing or hereafter arising, the Collections, each Lock-Box, each Collection Account, all Related Security, the Demand Note, all other rights and payments relating to such Receivables and all proceeds of any thereof prior to all other liens on and security interests therein to secure the prompt and complete payment of the Aggregate Unpaids. The Agent and the Purchasers shall have, in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.
Section 14.15 Withholding. Any Purchaser that is not incorporated under the laws of the United States of America, or a state thereof, agrees to deliver to the Agent (with copies to Seller) two duly completed copies of United States Internal Revenue Service Forms W-8BEN or W-8ECI, certifying in either case that such Purchaser is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized officers as of the date hereof.
ENERGIZER RECEIVABLES FUNDING CORPORATION
By:__________________________
Name:
Title:
| Address: | 533 Maryville University Drive |
St. Louis, Missouri 63141
ENERGIZER BATTERY, INC.
By:__________________________
Name:
Title:
| Address: | 533 Maryville University Drive |
St. Louis, Missouri 63141
FALCON ASSET SECURITIZATION CORPORATION COMPANY LLC (formerly Falcon Asset Securitization Corporation)
By: JPMorgan Chase Bank, N.A., its Attorney-in-Fact
Name: Ronald J. Atkins
Title: Executive Director
| Address: | c/o JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as A agent |
Asset Backed Securities Conduit Group
Suite IL1-0079, 1-19 13
1 Bank One Plaza
Chicago, Illinois 60670-0079
GOTHAM FUNDING CORPORATION
| Address: | (for opinions) c/o J.H. Management Corporation |
One International Place
Boston, MA 02110
(for other communications) c/o The Bank of Tokyo-Mitsubish UFJ, Ltd.
1251 Avenue of the Americas
New York, New York 10020
VICTORY RECEIVABLES CORPORATION
| Address: | (for opinions) c/o J.H. Management Corporation |
One International Place
Boston, MA 02110
(for other communications) c/o The Bank of Tokyo-Mitsubish UFJ, Ltd.
1251 Avenue of the Americas
New York, New York 10020
JPMORGAN CHASE BANK, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as a Financial Institution and as Agentand as a Funding Agent
Name:
Title:
| Address: | JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)) |
Asset Backed Securities Conduit Group
Suite IL1-0596, 0579, 1-21 13
1 Bank One Plaza
Chicago, Illinois 60670-0596 0079
Fax: (312) 732-[4487]
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Funding Agent
Name:
Title:
| Address: | The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
1251 Avenue of the Americas
New York, New York 10020
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Financial Institution
Name:
Title:
| Address: | The Bank of Tokyo-Mitsubishi UFJ, Ltd. |
1251 Avenue of the Americas
New York, New York 10020
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Accrual Period" means each calendar month, provided that the initial Accrual Period hereunder means the period from (and including) the date of the initial purchase hereunder to (and including) the last day of the calendar month thereafter.
"Adverse Claim" means a lien, security interest, charge or encumbrance, or other right or claim in, of or on any Person's assets or properties in favor of any other Person.
"Affected Financial Institution" has the meaning specified in Section 12.1(c).
"Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person or any Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities 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 ownership of stock, by contract or otherwise.
"Agent" has the meaning set forth in the preamble to this Agreement.
"Aggregate Capital" means, on any date of determination, the aggregate amount of Capital of all Purchaser Interests outstanding on such date.
"Aggregate Reduction" has the meaning specified in Section 1.3.
"Aggregate Reserves" means, on any date of determination, the sum of the Loss Reserve, the Yield Reserve, and the Dilution Reserve.
"Aggregate Unpaids" means, at any time, an amount equal to the sum of, without duplication, all, Aggregate Capital and all other unpaid Obligations (whether due or accrued) at such time.
"Agreement" means this Receivables Purchase Agreement, as it may be amended or modified and in effect from time to time.
"Amortization Date" means the earliest to occur of (i) the day on which any of the conditions precedent set forth in Section 6.2 are not satisfied, (ii) the Business Day immediately prior to the occurrence of an Amortization Event set forth in Section 9.1(d)(ii), (iii) the Business Day specified in a written notice from the Agent following the occurrence of any other Amortization Event and (iv) the date which is 30 Business Days after the Agent's receipt of written notice from Seller that it wishes to terminate the facility evidenced by this Agreement.
"Amortization Event" has the meaning specified in Article IX.
"Assignment Agreement" has the meaning set forth in Section 12.1(b).
"Authorized Officer" means, with respect to any Person, its president, corporate controller, treasurer or chief financial officer.
"Broken Funding Costs" means for any Purchaser Interest which: (i) has its Capital reduced without compliance by Seller with the notice requirements hereunder or (ii) does not become subject to an Aggregate Reduction following the delivery of any Reduction Notice or (iii) is assigned pursuant to any Funding Agreement or otherwise transferred or terminated prior to the date on which it was originally scheduled to end; an amount equal to the excess, if any, of (A) the CP Costs or Yield (as applicable) that would have accrued during the remainder of the Tranche Periods or the tranche periods for Commercial Paper determined by the Agent to relate to such Purchaser Interest (as applicable) subsequent to the date of such reduction, assignment, transfer or termination (or in respect of
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clause (ii) above, the date such Aggregate Reduction was designated to occur pursuant to the Reduction Notice) of the Capital of such Purchaser Interest if such reduction, assignment, transfer or termination had not occurred or such Reduction Notice had not been delivered, over (B) the sum of (x) to the extent all or a portion of such Capital is allocated to another Purchaser Interest, the amount of CP Costs or Yield actually accrued during the remainder of such period on such Capital for the new Purchaser Interest, and (y) to the extent such Capital is not allocated to another Purchaser Interest, the income, if any, actually received during the remainder of such period by the holder of such Purchaser Interest from investing the portion of such Capital not so allocated. In the event that the amount referred to in clause (B) exceeds the amount referred to in clause (A), the relevant Purchaser or Purchasers agree to pay to Seller the amount of such excess. All Broken Funding Costs shall be due and payable hereunder upon demand.
"BTMU" has the meaning set forth in the preamble to this Agreement.
"BTMU Pooled CP Costs" means, for each day and with respect to the Capital associated with each Purchaser Interest of Gotham or Victory as to which the BTMU Pooled CP Costs are applicable, the sum of (i) the discount or yield accrued (including, without limitation, any associated with financing the discount or interest component on the roll-over of any relevant Pooled Commercial Paper) on the Pooled Commercial Paper issued by Gotham or Victory, as applicable, on such day, plus (ii) any and all accrued commissions in respect of the relevant placement agents and commercial paper dealers, and issuing and paying agent fees incurred, in respect of such Pooled Commercial Paper for such day, plus (iii) other costs (including without limitation those associated with funding small or odd-lot amounts) with respect to all receivable purchase, credit and other investment facilities which are funded by the applicable Pooled Commercial Paper for such day. The BTMU Pooled CP Costs shall be determined by BTMU in its capacity as Funding Agent for the related Conduit Group, whose determination shall be conclusive.
"Business Day" means any day on which banks are not authorized or required to close in New York, New York, St. Louis, Missouri or Chicago, Illinois and The Depository Trust Company of New York is open for business, and, if the applicable Business Day relates to any computation or payment to be made with respect to the LIBO Rate, any day on which dealings in dollar deposits are carried on in the London interbank market.
"Capital" of any Purchaser Interest means, at any time, (A) the Purchase Price of such Purchaser Interest, minus (B) the sum of the aggregate amount of Collections and other payments received by the Agent which in each case are applied to reduce such Capital in accordance with the terms and conditions of this Agreement; provided that such Capital shall be restored (in accordance with Section 2.5) in the amount of any Collections or other payments so received and applied if at any time the distribution of such Collections or payments are rescinded, returned or refunded for any reason.
"Change of Control" means the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding shares of voting stock of any Seller Party or Provider.
"Charged-Off Receivable" means a Receivable: (i) as to which the Obligor thereof has taken any action, or suffered any event to occur, of the type described in Section 9.1(d) (as if references to Seller Party therein refer to such Obligor); (ii) as to which the Obligor thereof, if a natural person, is deceased, (iii) which, consistent with the Credit and Collection Policy, would be written off Seller's books as uncollectible, (iv) which has been identified by Seller as uncollectible or (v) as to which any payment, or part thereof, remains unpaid for 91 days or more from the original due date for such payment.
"Collection Account" means each concentration account, depositary account, lock-box account or similar account in which any Collections are collected or deposited and which is listed on Exhibit IV.
"Collection Account Agreement" means an agreement substantially in the form of Exhibit VI among Originator, Seller, the Agent and a Collection Bank.
"Collection Bank" means, at any time, any of the banks holding one or more Collection Accounts.
"Collection Notice" means a notice, in substantially the form of Annex A to Exhibit VI, from the Agent to a Collection Bank.
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"Collections" means, with respect to any Receivable, all cash collections and other cash proceeds in respect of such Receivable, including, without limitation, all yield, Finance Charges or other related amounts accruing in respect thereof and all cash proceeds of Related Security with respect to such Receivable.
"Commercial Paper" means promissory notes of a Conduit issued bysuch Conduit in the commercial paper market.
"Commitment" means, for each Financial Institution, the commitment of such Financial Institution to purchase Purchaser Interests from Seller, in an amount not to exceed (i) in the aggregate, the amount set forth opposite such Financial Institution's name on Schedule A to this Agreement, as such amount may be modified in accordance with the terms hereof (including, without limitation, any termination of Commitments pursuant to Section 4.6 hereof) and (ii) with respect to any individual purchase hereunder, its Pro Rata Share of the related Conduit Group's Purchase Pro Rata Share of the Purchase Price therefor.
"Concentration Limit" means, at any time, for any Obligor, (i) an amount equal to 25% of Loss Reserve Floor at such time multiplied by the aggregate Outstanding Balance of all Eligible Receivables at such time or (ii) such other amount (a "Special Concentration Limit") for such Obligor designated by the Agent; provided, that in the case of an Obligor and any Affiliate of such Obligor, the Concentration Limit shall be calculated as if such Obligor and such Affiliate are one Obligor; and provided, further, that Conduit or the Required Financial Institutionseither Funding Agent may, upon not less than three Business Days' notice to Seller, cancel any Special Concentration Limit. The Agent hereby designates the following Special Concentration Limits with respect to the Obligors set forth in the table below.
Obligor | Special Concentration Limit |
Wal-Mart Stores, Inc | 15% of the aggregate Outstanding Balance of all Eligible Receivables at such time. |
The Home Depot, Inc | 15% of the aggregate Outstanding Balance of all Eligible Receivables at such time. |
Target Corporation | 15% of the aggregate Outstanding Balance of all Eligible Receivables at such time. |
CVS Corp. | 7.50% of the aggregate Outstanding Balance of all Eligible Receivables at such time. |
The Kroger Company | 5% of the aggregate Outstanding Balance of all Eligible Receivables at such time. |
Walgreens | 5% of the aggregate Outstanding Balance of all Eligible Receivables at such time. |
"Conduit" has the meaning set forth in the preamble to this Agreement.
"Conduit Group" means, at any time, a group consisting of a Conduit or (in the case of Gotham and Victory, collectively) Conduits, such Conduit's or Conduits' related Financial Institutions and such Conduit's or Conduits' Funding Agent.
"Consent Notice" has the meaning set forth in Section 4.6.
"Consent Period" has the meaning set forth in Section 4.6.
"Contingent Obligation" of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of
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such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or application for a letter of credit.
"Contract" means, with respect to any Receivable, any and all instruments, agreements, invoices or other writings pursuant to which such Receivable arises or which evidences such Receivable.
