AMENDMENT NO. 2 TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Exhibit 10.1
Amendment No. 2 to Third Amended and Restated
Receivables Purchase Agreement (this “Amendment”) is entered into as of May 3, 2010, by and
among Energizer Receivables Funding Corporation, a Delaware corporation
(“Seller”), Energizer Battery, Inc., a Delaware
corporation (“EBI”), as servicer (in such capacity, the
“Servicer”) Energizer Personal Care, LLC, a Delaware
limited liability company (“EPC”), as sub-servicer (in such capacity, the
“Sub-Servicer” and, together with Seller and Servicer, the
“Seller Parties” and each a “Seller Party”), Three Pillars Funding LLC (“Three Pillars”), Gotham Funding Corporation (“Gotham”), Victory Receivables Corporation
(“Victory” and, together with Three Pillars and Gotham,
the “Conduits” and each, a “Conduit”), The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
New York Branch (“BTMU”), as an agent (in such capacity, an
“Agent”) and as administrative agent for the
Purchasers (as defined in the Purchase Agreement (as defined below)) (in such
capacity, the “Administrative Agent”), and SunTrust Xxxxxxxx Xxxxxxxx, Inc.
(“STRH”), as an agent (in such capacity, an
“Agent”).
RECITALS
The Seller Parties, Three Pillars, Gotham,
Victory, BTMU and STRH entered into that certain Third Amended and Restated
Receivables Purchase Agreement, dated as of May 4, 2009 (as amended, restated or
otherwise modified from time to time and in effect immediately prior to the date
hereof, the “Purchase Agreement”).
Each of the parties hereto now desires to
amend the Purchase Agreement upon the terms and subject to the conditions set
forth herein. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth for such terms in the Purchase
Agreement.
In consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to Purchase
Agreement. The Purchase
Agreement is hereby amended as follows:
(a) Section 7.1(k)(F) is hereby amended and
restated in its entirety to read as follows:
(F) (1) at all times have a Board of Directors
consisting of three members, at least one of which is an Independent Director
reasonably acceptable to each Agent (such acceptability of any Independent
Director appointed after the date hereof must be evidenced in writing signed by
each Agent; provided that any Independent Director that has at
least three (3) years of employment experience with one or more of AMACAR Group,
L.L.C., Lord Securities Corporation, Global Securitization Services LLC or any
other nationally recognized entity that provides, in the ordinary course of
their respective businesses, advisory, management or placement services and
independent director services to issuers of securitization or structured finance
instruments, agreements or securities and that meets the other requirements of
an Independent Director set forth herein shall be deemed acceptable to the
Agents) and (2) at no time shall any of Seller, Servicer, Sub-Servicer,
Provider, Originator, any Original Seller, any of Seller’s members or managing
members or any of their respective Affiliates remove any Independent Director or
replace any Independent Director (other than a replacement by an individual that
has at least three (3) years of employment experience with one or more of AMACAR
Group, L.L.C., Lord Securities Corporation, Global Securitization Services LLC
or any other nationally recognized entity that provides, in the ordinary course
of their respective businesses, advisory, management or placement services and
independent director services to issuers of securitization or structured finance
instruments, agreements or securities and that meets the other requirements of
an Independent Director set forth herein), in each case without the prior
written consent of each Agent;
(b) Section 9.1 is hereby amended by adding the following clause (m) to the
end thereof:
(m)
Seller shall fail to comply with Section 7.1(k)(F) hereof.
(c) Section 12.1(c) is hereby deleted in its entirety.
(d) The definitions of “Facility Termination Date” and “Liquidity Termination
Date” in Exhibit I of the Purchase Agreement are each hereby amended by
replacing the date “May 3, 2010” therein in its entirety with the date “May 2,
2011”.
(e) The definition of “Affected Committed Purchaser” is hereby deleted in its
entirety.
Section 2. Conditions to Effectiveness of
Amendment. This Amendment
shall become effective upon the satisfaction of the conditions precedent that:
(a) Amendment. Each Agent shall have received, on or before
the date hereof, executed counterparts of this Amendment, duly executed by each
of the parties hereto.
(b) Fee Letter. Each Agent shall have received, on or before
the date hereof, executed counterparts of each Fee Letter entered into or
amended and restated as of the date hereof, duly executed by each of the parties
thereto.
