exhibit10a.htm


    
      

    

     

     

    Exhibit
10.1

     

    


     

    THIRD AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT

     

    


     

    dated as of May 4,
2009,

     

    


     

    Among

     

    ENERGIZER
RECEIVABLES FUNDING CORPORATION, as Seller,

     

    ENERGIZER BATTERY,
INC., as Servicer

     

    ENERGIZER PERSONAL
CARE, LLC, as Sub-Servicer

     

    


     

    THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

     

    as Administrative
Agent and as an Agent

     

    


     

    and

     

    THE SEVERAL AGENTS,
CONDUITS AND COMMITTED PURCHASERS PARTY HERETO

     

    FROM TIME TO
TIME

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    TABLE OF
CONTENTS

     

     

    Page

     

    ARTICLE I

    
      	
                    
                PURCHASE ARRANGEMENTS

              

            	
               

            


    

    
      	
              Section
      1.1

            	
              Purchase
      Facility 

            	
               

            


    

    
      	
              Section
      1.2

            	
              Increases 

            	
               

            


    

    
      	
              Section
      1.3

            	
              Decreases 

            	
               

            


    

    
      	
              Section
      1.4

            	
              Payment
      Requirements 

            	
               

            


    

    
      	
              Section
      1.5

            	
              Restated
      Agreement 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE II

    

    
      	
                    
                PAYMENTS AND COLLECTIONS

              

            	
               

            


    

    
      	
              Section
      2.1

            	
              Payments 

            	
               

            


    

    
      	
              Section
      2.2

            	
              Collections
      Prior to Amortization 

            	
               

            


    

    
      	
              Section
      2.3

            	
              Collections
      Following Amortization 

            	
               

            


    

    
      	
              Section
      2.4

            	
              Application
      of Collections 

            	
               

            


    

    
      	
              Section
      2.5

            	
              Payment
      Recission 

            	
               

            


    

    
      	
              Section
      2.6

            	
              Maximum
      Purchaser Interests 

            	
               

            


    

    
      	
              Section
      2.7

            	
              Clean Up
      Call 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE III

    

    
      	
                    
                CONDUIT FUNDING

              

            	
               

            


    

    
      	
              Section
      3.1

            	
              CP
      Costs 

            	
               

            


    

    
      	
              Section
      3.2

            	
              CP Costs
      Payments 

            	
               

            


    

    
      	
              Section
      3.3

            	
              Calculation
      of CP Costs 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE IV

    

    
      	
                    
                COMMITTED PURCHASER FUNDING

              

            	
               

            


    

    
      	
              Section
      4.1

            	
              Committed
      Purchaser Funding 

            	
               

            


    

    
      	
              Section
      4.2

            	
              Yield
      Payments 

            	
               

            


    

    
      	
              Section
      4.3

            	
              Selection and
      Continuation of Tranche Periods 

            	
               

            


    

    
      	
              Section
      4.4

            	
              Committed
      Purchaser Discount Rates 

            	
               

            


    

    
      	
              Section
      4.5

            	
              Suspension of
      the LIBO Rate 

            	
               

            


    

    
      	
              Section
      4.6

            	
              Extension of
      Liquidity Termination Date. 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE V

    

    
      	
                    
                REPRESENTATIONS AND WARRANTIES

              

            	
               

            


    

    
      	
              Section
      5.1

            	
              Representations
      and Warranties of the Seller Parties 

            	
               

            


    

    
      	
              Section
      5.2

            	
              Committed
      Purchaser Representations and Warranties 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE VI

    

    
      	
                    
                CONDITIONS OF PURCHASES

              

            	
               

            


    

    
      	
              Section
      6.1

            	
              Conditions
      Precedent to Initial Incremental Purchase 

            	
               

            


    

    
      	
              Section
      6.2

            	
              Conditions
      Precedent to All Purchases and Reinvestments 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE VII

    

    
      	
                    
                COVENANTS

              

            	
               

            


    

    
      	
              Section
      7.1

            	
              Affirmative
      Covenants of the Seller Parties 

            	
               

            


    

    
      	
              Section
      7.2

            	
              Negative
      Covenants of the Seller Parties 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE VIII

    

    
      	
                    
                ADMINISTRATION AND COLLECTION

              

            	
               

            


    

    
      	
              Section
      8.1

            	
              Designation
      of Servicer 

            	
               

            


    

    
      	
              Section
      8.2

            	
              Duties of
      Servicer 

            	
               

            


    

    
      	
              Section
      8.3

            	
              Collection
      Notices 

            	
               

            


    

    
      	
              Section
      8.4

            	
              Responsibilities
      of Seller 

            	
               

            


    

    
      	
              Section
      8.5

            	
              Reports 

            	
               

            


    

    
      	
              Section
      8.6

            	
              Servicing
      Fees 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE IX

    

    
      	
                    
                AMORTIZATION EVENTS

              

            	
               

            


    

    
      	
              Section
      9.1

            	
              Amortization
      Events 

            	
               

            


    

    
      	
              Section
      9.2

            	
              Remedies 

            	
               

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE X

    

    
      	
                    
                INDEMNIFICATION

              

            	
               

            


    

    
      	
               
      

            	
              Section
      10.1Indemnities
      by the Seller Parties 

            


    

    
      	
               
      

            	
              Section
      10.2Increased
      Cost and Reduced Return 

            


    

    
      	
               
      

            	
              Section
      10.3Other Costs
      and Expenses 

            


    

    
      	
               
      

            	
              Section
      10.4Allocations 

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE XI

    

    
      	
                    
                THE
      AGENT

              

            	
               

            


    

    
      	
               
      

            	
              Section
      11.1Authorization
      and Action 

            


    

    
      	
               
      

            	
              Section
      11.2Delegation of
      Duties 

            


    

    
      	
               
      

            	
              Section
      11.3Exculpatory
      Provisions 

            


    

    
      	
               
      

            	
              Section
      11.4Reliance by
      Agent 

            


    

    
      	
               
      

            	
              Section
      11.5Non-Reliance
      on Agent and Other Purchasers 

            


    

    
      	
               
      

            	
              Section
      11.6Reimbursement
      and Indemnification 

            


    

    
      	
               
      

            	
              Section
      11.7Agent in its
      Individual Capacity 

            


    

    
      	
               
      

            	
              Section
      11.8Successor
      Agent 

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE XII

    

    
      	
                    
                ASSIGNMENTS; PARTICIPATIONS

              

            	
               

            


    

    
      	
               
      

            	
              Section
      12.1Assignments 

            


    

    
      	
               
      

            	
              Section
      12.2Participations 

            


    

    
      	
               
      

            	
               

            


    

    
      ARTICLE XIII

      {RESERVED}



    
      
      

    

    
      	
               
      

            	
               

            


    

    
      ARTICLE XIV

      MISCELLANEOUS

    

    
      
      

    

    
      	
               
      

            	
              Section
      14.1Waivers and
      Amendments 

            


    

    
      	
               
      

            	
              Section
      14.2Notices 

            


    

    
      	
               
      

            	
              Section
      14.3Ratable
      Payments 

            


    

    
      	
               
      

            	
              Section
      14.4Protection of
      Ownership Interests of the Purchasers 

            


    

    
      	
               
      

            	
              Section
      14.5Confidentiality 

            


    

    
      	
               
      

            	
              Section
      14.6Bankruptcy
      Petition 

            


    

    
      	
               
      

            	
              Section
      14.7Limitation of
      Liability 

            


    

    
      	
               
      

            	
              Section
      14.8CHOICE OF
      LAW 

            


    

    
      	
               
      

            	
              Section
      14.9CONSENT TO
      JURISDICTION 

            


    

    
      	
               
      

            	
              Section
      14.10WAIVER OF
      JURY TRIAL 

            


    

    
      	
               
      

            	
              Section
      14.11Integration;
      Binding Effect; Survival of Terms 

            


    

    
      	
               
      

            	
              Section
      14.12Counterparts;
      Severability; Section References 

            


    

    
      	
               
      

            	
              Section
      14.13BTMU
      Corporate Bank Roles 

            


    

    
      	
               
      

            	
              Section
      14.14Characterization 

            


    

    
      	
               
      

            	
              Section
      14.15Withholding 

            


    

    
      	
               
      

            	
              Section
      14.16Patriot
      Act 

            


    

    
      	
               
      

            	
              Section 14.17 No Recourse 

            


    

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    Exhibits and Schedules

     

    
      	
              Exhibit
      I                                                                   

            	
              Definitions

            
	
              Exhibit
      II                                                                   

            	
              Form of
      Purchase Notice

            
	
              Exhibit
      III                                                                   

            	
              Places of
      Business of the Seller Parties; Locations of Records; Federal Employer
      Identification Number(s)

            
	
              Exhibit
      IV                                                                   

            	
              Names of
      Collection Banks; Collection Accounts

            
	
              Exhibit
      V                                                                   

            	
              Form of
      Compliance Certificate

            
	
              Exhibit
      VI                                                                   

            	
              Form of
      Collection Account Agreement

            
	
              Exhibit
      VII                                                                   

            	
              Form of
      Assignment Agreement

            
	
              Exhibit
      VIII                                                                   

            	
              Credit and
      Collection Policy

            
	
              Exhibit
      IX                                                                   

            	
              Form of
      Contract(s)

            
	
              Exhibit
      X                                                                   

            	
              Form of
      Monthly Report

            
	
              Exhibit
      XI                                                                   

            	
              Form of
      Performance Undertaking

            
	
              Exhibit
      XII                                                                   

            	
              Form of
      Interim Report

            
	
              Schedule
      A                                                                   

            	
              Commitments

            
	
              Schedule
      B                                                                   

            	
              Closing
      Documents

            


    

    


    


     

    


    


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


     

    THIRD AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT

     

     

    This Third Amended
and Restated Receivables Purchase Agreement dated as of May 4, 2009 is among
ENERGIZER RECEIVABLES FUNDING CORPORATION, a Delaware corporation (“Seller”), ENERGIZER
BATTERY, INC., a Delaware corporation (“Energizer”), as
Servicer, ENERGIZER PERSONAL CARE, LLC, a Delaware limited liability company
(“EPC”), as
Sub-Servicer (Sub-Servicer together with Seller and Servicer, the “Seller Parties” and
each a “Seller
Party”), the Committed Purchasers listed from time to time on Schedule A to this
Agreement (together with any of their respective successors and assigns
hereunder), GOTHAM FUNDING CORPORATION (“Gotham”), VICTORY
RECEIVABLES CORPORATION (“Victory” and together
with Gotham and any conduit that becomes a party hereto from time to time, the
“Conduits”),
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH (“BTMU”), as an Agent
and as administrative agent for the Purchasers hereunder or any successor agent
hereunder (together with its successors and assigns hereunder, the “Administrative Agent”).  Unless
defined elsewhere herein, capitalized terms used in this Agreement shall have
the meanings assigned to such terms in Exhibit
I.

     

    PRELIMINARY
STATEMENTS

     

    Seller desires to
transfer and assign Purchaser Interests to the Purchasers from time to
time.

     

    Each Conduit may,
in its absolute and sole discretion, purchase Purchaser Interests from Seller
from time to time.

     

    In
the event that a Conduit declines to make any purchase, the Committed
Purchaser(s) in the relevant Conduit Group shall, at the request of Seller,
purchase Purchaser Interests from time to time.

     

    The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch, has been requested and is willing
to act as Administrative Agent on behalf of the Conduits and the Committed
Purchasers in accordance with the terms hereof.