"CP Costs" means, (A) with respect to the Capital associated with each Purchaser Interest of Falcon and for each day, the sum of (i) discount or yield accrued on Pooled Commercial Paper issued by Falcon on such day, plus (ii) any and all accrued commissions in respect of placement agents and Commercial Paper dealers, and issuing and paying agent fees incurred, in respect of such Pooled Commercial Paper for such day, plus (iii) other costs associated with funding small or odd-lot amounts with respect to all receivable purchase facilities which are funded by such Pooled Commercial Paper for such day, minus (iv) any accrual of income net of expenses received on such day from investment of collections received under all receivable purchase facilities funded substantially with such Pooled Commercial Paper, minus (v) any payment received on such day net of expenses in respect of Broken Funding Costs related to the prepayment of any Purchaser Interest of Conduit Falcon pursuant to the terms of any receivable purchase facilities funded substantially with Pooled Commercial Papersuch Pooled Commercial Paper, and (B) for any period and with respect to any Capital funded by Commercial Paper notes issued by Gotham or Victory, (I) unless BTMU has determined that the BTMU Pooled CP Costs shall be applicable, the Relevant Conduit's cost of funding such Capital, taking into account the weighted daily average interest rate payable in respect of such Commercial Paper notes during such period (determined in the case of discount Commercial Paper notes by converting the discount to an interest bearing equivalent rate per annum), applicable placement fees and commissions, and such other costs and expenses as BTMU in good faith deems appropriate; and (II) to the extent BTMU has determined that the BTMU Pooled CP Costs shall be applicable, the BTMU Pooled CP Costs. In addition to the foregoing costs, if Seller shall request any Incremental Purchase during any period of time determined by the AgentJPMorgan Chase Bank, N.A. in its capacity as Funding Agent for the related Conduit Group in its sole discretion to result in incrementally higher CP Costs applicable to such Incremental Purchase, and attributable to Falcon, the portion of the Capital associated with any such Incremental Purchaseand attributable to Falcon shall, during such period, be deemed to be funded by Conduit Falcon in a special pool (which may include capital associated with other receivable purchase facilities) for purposes of determining such additional CP Costs applicable only to such special pool and charged each day during such period against such Capital.
"Credit and Collection Policy" means Seller's credit and collection policies and practices relating to Contracts and Receivables existing on the date hereof and summarized in Exhibit VIII hereto, as modified from time to time in accordance with this Agreement.
"Credit Memo" means any credit, discount or allowance issued to cancel an invoice, cancel and replace an invoice, record a return, credit a customer for defective merchandise, adjust for new sales policy changes, credit a customer for goods and services taxes, provide a trade show credit or allow for other miscellaneous adjustments, in each case in the ordinary course of business of the Servicer.
"Credit Memo Horizon Ratio" means, as of the last day of any calendar month, a percentage equal to (i) the aggregate gross sales of Originator during the preceding two calendar months then most recently ended divided by (ii) the aggregate Outstanding Balance of all Receivables as to which any payment or part thereof remains unpaid for no more than 60 days from the original due date for such payment as of the last day of the most recently ended calendar month.
"Credit Memo Percentage" means as of the last day of any calendar month, a percentage equal to:
| ((2.0 x ED) + (DS - ED) x DS ) x DHR |
| ED |
where:
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| ED | = | the Expected Credit Memo Ratio at such time. |
| DS | = | the Credit Memo Spike Ratio at such time. |
| DHR | = | the Credit Memo Horizon Ratio at such time. |
"Credit Memo Spike Ratio" means, as of the last day of any calendar month, the highest four month rolling average of the Credit Memo-to-Sales Ratio calculated as of the last day of each of the twelve calendar months then most recently ended.
"Credit Memo-to-Sales Ratio" means, at any time, a percentage equal to (i) the aggregate amount of Credit Memos which occurred during the month then most recently ended, divided by (ii) the aggregate gross sales of Originator during the month three months prior to such month, calculated on a monthly basis.
"Deemed Collections" means the aggregate of all amounts Seller shall have been deemed to have received as a Collection of a Receivable. Seller shall be deemed to have received a Collection in full of a Receivable if at any time (i) the Outstanding Balance of any such Receivable is either (x) reduced as a result of any defective or rejected or returned goods or services, any discount or any adjustment or otherwise by Seller (other than cash Collections on account of the Receivables) or (y) reduced or canceled as a result of a setoff in respect of any claim by any Person (whether such claim arises out of the same or a related transaction or an unrelated transaction) or (ii) any of the representations or warranties in Article V are no longer true with respect to any Receivable.
"Default Fee" means with respect to any amount due and payable by Seller in respect of any Aggregate Unpaids, an amount equal to the greater of (i) $1000 and (ii) interest on any such unpaid Aggregate Unpaids at a rate per annum equal to 2% above the Prime Rate.
"Default Ratio" means, for any calendar month, a percentage equal to (i) the sum of (A) the aggregate Outstanding Balance of all Receivables that were unpaid for 91-120 days as of the last day of such month and (B) the actual write-offs during such calendar month divided by (ii) the aggregate gross sales of Originator during the calendar month four calendar months prior to such calendar month.
"Delinquency Ratio" means, as of the last day of any month, the percentage equal to (i) the sum of (a) the aggregate Outstanding Balance of all Receivables that were Delinquent Receivables at such time plus (b) the ending balance of Originator's suspense account at such time plus (c) the aggregate amount of unresolved short pays set forth on the most recent Monthly Report divided by (ii) the aggregate Outstanding Balance of all Receivables at such time.
"Delinquent Receivable" means a Receivable as to which any payment, or part thereof, remains unpaid for 61 days or more from the original due date for such payment.
"Demand Note" means a promissory note substantially in the form of Exhibit VIII to the Receivables Sale Agreement executed by Originator in favor of Seller.
"Designated Obligor" means an Obligor indicated by the Agent to Seller in writing.
"Dilution Ratio" means, as of the last day of any calendar month, a percentage equal to (i) the aggregate amount of Dilutions less Credit Memos as at such day divided by (ii) the aggregate gross sales of Originator during the calendar month three calendar months prior to such calendar month.
"Dilution Reserve" means, on any date, an amount equal to the (a) the product of (i) the greater of (A) 20% and (B) the sum of (1) the general ledger accrual balance of Originator divided by the aggregate Outstanding Balance of all Receivables plus (2) the Credit Memo Percentage multiplied by (ii) the Net Receivables Balance as of the close of business of the Originator on such date minus (b) $50,000,000 78,000,000 or, if the Provider fails to comply with any Provider Financial Covenant, $0.00, provided that the Dilution Reserve shall, at no time, be less than $0.00.
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"Dilutions" means, at any time, the aggregate amount of reductions or cancellations described in clause (i) of the definition of "Deemed Collections".
"Discount Rate" means, the LIBO Rate or the Prime Rate, as applicable, with respect to each Purchaser Interest of the Financial Institutions.
"Eligible Receivable" means, at any time, a Receivable:
(i) the Obligor of which (a) if a natural person, is a resident of the United States or, if a corporation or other business organization, is organized under the laws of the United States or any political subdivision thereof and has its chief executive office in the United States; (b) is not an Affiliate of any of the parties hereto; (c) is not a Designated Obligor; and (d) is not a government or a governmental subdivision or agency, provided that a Government Receivable that otherwise would be an Eligible Receivable under this definition but for this clause (i) shall be an Eligible Receivable so long as the aggregate Outstanding Balance of all such Government Receivables does not exceed 3% of the aggregate Outstanding Balance of all Receivables,
| (ii) | which is not a Charged-Off Receivable or a Delinquent Receivable, |
(iii) which by its terms is due and payable within 90 days of the original billing date therefor and has not had its payment terms extended,
(iv)which is an "account" or "chattel paper" within the meaning of Section 9-105 and Section 9-106, respectively, of the UCC of all applicable jurisdictions,
| (v) | which is denominated and payable only in United States dollars in the United States, |
(vi) which arises under a Contract in substantially the form of one of the form contracts set forth on Exhibit IX hereto or otherwise approved by the Agent in writing, which, together with such Receivable, has been duly authorized, is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor enforceable against such Obligor in accordance with its terms subject to no offset, counterclaim or other defense,
(vii)which arises under a Contract which (A) does not require the Obligor under such Contract to consent to the transfer, sale or assignment of the rights and duties of Originator or any of its assignees under such Contract and (B) does not contain a confidentiality provision that purports to restrict the ability of any Purchaser to exercise its rights under this Agreement, including, without limitation, its right to review the Contract,
(viii) which arises under a Contract that contains an obligation to pay a specified sum of money, contingent only upon the sale of goods or the provision of services by Originator,
(ix) which, together with the Contract related thereto, does not contravene any law, rule or regulation applicable thereto (including, without limitation, any law, rule and regulation relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no part of the Contract related thereto is in violation of any such law, rule or regulation,
| (x) | which satisfies all applicable requirements of the Credit and Collection Policy, |
| (xi) | which was generated in the ordinary course of Originator's business, |
(xii)which arises solely from the sale of goods or the provision of services to the related Obligor by Originator, and not by any other Person (in whole or in part),
(xiii) as to which the Agent hasFunding Agents have not notified Seller that the Agent hasFunding Agents have, in its their collective reasonable business judgement, determined that such Receivable or class of Receivables is not acceptable as an Eligible Receivable due to the credit worthiness of
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the Obligor, including, without limitation, because such Receivable arises under a Contract that is not acceptable to the Agent Funding Agents in its their collective reasonable business judgement,
(xiv) which is not subject to any right of rescission, set-off, counterclaim, any other defense (including defenses arising out of violations of usury laws) of the applicable Obligor against Originator or any other Adverse Claim, and the Obligor thereon holds no right as against Originator to cause Originator to repurchase the goods or merchandise the sale of which shall have given rise to such Receivable (except with respect to sale discounts effected pursuant to the Contract, or defective goods returned in accordance with the terms of the Contract),
(xv)as to which Originator has satisfied and fully performed all obligations on its part with respect to such Receivable required to be fulfilled by it, and no further action is required to be performed by any Person with respect thereto other than payment thereon by the applicable Obligor,
(xvi) all right, title and interest to and in which has been validly transferred by Originator directly to Seller under and in accordance with the Receivables Sale Agreement, and Seller has good and marketable title thereto free and clear of any Adverse Claim,
(xvii) for which the related Contract represents all or part of the sales price of merchandise, insurance and services within the meaning of the Investment Company Act of 1940, Section 3(c)5, as amended,
| (xviii) | which is a "current transaction" within Section 3(a)(3) of the Securities Act of 1933, |
| (xix) | which is not a proceed of inventory that was pledged to any Person, |
(xx)the Obligor of which is not the Obligor of any Charged-Off Receivables, the aggregate Outstanding Balance of which exceeds an amount equal to 25% of the aggregate Outstanding Balance of all Receivables of such Obligor, and
(xxi) the inclusion of which as an Eligible Receivable does not cause the aggregate Outstanding Balance of all Eligible Receivables considered a "billback receivable" under Originator's current practices to exceed $5,000,000.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
"Expected Credit Memo Ratio" means, as of the last day of any calendar month, the average of each three month rolling average of the Credit Memo-to-Sales Ratio calculated as of the last day of each of the twelve months then most recently ended.
"Extension Notice" has the meaning set forth in Section 4.6.
"Facility Account" means Seller's Account No. 10-45863 at JPMorgan Chase.
"Facility Termination Date" means the earliest of (i) May 27, 2008, (ii) the Liquidity Termination Date and (iii) the Amortization Date.