(c) Opinions. On or before the date hereof, the
Administrative Agent and each Agent shall have received (i) favorable corporate,
enforceability and related opinions of Xxxxx Xxxx LLP, counsel to each of the
Seller Parties, in form and substance satisfactory to the Administrative Agent,
its counsel, Xxxxx Xxxxx LLP, and each Agent and (ii) favorable opinions of
internal counsel to each of the Seller Parties, in form and substance
satisfactory to the Administrative Agent, its counsel, Xxxxx Xxxxx LLP and each
Agent.
(d) Representations and
Warranties. As of the date
hereof, both before and after giving effect to this Amendment and any Fee Letter
entered into or amended and restated on the date hereof, all of the
representations and warranties contained in the Purchase Agreement and in each
other Transaction Document shall be true and correct as though made on and as of
the date hereof (and by its execution hereof, each of Seller and EBI shall be
deemed to have represented and warranted such).
(e) No Amortization Event or Potential
Amortization Event. As of
the date hereof, both before and after giving effect to this Amendment and any
Fee Letter entered into or amended and restated on the date hereof, no
Amortization Event or Potential Amortization Event shall have occurred and be
continuing (and by its execution hereof, each of Seller and EBI shall be deemed
to have represented and warranted such).
(f) Payment of Fees. On or before the date hereof, Seller shall
have paid all fees required to be paid by it under any Transaction Document
(including any entered into or amended and restated on the date hereof).
Section 3. Miscellaneous.
(a) Effect; Ratification. The amendments set forth herein are
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to, or an
acknowledgement of, any amendment, waiver or modification of any other term or
condition of the Purchase Agreement or any other Transaction Document or of any
other instrument or agreement referred to therein or (ii) prejudice any right or
remedy which the Administrative Agent, any Agent or any Purchaser may now have
or may have in the future under or in connection with the Purchase Agreement, as
amended hereby, or any other instrument or agreement referred to therein. Each
reference in the Purchase Agreement to “this Agreement,” “herein,” “hereof’ and
words of like import and each reference in the other Transaction Documents to
the “Third Amended and Restated Receivables Purchase Agreement,” the
“Receivables Purchase Agreement” or the “Purchase Agreement” shall mean the
Purchase Agreement, as amended hereby. This Amendment shall be construed in
connection with and as part of the Purchase Agreement and all terms, conditions,
representations, warranties, covenants and agreements set forth in the Purchase
Agreement and each other instrument or agreement referred to therein, except as
herein amended, are hereby ratified and confirmed and shall remain in full force
and effect.
(b) Transaction Documents. This Amendment is a Transaction Document
executed pursuant to the Purchase Agreement and shall be construed, administered
and applied in accordance with the terms and provisions thereof.
(c) Costs, Fees and Expenses. Seller agrees to reimburse the
Administrative Agent, each Agent and each Committed Purchaser upon demand for
all of the Administrative Agent’s, such Agent’s and such Committed Purchaser’s
reasonable costs, fees and expenses incurred in connection with the preparation,
execution and delivery of this Amendment (including the reasonable fees and
expenses of counsel to the Administrative Agent, such Agent or such Committed
Purchaser).
(d) Counterparts. This Amendment may be executed in any number
of counterparts, each such counterpart constituting an original and all of which
when taken together shall constitute one and the same instrument.
(e) Severability. Any provision contained in this Amendment
which is held to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable or invalid without
affecting the remaining provisions of this Amendment in that jurisdiction or the
operation, enforceability or validity of such provision in any other
jurisdiction.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF NEW YORK.
(g) CONSENT TO JURISDICTION. EACH SELLER PARTY HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY DOCUMENT EXECUTED
BY SUCH PERSON PURSUANT TO THIS AMENDMENT, AND EACH SELLER PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY AGENT OR
ANY COMMITTED PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER PARTY IN THE
COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY
AGAINST THE ADMINISTRATIVE AGENT, ANY AGENT OR ANY COMMITTED PURCHASER OR ANY
AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY AGENT OR ANY COMMITTED PURCHASER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH THIS AMENDMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER
PARTY PURSUANT TO THIS AMENDMENT SHALL BE BROUGHT ONLY IN A COURT IN THE BOROUGH
OF MANHATTAN, NEW YORK, NEW YORK.