     

    Seller, Servicer,
the Committed Purchasers, the Conduits, the Agents and the Administrative Agent
are parties to that certain Receivables Purchase Agreement dated as of April 4,
2000 (the “Original
RPA”), as amended and restated by that certain First Amended and Restated
Receivables Purchase Agreement dated as of June 30, 2008 (the “First Amended and Restated
RPA”), as amended and restated by that certain Second Amended and
Restated Receivables Purchase Agreement dated as of March 27, 2009 (the “Second Amended and Restated
RPA”), as amended or otherwise modified to and including the date hereof
(the Original RPA, the First Amended and Restated RPA and the Second Amended and
Restated RPA together, the “Original Agreement”),
and desire to amend and restate the Original Agreement to appoint EPC as
Sub-Servicer of Receivables under this Agreement and to make certain other
changes as are set forth in this Agreement.

     

     

    ARTICLE I

    PURCHASE
ARRANGEMENTS

     

    Section
1.1 Purchase
Facility. Upon the terms
and subject to the conditions hereof, Seller may, at its option, sell and assign
Purchaser Interests to the Administrative Agent for the benefit of one or more
of the Purchasers.  In accordance with the terms and conditions set
forth herein, the Relevant Conduits in their respective Conduit Groups may
collectively, at their option, instruct the Administrative Agent to purchase on
their behalf, or if either of the Relevant Conduits shall decline to purchase,
the Administrative Agent shall purchase, on behalf of the Committed Purchasers
in the related Conduit Group, Purchaser Interests from time to time in an
aggregate amount not to exceed at such time the lesser of (i) the Purchase Limit
and (ii) the aggregate amount of the Commitments during the period from the date
hereof to but not including the Facility Termination
Date.  Furthermore, with respect to each Conduit Group, the product of
(x) the Purchase Pro Rata Share of such Conduit Group and (y) the aggregate
amount of outstanding Capital of the Purchaser Interests so purchased by the
Purchasers in such Conduit Group from time to time shall not exceed at such time
the lesser of (a) the related Group Purchase Limit and (b) the aggregate amount
of the related Commitments for such Conduit Group during the period from the
date hereof to but not including the Facility Termination Date.

     

    Section
1.2 Increases.  Seller
shall provide the Agents with at least one Business Days’ prior notice in a form
set forth as Exhibit
II hereto of each Incremental Purchase (a “Purchase Notice”),
with a written copy thereof delivered simultaneously to the Administrative
Agent.  Each Purchase Notice shall be subject to Section 6.2 hereof
and, except as set forth below, shall be irrevocable and shall specify the
requested Purchase Price (which shall be at least $1,000,000 and integral
multiples of $100,000 in excess thereof) and date of purchase and, in the case
of an Incremental Purchase to be funded by the Committed Purchasers, the
requested Discount Rate and Tranche Period.  Following receipt of a
Purchase Notice, the Agents will determine whether the Relevant Conduits in
their respective Conduit Groups agree to make the purchase.  Without
the prior approval of the Relevant Conduit in each Conduit Group, Seller shall
not request more than three proposed purchases in any calendar month and, unless
approved by each Relevant Conduit in its sole discretion, any such requests in
excess of three in any calendar month shall be void.  If the Relevant
Conduit in a Conduit Group declines to make a proposed purchase, Seller may
cancel the Purchase Notice (with a written copy of the notice of such
cancellation delivered simultaneously to the Administrative Agent) or, in the
absence of such a cancellation, the Incremental Purchase of the Purchaser
Interest will be made by the Committed Purchasers in the related Conduit
Group.  On the date of each Incremental Purchase, upon satisfaction of
the applicable conditions precedent set forth in Article VI, each
Agent on behalf of the Relevant Conduit or the Committed Purchasers in each
Conduit Group, as applicable, shall deposit to the Facility Account, in
immediately available funds, no later than 3:00 p.m. (New York time), an amount
equal to (i) in the case of the Relevant Conduit, the relevant Purchase Pro Rata
Share of the aggregate Purchase Price of the Purchaser Interests such Relevant
Conduit is then purchasing or (ii) in the case of a Committed Purchaser, such
Committed Purchaser’s Pro Rata Share of the relevant Purchase Pro Rata Share of
the aggregate Purchase Price of the Purchaser Interests the Committed Purchasers
in the related Conduit Group are purchasing.  A default by a Purchaser
in the performance of its obligations under this Agreement shall not relieve the
other Purchasers of their obligations hereunder.  The Purchase Notice
which is to be effective on the date hereof shall not be required to be provided
with at least one Business Day’s prior notice.

     

    Section
1.3 Decreases.  Seller
shall provide the Agents with prior written notice in conformity with the
Required Notice Period (a “Reduction Notice”) in
the form of Exhibit
XIII hereto of any proposed reduction of Aggregate Capital from
Collections, with a copy of such Reduction Notice delivered simultaneously to
the Administrative Agent.  Such Reduction Notice shall designate (i)
the date (the “Proposed Reduction
Date”) upon which any such reduction of Aggregate Capital shall occur
(which date shall give effect to the applicable Required Notice Period), and
(ii) the amount of Aggregate Capital to be reduced (the “Aggregate
Reduction”), which shall be applied ratably to the Purchaser Interests of
each Conduit Group in accordance with the amount of Capital (if any) owing to
such Conduit Group (ratably, based on their respective Reduction Pro Rata
Shares).  The Reduction Pro Rata Share of such Aggregate Reduction
with respect to a Conduit Group shall in turn be applied ratably to the
Purchaser Interests of the Conduit(s) and the Committed Purchasers in such
Conduit Group in accordance with the amount of Capital (if any) owing to such
Conduit(s), on the one hand, and the amount of Capital (if any) owing to such
Committed Purchasers (ratably, based on their respective Pro Rata Shares), on
the other hand.  Only one (1) Reduction Notice shall be outstanding at
any time.  No Aggregate Reduction will be made following the
occurrence of the Amortization Date without the consent of the Administrative
Agent and each Agent.

     

    Section
1.4 Payment
Requirements.  All
amounts to be paid or deposited by any Seller Party pursuant to any provision of
this Agreement shall be paid or deposited in accordance with the terms hereof no
later than 12:00 p.m. (New York time) on the day when due in immediately
available funds, and if not received before 12:00 p.m. (New York time) shall be
deemed to be received on the next succeeding Business Day.  If such
amounts are payable to a Purchaser they shall be paid to the relevant Agent, for
the account of such Purchaser, at 1251 Avenue of the Americas, New York,
New York 10020 (in the case of a Purchaser in the Conduit Group with BTMU as an
Agent), until the applicable Seller Party is otherwise notified in writing by
the relevant Agent.  Upon notice to Seller, the relevant Agent may debit
the Facility Account for all relevant amounts due and payable
hereunder.  All computations of Yield, per annum fees calculated as
part of any CP Costs, per annum fees hereunder and per annum fees under the Fee
Letter shall be made on the basis of a year of 360 days for the actual number of
days elapsed.  If any amount hereunder shall be payable on a day which
is not a Business Day, such amount shall be payable on the next succeeding
Business Day.

     

     

    Section
1.5 Restated
Agreement.  Upon
the effectiveness of this Agreement, each reference to the Original Agreement in
any other Transaction Document, and any document, instrument or agreement
executed and/or delivered in connection with the Original Agreement or any other
Transaction Document, shall mean and be a reference to this
Agreement.  The other Transaction Documents and all agreements,
instruments and documents executed or delivered in connection with the Original
Agreement or any other Transaction Document shall each be deemed to be amended
to the extent necessary, if any, to give effect to the provisions of this
Agreement, as the same may be amended, modified, supplemented or restated from
time to time.  The effect of this Agreement is to amend and restate
the Original Agreement in its entirety, and to the extent that any rights,
benefits or provisions in favor of the Administrative Agent or any Purchaser
existed in the Original Agreement and continue to exist in this Agreement
without any written waiver of any such rights, benefits or provisions prior to
the date hereof, then such rights, benefits or provisions are acknowledged to be
and to continue to be effective from and after April 4, 2000.  This
Agreement is not a novation.  The parties hereto agree and acknowledge
that any and all rights, remedies and payment provisions under the Original
Agreement, including, without limitation, any and all rights, remedies and
payment provisions with respect to (i) any representation and warranty made or
deemed to be made pursuant to the Original Agreement, or (ii) any
indemnification provision, shall continue and survive the execution and delivery
of this Agreement.  The parties hereto agree and acknowledge that any
and all amounts owing as or for Capital, Yield, CP Costs, fees, expenses or
otherwise under or pursuant to the Original Agreement, immediately prior to the
effectiveness of this Agreement, shall be owing as or for Capital, Yield, CP
Costs, fees, expenses or otherwise, respectively, under or pursuant to this
Agreement.

     

     

    ARTICLE II

    PAYMENTS AND
COLLECTIONS

     

    Section
2.1 Payments.  Notwithstanding
any limitation on recourse contained in this Agreement, Seller shall immediately
pay to each Agent (or to an account designated by such Agent) when due, for the
account of the Purchaser or Purchasers in the relevant Conduit Group on a full
recourse basis, (i) such relevant fees as set forth in the Fee Letter (which
fees shall be sufficient to pay all fees owing to the relevant Committed
Purchasers), (ii) all relevant CP Costs, (iii) all relevant amounts payable as
Yield, (iv) all relevant amounts payable as Deemed Collections (which shall be
immediately due and payable by Seller and applied to reduce outstanding
Aggregate Capital hereunder in accordance with Sections 2.2 and
2.3 hereof),
(v) all relevant amounts payable to reduce the Purchaser Interest, if required,
pursuant to Section
2.6, (vi) all relevant amounts payable pursuant to Article X, if any,
(vii) all relevant Servicer costs and expenses, including the Servicing Fee, in
connection with servicing, administering and collecting the Receivables, (viii)
all relevant Broken Funding Costs and (ix) all relevant Default Fees
(collectively, the “Obligations”).  If
any Person fails to pay any of the Obligations when due, such Person agrees to
pay, on demand, the Default Fee in respect thereof until
paid.  Notwithstanding the foregoing, no provision of this Agreement
or the Fee Letter shall require the payment or permit the collection of any
amounts hereunder in excess of the maximum permitted by applicable
law.  If at any time Seller receives any Collections or is deemed to
receive any Collections, Seller shall immediately pay such Collections or Deemed
Collections to Servicer for application in accordance with the terms and
conditions hereof and, at all times prior to such payment, such Collections or
Deemed Collections shall be held in trust by Seller for the exclusive benefit of
the Purchasers and the Agents.

     

    Section
2.2 Collections Prior to
Amortization.  Prior
to the Amortization Date, any Collections and/or Deemed Collections received by
Servicer shall be set aside and held in trust by Servicer for the payment of any
accrued and unpaid Aggregate Unpaids or for a Reinvestment as provided in this
Section
2.2.  If at any time any Collections and/or Deemed Collections
are received by Servicer prior to the Amortization Date, (i) Servicer shall set
aside the Termination Percentage (hereinafter defined) of Collections evidenced
by the Purchaser Interests of each Terminating Committed Purchaser and (ii)
Seller hereby requests and the Purchasers (other than any Terminating Committed
Purchasers) hereby agree to make, simultaneously with such receipt, a
reinvestment (each a “Reinvestment”) with
that portion of the balance of each and every Collection and Deemed Collection
received by Servicer that is part of any Purchaser Interest (other than any
Purchaser Interests of Terminating Committed Purchasers), such that after giving
effect to such Reinvestment, the amount of Capital of such Purchaser Interest
immediately after such receipt and corresponding Reinvestment shall be equal to
the amount of Capital immediately prior to such receipt.  On each
Settlement Date prior to the occurrence of the Amortization Date, Servicer shall
remit to the account of, or designated by, each Agent the relevant portion of
the amounts set aside during the preceding Settlement Period that have not been
subject to a Reinvestment and apply such amounts (if not previously paid in
accordance with Section 2.1) first, to reduce the
relevant unpaid Obligations and second, to reduce the
Capital of all Purchaser Interests of Terminating Committed Purchasers in the
relevant Conduit Group, applied ratably to each Terminating Committed Purchaser
according to its respective Termination Percentage.  If such Capital
and Obligations shall be reduced to zero with respect to the Purchasers in a
Conduit Group, any additional Collections received by Servicer (i) if
applicable, shall be remitted to an account designated by the relevant Agent no
later than 12:00 p.m. (New York time) to the extent required to fund such
Conduit Group’s Reduction Pro Rata Share of any Aggregate Reduction on such
Settlement Date and (ii) any balance remaining thereafter shall be remitted from
Servicer to Seller on such Settlement Date.  Each Terminating
Committed Purchaser shall be allocated a ratable portion of Collections from the
Liquidity Termination Date that such Terminating Committed Purchaser did not
consent to extend (as to such Terminating Committed Purchaser, the “Termination Date”)
until such Terminating Financing Institution’s Capital shall be paid in
full.  This ratable portion shall be calculated on the Termination
Date of each Terminating Committed Purchaser as a percentage equal to (i)
Capital of such Terminating Committed Purchaser outstanding on its Termination
Date, divided
by (ii) the
Aggregate Capital outstanding on such Termination Date (the “Termination
Percentage”).  Each Terminating Committed Purchaser’s
Termination Percentage shall remain constant prior to the Amortization
Date.  On and after the Amortization Date, each Termination Percentage
shall be disregarded, and each Terminating Committed Purchaser’s Capital shall
be reduced ratably with all Committed Purchasers in accordance with Section
2.3.