"Federal Bankruptcy Code" means Title 11 of the United States Code entitled "Bankruptcy," as amended and any successor statute thereto.
"Fee Letter" means that certain letter agreement dated as of the date hereofDecember 18, 2007 among Seller, Originator and the Agent, BTMU, Falcon, Gotham and Victory, as it may be amended or modified and in effect from time to time.
"Finance Charges" means, with respect to a Contract, any finance, interest, late payment charges or similar charges owing by an Obligor pursuant to such Contract.
"Financial Institutions" has the meaning set forth in the preamble in this Agreement.
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"Funding Agent" means each of JPMorgan Chase Bank, N.A. and BTMU in its respective capacity as a "Funding Agent" under this Agreement.
"Funding Agreement" means this Agreement and any agreement or instrument executed by any Funding Source with or for the benefit of a Conduit, including, without limitation, the Liquidity Agreement.
"Funding Source" means (i) any Financial Institution or (ii) any insurance company, bank or other funding entity (including, without limitation, any "APA Bank" (as defined in the Liquidity Agreement) providing liquidity, credit enhancement or back-up purchase support or facilities toa Conduit.
"GAAP" means generally accepted accounting principles in effect in the United States of America as of the date of this Agreement.
"Government Receivables" means a Receivable the Obligor of which is the United States Federal Government, a state or local government, a governmental subdivision of the United States Federal Government or of a state or local government, or an agency of the United States Federal Government or of a state or local government. For the purposes of this definition the phrase "state or local government" means a state or local government of a state, city or municipality located within the fifty states of the United States or the District of Columbia.
"Group Purchase Limit" means (i) in the case of the Conduit Group related to Falcon, $130,000,000 and (ii) in the case of the Conduit Group related to Gotham and Victory, $120,000,000.
"Incremental Purchase" means a purchase of one or more Purchaser Interests which increases the total outstanding Aggregate Capital hereunder.
"Indebtedness" of a Person means such Person's (i) obligations for borrowed money, (ii) 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), (iii) obligations, whether or not assumed, secured by liens or payable out of the proceeds or production from property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) capitalized lease obligations, (vi) net liabilities under interest rate swap, exchange or cap agreements, (vii) Contingent Obligations and (viii) liabilities in respect of unfunded vested benefits under plans covered by Title IV of ERISA.
"Independent Director" shall mean a member of the Board of Directors of Seller who is not at such time, and has not been at any time during the preceding five (5) years, (A) a director, officer, employee or affiliate of Seller, Originator, or any of their respective Subsidiaries or Affiliates, or (B) the beneficial owner (at the time of such individual's appointment as an Independent Director or at any time thereafter while serving as an Independent Director) of any of the outstanding common shares of Seller, Originator, or any of their respective Subsidiaries or Affiliates, having general voting rights;
"Interim Report" means a report, appropriately completed and in substantially the form of Annex I to the Sixth Amendment, dated as of August 15, 2001, among Seller, Energizer, Conduit Falcon, the Financial Institutions party thereto and the Agent, to this Agreement, furnished bythe Servicer to the Agent pursuant to Section 8.5.
"JPMorgan Chase" means JPMorgan Chase Bank, N.A. in its individual capacity and its successors.
"LIBO Rate" means the rate per annum equal to the sum of (i) (a) the applicable British Bankers' Association Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first day of the relevant Tranche Period, and having a maturity equal to such Tranche Period, provided that, (i) if Reuters Screen FRBD is not available to the Agent for any reason, the applicable LIBO Rate for the relevant Tranche Period shall instead be the applicable British Bankers' Association Interest Settlement Rate for deposits in U.S. dollars as reported by any other generally recognized financial information service as of 11:00 a.m. (London time) two Business Days prior to the first day of such Tranche Period, and having a maturity equal to such Tranche Period, and (ii) if no such British Bankers' Association Interest Settlement Rate is available to the Agent, the applicable LIBO Rate for the relevant Tranche Period shall instead be the rate determined by the Agent to be the rate at which JPMorgan Chase offers to place deposits in U.S. dollars with first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Tranche
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Period, in the approximate amount to be funded at the LIBO Rate and having a maturity equal to such Tranche Period, divided by (b) one minus the maximum aggregate reserve requirement (including all basic, supplemental, marginal or other reserves) which is imposed against the Agent in respect of Eurocurrency liabilities, as defined in Regulation D of the Board of Governors of the Federal Reserve System as in effect from time to time (expressed as a decimal), applicable to such Tranche Period plus (ii) 1.50% per annum. The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of 1%.
"Liquidity Agreement" means the Asset Purchase Agreement, dated as of June 1, 2005, by and among Conduit, the several APA Banks party thereto from time to time, and JPMorgan Chase Bank, N.A., individually and as funding agent, as it may be amended, restated or otherwise modified from time to time.
"Liquidity Termination Date" means May 27, 2008.
"Lock-Box" means each locked postal box with respect to which a bank who has executed a Collection Account Agreement has been granted exclusive access for the purpose of retrieving and processing payments made on the Receivables and which is listed on Exhibit IV.
"Loss Horizon Ratio" means, as of any date, a percentage equal to (i) the aggregate gross sales of Originator during the three most recently ended calendar months divided by (ii) the Outstanding Balance of all Eligible Receivables as of the last day of the most recently ended calendar month.
"Loss Percentage" means, at any time, a percentage equal to the greater of (i) two multiplied by the Loss Ratio multiplied by the Loss Horizon Ratio or (ii) Loss Reserve Floor.
"Loss Ratio" means, on any date, the greatest three-month rolling average Default Ratio as calculated for each of the 12 most recently ended calendar months.
"Loss Reserve" means, on any date, an amount equal to the Loss Percentage multiplied by the Net Receivables Balance as of the close of business ofthe Servicer on such date.
"Loss Reserve Floor" means 15%.
"Loss-to-Liquidation Ratio" means, for any calendar month, the percentage equal (i) the sum of the aggregate Outstanding Balance of all Receivables 91-120 days past due plus the aggregate Outstanding Balance of all Receivables written off by Servicer in such month divided by the aggregate Collections received during such month.
"Material Adverse Effect" means a material adverse effect on (i) the financial condition or operations of any Seller Party and its Subsidiaries, (ii) the ability of any Seller Party to perform its obligations under this Agreement or the Provider to perform its obligations under the Performance Undertaking, (iii) the legality, validity or enforceability of this Agreement or any other Transaction Document, (iv) any Purchaser's interest in the Receivables generally or in any significant portion of the Receivables, the Related Security or the Collections with respect thereto, or (v) the collectibility of the Receivables generally or of any material portion of the Receivables.
["Material Provider Subsidiary" means, as long as Energizer is a wholly-owned, [in]direct subsidiary of Provider, (a) each consolidated Subsidiary (other than any SPV) of Provider (i) incorporated under the laws of any jurisdiction in the United States and (ii) 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 Provider on a pro forma basis taking into account the consummation of such Permitted Acquisition), three percent (3.0%) of the total assets of Provider and its Subsidiaries (other than SPVs) on a consolidated basis and (b) each consolidated Subsidiary (other than any SPV) of Provider (i) incorporated under the laws of any foreign jurisdiction and (ii) 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 Provider on a pro forma basis taking into account the consummation of such Permitted Acquisition), five percent (5.0%) of the total assets of Provider and its Subsidiaries (other than SPVs) on a consolidated basis; provided that, if Energizer shall cease to be a wholly-owned, [in]direct subsidiary of Provider, then "Material Provider Subsidiary" shall mean any Subsidiary of Energizer.]
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"Monthly Report" means a report, in substantially the form of Exhibit X hereto (appropriately completed), furnished by the Servicer to the Agent pursuant to Section 8.5.
"Net Receivables Balance" means, at any time, the aggregate Outstanding Balance of all Eligible Receivables at such time reduced by the sum of (i) the aggregate amount by which the Outstanding Balance of all Eligible Receivables of each Obligor and its Affiliates exceeds the Concentration Limit for such Obligor and (ii) the aggregate amount by which the Outstanding Balance of all Eligible Receivables having payment terms in excess of 60 days following the applicable "expected receipt of goods date" (under and as defined in each applicable invoice of the Servicer to each applicable Obligor) exceeds 10% of the aggregate Outstanding Balance of all Eligible Receivables.
"Non-Renewing Financial Institution" has the meaning set forth in Section 4.6.
"Obligations" shall have the meaning set forth in Section 2.1.
"Obligor" means a Person obligated to make payments pursuant to a Contract.
"Originator" means Energizer Battery, Inc., in its capacity as seller under the Receivables Sale Agreement.
"Outstanding Balance" of any Receivable at any time means the then outstanding principal balance thereof.
"Participant" has the meaning set forth in Section 12.2.
"Payment Rate" means, for any calendar month, the percentage equal to the aggregate Collections received during such month, divided by the aggregate Outstanding Balance of all Receivables as at the last day of the month immediately prior to such month.
"Performance Undertaking" means that certain Performance Undertaking, dated as of April 4, 2000, by Provider in favor of Seller, substantially in the form of Exhibit XI, as the same may be amended, restated or otherwise modified from time to time.
"Permitted Acquisition" means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, (a) which are permitted under all material financing arrangements pursuant to which Provider is a debtor or an obligor and (b) by which Provider 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.
"Person" means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
"Pooled Commercial Paper" means Commercial Paper notes of a Conduit subject to any particular pooling arrangement by such Conduit, but excluding Commercial Paper issued by such Conduit for a tenor and in an amount specifically requested by any Person in connection with any agreement effected bysuch Conduit.
"Potential Amortization Event" means an event which, with the passage of time or the giving of notice, or both, would constitute an Amortization Event.
"Prime Rate" means a rate per annum equal to the prime rate of interest announced from time to time by JPMorgan Chase or its parent (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.
"Proposed Reduction Date" has the meaning set forth in Section 1.3.
"Provider" means Energizer Holdings, Inc., a Missouri corporation.
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"Provider Credit Agreement" means that certain Revolving Credit Agreement dated as of November 16, 2004, entered into among Provider, the institutions from time to time parties thereto as lenders, JPMorgan Chase Bank, N.A., in its capacity as administrative agent, Bank of America, N.A., as syndication agent and Citibank, N.A., as documentation agent, as in effect on November 16, 2004, without giving effect to any amendment, restatement, waiver, release, supplementation, cancellation, termination or other modification thereof.
"Provider Financial Covenants" means the Maximum Leverage Ratio covenant and Minimum Interest Expense Coverage Ratio covenant set forth in Section 7.4 of the Provider Credit Agreement. It being understood that, for purposes of this Agreement, (i) the Provider Financial Covenants as in effect on November 16, 2004 shall survive any termination of the Provider Credit Agreement and (ii) any amendment, restatement, waiver, release, supplementation, cancellation, termination and/or other modification with respect to the Provider Credit Agreement shall have no effect on determining compliance with the Provider Financial Covenants.
"Pro Rata Share" means, for each Financial Institutionin the same Conduit Group, a percentage equal to (i) the amount of the Commitment of such Financial Institution, divided by (ii) the aggregate amount of all Commitments of all Financial Institutions in such Conduit Group hereunder, adjusted as necessary to give effect to the application of the terms of Section 4.6.
"Purchase Limit" means $100,000,000. 250,000,000.
"Purchase Notice" has the meaning set forth in Section 1.2.
"Purchase Price" means, with respect to any Incremental Purchase of a Purchaser Interest, the amount paid to Seller for such Purchaser Interest which shall not exceed the least of (i) the amount requested by Seller in the applicable Purchase Notice, (ii) the unused portion of the Purchase Limit on the applicable purchase date and (iii) the excess, if any, of the Net Receivables Balance (less the Aggregate Reserves) on the applicable purchase date over the aggregate outstanding amount of Aggregate Capital determined as of the date of the most recent Monthly Report, taking into account such proposed Incremental Purchase.
"Purchase Pro Rata Share" means, for any Conduit Group, the percentage equivalent of a fraction, the numerator of which is the relevant Group Purchase Limit, and the denominator of which is the Purchase Limit.
"Purchasers " meanseach Conduit and each Financial Institution.
"Purchaser Interest" means, at any time, an undivided percentage ownership interest (computed as set forth below) associated with a designated amount of Capital, selected pursuant to the terms and conditions hereof in (i) each Receivable arising prior to the time of the most recent computation or recomputation of such undivided interest, (ii) all Related Security with respect to each such Receivable, and (iii) all Collections with respect to, and other proceeds of, each such Receivable. Each such undivided percentage interest shall equal:
'
where:
| C | = | the Capital of such Purchaser Interest. |
| AR | = | the Aggregate Reserves. |
| NRB | = | the Net Receivables Balance. |
Such undivided percentage ownership interest shall be initially computed on its date of purchase. Thereafter, until the Amortization Date, each Purchaser Interest shall be automatically recomputed (or deemed to be recomputed) on each day prior to the Amortization Date. The variable percentage represented by any Purchaser Interest as computed (or
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deemed recomputed) as of the close of the business day immediately preceding the Amortization Date shall remain constant at all times thereafter.
"Purchasing Financial Institution" has the meaning set forth in Section 12.1(b).
"Receivable" means all indebtedness and other obligations owed to Seller or Originator (at the time it arises, and before giving effect to any transfer or conveyance under the Receivables Sale Agreement or hereunder) or in which Seller or Originator has a security interest or other interest, including, without limitation, any indebtedness, obligation or interest constituting an account, chattel paper, instrument or general intangible, arising in connection with the sale of goods or the rendering of services by Originator, and further includes, without limitation, the obligation to pay any Finance Charges with respect thereto. Indebtedness and other rights and obligations arising from any one transaction, including, without limitation, indebtedness and other rights and obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights and obligations arising from any other transaction; provided further, that any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be a Receivable regardless of whether the account debtor or Seller treats such indebtedness, rights or obligations as a separate payment obligation.
"Receivables Sale Agreement" means that certain Receivables Sale Agreement, dated as of April 4, 2000, between Originator and Seller, as the same may be amended, restated or otherwise modified from time to time.
"Records" means, with respect to any Receivable, all Contracts and other documents, books, records and other information (including, without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) relating to such Receivable, any Related Security therefor and the related Obligor.
"Reduction Notice" has the meaning set forth in Section 1.3.
"Reduction Pro Rata Share" means, for any Conduit Group and on any date of determination, the percentage equivalent of a fraction, the numerator of which is the aggregate amount of Capital of all Purchaser Interests assigned to such Conduit Group and outstanding as at such date, and the denominator of which is the Aggregate Capital.
"Regulatory Change" has the meaning set forth in Section 10.2(a).
"Reinvestment" has the meaning set forth in Section 2.2.
"Related Security" means, with respect to any Receivable:
(i) all of Seller's interest in the inventory and goods (including returned or repossessed inventory or goods), if any, the sale of which by Originator gave rise to such Receivable, and all insurance contracts with respect thereto,
(ii) all other security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements and security agreements describing any collateral securing such Receivable,
(iii) all guaranties, letters of credit, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise,
| (iv) | all service contracts and other contracts and agreements associated with such Receivable, |
| (v) | all Records related to such Receivable, |
(vi) all of Seller's right, title and interest in, to and under the Receivables Sale Agreement in respect of such Receivable and all of Seller's right, title and interest in, to and under the Performance Undertaking, and
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| (vii) | all proceeds of any of the foregoing. |
"Required Financial Institutions" means, at any time, Financial Institutions with Commitments in excess of 51% of the Purchase Limit.
"Relevant Conduit" means (i) with respect to the Conduit Group that includes BTMU as a Financial Institution, either Gotham or Victory and (i) with respect to the Conduit Group that includes JPMorgan Chase Bank, N.A. as a Financial Institution, Falcon.
"Required Notice Period" means the number of days required notice set forth below applicable to the Aggregate Reduction indicated below:
Aggregate Reduction | Required Notice Period |
=‹$100,000,000 | two Business Days |
>$100,000,000 | five Business Days |
"Restricted Junior Payment" means (i) any dividend or other distribution, direct or indirect, on account of any shares of any class of capital stock of Seller now or hereafter outstanding, except a dividend payable solely in shares of that class of stock or in any junior class of stock of Seller, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of capital stock of Seller now or hereafter outstanding, (iii) any payment or prepayment of principal of, premium, if any, or interest, fees or other charges on or with respect to, and any redemption, purchase, retirement, defeasance, sinking fund or similar payment and any claim for rescission with respect to the Subordinated Loans (as defined in the Receivables Sale Agreement), (iv) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of capital stock of Seller now or hereafter outstanding, and (v) any payment of management fees by Seller (except for reasonable management fees to the Originator or its Affiliates in reimbursement of actual management services performed).
"Seller" has the meaning set forth in the preamble to this Agreement.
"Seller Parties" has the meaning set forth in the preamble to this Agreement.
"Servicer" means at any time the Person (which may be the Agent) then authorized pursuant to Article VIII to service, administer and collect Receivables.
"Servicing Fee" has the meaning set forth in Section 8.6.
"Settlement Date" means (A) the sixteenth day at each month, and (B) the last day of the relevant Tranche Period in respect of each Purchaser Interest of the Financial Institutions.
"Settlement Period" means (A) in respect of each Purchaser Interest ofa Conduit, the immediately preceding Accrual Period, and (B) in respect of each Purchaser Interest of the Financial Institutions, the entire Tranche Period of such Purchaser Interest.
"SPV" means any special purpose entity (including, without limitation, Seller) established for the purpose of purchasing receivables in connection with a receivables securitization transaction permitted under all material financing arrangements pursuant to which Provider is a debtor or an obligor.
"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, association, limited liability company, 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 herein to a "Subsidiary" shall mean a Subsidiary of Seller.
"Terminating Commitment Availability" means, with respect to any Terminating Financial Institution, the positive difference (if any) between (a) an amount equal to the Commitment (without giving effect to clause (ii) of the proviso to the penultimate sentence of Section 4.6(b)) of such Terminating Financial Institution, minus, an amount
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equal to 2% of such Commitment, minus, (b) the Capital of the Purchaser Interests funded by such Terminating Financial Institution.
"Termination Date" has the meaning set forth in Section 2.2.
"Termination Percentage" has the meaning set forth in Section 2.2.
"Terminating Financial Institution" has the meaning set forth in Section 4.6.
"Terminating Tranche" has the meaning set forth in Section 4.3(b).
"Tranche Period" means, with respect to any Purchaser Interest held by a Financial Institution:
(a) if Yield for such Purchaser Interest is calculated on the basis of the LIBO Rate, a period of one, two, three or six months, or such other period as may be mutually agreeable to the Agent and Seller, commencing on a Business Day selected by Seller or the Agent pursuant to this Agreement. Such Tranche Period shall end on the day in the applicable succeeding calendar month which corresponds numerically to the beginning day of such Tranche Period, provided, however, that if there is no such numerically corresponding day in such succeeding month, such Tranche Period shall end on the last Business Day of such succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the basis of the Prime Rate, a period commencing on a Business Day selected by Seller and agreed to by the Agent, provided no such period shall exceed one month.
If any Tranche Period would end on a day which is not a Business Day, such Tranche Period shall end on the next succeeding Business Day, provided, however, that in the case of Tranche Periods corresponding to the LIBO Rate, if such next succeeding Business Day would fall in a new month, such Tranche Period shall end on the immediately preceding Business Day. In the case of any Tranche Period for any Purchaser Interest which commences before the Amortization Date and would otherwise end on a date occurring after the Amortization Date, such Tranche Period shall end on the Amortization Date. The duration of each Tranche Period which commences after the Amortization Date shall be of such duration as selected by the Agent.
"Transaction Documents" means, collectively, this Agreement, each Purchase Notice, the Receivables Sale Agreement, each Collection Account Agreement, the Performance Undertaking, the Fee Letter, the Subordinated Note (as defined in the Receivables Sale Agreement) and all other instruments, documents and agreements executed and delivered in connection herewith.
"UCC" means the Uniform Commercial Code as from time to time in effect in the specified jurisdiction.
"Unconditional Liquidity Provider" means a Financial Institution that is identified by the Agent or by JPMorgan Chase as an entity which will not under any circumstance receive any Conduit Transfer Price Reduction hereunder.
"Yield" means for each respective Tranche Period relating to Purchaser Interests of the Financial Institutions, an amount equal to the product of the applicable Discount Rate for each Purchaser Interest multiplied by the Capital of such Purchaser Interest for each day elapsed during such Tranche Period, annualized on a 360 day basis.
"Yield Reserve" means, on any date, an amount equal to 1.5% multiplied by the Net Receivables Balance as of the close of business of the Servicer on such date.
All accounting terms not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of Illinois, and not specifically defined herein, are used herein as defined in such Article 9.
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EXHIBIT II
FORM OF PURCHASE NOTICE
[Date]
JPMorgan Chase Bank, N.A., as a Funding Agent
1 Bank One Plaza, IL1-0079, 1-13, 21st Floor
Asset-Backed Finance
Chicago, Illinois 60670-0596 0079
The Bank of Tokyo-Mitsubishi UFJ, Ltd., as a Funding Agent
1251 Avenue of the Americas
New York, NY 10020
With a copy to:
JPMorgan Chase Bank, N.A., as Agent
1 Bank One Plaza, IL1-0079, 1-13, 21st Floor
Asset-Backed Finance
Chicago, Illinois 60670-0079
Re: PURCHASE NOTICE
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated as of April 4, 2000, by and among Energizer Receivables Funding Corporation, a Delaware corporation (the "Seller"), Energizer Battery, Inc., as Servicer, the Financial Institutions, Falcon Asset Securitization Corporation ("Conduit"), and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as Agent (as amended, restated and modified from time to time, the "Receivables Purchase Agreement"). Capitalized terms used herein shall have the meanings assigned to such terms in the Receivables Purchase Agreement.
The Agent isFunding Agents are hereby notified of the following Incremental Purchase:
Purchase Price: | $ |
Date of Purchase: | |
Requested Discount Rate: | [LIBO Rate] [Prime Rate] [Pooled Commercial Paper rate] |
Please credit the Purchase Price in immediately available funds to our Facility Account on the above-specified date of purchase to:
[Account Name]
[Account No.]
[Bank Name & Address]
[ABA #]
Reference:
Telephone advice to: [Name] @ tel. No. ( )
Please advise [Name] at telephone no ( ) _________________ ifany Conduit will not be making this purchase.
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In connection with the Incremental Purchase to be made on the above listed "Date of Purchase" (the "Purchase Date"), the Seller hereby certifies that the following statements are true on the date hereof, and will be true on the Purchase Date (before and after giving effect to the proposed Incremental Purchase):
(i) the representations and warranties of the Seller set forth in Section 5.1 of the Receivables Purchase Agreement are true and correct on and as of the Purchase Date as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from the proposed Incremental Purchase, that will constitute an Amortization Event or a Potential Amortization Event;
(iii) the Facility Termination Date has not occurred, the Aggregate Capital does not exceed the Purchase Limit and the aggregate Purchaser Interests do not exceed 100%; and
(iv) the amount of Aggregate Capital is $_________ after giving effect to the Incremental Purchase to be made on the Purchase Date.