     

    Section
2.3 Collections Following
Amortization.  On the
Amortization Date and on each day thereafter, Servicer shall set aside and hold
in trust, for the holder of each Purchaser Interest, all Collections received on
such day and an additional amount, from Seller’s assets, for the payment of any
accrued and unpaid Obligations owed by Seller and not previously paid by Seller
in accordance with Section
2.1.  On and after the Amortization Date, Servicer shall, at
any time upon the request from time to time by (or pursuant to standing
instructions from) any Agent (i) remit to an account designated by such Agent
the relevant portion of the amounts set aside pursuant to the preceding
sentence, and (ii) apply such relevant amounts to reduce the Capital associated
with each such Purchaser Interest held by a Purchaser in the relevant Conduit
Group and any other relevant Aggregate Unpaids.

     

    Section
2.4 Application of
Collections.  If
there shall be insufficient funds on deposit for Servicer to distribute funds in
payment in full of the aforementioned amounts pursuant to Section 2.2 or 2.3 (as applicable),
Servicer shall distribute such funds:

     

    first, to the payment
of Servicer’s reasonable out-of-pocket costs and expenses in connection with
servicing, administering and collecting the Receivables , including the
Servicing Fee, if Seller or one of its Affiliates is not then acting as
Servicer,

     

    second, to the
reimbursement of the Administrative Agent’s or each of the Agents’ (as the case
may be) costs of collection and enforcement of this Agreement,

     

    third, for the
ratable payment of all other unpaid Obligations , provided that to the
extent such Obligations relate to the payment of Servicer costs and expenses,
including the Servicing Fee, when Seller or one of its Affiliates is acting as
Servicer, such costs and expenses will not be paid until after the payment in
full of all other Obligations,

     

    fourth, (to the
extent applicable) to the ratable reduction of the Aggregate Capital (without
regard to any Termination Percentage) and

     

    fifth, after the
Aggregate Unpaids have been indefeasibly reduced to zero, to
Seller.

     

     

    Collections applied
to the payment of Aggregate Unpaids shall be distributed in accordance with the
aforementioned provisions, and, giving effect to each of the priorities set
forth in Section
2.4 above, shall be shared ratably (within each priority) among the
Administrative Agent, the Agents and the Purchasers in accordance with the
amount of such Aggregate Unpaids owing to each of them in respect of each such
priority.

     

    Section
2.5 Payment
Recission.  No
payment of any of the Aggregate Unpaids shall be considered paid or applied
hereunder to the extent that, at any time, all or any portion of such payment or
application is rescinded by application of law or judicial authority, or must
otherwise be returned or refunded for any reason.  Seller shall remain
obligated for the amount of any payment or application so rescinded, returned or
refunded, and shall promptly pay to the relevant Agent (for application to the
Person or Persons who suffered such recission, return or refund) the full amount
thereof, plus the related Default Fee from the date of any such recission,
return or refunding.

     

    Section
2.6 Maximum Purchaser
Interests.  Seller
shall ensure that the Purchaser Interests of the Purchasers shall at no time
exceed in the aggregate 100%.  If the aggregate of the Purchaser
Interests of the Purchasers exceeds 100%, Seller shall pay to each Agent within
three (3) Business Days an amount to be applied to reduce its Conduit Group’s
Reduction Pro Rata Shares of the Aggregate Capital, such that after giving
effect to such payment the aggregate of the Purchaser Interests equals or is
less than 100%.

     

    Section
2.7 Clean Up
Call.  In
addition to Seller’s rights pursuant to Section 1.3, Seller
shall have the right (after providing written notice to the Agents (with a copy
thereof to the Administrative Agent) in accordance with the Required Notice
Period), at any time following the reduction of the Aggregate Capital to a level
that is less than 100.0% of the original Purchase Limit, to repurchase from the
Purchasers all, but not less than all, of the then outstanding Purchaser
Interests.  The purchase price in respect thereof shall be an amount
equal to the Aggregate Unpaids through the date of such repurchase, payable in
immediately available funds to the Agents.  Such repurchase shall be
without representation, warranty or recourse of any kind by, on the part of, or
against any Purchaser, any Agent or the Administrative Agent.

     

     

    ARTICLE III 

    CONDUIT
FUNDING

     

    Section
3.1 CP Costs.  Seller
shall pay the relevant CP Costs with respect to the Capital associated with each
Purchaser Interest of each Conduit for each day that any Capital in respect of
such Purchaser Interest is outstanding.  Each Purchaser Interest
funded substantially with Pooled Commercial Paper will accrue CP Costs each day
on a pro rata basis, based upon the percentage share the Capital in respect of
such Purchaser Interest represents in relation to all assets held by the
relevant Conduit and funded substantially with its Pooled Commercial
Paper.

     

    Section
3.2 CP Costs Payments.  On
each Settlement Date, Seller shall pay to each Agent (for the benefit of the
Conduit(s) in the relevant Conduit Group) an aggregate amount in each case equal
to all accrued and unpaid CP Costs in respect of the Capital associated with all
Purchaser Interests of the relevant Conduit(s) in such Conduit Group for the
immediately preceding Accrual Period in accordance with Article
II.

     

    Section
3.3 Calculation of CP
Costs.  On the
tenth calendar day of each month or, if such day is not a Business Day, on the
next succeeding Business Day, each Agent shall calculate the aggregate amount of
the relevant CP Costs for the applicable Accrual Period and shall notify Seller
of such aggregate amount.

     

     

    ARTICLE IV

    COMMITTED PURCHASER
FUNDING

     

    Section
4.1 Committed
Purchaser
Funding.  Each
Committed Purchaser Interest shall accrue Yield for each day during its Tranche
Period at either the LIBO Rate or the Alternate Base Rate in accordance with the
terms and conditions hereof.  Until Seller gives notice to the
Administrative Agent of another Discount Rate in accordance with Section 4.4, the
initial Discount Rate for any Committed Purchaser Interest shall be the
Alternate Base Rate.  If any Funding Source acquires by assignment
from a Conduit any Purchaser Interest pursuant to any Funding Agreement, each
Purchaser Interest so assigned shall each be deemed to have a new Tranche Period
commencing on the date of any such assignment and shall accrue Yield for each
day during its Tranche Period at either the LIBO Rate or the Alternate Base Rate
in accordance with the terms and conditions hereof as if each such Purchaser
Interest was held by a Committed Purchaser, and with respect to each such
Purchaser Interest, the assignee thereof shall be deemed to be a Committed
Purchaser solely for the purposes of Sections 4.1, 4.2, 4.3, 4.4 and 4.5.

     

    Section
4.2 Yield
Payments.  On the
Settlement Date for each Committed Purchaser Interest , Seller shall pay to each
Agent (for the benefit of the Committed Purchasers in the relevant Conduit
Group) an aggregate amount equal to the accrued and unpaid Yield for the entire
Tranche Period of each such Purchaser Interest held by a Purchaser in such
Conduit Group in accordance with Article
II.

     

    Section
4.3 Selection and Continuation
of Tranche Periods

     

    (a) With consultation
from (and approval by) the relevant Agent, Seller shall from time to time
request Tranche Periods for the Committed Purchaser Interests in a Conduit
Group, provided that, if at any time the Committed Purchasers shall have a
Purchaser Interest, Seller shall always request Tranche Periods such that at
least one Tranche Period shall end on the date specified in clause (A) of the
definition of Settlement Date.

     

    (b) Seller or the
relevant Agent, upon notice to and consent by the other received at least three
(3) Business Days prior to the end of a Tranche Period (the “Terminating Tranche”)
for any Purchaser Interest, may, effective on the last day of the Terminating
Tranche:  (i) divide any such Purchaser Interest into multiple
Purchaser Interests, (ii) combine any such Purchaser Interest with one or more
other Purchaser Interests that have a Terminating Tranche ending on the same day
as such Terminating Tranche or (iii) combine any such Purchaser Interest with a
new Purchaser Interests to be purchased on the day such Terminating Tranche
ends, provided,
that in no event may a Purchaser Interest of a Conduit be combined with a
Committed Purchaser Interest or of another Conduit, and in no event may a
Committed Purchaser Interest be combined with a Purchaser Interest of a
Purchaser in a different Conduit Group.

     

    Section
4.4 Committed
Purchaser
Discount Rates.  Seller
may select the LIBO Rate or the Alternate Base Rate for each Committed Purchaser
Interest.  Seller shall by 12:00 p.m. (New York time): (i) at least
three (3) Business Days prior to the expiration of any Terminating Tranche with
respect to which the LIBO Rate is being requested as a new Discount Rate and
(ii) at least one (1) Business Day prior to the expiration of any Terminating
Tranche with respect to which the Alternate Base Rate is being requested as a
new Discount Rate, give the relevant Agent irrevocable notice of the new
Discount Rate for the Purchaser Interest associated with such Terminating
Tranche.  Until Seller gives notice to the relevant Agent of another
Discount Rate, the initial Discount Rate for any Purchaser Interest transferred
to the Committed Purchasers pursuant to the terms and conditions hereof (or
assigned or transferred to any Funding Source or to any other Person) shall be
the Alternate Base Rate.

     

    Section
4.5 Suspension of the LIBO
Rate

     

    .  (a)  If
any Committed Purchaser notifies the relevant Agent and the Administrative Agent
that it has determined that funding its Pro Rata Share of the Committed
Purchaser Interest at a LIBO Rate would violate any applicable law, rule,
regulation or directive of any governmental or regulatory authority, whether or
not having the force of law, or that (i) deposits of a type and maturity
appropriate to match fund its Purchaser Interests at such LIBO Rate are not
available or (ii) such LIBO Rate does not accurately reflect the cost of
acquiring or maintaining a Purchaser Interest at such LIBO Rate, then the
relevant Agent shall suspend the availability of such LIBO Rate and require
Seller to select the Alternate Base Rate for any Purchaser Interest accruing
Yield at such LIBO Rate.

     

    (b) If less than all of
the Committed Purchasers give a notice to the relevant Agent pursuant to Section 4.5(a), each
Committed Purchaser which gave such a notice shall be obliged, at the request of
Seller, a Conduit in the same Conduit Group, the Administrative Agent or any
Agent, to assign all of its rights and obligations hereunder to (i) another
Committed Purchaser in the same Conduit Group or (ii) another funding
entity nominated by Seller, the Administrative Agent or any Agent that is
acceptable to such Conduit and willing to participate in this Agreement through
the Liquidity Termination Date in the place of such notifying Committed
Purchaser; provided that (i) the
notifying Committed Purchaser receives payment in full, pursuant to an
Assignment Agreement, of an amount equal to such notifying Committed Purchaser’s
Pro Rata Share of the Capital and Yield owing to all of the Committed
Purchasers 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 Committed Purchasers in the same Conduit Group, and
(ii) the replacement Committed Purchaser otherwise satisfies the requirements of
Section
12.1(b).

     

     

    Section
4.6 Extension of Liquidity
Termination Date.

     

    (a) Seller may request one or more 364-day
extensions of the Liquidity Termination Date then in effect by giving written
notice of such request to the Administrative Agent (each such notice an “Extension Notice”) at
least 60 days prior to the Liquidity Termination Date then in
effect.  After the Administrative Agent’s receipt of any Extension
Notice, the Administrative Agent shall promptly advise each Committed Purchaser
of such Extension Notice.  Each Committed Purchaser may, in its sole
discretion, by a revocable notice (a “Consent Notice”)
given to the Administrative Agent on or prior to the 30th day prior to the
Liquidity Termination Date then in effect (such period from the date of the
Extension Notice to such 30th day being referred to herein as the “Consent Period”),
consent to such extension of such Liquidity Termination Date; provided, however, that, except
as provided in Section
4.6(b), such extension shall not be effective with respect to any of the
Committed Purchasers if any one or more Committed Purchasers:  (i)
notifies the Administrative Agent during the Consent Period that such Committed
Purchaser either does not wish to consent to such extension or wishes to revoke
its prior Consent Notice or (ii) fails to respond to the Administrative Agent
within the Consent Period (each Committed Purchaser or its related Conduit Group
that does not wish to consent to such extension or wishes to revoke its prior
Consent Notice or fails to respond to the Administrative Agent within the
Consent Period is herein referred to as a “Non-Renewing Committed
Purchaser”).  If none of the events described in the foregoing
clauses (i) or (ii) occurs during the Consent Period and all Consent Notices
have been received, then, the Liquidity Termination Date shall be irrevocably
extended until the date that is 364 days after the Liquidity Termination Date
then in effect.  The Administrative Agent shall promptly notify Seller
of any Consent Notice or other notice received by the Administrative Agent
pursuant to this Section
4.6(a).

     

    (b) Upon receipt of notice from the Administrative
Agent pursuant to Section 4.6(a) of any
Non-Renewing Committed Purchaser or that the Liquidity Termination Date has not
been extended, one or more of the Committed Purchasers (including any
Non-Renewing Committed Purchaser) may proffer to the Administrative Agent and
each Agent the names of one or more institutions meeting the criteria set forth
in Section
12.1(b)(i) that are willing to accept assignments of and assume the
rights and obligations under this Agreement and the other applicable Transaction
Documents of the Non-Renewing Committed Purchaser.  Provided the
proffered name(s) are acceptable to the Administrative Agent and each Agent, the
Administrative Agent shall notify the remaining Committed Purchasers of such
fact, and the then existing Liquidity Termination Date shall be extended for an
additional 364 days upon satisfaction of the conditions for an assignment in
accordance with Section 12.1 and the
Commitment of each Non-Renewing Committed Purchaser shall be reduced to
zero.  If the rights and obligations under this Agreement and the
other applicable Transaction Documents of each Non-Renewing Committed Purchaser
are not assigned as contemplated by this Section 4.6(b) (each
such Non-Renewing Committed Purchaser or its related Conduit Group, as the case
may be, whose rights and obligations under this Agreement and the other
applicable Transaction Documents are not so assigned is herein referred to as a
“Terminating Committed
Purchaser”) and at least one Committed Purchaser is not a Non-Renewing
Committed Purchaser, the then existing Liquidity Termination Date shall be
extended for an additional 364 days; provided, however, that (i)
each of the Purchase Limit and the relevant Group Purchase Limit shall be
reduced on the Liquidity Termination Date that such Terminating Committed
Purchaser did not consent to extend by an aggregate amount equal to the
Terminating Commitment Availability as of such date of each Terminating
Committed Purchaser and shall thereafter continue to be reduced by amounts equal
to any reduction in the Capital of any Terminating Committed Purchaser (after
application of Collections pursuant to Sections 2.2 and
2.3) and (ii)
the Commitment of each Terminating Committed Purchaser shall be reduced to zero
on the Termination Date applicable to such Terminating Committed
Purchaser.  Upon reduction to zero of the Capital of all of the
Purchaser Interests of a Terminating Committed Purchaser (after application of
Collections thereto pursuant to Sections 2.2 and
2.3) all rights
and obligations of such Terminating Committed Purchaser hereunder shall be
terminated and such Terminating Committed Purchaser shall no longer be a
“Committed Purchaser”; provided, however, that the
provisions of Article
X shall continue in effect for its benefit with respect to Purchaser
Interests held by such Terminating Committed Purchaser prior to its termination
as a Committed Purchaser.  For the avoidance of doubt, each reference
to a Committed Purchaser in the context of a Terminating Committed Purchaser
shall be deemed to refer to the related Conduit Group if any Conduit in such
related Conduit Group continues to hold a Purchaser Interest as a Terminating
Committed Purchaser.

     

    (c) Any requested extension of the Liquidity
Termination Date may be approved or disapproved by a Committed Purchaser in its
sole discretion.  In the event that the Commitments are not extended
in accordance with the provisions of this Section 4.6, the
Commitment of each Committed Purchaser shall be reduced to zero on the Liquidity
Termination Date.  Upon reduction to zero of the Commitment of a
Committed Purchaser and upon reduction to zero of the Capital of all of the
Committed Purchaser Interests all rights and obligations of such Committed
Purchaser hereunder shall be terminated and such Committed Purchaser shall no
longer be a “Committed Purchaser”; provided, however, that the
provisions of Article
X shall continue in effect for its benefit with respect to Purchaser
Interests held by such Committed Purchaser prior to its termination as a
Committed Purchaser.

     

    ARTICLE V

    REPRESENTATIONS AND
WARRANTIES

     

     

    Section
5.1 Representations and
Warranties of the Seller
Parties.  Each
Seller Party hereby represents and warrants to the Administrative Agent, the
Agents and the Purchasers, as to itself, as of the date hereof and as of the
date of each Incremental Purchase and the date of each Reinvestment
that:

     

    (a) Existence and
Power.  Such Seller Party is a limited liability company or a
corporation duly organized, validly existing and in good standing under the laws
of its state of organization.  Such Seller Party is duly qualified to
do business and is in good standing as a foreign entity, and has and holds all
corporate or limited liability company 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
qualify or so hold could not reasonably be expected to have a Material Adverse
Effect.

     

    (b) Power and Authority; Due
Authorization, Execution and Delivery.  The execution and
delivery by such Seller Party of this Agreement and each other Transaction
Document to which it is a party, and the performance of its obligations
hereunder and thereunder and, in the case of Seller, Seller’s use of the
proceeds of purchases made hereunder, are within its corporate or limited
liability company powers and authority and have been duly authorized by all
necessary corporate or limited liability company action on its
part.  This Agreement and each other Transaction Document to which
such Seller Party is a party has been duly executed and delivered by such Seller
Party.

     

    (c) No
Conflict.  The execution and delivery by such Seller Party of
this Agreement and each other Transaction Document to which it is a party, and
the performance of its obligations hereunder and thereunder do not contravene or
violate (i) its certificate or articles of incorporation or by-laws or operating
agreement, (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 such Seller Party or its Subsidiaries (except as created
hereunder), except, in any case, where such contravention or violation
could not reasonably be expected to have a Material Adverse Effect; and no
transaction contemplated hereby requires compliance with any bulk sales act or
similar law.

     

    (d) Governmental
Authorization.  Other than the filing of the financing
statements required hereunder, no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for the due execution and delivery by such Seller Party of this
Agreement and each other Transaction Document to which it is a party and the
performance of its obligations hereunder and thereunder.

     

    (e) Actions,
Suits.  There are no actions, suits or proceedings pending, or
to the best of such Seller Party’s knowledge, threatened, against or affecting
such Seller Party, 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.  Such Seller Party is not in default with respect to any order
of any court, arbitrator or governmental body, which default, individually or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.

     

    (f) Binding
Effect.  This Agreement and each other Transaction Document to
which such Seller Party is a party constitute the legal, valid and binding
obligations of such Seller Party enforceable against such Seller Party in
accordance with their respective terms, except as such enforcement may be
limited by applicable 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).

     

    (g) Accuracy of
Information.  All information heretofore furnished by such
Seller Party or any of its Affiliates to the Administrative Agent, the Agents or
the Purchasers for purposes of or in connection with this Agreement, any of the
other Transaction Documents or any transaction contemplated hereby or thereby
is, and all such information hereafter furnished by such Seller Party or any of
its Affiliates to the Administrative Agent, the Agents or the Purchasers will
be, true and accurate in every material respect on the date such information is
stated or certified and does not and will not contain any material misstatement
of fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading.

     

    (h) Use of
Proceeds.  No proceeds of any purchase hereunder will be used
(i) for a purpose that violates, or would be inconsistent with, Regulation T, U
or X promulgated by the Board of Governors of the Federal Reserve System from
time to time or (ii) to acquire any security in any transaction which is subject
to Section 12, 13 or 14 of the Securities Exchange Act of 1934, as
amended.

     

    (i) Good
Title.  Immediately prior to each purchase hereunder, Seller
shall be the legal and beneficial owner of the Receivables and Related Security
with respect thereto, free and clear of any Adverse Claim, except as created by
the Transaction Documents.  There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect Seller’s
ownership interest in each Receivable, its Collections and the Related
Security.

     

    (j) Perfection.  This
Agreement, together with the filing of the financing statements contemplated
hereby, is effective to, and shall, upon each purchase hereunder, transfer to
the Administrative Agent for the benefit of the relevant Purchaser or Purchasers
(and the Administrative Agent for the benefit of such Purchaser or Purchasers
shall acquire from Seller) a valid and perfected first priority undivided
percentage ownership or security interest in each Receivable existing or
hereafter arising and in the Related Security and Collections with respect
thereto, free and clear of any Adverse Claim, except as created by the
Transactions Documents.  There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect the
Administrative Agent’s (on behalf of the Purchasers) ownership or security
interest in the Receivables, the Related Security and the
Collections.

     

    (k) Places of Business and
Locations of Records.  The principal places of business and
chief executive office of such Seller Party and the offices where it keeps all
of its Records are located at the address(es) listed on Exhibit III or such other
locations of which the Administrative Agent and the Agents have been
notified in accordance with Section 7.2(a) in
jurisdictions where all action required by Section 14.4(a) has
been taken and completed.  Such Seller Party’s Federal Employer
Identification Number is correctly set forth on Exhibit
III.

     

    (l) Collections.  The
conditions and requirements set forth in Section 7.1(j) and
Section 8.2
have at all times been satisfied and duly performed.  The names and
addresses of all Collection Banks, together with the account numbers of the
Collection Accounts of Seller at each Collection Bank and the post office box
number of each Lock-Box, are listed on Exhibit
IV.  Seller has not granted any Person, other than the
Administrative Agent as contemplated by this Agreement, dominion and control of
any Lock-Box or Collection Account, or the right to take dominion and control of
any such Lock-Box or Collection Account at a future time or upon the occurrence
of a future event.

     

    (m) Material Adverse
Effect.  (i) The initial Servicer represents and warrants that
since December 31, 1999, and the initial Sub-Servicer represents and warrants
that since December 31, 2008, no event has occurred that would have a material
adverse effect on the financial condition or operations of the initial Servicer
and its Subsidiaries or the initial Sub-Servicer and its Subsidiaries, as
applicable, or the ability of the initial Servicer or the initial Sub-Servicer
to perform its obligations under this Agreement, and (ii) Seller represents and
warrants that since the date of this Agreement, no event has occurred that would
have a material adverse effect on (A) the financial condition or operations of
Seller, (B) the ability of Seller to perform its obligations under the
Transaction Documents, or (C) the collectibility of the Receivables generally or
any material portion of the Receivables.