Very truly yours,
ENERGIZER RECEIVABLES FUNDING CORPORATION
By:____________________________
Name:
Title:
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EXHIBIT III
PLACES OF BUSINESS OF THE SELLER PARTIES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
Energizer Receivables Funding Corporation
| Place of Business and Location of Records: | 533 Maryville University Drive |
| | St. Louis, Missouri 63141 |
| | |
| Federal Employer Identification Number: | 43-1883142 |
Energizer Battery, Inc.
| Place of Business and Location of Records: | 533 Maryville University Drive |
| | St. Louis, Missouri 63141 |
| | |
| Federal Employer Identification Number: | 01-0758270 |
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EXHIBIT IV
NAMES OF COLLECTION BANKS; COLLECTION ACCOUNTS
Lock-Box | Related Collection Account |
ACH/EFT (battery receivables) | JPMorgan Chase Bank, N.A. Account #5954533 |
23145 Network Place Chicago, IL 60673-1231 Lock-Box No. 23145 (battery receivables) | JPMorgan Chase Bank, N.A. Account #5954533 |
ACH/EFT (Schick receivables) | JPMorgan Chase Bank, N.A. Account #648727071 |
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EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: JPMorgan Chase Bank, N.A., as Agent
This Compliance Certificate is furnished pursuant to that certain Receivables Purchase Agreement, dated as of April 4, 2000 as amended, modified or restated from time to time, among Energizer Receivables Funding Corporation, a Delaware corporation (the "Seller"), Energizer Battery, Inc. (the "Servicer"), the Purchasers party thereto and JPMorgan Chase Bank, N.A., as agent for such Purchasers (the "Agreement"). Capitalized terms used and not otherwise defined herein are used with the meanings attributed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES ON BEHALF OF SELLER THAT:
1. I am the duly elected _______________ of [Insert name of applicable Seller Party or the Provider] (the "Applicable Party").
2. I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Applicable Party and its Subsidiaries during the accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, a nd I have no knowledge of, the existence of any condition or event which constitutes an Amortization Event or Potential Amortization Event, during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth in paragraph 6 below.
4. I have reviewed the terms of Section 9.1(l) of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the applicable transactions, agreements and conditions of Energizer Holdings, Inc., a Missouri corporation (the "Provider"); and such examinations did not disclose, and I have no knowledge of, any failure of the Provider to perform or observe the covenants referenced in Section 9.1(l) of the Agreement, during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth in paragraph 6 below.
5. I have reviewed the terms of the Provider Financial Covenants and I have made, or have caused to be made under my supervision, a detailed review of the applicable transactions, agreements and conditions of the Provider; and such examinations did not disclose, and I have no knowledge of, any failure of the Provider to comply with the Provider Financial Covenants, during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate except as set forth in Paragraph 6 below. Furthermore, Schedule I attached hereto sets forth financial data and computations evidencing the Provider's compliance with the Provider Financial Covenants, all of which data and computations are true, complete and correct.
6. Described below are the exceptions, if any, to paragraphs 3 to 5 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Seller, the Servicer or the Provider, as applicable, has taken, is taking or proposes to take with respect to each such condition or event:
____________________ ______________________________________________________________________________________________________________ _________________________________________________________________________________________________
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The foregoing certifications together with the computations set forth in Schedule I hereto, and the financial statements delivered with this Certificate in support hereof, are made and delivered this __ day of ________, 20__.
__________________________
Name: _____________________
Title: ______________________
V-2
SCHEDULE I TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of ______________, ______ with the Provider Financial Covenants. Unless otherwise defined herein, the terms used in this Schedule I have the meanings ascribed thereto in the Provider Credit Agreement.
This schedule relates to the [quarter or year] ended __________:
I. SECTION 7.4 OF THE PROVIDER CREDIT AGREEMENT: FINANCIAL COVENANTS
A. | MAXIMUM LEVERAGE RATIO (Section 7.4(A) of the Provider Credit Agreement) |
| 1. | All Indebtedness (other than Hedging Obligations) |
| (as defined) of the Borrower and its Subsidiaries |
| d. | Non-cash changes (except those that require accrual of a reserve for anticipated future cash payment for any period) |
| f. | + | Extraordinary
non-cash
charges |
| g. | = | (EBIT) Sum of Lines 2.a.,
2.b., 2.c., 2.d., and 2.e. |
| j. | = | Sum of Lines 1.f, 1.g.
and 1.h. (EBITDA) |
| 4. | Required Ratio: | # 3.5 to 1.0 |
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B. MINIMUM INTEREST EXPENSE COVERAGE RATIO (Section 7.4(B) of the Provider Credit Agreement)
| 1. | EBIT (See I.A.2.9. above) |
| 2. | Interest Expense for the period from |
_________ to __________
| 3. | Interest Expense Coverage Ratio |
| 4. | Required Ratio | >3.0 to 1.0 |
The Borrower hereby certifies, through its _______________, that the information set forth above is accurate as of __________, to the best of such officer’s knowledge, after diligent inquiry, and that the financial statements delivered herewith present fairly the financial position of the Borrower and its Subsidiaries at the dates indicated and the results of their operations and changes in their financial position for the periods indicated in conformity with Agreement Accounting Principles, consistently applied.
ENERGIZER HOLDINGS, INC.
By:__________________________
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EXHIBIT VI
FORM OF COLLECTION ACCOUNT AGREEMENT
[On letterhead of Originator]
_______________, ______
[Collection Bank/Lock-Box Bank/Concentration Bank/Depositary Bank]
| Re: | Energizer Battery, Inc./Energizer Receivables Funding Corporation. |
Ladies and Gentlemen:
Reference is hereby made to P.O. Box # in [city, state, zip code] (the "Lock-Box") of which you have exclusive control for the purpose of receiving mail and processing payments therefrom pursuant to that certain [name of lock-box agreement] between you and the undersigned (the "Company") dated (the "Agreement"). You hereby confirm your agreement to perform the services described therein. Among the services you have agreed to perform therein, is to endorse all checks and other evidences of payment, and credit such payments to the Company's checking account no. maintained with you in the name of the Company (the "Lock-Box Account").
The Company hereby informs you that pursuant to that certain Receivables Sale Agreement, dated as of April 4, 2000, between the Company and Energizer Receivables Funding Corporation (the "Seller"), the Company has transferred all of its right, title and interest in and to, and exclusive ownership and control of, the Lock-Box and the Lock-Box Account to Seller. The Company and Seller hereby request that the name of the Lock-Box Account be changed to "Energizer Battery, Inc., as Servicer."
The Company and Seller hereby irrevocably instruct you, and you hereby agree, that upon receiving notice from JPMorgan Chase Bank, N.A. ("JPMorgan Chase") in the form attached hereto as Annex A: (i) the name of the Lock-Box Account will be changed to JPMorgan Chase for itself and as agent (or any designee of JPMorgan Chase) and JPMorgan Chase will have exclusive ownership of and access to the Lock-Box and the Lock-Box Account, and neither the Company, Seller nor any of their respective affiliates will have any control of the Lock-Box or the Lock-Box Account or any access thereto, (ii) you will either continue to send the funds from the Lock-Box to the Lock-Box Account, or will redirect the funds as JPMorgan Chase may otherwise request, (iii) you will transfer monies on deposit in the Lock-Box Account, at any time, as directed by JPMorgan Chase, (iv) all services to be performed by you under the Agreement will be performed on behalf of JPMorgan Chase and (v) all correspondence or other mail which you have agreed to send to the Company or Seller will be sent to JPMorgan Chase at the following address:
JPMorgan Chase Bank, N.A.
| Suite | , IL1-0079, 1-13, 21st Floor
|
1 Bank One Plaza
Chicago, Illinois 60670-_____ 0079
Attention: Credit Manager, Asset Backed
Securities Division
Moreover, upon such notice, JPMorgan Chase for itself and as agent will have all rights and remedies given to the Company (and Seller, as the Company's assignee) under the Agreement. Seller agrees, however, to continue to pay all fees and other assessments due thereunder at any time.
You hereby acknowledge that monies deposited in the Lock-Box Account or any other account established with you by JPMorgan Chase for the purpose of receiving funds from the Lock-Box are subject to the liens
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of JPMorgan Chase for itself and as agent, and will not be subject to deduction, set-off, banker's lien or any other right you or any other party may have against the Company or Seller.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS. This letter agreement may be executed in any number of counterparts and all of such counterparts taken together will be deemed to constitute one and the same instrument.
This letter agreement contains the entire agreement between the parties, and may not be altered, modified, terminated or amended in any respect, nor may any right, power or privilege of any party hereunder be waived or released or discharged, except upon execution by all parties hereto of a written instrument so providing. In the event that any provision in this letter agreement is in conflict with, or inconsistent with, any provision of the Agreement, this letter agreement will exclusively govern and control. Each party agrees to take all actions reasonably requested by any other party to carry out the purposes of this letter agreement or to preserve and protect the rights of each party hereunder.
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Please indicate your agreement to the terms of this letter agreement by signing in the space provided below. This letter agreement will become effective immediately upon execution of a counterpart of this letter agreement by all parties hereto.
Very truly yours,
ENERGIZER BATTERY, INC.
By:_______________________________
Name:
Title:
ENERGIZER RECEIVABLES FUNDING CORPORATION
By:_______________________________
Name:
Title:
Acknowledged and agreed to
[COLLECTION BANK]
By:___________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A., as Agent
By:___________________________
Name:
Title:
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ANNEX A
FORM OF NOTICE
[On letterhead of JPMorgan]
_______________, ______
[Collection Bank/Lock-Box Bank/Depositary Bank/Concentration Bank]
| Re: | Energizer Battery, Inc./Energizer Receivables Funding Corporation. |
Ladies and Gentlemen:
We hereby notify you that we are exercising our rights pursuant to that certain letter agreement among Energizer Battery, Inc., Energizer Receivables Funding Corporation, you and us, to have the name of, and to have exclusive ownership and control of, account number (the "Lock-Box Account") maintained with you, transferred to us. [Lock-Box Account will henceforth be a zero-balance account, and funds deposited in the Lock-Box Account should be sent at the end of each day to .] You have further agreed to perform all other services you are performing under that certain agreement dated between you and Energizer Battery, Inc. on our behalf.
We appreciate your cooperation in this matter.
Very truly yours,
JPMORGAN CHASE BANK, N.A.,
for itself and as agent
By:_______________________________
Name:
Title:
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EXHIBIT VII
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Assignment Agreement") is entered into as of the ___ day of ____________, ____, by and between _____________________ ("Assignor") and __________________ ("Assignee").
PRELIMINARY STATEMENTS
A. This Assignment Agreement is being executed and delivered in accordance with Section 12.1(b) of that certain Receivables Purchase Agreement, dated as of April 4, 2000, by and among Energizer Receivables Funding Corporation, Energizer Battery, Inc., as Servicer, Falcon Asset Securitization Corporation, JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as Agent, and the Financial Institutions party thereto (as amended, modified or restated from time to time, the "Purchase Agreement"). Capitalized terms used and not otherwise defined herein are used with the meanings set forth or incorporated by reference in the Purchase Agreement.
B. Assignor is a Financial Institution party to the Purchase Agreement, and Assignee wishes to become a Financial Institution thereunder; and
C. Assignor is selling and assigning to Assignee an undivided ____________% (the "Transferred Percentage") interest in all of Assignor's rights and obligations under the Purchase Agreement and the Transaction Documents, including, without limitation, Assignor's Commitment and (if applicable) the Capital of Assignor's Purchaser Interests as set forth herein.