     

    (n) Names.  In
the past five (5) years, Seller has not used any corporate names, trade names or
assumed names other than the name in which it has executed this
Agreement.

     

    (o) Ownership of
Seller.  Originator owns, directly or indirectly, 100% of the
issued and outstanding capital stock of Seller, free and clear of any Adverse
Claim.  Such capital stock is validly issued, fully paid and
nonassessable, and there are no options, warrants or other rights to acquire
securities of Seller.

     

    (p) Not an Investment
Company.  Such Seller Party is not an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, or any
successor statute.

     

    (q) Compliance with
Law.  Such Seller Party has complied in all respects with all
applicable laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject, except where the failure to so
comply could not reasonably be expected to have a Material Adverse
Effect.  Each Receivable, together with the Contract related thereto,
does not contravene any laws, rules or regulations applicable thereto (including, without limitation, laws,
rules and regulations relating to truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices and
privacy), and no part of such Contract is in violation of any such law, rule or
regulation, except where such contravention or violation could not
reasonably be expected to have a Material Adverse Effect.

     

    (r) Compliance with Credit and
Collection Policy.  Such Seller Party has complied in all
material respects with the Credit and Collection Policy with regard to each
Receivable and the related Contract, and has not made any change to such Credit
and Collection Policy, except such material change as to which the
Administrative Agent and the Agents have been notified in accordance with
Section
7.1(a)(vii).

     

    (s) Payments to
Originator and
Original Sellers.  With respect to each Receivable transferred
to Seller under the Receivables Sale Agreement, Seller has given reasonably
equivalent value to Originator in consideration therefor and such transfer was
not made for or on account of an antecedent debt.  No transfer by
Originator of any Receivable under the Receivables Sale Agreement is or may be
voidable under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as
amended.  With respect to each Receivable transferred to Originator
under the Transfer Agreement, Originator has given reasonably equivalent value
to the applicable Original Seller in consideration therefor and such transfer
was not made for or on account of an antecedent debt.  No transfer by
any Original Seller of any Receivable under the Transfer Agreement is or may be
voidable under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C. §§
101 et seq.), as amended.

     

    (t) Enforceability of
Contracts.  Each Contract with respect to each Receivable is
effective to create, and has created, a legal, valid and binding obligation of
the related Obligor to pay the Outstanding Balance of the Receivable created
thereunder and any accrued interest thereon, enforceable against the Obligor in
accordance with its terms, except as such enforcement may be limited by
applicable 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).

     

    (u) Eligible
Receivables.  Each Receivable included in the Net Receivables
Balance as an Eligible Receivable on the date of its purchase under the
Receivables Sale Agreement was an Eligible Receivable on such purchase
date.

     

    (v) Net Receivables
Balance.  Seller has determined that, immediately after giving
effect to each purchase hereunder, the Net Receivables Balance is at least equal
to the sum of (i) the Aggregate Capital, plus (ii) the
Aggregate Reserves.

     

    (w) Accounting.  The
manner in which such Seller Party accounts for the transactions contemplated by
this Agreement and the Receivables Sale Agreement does not jeopardize the true
sale analysis.

     

    Section
5.2 Committed
Purchaser
Representations and Warranties.  Each
Committed Purchaser hereby represents and warrants to the Administrative Agent,
the Agents and the Conduit(s) in the related Conduit Group that:

     

    (a) Existence and
Power.  Such Committed Purchaser is a corporation or a banking
association duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization, and has all corporate
power to perform its obligations hereunder.

     

    (b) No
Conflict.  The execution and delivery by such Committed
Purchaser of this Agreement 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 certificate or articles
of incorporation or association 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 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 its assets.  This Agreement has been duly authorized,
executed and delivered by such Committed Purchaser.

     

    (c) Governmental
Authorization.  No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution and delivery by such Committed Purchaser
of this Agreement and the performance of its obligations hereunder.

     

    (d) Binding
Effect.  This Agreement constitutes the legal, valid and
binding obligation of such Committed Purchaser enforceable against such
Committed Purchaser in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors’ rights generally and by general
principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law).

     

    ARTICLE VI

    CONDITIONS OF
PURCHASES

     

     

    Section
6.1 Conditions Precedent to Initial
Incremental Purchase.  The
initial Incremental Purchase of a Purchaser Interest under this Agreement is
subject to the conditions precedent that the Administrative Agent and the Agents
shall have received on or before the date of such purchase those documents
listed on Schedule
B that are required to be delivered on or before such
date.  The documents listed on part V of Schedule B are
required to be delivered on or before the effective date of this
Agreement.  The Administrative Agent and each Agent shall have
received all fees and expenses required to be paid pursuant to the terms of this
Agreement (including, without limitation, Section 10.3 hereof), the Fee Letter
and any other fee, charge, or expense required to be paid prior to the
effectiveness of this agreement.

     

    Section
6.2 Conditions Precedent to All
Purchases and Reinvestments.  Each
purchase of a Purchaser Interest and each Reinvestment shall be subject to the
further conditions precedent that (a) in the case of each such purchase or
Reinvestment: (i) Servicer shall have delivered to the Administrative Agent and
the Agents, on or prior to the date of such purchase, in form and substance
satisfactory to the Administrative Agent and the Agents, all Monthly Reports and
Interim Reports as and when due under Section 8.5 and (ii)
upon the request of the Administrative Agent any of the Agents, Servicer shall
have delivered to the Administrative Agent and each of the Agents at least three
(3) days prior to such purchase or Reinvestment an interim Monthly Report
showing the amount of Eligible Receivables; (b) the Facility Termination Date
shall not have occurred; (c) the Administrative Agent and the Agents shall have
received such other approvals, opinions or documents as it may reasonably
request and (d) on the date of each such Incremental Purchase or Reinvestment,
the following statements shall be true (and acceptance of the proceeds of such
Incremental Purchase or Reinvestment shall be deemed a representation and
warranty by Seller that such statements are then true):

     

     

    (i)           the
representations and warranties set forth in Section 5.1 are true
and correct in all material respects on and as of the date of such Incremental
Purchase or Reinvestment as though made on and as of such date;

     

     

    (ii)           no
event has occurred and is continuing, or would result from such Incremental
Purchase or Reinvestment, that would constitute an Amortization Event or a
Potential Amortization Event; and

     

     

    (iii)           the
Aggregate Capital does not exceed the Purchase Limit and the aggregate Purchaser
Interests do not exceed 100%.

     

    It
is expressly understood that each Reinvestment shall, unless otherwise directed
by the Administrative Agent, any of the Agents or any Purchaser, occur
automatically on each day that Servicer shall receive any Collections without
the requirement that any further action be taken on the part of any Person and
notwithstanding the failure of Seller to satisfy any of the foregoing conditions
precedent in respect of such Reinvestment.  The failure of Seller to
satisfy any of the foregoing conditions precedent in respect of any Reinvestment
shall give rise to a right of the Administrative Agent and each of the Agents,
which right may be exercised at any time on demand of the Administrative Agent
or any of the Agents, to rescind the related purchase and direct Seller to pay
to the Agents for the benefit of the Purchasers in their respective Conduit
Groups an aggregate amount equal to the Collections prior to the Amortization
Date that shall have been applied to the affected Reinvestment.

     

    ARTICLE VII

    COVENANTS

     

     

    Section
7.1 Affirmative Covenants of
the Seller
Parties.  Until
the date on which the Aggregate Unpaids have been indefeasibly paid in full and
this Agreement terminates in accordance with its terms, each Seller Party hereby
covenants, as to itself, as set forth below:

     

    (a) Financial
Reporting.  Such Seller Party will maintain, for itself and
each of its Subsidiaries, a system of accounting established and administered in
accordance with GAAP, and furnish or cause to be furnished to the Administrative
Agent and the Agents:

     

    (i) Annual
Reporting.  Within 90 days after the close of each of its
respective fiscal years, (i) audited financial statements (which shall include
balance sheets, statements of income and retained earnings and a statement of
cash flows) for Provider for such fiscal year, together with an unqualified
audit report (in form satisfactory to the Administrative Agent and the Agents)
on such financial statements of, and certified in a manner acceptable to the
Administrative Agent and the Agents by, PricewaterhouseCoopers LLP or
other  independent public accountants reasonably acceptable to the
Administrative Agent and the Agents and (ii) an unaudited balance sheet and
income statement of the Seller in a form reasonably acceptable to the
Administrative Agent and the Agents.

     

    (ii) Quarterly
Reporting.  Within 45 days after the close of the first three
(3) quarterly periods of each of its fiscal years, balance sheets of Provider as
at the close of each such period and statements of income and retained earnings
and a statement of cash flows for the Provider for the period from the beginning
of such fiscal year to the end of such quarter, all certified by its chief
financial officer on behalf of the Provider.

     

    (iii) Compliance
Certificate.  Together with the financial statements required
hereunder, a compliance certificate in substantially the form of Exhibit V signed by
such Seller Party’s or Provider’s, as applicable, Authorized Officer on behalf
of such Person and dated the date of such annual financial statement or such
quarterly financial statement, as the case may be.

     

    (iv) Shareholders Statements and
Reports.  Promptly upon the furnishing thereof to the
shareholders of such Seller Party or Provider copies of all financial
statements, reports and proxy statements so furnished; provided, that Seller Parties
shall not be required to provide any registration statements or reports which
are available on the EDGAR system of the Securities and Exchange
Commission.

     

    (v) S.E.C.
Filings.  Promptly upon the filing thereof, copies of all
registration statements (other than registration statements on Form S-8) and
annual, quarterly or other reports which Originator, any Original Seller,
Provider or any of their respective Subsidiaries files with the Securities and
Exchange Commission; provided, that Seller Parties
shall not be required to provide any registration statements or reports which
are available on the EDGAR system of the Securities and Exchange
Commission.

     

    (vi) Copies of
Notices.  Promptly upon its receipt of any notice, request for
consent, financial statements, certification, report or other communication
under or in connection with any Transaction Document from any Person other than
the Administrative Agent, any Agent or Conduit, copies of the same.

     

    (vii) Change in Credit and
Collection Policy.  At least thirty (30) days prior to the
effectiveness of any material change in or material amendment to the Credit and
Collection Policy, a copy of the Credit and Collection Policy then in effect and
a notice (A) indicating such change or amendment, and (B) if such proposed
change or amendment would be reasonably likely to adversely affect the
collectibility of the Receivables or decrease the credit quality of any newly
created Receivables, requesting the consent of the Administrative Agent and the
Agents thereto; provided that if such
change or amendment was required pursuant to any change in any applicable law,
rule or regulation, such Seller Party shall only be required to give prompt
notice of such change or amendment and shall not be required to request the
consent of the Administrative Agent and the Agents.

     

    (viii) Other
Information.  (A) Within 45 days after a request from the
Administrative Agent or any of the Agents, internally prepared financial
statements  (which shall include balance sheets, statements of income
and retained earnings and a statement of cash flow) for such Seller Party for
any quarterly period in any fiscal year of such Seller Party, all certified by
its chief financial officer, and (B) promptly, from time to time, such
other information, documents, records or reports relating to the Receivables or
the condition or operations, financial or otherwise, of such Seller
Party, any Original Seller or Provider as the Administrative Agent or any
of the Agents may from time to time reasonably request in order to protect the
interests of the Administrative Agent, the Agents and the Purchasers under or as
contemplated by this Agreement.

     

    (b) Notices.  Such
Seller Party will notify the Administrative Agent and the Agents in writing of
any of the following promptly upon becoming aware of the occurrence thereof,
describing the same and, if applicable, the steps being taken with respect
thereto:

     

    (i) Amortization Events or
Potential Amortization Events.  The occurrence of each
Amortization Event and each Potential Amortization Event, by a statement of an
Authorized Officer on behalf of such Seller Party.

     

    (ii) Judgment and
Proceedings.  (A) The entry of any judgment or decree against
Provider or any of its Subsidiaries if the aggregate amount of all judgments and
decrees then outstanding against Provider and its Subsidiaries exceeds
$10,000,000 and (B) the institution of any material  litigation,
arbitration proceeding or governmental proceeding against Provider or any of its
Subsidiaries; and (C) the entry of any judgment or decree or the institution of
any litigation, arbitration proceeding or governmental proceeding against
Seller.

     

    (iii) Material Adverse
Effect.  The occurrence of any event or condition that has had,
or could reasonably be expected to have, a Material Adverse Effect.

     

    (iv) Termination
Date.  The occurrence of (A) the “Termination Date”
under and as defined in the Receivables Sale Agreement and (B) the “Termination
Date” under and as defined in the Transfer Agreement.

     

    (v) Defaults Under Other
Agreements.  (A) The occurrence of a default or an event of
default under any other financing arrangement pursuant to which Seller is a
debtor or an obligor and (B) the occurrence of any default or event of default
under any other financing arrangement or arrangements governing Indebtedness,
individually or in the aggregate, greater than or equal to $30,000,000 pursuant
to which Provider or any of its Subsidiaries is a debtor or an
obligor.

     

    (vi) Downgrade of Originator or
Provider.  Any downgrade in the rating of any Indebtedness of
Originator, any Original Seller or Provider by Standard & Poor’s
Ratings Group or by Moody’s Investors Service, Inc., setting forth the
Indebtedness affected and the nature of such change.

     

    (c) Compliance with Laws and Preservation of
Corporate Existence.  Such Seller Party will comply in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect.  Such Seller Party will preserve and maintain its corporate
existence, rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where its business is conducted, except where
the failure to so preserve and maintain or qualify could not reasonably be
expected to have a Material Adverse Effect.

     

    (d) Audits.  Such
Seller Party will furnish to the Administrative Agent (with the
Administrative Agent providing copies thereof to each Committed Purchaser,
subject to the Administrative Agent receiving any necessary consents to
disclosure) from time to time such information with respect to it, any Original
Seller and the Receivables as the Administrative Agent may reasonably
request.  Such Seller Party will (and will cause Originator and each
Original Seller to), from time to time during regular business hours as
requested by the Administrative Agent upon reasonable notice and at the sole
cost of such Seller Party, permit the Administrative Agent, or its agents or
representatives, (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of such Person relating to the
Receivables and the Related Security, including, without limitation, the related
Contracts, and (ii) to visit the offices and properties of such Person for the
purpose of examining such materials described in clause (i) above, and to
discuss matters relating to such Person’s financial condition or the Receivables
and the Related Security or any Person’s performance under any of the
Transaction Documents or any Person’s performance under the Contracts and, in
each case, with any of the Authorized Officers or financial officers of Seller,
any Original Seller or Servicer having knowledge of such matters.  So
long as no Potential Amortization Event or Amortization Event exists, the visits
under this Section
7.1(d) that are at the sole cost of the applicable Seller Party shall be
limited to four times a calendar year; and upon the occurrence and during the
continuance of a Potential Amortization Event or an Amortization Event, any and
all visits shall be at the sole cost of the applicable Seller Party, provided that if the
Administrative Agent or its agent or representative fails to make any such
examination and/or visit during any calendar year period, any Committed
Purchaser or its agent or representative may make such examination and/or visit
in the Administrative Agent’s stead.

     

    (e) Keeping and Marking of
Records and Books.

     

    (i) Servicer will (and
will cause Originator and each Original Seller to) maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing Receivables in the event of the
destruction of the originals thereof), and keep and maintain all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records adequate
to permit the immediate identification of each new Receivable and all
Collections of and adjustments to each existing Receivable).  Servicer
will (and will cause Originator and each Original Seller to) give the
Administrative Agent and the Agents notice of any material change in the
administrative and operating procedures referred to in the previous
sentence.

     

    (ii) Such Seller Party
will (and will cause Originator and each Original Seller to) (A) not later than
the date hereof, mark its master data processing records and other books and
records relating to the Purchaser Interests with a legend, acceptable to the
Administrative Agent, describing the Purchaser Interests and (B) upon the
request of the Administrative Agent (x) mark each Contract with a legend
describing the Purchaser Interests and (y) at any time after the occurrence of a
Potential Amortization Event, deliver to the Administrative Agent all Contracts
(including, without limitation, all multiple originals of any such Contract)
relating to the Receivables.

     

    (f) Compliance with Contracts
and Credit and Collection Policy.  Such Seller Party will (and
will cause Originator and each Original Seller to) timely and fully (i) perform
and comply with all provisions, covenants and other promises required to be
observed by it under the Contracts related to the Receivables and (ii) comply in
all respects with the Credit and Collection Policy in regard to each Receivable
and the related Contract.

     

    (g) Performance and Enforcement
of Receivables
Sale Agreement.  Seller will, and will require Originator to,
perform each of their respective obligations and undertakings under and pursuant
to the Receivables Sale Agreement, will purchase Receivables thereunder in
strict compliance with the terms thereof and will vigorously enforce the rights
and remedies accorded to Seller under the Receivables Sale
Agreement.  Seller will take all actions to perfect and enforce its
rights and interests (and the rights and interests of the Administrative Agent,
the Agents and the Purchasers as assignees of Seller) under the Receivables Sale
Agreement as the Administrative Agent or any of the Agents may from time to
time reasonably request, including, without limitation, making
claims to which it may be entitled under any indemnity, reimbursement or similar
provision contained in the Receivables Sale Agreement.

     

    (h) Performance and Enforcement
of Transfer
Agreement.  Originator shall not enter into a Transfer
Agreement or amend, modify, supplement or restate a Transfer Agreement without
the prior written consent of the Administrative Agent and each of the
Agents.  When a Transfer Agreement is effective, Seller will require
Originator and each Original Seller to perform each of their respective
obligations and undertakings under and pursuant to the Transfer Agreement,
will require that Originator purchase Receivables thereunder in strict
compliance with the terms thereof and will require that Originator vigorously
enforce the rights and remedies accorded to Originator under the Transfer
Agreement.  Seller will require Originator to take all actions to
perfect and enforce Originator’s rights and interests (and the rights and
interests of Seller as assignee of Originator, and the rights and interests of
the Administrative Agent, the Agents and the Purchasers as assignees of Seller)
under the Transfer Agreement as Seller, the Administrative Agent or any of the
Agents may from time to time reasonably request, including, without limitation, making
claims to which it may be entitled under any indemnity, reimbursement or similar
provision contained in the Transfer Agreement.

     

    (i) Ownership by
Seller.  Seller will (or will cause Originator to) take all
necessary action to (i) vest legal and equitable title to the Receivables, the
Related Security and the Collections purchased under the Receivables Sale
Agreement irrevocably in Seller, free and clear of any Adverse Claims other than
Adverse Claims in favor of the Administrative Agent, the Agents and the
Purchasers (including, without limitation, the
filing of all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect Seller’s interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the
interest of Seller therein as the Administrative Agent or any of the Agents may
reasonably request), and (ii) establish and maintain, in favor of the
Administrative Agent, for the benefit of the Agents and the Purchasers, a valid
and perfected first priority undivided percentage ownership interest (or a valid
and perfected first priority security interest) in all Receivables, Related
Security and Collections to the full extent contemplated herein, free and clear
of any Adverse Claims other than Adverse Claims in favor of the Administrative
Agent or the Agents for the benefit of the Purchasers (including, without limitation, the
filing of all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Administrative Agent’s and the Agents’ (for the benefit of
the Purchasers) interest in such Receivables, Related Security and Collections
and such other action to perfect, protect or more fully evidence the interest of
the Administrative Agent or the Agents for the benefit of the Purchasers as the
Administrative Agent or any of the Agents may reasonably
request).

     

    (j) Ownership by
Originator.  Seller will cause Originator to take all necessary
action to (i) vest legal and equitable title to the Receivables, the Related
Security and the Collections purchased under the Transfer Agreement irrevocably
in Originator, free and clear of any Adverse Claims other than Adverse
Claims in favor of Seller, the Administrative Agent, the Agents and the
Purchasers (including, without limitation, the
filing of all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect Originator’s interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the
interest of Originator therein as Seller or the Administrative Agent or any of
the Agents may reasonably request), and (ii) establish and maintain, in favor of
Seller and the Administrative Agent, for the benefit of the Agents and the
Purchasers, a valid and perfected first priority undivided percentage ownership
interest (or a valid and perfected first priority security interest) in all
Receivables, Related Security and Collections purchased under the Transfer
Agreement, to the full extent contemplated herein, free and clear of any Adverse
Claims other than Adverse Claims in favor of Seller, the Administrative Agent
and the Agents (for the benefit of the Purchasers) (including, without limitation, the
filing of all financing statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect Seller’s, the Administrative Agent’s and the Agents’ (for the benefit
of the Purchasers) interest in such Receivables, Related Security and
Collections and such other action to perfect, protect or more fully evidence the
interest of Seller and the Administrative Agent, for the benefit of the Agents
and the Purchasers, as Seller, the Administrative Agent or any of the Agents may
reasonably request).

     

    (k) Purchasers’
Reliance.  Seller acknowledges that the Purchasers are entering
into the transactions contemplated by this Agreement in reliance upon Seller’s
identity as a legal entity that is separate from Originator and any Original
Seller.  Therefore, from and after April 4, 2000, Seller shall take
all reasonable steps, including, without limitation, all steps that the
Administrative Agent, the Agents or any Purchaser may from time to time
reasonably request, to maintain Seller’s identity as a separate legal entity and
to make it manifest to third parties that Seller is an entity with assets and
liabilities distinct from those of Originator, any Original Seller and any
Affiliates thereof and not just a division of Originator, any Original Seller or
any such Affiliate.  Without limiting the generality of the foregoing
and in addition to the other covenants set forth herein, Seller
will:

     

     

    (A) conduct its own
business in its own name and require that all full-time employees of Seller, if
any, identify themselves as such and not as employees of Originator or any
Original Seller (including, without limitation, by means of providing
appropriate employees with business or identification cards identifying such
employees as Seller’s employees);

     

     

    (B) compensate all
employees, consultants and agents directly, from Seller’s own funds, for
services provided to Seller by such employees, consultants and agents and, to
the extent any employee, consultant or agent of Seller is also an employee,
consultant or agent of Originator, any Original Seller or any Affiliate thereof,
allocate the compensation of such employee, consultant or agent between Seller
and Originator, any Original Seller or such Affiliate, as applicable, on a basis
that reflects the services rendered to Seller and Originator, such Original
Seller or such Affiliate, as applicable;

     

     

    (C) clearly identify
its offices (by signage or otherwise) as its offices and, if such office is
located in the offices of Originator or any Original Seller, Seller shall lease
such office at a fair market rent;

     

     

    (D) have a separate
telephone number, which will be answered only in its name and separate
stationery, invoices and checks in its own name;

     

     

    (E) conduct all
transactions with Originator, any Original Seller and Servicer (including,
without limitation, any delegation of its obligations hereunder as Servicer)
strictly on an arm’s-length basis, allocate all overhead expenses (including,
without limitation, telephone and other utility charges) for items shared
between Seller and Originator or any Original Seller on the basis of actual use
to the extent practicable and, to the extent such allocation is not practicable,
on a basis reasonably related to actual use;

     

     

    (F) at all times have a
Board of Directors consisting of three members, at least one member of which is
an Independent Director;

     

     

    (G) observe all
corporate formalities as a distinct entity, and ensure that all corporate
actions relating to (A) the selection, maintenance or replacement of the
Independent Director, (B) the dissolution or liquidation of Seller or (C) the
initiation of, participation in, acquiescence in or consent to any bankruptcy,
insolvency, reorganization or similar proceeding involving Seller, are duly
authorized by unanimous vote of its Board of Directors (including the
Independent Director);

     

     