AGREEMENT
The parties hereto hereby agree as follows:
1. The sale, transfer and assignment effected by this Assignment Agreement shall become effective (the "Effective Date") two (2) Business Days (or such other date selected by the Agent in its sole discretion) following the date on which a notice substantially in the form of Schedule II to this Assignment Agreement (the "Effective Notice") is delivered by the Agent toeach Conduit, Assignor and Assignee. From and after the Effective Date, Assignee shall be a Financial Institution party to the Purchase Agreement for all purposes thereof as if Assignee were an original party thereto and Assignee agrees to be bound by all of the terms and provisions contained therein.
2. If Assignor has no outstanding Capital under the Purchase Agreement, on the Effective Date, Assignor shall be deemed to have hereby transferred and assigned to Assignee, without recourse, representation or warranty (except as provided in paragraph 6 below), and the Assignee shall be deemed to have hereby irrevocably taken, received and assumed from Assignor, the Transferred Percentage of Assignor's Commitment and all rights and obligations associated therewith under the terms of the Purchase Agreement, including, without limitation, the Transferred Percentage of Assignor's future funding obligations under Section 4.1 of the Purchase Agreement.
3. If Assignor has any outstanding Capital under the Purchase Agreement, at or before 12:00 noon, local time of Assignor, on the Effective Date Assignee shall pay to Assignor, in immediately available funds, an amount equal to the sum of (i) the Transferred Percentage of the outstanding Capital of Assignor's Purchaser Interests (such amount, being hereinafter referred to as the "Assignee's Capital"); (ii) all accrued but unpaid (whether or not then due) Yield attributable to Assignee's Capital; and (iii) accruing but unpaid fees and other costs and expenses payable in respect of Assignee's Capital for the period commencing upon each date such unpaid amounts commence
VII-1
accruing, to and including the Effective Date (the "Assignee's Acquisition Cost"); whereupon, Assignor shall be deemed to have sold, transferred and assigned to Assignee, without recourse, representation or warranty (except as provided in paragraph 6 below), and Assignee shall be deemed to have hereby irrevocably taken, received and assumed from Assignor, the Transferred Percentage of Assignor's Commitment and the Capital of Assignor's Purchaser Interests (if applicable) and all related rights and obligations under the Purchase Agreement and the Transaction Documents, including, without limitation, the Transferred Percentage of Assignor's future funding obligations under Section 4.1 of the Purchase Agreement.
4. Concurrently with the execution and delivery hereof, Assignor will provide to Assignee copies of all documents requested by Assignee which were delivered to Assignor pursuant to the Purchase Agreement.
5. Each of the parties to this Assignment Agreement agrees that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Assignment Agreement.
6. By executing and delivering this Assignment Agreement, Assignor and Assignee confirm to and agree with each other, the Agent, Conduit the Funding Agents, the Conduits and the other Financial Institutions as follows: (a) other than the representation and warranty that it has not created any Adverse Claim upon any interest being transferred hereunder, Assignor makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made by any other Person in or in connection with the Purchase Agreement or the Transaction Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of Assignee, the Purchase Agreement or any other instrument or document furnished pursuant thereto or the perfection, priority, condition, value or sufficiency of any collateral; (b) Assignor makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Seller, any Obligor, any Affiliate of Seller or the performance or observance by the Seller, any Obligor, any Affiliate of Seller of any of their respective obligations under the Transaction Documents or any other instrument or document furnished pursuant thereto or in connection therewith; (c) Assignee confirms that it has received a copy of the Purchase Agreement and copies of such other Transaction Documents, and other documents and information as it has requested and deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement; (d) Assignee will, independently and without reliance upon the Agent,any Funding Agent, any Conduit, the Seller or any other Financial Institution or Purchaser 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 the Purchase Agreement and the Transaction Documents; (e) Assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Transaction Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (f) Assignee agrees that it will perform in accordance with their terms all of the obligations which, by the terms of the Purchase Agreement and the other Transaction Documents, are required to be performed by it as a Financial Institution or, when applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees with the Agent that it is aware of and will comply with the provisions of the Purchase Agreement, including, without limitation, Sections 4.1 and 14.6 thereof.
8. Schedule I hereto sets forth the revised Commitment of Assignor and the Commitment of Assignee, as well as administrative information with respect to Assignee.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
10. Assignee hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all senior indebtedness for borrowed money of any Conduit, it will not institute against, or join
VII-2
any other Person in instituting against,such Conduit any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to be executed by their respective duly authorized officers as of the date hereof.
[ASSIGNOR]
By:
Name:
Title:
[ASSIGNEE]
By:
Name:
Title:
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SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date: _______________, ____
Transferred Percentage: | ________% |
| A-1 | A-2 | B-1 | B-2 |
Assignor | Commitment (prior to giving effect to the Assignment Agreement) | Commitment (after giving effect to the Assignment Agreement) | Outstanding Capital (if any) | Ratable Share of Outstanding Capital |
| | | | |
| | A-2 | B-1 | B-2 |
Assignee | | Commitment (after giving effect to the Assignment Agreement) | Outstanding Capital (if any) | Ratable Share of Outstanding Capital |
| | | | |
Address for Notices
____________________
____________________
Attention:
Phone:
Fax:
VII-4
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
TO:________________________, Assignor
TO:________________________, Assignor
The undersigned, as Agent under the Receivables Purchase Agreement, dated as of April 4, 2000, by and among Energizer Receivables Funding Corporation, a Delaware corporation, Energizer Battery, Inc., as Servicer, Falcon Asset Securitization Corporation, JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as Agent, and the Financial Institutions party thereto, hereby acknowledges receipt of executed counterparts of a completed Assignment Agreement dated as of ____________, ____ between __________________, as Assignor, and __________________, as Assignee. Terms defined in such Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the Effective Date will be ______________, ____.
2. The Conduit(s) in the related Conduit Group hereby consents to the Assignment Agreement as required by Section 12.1(b) of the Receivables Purchase Agreement.
[3. Pursuant to such Assignment Agreement, the Assignee is required to pay $____________ to Assignor at or before 12:00 noon (local time of Assignor) on the Effective Date in immediately available funds.]
Very truly yours,
JPMORGAN CHASE BANK, N.A.,
individually and as Agent
By:__________________________
Title:_______________________
FALCON ASSET SECURITIZATION CORPORATION
[NAMES(S) OF RELEVANT CONDUIT(S)]
By: ____________________________
Authorized Signatory
VII-5
EXHIBIT VIII
CREDIT AND COLLECTION POLICY
See Exhibit V to Receivables Sale Agreement
VIII-1
EXHIBIT IX
FORM OF CONTRACT(S)
See Attached
IX-1
EXHIBIT X
FORM OF MONTHLY REPORT
See Attached
X-1
EXHIBIT XI
FORM OF PERFORMANCE UNDERTAKING
This Performance Undertaking (this "Undertaking"), dated as of April 4, 2000, is executed by ENERGIZER HOLDINGS, INC., a Missouri corporation (the "Provider") in favor of ENERGIZER RECEIVABLES FUNDING CORPORATION, a Delaware corporation (together with its successors and assigns, "Recipient").
RECITALS
1. Energizer Battery, Inc., a Delaware corporation (together with any successor or assign thereof, "Originator") and Recipient have entered into a Receivables Sale Agreement, dated as of April 4, 2000 (as amended, restated or otherwise modified from time to time, the "Sale Agreement"), pursuant to which Originator, subject to the terms and conditions contained therein, is selling its right, title and interest in certain of its accounts receivable to Recipient.
2. Originator is a Subsidiary of Provider and Provider is expected to receive substantial direct and indirect benefits from the sale of accounts receivable by Recipient to Originator pursuant to the Sale Agreement (which benefits are hereby acknowledged).
3. As an inducement for Recipient to purchase Originator's accounts receivable pursuant to the Sale Agreement, Provider has agreed to guaranty the due and punctual performance by Originator of its obligations under the Sale Agreement and its Servicing Related Obligations (as hereinafter defined).
4. Provider wishes to guaranty the due and punctual performance by Originator of its obligations to Recipient under or in respect of the Sale Agreement and its Servicing Related Obligations (as hereinafter defined), as provided herein.
AGREEMENT
NOW, THEREFORE, Provider hereby agrees as follows:
Section 1. Definitions. Capitalized terms used herein and not defined herein shall have the respective meanings assigned thereto in the Sale Agreement or the Purchase Agreement (as hereinafter defined). In addition:
"Obligations" means, collectively, (i) all covenants, agreements, terms, conditions and indemnities to be performed and observed by Originator under and pursuant to the Sale Agreement and each other document executed and delivered by Originator pursuant to the Sale Agreement, including, without limitation, the due and punctual payment of all sums which are or may become due and owing by Originator under the Sale Agreement, whether for fees, expenses (including counsel fees), indemnified amounts or otherwise, whether upon any termination or for any other reason and (ii) all obligations of Originator (1) as Servicer under the Receivables Purchase Agreement, dated as of April 4, 2000, by and among Recipient, Originator, as Servicer, Falcon Asset Securitization Corporation, the Financial Institutions and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office Chicago)), as Agent (as amended, restated or otherwise modified, the "Purchase Agreement"; and the Purchase Agreement, together with the Sale Agreement, the "Agreements") or (2) which arise pursuant to Sections 8.2, 8.3 or 14.4(a) of the Purchase Agreement as a result of its termination as Servicer (all such obligations collectively, the "Servicing Related Obligations").
Section 2. Guaranty of Performance of Obligations. Provider hereby guarantees to Recipient, the full and punctual payment and performance by Originator of the Obligations. This Undertaking is an absolute, unconditional and continuing guaranty of the full and punctual performance of all of the Obligations of Originator under the Agreements and each other document executed and delivered by Originator pursuant to the Agreements and is in no way conditioned upon any requirement that Recipient first attempt to collect any amounts owing by Originator to Recipient (or its assigns), the Agent or the Purchasers from any other Person or resort to any collateral security, any balance of any deposit account or credit on the books of Recipient, the Agent or any Purchaser in favor of Originator or any other Person or other means of obtaining payment. Should Originator default in the
payment or performance of any of the Obligations, Recipient (or its assigns) may cause the immediate performance by Provider of the Obligations and cause any payment Obligations to become forthwith due and payable to Recipient (or its assigns), without demand or notice of any nature (other than as expressly provided herein), all of which are hereby expressly waived by Provider. Notwithstanding the foregoing, this Undertaking is not a guarantee of the collection of any of the Receivables and Provider shall not be responsible for any Obligations to the extent the failure to perform such Obligations by Originator results from Receivables being uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; provided, that nothing herein shall relieve Originator from performing in full its Obligations under the Agreements or Provider of its undertaking hereunder with respect to the full performance of such duties.
Section 3. Provider's Further Agreements to Pay. Provider further agrees, as the principal obligor and not as a guarantor only, to pay to Recipient (and its assigns), forthwith upon demand in funds immediately available to Recipient, all reasonable costs and expenses (including court costs and legal expenses) incurred or expended by Recipient in connection with the Obligations, this Undertaking and the enforcement thereof, together with interest on amounts recoverable under this Undertaking from the time when such amounts become due until payment, at a rate of interest (computed for the actual number of days elapsed based on a 360 day year) equal to the Prime Rate plus 2% per annum, such rate of interest changing when and as the Prime Rate changes.
Section 4. Waivers by Provider. Provider waives notice of acceptance of this Undertaking, notice of any action taken or omitted by Recipient (or its assigns) in reliance on this Undertaking, and any requirement that Recipient (or its assigns) be diligent or prompt in making demands under this Undertaking, giving notice of any Termination Event, Amortization Event, other default or omission by Originator or asserting any other rights of Recipient under this Undertaking. Provider warrants that it has adequate means to obtain from Originator, on a continuing basis, information concerning the financial condition of Originator, and that it is not relying on Recipient to provide such information, now or in the future. Provider also irrevocably waives all defenses (i) that at any time may be available in respect of the Obligations by virtue of any statute of limitations, valuation, stay, moratorium law or other similar law now or hereafter in effect or (ii) that arise under the law of suretyship, including impairment of collateral. Recipient (and its assigns) shall be at liberty, without giving notice to or obtaining the assent of Provider and without relieving Provider of any liability under this Undertaking, to deal with Originator and with each other party who now is or after the date hereof becomes liable in any manner for any of the Obligations, in such manner as Recipient in its sole discretion deems fit, and to this end Provider agrees that the validity and enforceability of this Undertaking, including without limitation, the provisions of Section 7 hereof, shall not be impaired or affected by any of the following: (a) any extension, modification or renewal of, or indulgence with respect to, or substitutions for, the Obligations or any part thereof or any agreement relating thereto at any time; (b) any failure or omission to enforce any right, power or remedy with respect to the Obligations or any part thereof or any agreement relating thereto, or any collateral securing the Obligations or any part thereof; (c) any waiver of any right, power or remedy or of any Termination Event, Amortization Event, or default with respect to the Obligations or any part thereof or any agreement relating thereto; (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of any other obligation of any person or entity with respect to the Obligations or any part thereof; (e) the enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to the Obligations or any part thereof; (f) the application of payments received from any source to the payment of any payment Obligations of Originator or any part thereof or amounts which are not covered by this Undertaking even though Recipient (or its assigns) might lawfully have elected to apply such payments to any part or all of the payment Obligations of Originator or to amounts which are not covered by this Undertaking; (g) the existence of any claim, setoff or other rights which Provider may have at any time against Originator in connection herewith or any unrelated transaction; (h) any assignment or transfer of the Obligations or any part thereof; or (i) any failure on the part of Originator to perform or comply with any term of the Agreements or any other document executed in connection therewith or delivered thereunder, all whether or not Provider shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (i) of this Section 4.
Section 5. Unenforceability of Obligations Against Originator. Notwithstanding (a) any change of ownership of Originator or the insolvency, bankruptcy or any other change in the legal status of Originator; (b) the change in or the imposition of any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Obligations; (c) the failure of Originator or Provider to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with the Obligations or this
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Undertaking, or to take any other action required in connection with the performance of all obligations pursuant to the Obligations or this Undertaking; or (d) if any of the moneys included in the Obligations have become irrecoverable from Originator for any other reason other than final payment in full of the payment Obligations in accordance with their terms, this Undertaking shall nevertheless be binding on Provider. This Undertaking shall be in addition to any other guaranty or other security for the Obligations, and it shall not be rendered unenforceable by the invalidity of any such other guaranty or security. In the event that acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of Originator or for any other reason with respect to Originator, all such amounts then due and owing with respect to the Obligations under the terms of the Agreements, or any other agreement evidencing, securing or otherwise executed in connection with the Obligations, shall be immediately due and payable by Provider.
Section 6. Representations and Warranties. Provider hereby represents and warrants to Recipient that:
(a) Existence and Standing. Provider is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. Provider has and holds all corporate power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted, except where the failure to so hold could not reasonably be expected to have a Material Adverse Effect.
(b) Authorization, Execution and Delivery; Binding Effect. Provider has the corporate power and authority and legal right to execute and deliver this Undertaking, perform its obligations hereunder and consummate the transactions herein contemplated. The execution and delivery by Provider of this Undertaking, the performance of its obligations and consummation of the transactions contemplated hereunder have been duly authorized by proper corporate proceedings, and Provider has duly executed and delivered this Undertaking. This Undertaking constitutes the legal, valid and binding obligation of Provider enforceable against Provider in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(c) No Conflict; Government Consent. The execution and delivery by Provider of this Undertaking and the performance of its obligations hereunder are within its corporate powers, have been duly authorized by all necessary corporate action, do not contravene or violate (i) its articles or certificate of incorporation or by-laws, (ii) any law, rule or regulation applicable to it, (iii) any restrictions under any agreement, contract or instrument to which it is a party or by which it or any of its property is bound, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property and, do not result in the creation or imposition of any Adverse Claim on assets of Provider.
(d) Financial Statements. The consolidated financial statements of Provider and its consolidated Subsidiaries dated as of December 31, 1999 heretofore delivered to Recipient have been prepared in accordance with generally accepted accounting principles consistently applied and fairly present in all material respects the consolidated financial condition and results of operations of Provider and its consolidated Subsidiaries as of such date and for the period ended on such date. Since December 31, 1999, no event has occurred which would or could reasonably be expected to have a Material Adverse Effect.
(e) Taxes. Provider has filed all United States federal tax returns and all other tax returns which are required to be filed and has paid all taxes due pursuant to said returns or pursuant to any assessment received by Provider or any of its Subsidiaries, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. The United States income tax returns of Provider have been audited by the Internal Revenue Service through the fiscal year ended 1992. No federal or state tax liens have been filed and no claims are being asserted with respect to any such taxes. The charges, accruals and reserves on the books of Provider in respect of any taxes or other governmental charges are adequate.
(f) Litigation and Contingent Obligations. Except as disclosed in the filings made by Provider with the Securities and Exchange Commission, there are no actions, suits or proceedings pending or, to the best of Provider's knowledge threatened against or affecting Provider or any of its properties, in or before any court, arbitrator or other body, that could reasonably be expected to have a material adverse effect on (i) the business,
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properties, condition (financial or otherwise) or results of operations of Provider and its Subsidiaries taken as a whole, (ii) the ability of Provider to perform its obligations under this Undertaking, or (iii) the validity or enforceability of any of this Undertaking or the rights or remedies of Recipient hereunder. Provider is not in default with respect to any order of any court, arbitrator or governmental body and does not have any material contingent obligations not provided for or disclosed in the financial statements referred to in Section 6(d).
Section 7. Subrogation; Subordination. Notwithstanding anything to the contrary contained herein, until the Obligations are paid in full Provider: (a) will not enforce or otherwise exercise any right of subrogation to any of the rights of Recipient, the Agent or any Purchaser against Originator, (b) hereby waives all rights of subrogation (whether contractual, under Section 509 of the United States Bankruptcy Code, at law or in equity or otherwise) to the claims of Recipient, the Agent and the Purchasers against Originator and all contractual, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and "claims" (as that term is defined in the United States Bankruptcy Code) which Provider might now have or hereafter acquire against Originator that arise from the existence or performance of Provider's obligations hereunder, (c) will not claim any setoff, recoupment or counterclaim against Originator in respect of any liability of Provider to Originator, and (d) waives any benefit of and any right to participate in any collateral security which may be held by Recipient, the Agent or the Purchasers. The payment of any amounts due with respect to any indebtedness of Originator now or hereafter owed to Provider is hereby subordinated to the prior payment in full of all of the Obligations. Provider agrees that, after the occurrence of any default in the payment or performance of any of the Obligations, Provider will not demand, sue for or otherwise attempt to collect any such indebtedness of Originator to Provider until all of the Obligations shall have been paid and performed in full. If, notwithstanding the foregoing sentence, Provider shall collect, enforce or receive any amounts in respect of such indebtedness while any Obligations are still unperformed or outstanding, such amounts shall be collected, enforced and received by Provider as trustee for Recipient (and its assigns) and be paid over to Recipient (or its assigns) on account of the Obligations without affecting in any manner the liability of Provider under the other provisions of this Undertaking. The provisions of this Section 7 shall be supplemental to and not in derogation of any rights and remedies of Recipient under any separate subordination agreement which Recipient may at any time and from time to time enter into with Provider.
Section 8. Termination of Performance Undertaking. Provider's obligations hereunder shall continue in full force and effect until all Obligations are finally paid and satisfied in full and the Purchase Agreement is terminated, provided, that this Undertaking shall continue to be effective or shall be reinstated, as the case may be, if at any time payment or other satisfaction of any of the Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency or reorganization of Originator or otherwise, as though such payment had not been made or other satisfaction occurred, whether or not Recipient (or its assigns) is in possession of this Undertaking. No invalidity, irregularity or unenforceability by reason of the federal bankruptcy code or any insolvency or other similar law, or any law or order of any government or agency thereof purporting to reduce, amend or otherwise affect the Obligations shall impair, affect, be a defense to or claim against the obligations of Provider under this Undertaking.
Section 9. Effect of Bankruptcy. This Performance Undertaking shall survive the insolvency of Originator and the commencement of any case or proceeding by or against Originator under the federal bankruptcy code or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes. No automatic stay under the federal bankruptcy code with respect to Originator or other federal, state or other applicable bankruptcy, insolvency or reorganization statutes to which Originator is subject shall postpone the obligations of Provider under this Undertaking.
Section 10. Setoff. Regardless of the other means of obtaining payment of any of the Obligations, Recipient (and its assigns) is hereby authorized at any time and from time to time, without notice to Provider (any such notice being expressly waived by Provider) and to the fullest extent permitted by law, to set off and apply any deposits and other sums against the obligations of Provider under this Undertaking, whether or not Recipient (or any such assign) shall have made any demand under this Undertaking and although such Obligations may be contingent or unmatured.
Section 11. Taxes. All payments to be made by Provider hereunder shall be made free and clear of any deduction or withholding. If Provider is required by law to make any deduction or withholding on account of tax or otherwise from any such payment, the sum due from it in respect of such payment shall be increased to the
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extent necessary to ensure that, after the making of such deduction or withholding, Recipient (or its assigns) receives a net sum equal to the sum which it would have received had no deduction or withholding been made.
Section 12. Further Assurances. Provider agrees that it will from time to time, at the request of Recipient (or its assigns), provide information relating to the business and affairs of Provider as Recipient may reasonably request. Provider also agrees to do all such things and execute all such documents as Recipient (or its assigns) may reasonably consider necessary or desirable to give full effect to this Undertaking and to perfect and preserve the rights and powers of Recipient hereunder.
Section 13. Successors and Assigns. This Undertaking shall be binding upon Provider, its successors and permitted assigns, and shall inure to the benefit of and be enforceable by Recipient and its successors and assigns. Provider may not assign or transfer any of its obligations hereunder without the prior written consent of each of Recipient and the Agent. Without limiting the generality of the foregoing sentences, Recipient and its successors and assigns may assign or otherwise transfer the Agreements, any other documents executed in connection therewith or delivered thereunder or any other agreement or note held by them evidencing, securing or otherwise executed in connection with the Obligations, or sell participations in any interest therein, to any other entity or other person, and such other entity or other person shall thereupon become vested, to the extent set forth in the agreement evidencing such assignment, transfer or participation, with all the rights in respect thereof granted to Recipient herein.
Section 14. Amendments and Waivers. No amendment or waiver of any provision of this Undertaking nor consent to any departure by Provider therefrom shall be effective unless the same shall be in writing and signed by Recipient, the Agent and Provider. No failure on the part of Recipient to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.
Section 15. Notices. All notices and other communications provided for hereunder shall be made in writing and shall be addressed as follows: if to Provider, at the address set forth beneath its signature hereto, and if to Recipient, at the addresses set forth beneath its signature hereto, or at such other addresses as each of Provider or Recipient may designate in writing to the other. Each such notice or other communication shall be effective if given by telecopy, upon the receipt thereof, if given by mail, three (3) Business Days after the time such communication is deposited in the mail with first class postage prepaid, or if given by any other means, when received at the address specified in this Section 15.