    (H) maintain Seller’s
books and records separate from those of Originator, any Original Seller and any
Affiliate thereof and otherwise readily identifiable as its own assets rather
than assets of Originator, any Original Seller and any Affiliate
thereof;

     

     

    (I) prepare its
financial statements separately from those of Originator  and any
Original Seller and insure that any consolidated financial statements of
Originator, any Original Seller or any Affiliate thereof that include Seller and
that are filed with the Securities and Exchange Commission or any other
governmental agency have notes clearly stating that Seller is a separate
corporate entity and that its assets will be available first and foremost to
satisfy the claims of the creditors of Seller;

     

     

    (J) except as herein
specifically otherwise provided, maintain the funds or other assets of Seller
separate from, and not commingled with, those of Originator, any Original Seller
or any Affiliate thereof and only maintain bank accounts or other depository
accounts to which Seller alone is the account party;

     

     

    (K) pay all of Seller’s
operating expenses from Seller’s own assets (except for certain payments by
Originator, any Original Seller or other Persons pursuant to allocation
arrangements that comply with the requirements of this Section
7.1(i));

     

     

    (L) operate its
business and activities such that:  it does not engage in any business
or activity of any kind, or enter into any transaction or indenture, mortgage,
instrument, agreement, contract, lease or other undertaking, other than the
transactions contemplated and authorized by this Agreement and the Receivables
Sale Agreement; and does not create, incur, guarantee, assume or suffer to exist
any indebtedness or other liabilities, whether direct or contingent, other than
(1) as a result of the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business, (2) the
incurrence of obligations under this Agreement, (3) the incurrence of
obligations, as expressly contemplated in the Receivables Sale Agreement, to
make payment to Originator thereunder for the purchase of Receivables from
Originator under the Receivables Sale Agreement, and (4) the incurrence of
operating expenses in the ordinary course of business of the type otherwise
contemplated by this Agreement;

     

     

    (M) maintain its
corporate charter in conformity with this Agreement, such that it does not
amend, restate, supplement or otherwise modify its Certificate of Incorporation
or By-Laws in any respect that would impair its ability to comply with the terms
or provisions of any of the Transaction Documents, including, without
limitation, Section
7.1(i) of this Agreement;

     

     

    (N) maintain the
effectiveness of, and continue to perform under the Receivables Sale Agreement,
the Transfer Agreement and the Performance Undertaking, such that it does not
amend, restate, supplement, cancel, terminate or otherwise modify the
Receivables Sale Agreement, the Transfer Agreement or the Performance
Undertaking, or give any consent, waiver, directive or approval thereunder or
waive any default, action, omission or breach under the Receivables Sale
Agreement, the Transfer Agreement or the Performance Undertaking or otherwise
grant any indulgence thereunder, without (in each case) the prior written
consent of the Administrative Agent and the Agents;

     

     

    (O) maintain its
corporate separateness such that it does not merge or consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether in one transaction
or in a series of transactions, and except as otherwise contemplated herein) all
or substantially all of its assets (whether now owned or hereafter acquired) to,
or acquire all or substantially all of the assets of, any Person, nor at any
time create, have, acquire, maintain or hold any interest in any
Subsidiary.

     

     

    (P) maintain at all
times the Required Capital Amount (as defined in the Receivables Sale Agreement)
and refrain from making any dividend, distribution, redemption of capital stock
or payment of any subordinated indebtedness which would cause the Required
Capital Amount to cease to be so maintained; and

     

     

    (Q) take such other
actions as are necessary on its part to ensure that the facts and assumptions
set forth in the opinions issued by Bryan Cave LLP, as counsel for Seller, in
connection with the Original Agreement, this Agreement or initial Incremental
Purchase under this Agreement and relating to substantive consolidation issues,
and in the certificates accompanying such opinions, remain true and correct in
all material respects at all times.

     

    (l) Collections.  Such
Seller Party will cause (1) all proceeds from all Lock-Boxes to be directly
deposited by a Collection Bank into a Collection Account and (2) each Lock-Box
and Collection Account to be subject at all times to a Collection Account
Agreement that is in full force and effect.  In the event any payments
relating to Receivables are remitted directly to any Seller Party or any
Affiliate of any Seller Party, such Seller Party will remit (or will cause all
such payments to be remitted) directly to a Collection Bank and deposited into a
Collection Account within two (2) Business Days following receipt thereof, and,
at all times prior to such remittance, such Seller Party or Affiliate will
itself hold or, if applicable, will cause such payments to be held in trust for
the exclusive benefit of the Administrative Agent and the
Purchasers.  Seller will maintain exclusive ownership, dominion and
control (subject to the terms of this Agreement and the applicable Collection
Account Agreement) of each Lock-Box and Collection Account and shall not grant
the right to take dominion and control of any Lock-Box or Collection Account at
a future time or upon the occurrence of a future event to any Person, except to
the Administrative Agent as contemplated by this Agreement.

     

    (m) Taxes.  Such
Seller Party will file all tax returns and reports required by law to be filed
by it and will promptly pay all taxes and governmental charges at any time owing
by it.  Seller will pay when due any taxes payable in connection with
the Receivables, exclusive of taxes on or measured by income or gross receipts
of any Conduit, the Administrative Agent, the Agents or any Committed
Purchaser.

     

    (n) Insurance.  Seller
will maintain in effect, or cause to be maintained in effect, at Seller’s own
expense, such casualty and liability insurance as Seller shall deem appropriate
in its good faith business judgment.  The Administrative Agent, for
the benefit of the Purchasers, shall be named as an additional insured with
respect to all such liability insurance maintained by Seller.  Seller
will pay or cause to be paid, the premiums therefor and deliver to the
Administrative Agent evidence satisfactory to the Administrative Agent of such
insurance coverage.  Evidence of each policy shall be furnished to the
Administrative Agent and any Purchaser in certificated form upon the
Administrative Agent’s or such Purchaser’s request.  The foregoing
requirements shall not be construed to negate, reduce or modify, and are in
addition to, Seller’s obligations hereunder.

     

    (o) Payment to
Originator and
to any Original Seller.  With respect to any Receivable
purchased by Seller from Originator, such sale shall be effected under, and in
strict compliance with the terms of, the Receivables Sale Agreement, including,
without limitation, the terms relating to the amount and timing of payments to
be made to the Originator in respect of the purchase price for such
Receivable.  With respect to any Receivable purchased by Originator
from any Original Seller, such sale shall be effected under, and in strict
compliance with the terms of, the Transfer Agreement, including, without
limitation, the terms relating to the amount and timing of payments to be made
to the applicable Original Seller in respect of the purchase price for such
Receivable.

     

    (p) Certificates and
Lien
Searches.  Within thirty (30) days after the date of this
Agreement or such later date to which the Administrative Agent and the Agents
shall agree, the Seller Parties will deliver (i) a good standing certificate for
each Seller Party and Provider issued by the Secretary of State of each
jurisdiction in which it has material operations and (ii) state tax lien and
judgment lien searches against the Seller Parties in each jurisdiction in which
any of them have material operations.

     

    Section
7.2 Negative Covenants of
the Seller
Parties.  Until
the date on which the Aggregate Unpaids have been indefeasibly paid in full and
this Agreement terminates in accordance with its terms, each Seller Party hereby
covenants, as to itself, that:

     

    (a) Name Change, Offices and
Records.  Such
Seller Party will not change its name, identity or corporate structure (within
the meaning of Section 9-402(7) of any applicable enactment of the UCC) or
relocate its chief executive office or any office where Records are kept unless
it shall have:  (i) given the Administrative Agent at least thirty
(30) days’ prior written notice thereof and (ii) delivered to the Administrative
Agent all financing statements, instruments and other documents requested by the
Administrative Agent in connection with such change or relocation.

     

    (b) Change in Payment
Instructions to Obligors

     

    (c) .  Except
as may be required by the Administrative Agent pursuant to Section 8.2(b), such
Seller Party will not add or terminate any bank as a Collection Bank, or make
any change in the instructions to Obligors regarding payments to be made to any
Lock-Box or Collection Account, unless the Administrative Agent shall have
received, at least ten (10) days before the proposed effective date therefor,
(i) written notice of such addition, termination or change and (ii) with respect
to the addition of a Collection Bank or a Collection Account or Lock-Box, an
executed Collection Account Agreement with respect to the new Collection Account
or Lock-Box; provided, however, that
Servicer may make changes in instructions to Obligors regarding payments if such
new instructions require such Obligor to make payments to another existing
Collection Account.

     

    (c)         Modifications to Contracts
and Credit and Collection Policy.  Such
Seller Party will not, and will not permit Originator or any Original Seller to,
make any change to the Credit and Collection Policy that could adversely affect
the collectibility of the Receivables or decrease the credit quality of any
newly created Receivables.  Except as provided in Section 8.2(d),
Servicer will not, and will not permit Originator or any Original Seller to,
extend, amend or otherwise modify the terms of any Receivable or any Contract
related thereto other than in accordance with the Credit and Collection
Policy.

     

    (d) Sales,
Liens.  Seller
will not sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option with respect to, or create or suffer to exist any
Adverse Claim upon (including, without limitation, the filing of any financing
statement) or with respect to, any Receivable, Related Security or Collections,
or upon or with respect to any Contract under which any Receivable arises, or
any Lock-Box or Collection Account, or assign any right to receive income with
respect thereto (other than, in each case, the creation of the interests therein
in favor of the Administrative Agent for the benefit of the Agents and the
Purchasers provided for herein), and Seller will defend the right, title and
interest of the Administrative Agent for the benefit of the Agents and the
Purchasers in, to and under any of the foregoing property, against all claims of
third parties claiming through or under Seller or Originator or any Original
Seller.

     

    (e) Net Receivables
Balance.  At no
time prior to the Amortization Date shall Seller permit the Net Receivables
Balance to be less than an amount equal to the sum of (i) the Aggregate Capital
plus (ii) the
Aggregate Reserves.

     

    (f) Termination Date
Determination.  Seller
will not designate the Termination Date (as defined in the Receivables Sale
Agreement), or send any written notice to Originator in respect thereof, without
the prior written consent of the Administrative Agent and the Agents, except
with respect to the occurrence of such Termination Date arising pursuant to
Section 5.1(d)
of the Receivables Sale Agreement.  Seller will not permit
Originator to designate the Termination Date (as defined in the Transfer
Agreement), or to send any written notice to any Original Seller in respect
thereof, without the prior written consent of Seller, the Administrative Agent
and the Agents, except with respect to the occurrence of such Termination Date
arising pursuant to Section 5.1(d) of the
Transfer Agreement.

     

    (g) Restricted Junior
Payments.  From
and after the occurrence of any Amortization Event, Seller will not make any
Restricted Junior Payment if, after giving effect thereto, Seller would fail to
meet its obligations set forth in Section
7.2(e).

     

     

    ARTICLE VIII

    ADMINISTRATION AND
COLLECTION

     

    Section
8.1 Designation of
Servicer.  (a)  The
servicing, administration and collection of the Receivables shall be conducted
by such Person so designated as “Servicer” from time to time in accordance with
this Section
8.1.  Energizer Battery, Inc. is hereby designated as, and
hereby agrees to perform the duties and obligations of, Servicer pursuant to the
terms of this Agreement.  Upon the occurrence and during the
continuance of a Potential Amortization Event or an Amortization Event, the
Administrative Agent may designate as Servicer any Person to succeed Energizer
Battery, Inc. or any successor Servicer as “Servicer” hereunder.  With
the prior written consent of the Administrative Agent and upon the assumption of
all of the duties and obligations of “Servicer” hereunder
by a successor Servicer acceptable to the Administrative Agent, Energizer
Battery, Inc. may resign as Servicer.