Section 16. GOVERNING LAW. THIS UNDERTAKING SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
Section 17. CONSENT TO JURISDICTION. EACH OF PROVIDER AND RECIPIENT HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS UNDERTAKING, THE AGREEMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED THEREUNDER AND EACH OF PROVIDER AND RECIPIENT 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 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.
Section 18. Bankruptcy Petition. Provider hereby covenants and agrees that, prior to the date that is one year and one day after the payment in full of all outstanding senior indebtedness of the any Conduit, it will not institute against, or join any other Person in instituting against, the such Conduit any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
Section 19. Miscellaneous. This Undertaking constitutes the entire agreement of Provider with respect to the matters set forth herein. The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement, and this Undertaking shall be in addition to any other
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guaranty of or collateral security for any of the Obligations. The provisions of this Undertaking are severable, and in any action or proceeding involving any state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of Provider hereunder would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of Provider's liability under this Undertaking, then, notwithstanding any other provision of this Undertaking to the contrary, the amount of such liability shall, without any further action by Provider or Recipient, be automatically limited and reduced to the highest amount that is valid and enforceable as determined in such action or proceeding. Any provisions of this Undertaking which are 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 not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise specified, references herein to "Section" shall mean a reference to sections of this Undertaking.
* * * *
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IN WITNESS WHEREOF, Provider has caused this Undertaking to be executed and delivered as of the date first above written.
ENERGIZER HOLDINGS, INC.
By:__________________________
Name:
Title:
| Address: | [800 Chouteau Avenue] |
St. Louis, Missouri [63102]
ENERGIZER RECEIVABLES FUNDING CORPORATION
By:__________________________
Name:
Title:
| Address: | 533 Maryville University Drive |
St. Louis, Missouri 63141
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SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS
Conduit Group with respect to Falcon:
Financial Institution | Commitment |
JPMorgan Chase Bank, N.A. | $178,500,000.00 132,600,000.00 |
Conduit Group with respect to Gotham and Victory:
Financial Institution | Commitment |
Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch | $122,400,000.00 |
SCHEDULE B
DOCUMENTS TO BE DELIVERED TO THE AGENT
ON OR PRIOR TO THE INITIAL PURCHASE
PART I: Documents to be Delivered in Connection with the Receivables Sale Agreement
1. | Executed copies of the Receivables Sale Agreement, duly executed by the parties thereto. |
2. | Copy of the Resolutions of the Board of Directors of Originator certified by its Secretary, authorizing Originator's execution, delivery and performance of the Receivables Sale Agreement and the other documents to be delivered by it thereunder. |
3. | Articles or Certificate of Incorporation of Originator certified by the Secretary of State of the jurisdiction of incorporation of Originator on or within thirty (30) days prior to the initial Purchase (as defined in the Receivables Sale Agreement). |
4. | Good Standing Certificate for Originator issued by the Secretaries of State of its state of incorporation and each jurisdiction where it has material operations, each of which is listed below: |
a.
b.
5. | A certificate of the Secretary of Originator certifying: (i) the names and signatures of the officers authorized on its behalf to execute the Receivables Sale Agreement and any other documents to be delivered by it thereunder and (ii) a copy of Originator's By-Laws. |
6. | Pre-filing state and federal tax lien, judgment lien and UCC lien searches against Originator from the following jurisdictions: |
a.
b.
7. | Time stamped receipt copies of proper financing statements, duly filed under the UCC on or before the date of the initial Purchase (as defined in the Receivables Sale Agreement) in all jurisdictions as may be necessary or, in the opinion of Seller (or its assigns), desirable, under the UCC of all appropriate jurisdictions or any comparable law in order to perfect the ownership interests contemplated by the Receivables Sale Agreement. |
8. | Time stamped receipt copies of proper UCC termination statements, if any, necessary to release all security interests and other rights of any Person in the Receivables, Contracts or Related Security previously granted by Originator. |
9. | Executed Collection Account Agreements for each Lock-Box and Collection Account. |
10. | A favorable opinion of legal counsel for Originator reasonably acceptable to Seller (or its assigns) which addresses the following matters and such other matters as Seller (or its assigns) may reasonably request: |
| -- | Originator is a corporation duly incorporated, validly existing and in good standing under the laws of its state of incorporation. |
| -- | Originator has all requisite authority to conduct its business in each jurisdiction where failure to be so qualified would have a material adverse effect on Originator's business. |
| -- | The execution and delivery by Originator of the Receivables Sale Agreement and each other Transaction Document to which it is a party and its performance of its obligations |
thereunder have been duly authorized by all necessary corporate action and proceedings on the part of Originator and will not:
| (a) | require any action by or in respect of, or filing with, any governmental body, agency or official (other than the filing of UCC financing statements); |
| (b) | contravene, or constitute a default under, any provision of applicable law or regulation or of its articles or certificate of incorporation or bylaws or of any agreement, judgment, injunction, order, decree or other instrument binding upon Originator; or |
| (c) | result in the creation or imposition of any Adverse Claim on assets of Originator or any of its Subsidiaries (except as contemplated by the Receivables Sale Agreement). |
| -- | The Receivables Sale Agreement and each other Transaction Document to which it is a party has been duly executed and delivered by Originator and constitutes the legal, valid and binding obligation of Originator enforceable in accordance with its terms, except to the extent the enforcement thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and subject also to the availability of equitable remedies if equitable remedies are sought. |
| -- | The provisions of the Receivables Sale Agreement are effective to create a valid security interest in favor of Seller in all Receivables and upon the filing of financing statements, Seller shall acquire a first priority, perfected security interest in such Receivables. |
| -- | To the best of the opinion giver's knowledge, there is no action, suit or other proceeding against Originator or any Affiliate of Originator, which would materially adversely affect the business or financial condition of Originator and its Affiliates taken as a whole or which would materially adversely affect the ability of Originator to perform its obligations under the Receivables Sale Agreement. |
11. | A "true sale" opinion and "substantive consolidation" opinion of counsel for Originator with respect to the transactions contemplated by the Receivables Sale Agreement. |
12. | A Compliance Certificate. |
13. | Executed copies of (i) all consents from and authorizations by any Persons and (ii) all waivers and amendments to existing credit facilities, that are necessary in connection with the Receivables Sale Agreement. |
14. | Executed copies of the Subscription Agreement (as defined in the Receivables Sale Agreement). |
15. | Executed copies of the Subordinated Note (as defined in the Receivables Sale Agreement) by Seller in favor of Originator and of the Demand Note by Originator in favor of Seller. |
16. | A direction letter executed by Originator authorizing Seller (and its assignees) and directing warehousemen to allow Seller (and its assignees) to inspect and make copies from Originator's books and records maintained at off-site data processing or storage facilities. |
PART II: Documents to Be Delivered in Connection with this Agreement
1. | Executed copies of this Agreement, duly executed by the parties thereto. |
2. | Copy of the Resolutions of the Board of Directors of each Seller Party and Provider certified by its Secretary authorizing such Person's execution, delivery and performance of this Agreement and the other documents to be delivered by it hereunder. |
3. | Articles or Certificate of Incorporation of each Seller Party and Provider certified by the Secretary of State of its jurisdiction of incorporation on or within thirty (30) days prior to the initial Incremental Purchase. |
4. | Good Standing Certificate for each Seller Party and Provider issued by the Secretaries of State of its state of incorporation and each jurisdiction where it has material operations, each of which is listed below: |
5. | A certificate of the Secretary of each Seller Party and Provider certifying (i) the names and signatures of the officers authorized on its behalf to execute this Agreement and any other documents to be delivered by it hereunder and (ii) a copy of such Person's By-Laws. |
6. | Pre-filing state and federal tax lien, judgment lien and UCC lien searches against each Seller Party from the following jurisdictions: |
7. | Time stamped receipt copies of proper financing statements, duly filed under the UCC on or before the date of the initial Incremental Purchase in all jurisdictions as may be necessary or, in the opinion of the Agent, desirable, under the UCC of all appropriate jurisdictions or any comparable law in order to perfect the ownership interests contemplated by this Agreement. |
8. | Time stamped receipt copies of proper UCC termination statements, if any, necessary to release all security interests and other rights of any Person in the Receivables, Contracts or Related Security previously granted by Seller. |
9. | Executed copies of Collection Account Agreements for each Lock-Box and Collection Account. |
10. | A favorable opinion of legal counsel for the Seller Parties and Provider reasonably acceptable to the Agent which addresses the following matters and such other matters as the Agent may reasonably request: |
| -- | Each Seller Party and Provider is a corporation duly incorporated, validly existing and in good standing under the laws of its state of incorporation. |
| -- | Each Seller Party and Provider has all requisite authority to conduct its business in each jurisdiction where failure to be so qualified would have a material adverse effect on such Person's business. |
| -- | The execution and delivery by each Seller Party and Provider of this Agreement and each other Transaction Document to which it is a party and its performance of its obligations thereunder have been duly authorized by all necessary corporate action and proceedings on the part of such Person and will not: |
(a) require any action by or in respect of, or filing with, any governmental body, agency or official (other than the filing of UCC financing statements);
(b) contravene, or constitute a default under, any provision of applicable law or regulation or of its articles or certificate of incorporation or bylaws or of any agreement, judgment, injunction, order, decree or other instrument binding upon such Person; or
(c) result in the creation or imposition of any Adverse Claim on assets of such Person or any of its Subsidiaries (except as contemplated by this Agreement).
| -- | This Agreement and each other Transaction Document to which such Person is a party has been duly executed and delivered by such Person and constitutes the legal, valid and binding obligation of such Person, enforceable in accordance with its terms, except to the extent the enforcement thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally and subject also to the availability of equitable remedies if equitable remedies are sought. |
| -- | The provisions of this Agreement are effective to create a valid security interest in favor of the Agent for the benefit of the Purchasers in all Receivables, and upon the filing of financing statements, the Agent for the benefit of the Purchasers shall acquire a first priority, perfected security interest in such Receivables. |
| -- | To the best of the opinion giver's knowledge, there is no action, suit or other proceeding against any Seller Party, Provider or any of their respective Affiliates, which would materially adversely affect the business or financial condition of such Person and its Affiliates taken as a whole or which would materially adversely affect the ability of such Person to perform its obligations under any Transaction Document to which it is a party. |
11. | If requested by Conduit or the Agent, a favorable opinion of legal counsel for each Financial Institution, reasonably acceptable to the Agent which addresses the following matters: |
| -- | This Agreement has been duly authorized by all necessary corporate action of such Financial Institution. |
| -- | This Agreement has been duly executed and delivered by such Financial Institution and, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a legal, valid and binding obligation of such Financial Institution, enforceable against such Financial Institution in accordance with its terms. |
12. | A Compliance Certificate. |
14. | A Monthly Report as at _____________. |
15. | Executed copies of (i) all consents from and authorizations by any Persons and (ii) all waivers and amendments to existing credit facilities, that are necessary in connection with this Agreement. |
16. | A direction letter executed by Seller and the Servicer authorizing the Agent and Conduit, and directing warehousemen to allow the Agent and Conduit to inspect and make copies from Seller's books and records maintained at off-site data processing or storage facilities. |
17. | For each Purchaser that is not incorporated under the laws of the United States of America, or a state thereof, two duly completed copies of United States Internal Revenue Service Forms W-8BEN or W-8ECI, certifying in either case that such Purchaser is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes. |