     

    (b) In the ordinary
course of business and with the prior consent of the Administrative Agent (which
consent shall not be unreasonably withheld), the Servicer may delegate any of
its other duties or responsibilities as Servicer to any Person who agrees to
conduct such duties or responsibilities in accordance with the Contracts, the
Credit and Collection Policy and this Agreement.  The Servicer hereby
delegates, and EPC hereby assumes, all of Servicer’s duties and responsibilities
as Servicer with respect to the Receivables purchased by Seller from Originator
and which Originator has purchased from EPC pursuant to the Transfer
Agreement.  EPC agrees to conduct such duties or responsibilities in
accordance with the Contracts, the Credit and Collections Policy the Receivables
Sale Agreement, the Transfer Agreement and this Agreement.  The fees
of EPC or any other Person to whom such duties or responsibilities are delegated
shall be for the sole account of Servicer.  Any delegation shall not
relieve Servicer of its duties, responsibilities or liabilities hereunder and
shall not constitute a resignation under Section
8.1(a).  Any Collections or other amounts due to the
Administrative Agent, the Agents or Purchasers hereunder held by any such
delegate shall, for the purposes of this Agreement, be treated as held by
Servicer in trust for the holders of the Purchaser Interests.  Each
agreement by which Servicer delegates any of its duties or responsibilities to
any other Person (including, without limitation, Seller) shall state that if at
any time the Administrative Agent shall designate as Servicer any Person other
than such delegating Servicer, all duties and responsibilities theretofore
delegated by such Servicer to such Person may, at the discretion of the
Administrative Agent, be terminated forthwith on notice given by the
Administrative Agent to such delegating Servicer and such Person.  If
Servicer shall delegate any duties or responsibilities to Seller, Seller shall
not be permitted to further delegate to any other Person any of such duties or
responsibilities.

     

    (c) Notwithstanding the
foregoing subsection (b), (i) Servicer shall be and remain primarily liable to
the Administrative Agent, the Agents and the Purchasers for the full and prompt
performance of all duties and responsibilities of Servicer hereunder and (ii)
the Administrative Agent, the Agents and the Purchasers shall be entitled to
deal exclusively with Servicer in matters relating to the discharge by Servicer
of its duties and responsibilities hereunder.  The Administrative
Agent, the Agents and the Purchasers shall not be required to give notice,
demand or other communication to any Person other than Servicer in order for
communication to Servicer and its sub-servicer or other delegate with respect
thereto to be accomplished.  Servicer shall be responsible for
providing any sub-servicer or other delegate of Servicer with any notice given
to Servicer under this Agreement.

     

    Section
8.2 Duties of
Servicer.  (a)  Servicer
shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable from time to time, all in accordance with
applicable laws, rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy.

     

    (b) Servicer will
instruct all Obligors to pay all Collections directly to a Lock-Box or
Collection Account.  Servicer shall effect a Collection Account
Agreement substantially in the form of Exhibit VI with each
bank maintaining a Collection Account at any time.  In the case of any
remittances received in any Lock-Box or Collection Account that shall have been
identified, to the satisfaction of Servicer, to not constitute Collections or
other proceeds of the Receivables or the Related Security, Servicer shall
promptly remit such items to the Person identified to it as being the owner of
such remittances.  From and after the date the Administrative Agent
delivers to any Collection Bank a Collection Notice pursuant to Section 8.3, the
Administrative Agent may request that Servicer, and Servicer thereupon promptly
shall instruct all Obligors with respect to the Receivables, to remit all
payments thereon to a new depositary account specified by the Administrative
Agent and, at all times thereafter, Seller and Servicer shall not deposit or
otherwise credit, and shall not permit any other Person to deposit or otherwise
credit to such new depositary account any cash or payment item other than
Collections.

     

    (c) Servicer shall
administer the Collections in accordance with the procedures described herein
and in Article
II.  Servicer shall set aside and hold in trust for the account
of Seller and the Purchasers their respective shares of the Collections in
accordance with Article
II.  Servicer shall, upon the request of the Administrative
Agent, segregate, in a manner acceptable to the Administrative Agent, all cash,
checks and other instruments received by it from time to time constituting
Collections from the general funds of Servicer or Seller prior to the remittance
thereof in accordance with Article
II.  If Servicer shall be required to segregate Collections
pursuant to the preceding sentence, Servicer shall segregate and deposit with a
bank designated by the Administrative Agent such allocable share of Collections
of Receivables set aside for the Purchasers on the first Business Day following
receipt by Servicer of such Collections, duly endorsed or with duly executed
instruments of transfer.

     

    (d) Servicer may, in
accordance with the Credit and Collection Policy, extend the maturity of any
Receivable or adjust the Outstanding Balance of any Receivable as Servicer
determines to be appropriate to maximize Collections thereof; provided, however, that such
extension or adjustment shall not alter the status of such Receivable as a
Delinquent Receivable or Charged-Off Receivable or limit the rights of the
Administrative Agent, the Agents or the Purchasers under this
Agreement.  Notwithstanding anything to the contrary contained herein,
the Administrative Agent shall have the absolute and unlimited right to direct
Servicer to commence or settle any legal action with respect to any Receivable
or to foreclose upon or repossess any Related Security.

     

    (e) Servicer shall hold
in trust for Seller and the Purchasers all Records that (i) evidence or relate
to the Receivables, the related Contracts and Related Security or (ii) are
otherwise necessary or desirable to collect the Receivables and shall, as soon
as practicable upon demand of the Administrative Agent at any time following a
Potential Amortization Event, deliver or make available to the Administrative
Agent all such Records, at a place selected by the Administrative
Agent.  Servicer shall, as soon as practicable following receipt
thereof turn over to Seller any cash collections or other cash proceeds received
with respect to Indebtedness not constituting Receivables and belonging to
Seller.  Servicer shall, from time to time at the request of any
Purchaser, furnish to the Purchasers (promptly after any such request) a
calculation of the amounts set aside for the Purchasers pursuant to Article
II.

     

    (f) Any payment by an
Obligor in respect of any indebtedness owed by it to Originator, any Original
Seller or Seller shall, except as otherwise specified by such Obligor or
otherwise required by contract or law or unless otherwise permitted by the
Administrative Agent, be applied as a Collection of any Receivable of such
Obligor (starting with the oldest such Receivable) to the extent of any amounts
then due and payable thereunder before being applied to any other receivable or
other obligation of such Obligor.

     

    Section
8.3 Collection
Notices.  The
Administrative Agent is authorized, at any time during the continuance of a
Potential Amortization Event, to date and to deliver to the Collection Banks the
Collection Notices.  Seller hereby transfers to the Administrative
Agent for the benefit of the Purchasers, effective when the Administrative Agent
delivers such notice, the exclusive ownership and control of each Lock-Box and
the Collection Accounts.  In case any authorized signatory of Seller
whose signature appears on a Collection Account Agreement shall cease to have
such authority before the delivery of such notice, such Collection Notice shall
nevertheless be valid as if such authority had remained in
force.  Seller hereby authorizes the Administrative Agent, and agrees
that the Administrative Agent shall be entitled to, following the delivery of
the Collection Notices, (i) endorse Seller’s name on checks and other
instruments representing Collections, (ii) enforce the Receivables, the related
Contracts and the Related Security and (iii) take such action as shall be
necessary or desirable to cause all cash, checks and other instruments
constituting Collections of Receivables to come into the possession of the
Administrative Agent rather than Seller.

     

    Section
8.4 Responsibilities of
Seller.  Anything
herein to the contrary notwithstanding, the exercise by the Administrative
Agent, the Agents and the Purchasers of their rights hereunder shall not release
Servicer, Originator, any Original Seller or Seller from any of their duties or
obligations with respect to any Receivables or under the related
Contracts.  The Purchasers shall have no obligation or liability with
respect to any Receivables or related Contracts, nor shall any of them be
obligated to perform the obligations of Seller.

     

    Section
8.5 Reports.  Servicer
shall prepare and forward to the Administrative Agent and each Agent (i) on the
tenth day of each month and at such times as the Administrative Agent or any
Agent shall request, a Monthly Report and (ii) at such times as the
Administrative Agent or any 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 of December, January and February, and at such times
as the Administrative Agent or any Agent shall request, an Interim
Report.

     

    Section
8.6 Servicing
Fees.  In
consideration of Energizer Battery, Inc.’s agreement to act as Servicer
hereunder, the Purchasers hereby agree that, so long as Energizer Battery, Inc.
shall continue to perform as Servicer hereunder, Seller shall pay over to
Energizer Battery, Inc., as compensation for its servicing activities, a fee
(the “Servicing
Fee”) on the first calendar day of each month, in arrears for the
immediately preceding month, at such rate as Energizer Battery, Inc. and Seller
shall agree upon from time to time on fair and reasonable basis and no less
favorable to Energizer Battery, Inc. or Seller than a rate Energizer Battery,
Inc. or Seller could obtain in an arm’s-length transaction for servicing with a
Person other than Energizer Battery, Inc. or Seller.

     

    ARTICLE IX

    AMORTIZATION
EVENTS

     

    Section
9.1 Amortization
Events.  The
occurrence of any one or more of the following events shall constitute an
Amortization Event:

     

    (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 effect, 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).

     

    (e) Seller shall fail
to comply with the terms of Section 2.6
hereof.

     

    (f) As at the end of
(i) any calendar month between and including the months of February and July,
the three month rolling average of the Delinquency Ratio shall exceed 19.0%,
(ii) any calendar month between and including the months of August and January,
the three month rolling average of the Delinquency Ratio shall exceed 16.5%,
(iii) any calendar month, the three month rolling average of the
Loss-to-Liquidation Ratio shall exceed 4.5%, (iv) any calendar month between and
including the months of November and May, the three 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 Provider
or any of its Subsidiaries 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 each of the Receivables Sale Agreement and the
Transfer Agreement shall occur under the Receivables Sale Agreement or the
Transfer Agreement or Originator or any Original Seller 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 or to Originator under the Transfer Agreement, as
applicable.

     

    (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
Administrative 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 Provider
Credit Agreement.

     

    Section
9.2 Remedies. Upon the
occurrence and during the continuation of an Amortization Event, the
Administrative Agent may, or upon the direction of any Agent on behalf of the
Committed Purchasers in 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 Administrative Agent, the 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.

     

    ARTICLE X

    INDEMNIFICATION

     

    Section
10.1 Indemnities by the Seller
Parties.  Without
limiting any other rights that the Administrative Agent, the Agents or any
Purchaser may have hereunder or under applicable law, (A) Seller hereby agrees
to indemnify (and pay upon demand to) the Administrative Agent, each 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 Administrative Agent, such 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) 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 of 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 Servicer) relating to or resulting from:

     

    (i) any representation
or warranty made by any Seller Party, Provider, Originator, or any Original
Seller (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, Servicer, Provider, Originator, or any Original Seller 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 or any Original Seller to keep or perform any of its obligations,
express or implied, with respect to any Contract;

     

    (iii) any failure of
Seller, Servicer, Provider, Originator or any Original Seller to perform its
duties, covenants or other obligations in accordance with the provisions of this
Agreement or any other Transaction Document;

     

    (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, Servicer, Provider, Originator or any Original Seller 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 Administrative Agent for the benefit of the
Purchasers, or to transfer to the Administrative 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) any failure of
Originator to acquire from any Original Seller and maintain legal and equitable
title to, and ownership of any Receivable and the Related Security and
Collections with respect thereto, free and clear of any Adverse Claim (other
than as created by the Transaction Documents); or any failure of Originator to
give reasonably equivalent value to any Original Seller under the Transfer
Agreement in consideration of the transfer by such Original Seller of any
Receivable, or any attempt by any Person to void such transfer under statutory
provisions or common law or equitable action;

     

    (xiii) 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;

     

    (xiv) any action or
omission by any Seller Party or Provider which reduces or impairs the rights of
the Administrative Agent, the Agents or the Purchasers with respect to any
Receivable or the value of any such Receivable;

     

    (xv) any attempt by any
Person to void any Incremental Purchase or Reinvestment hereunder under
statutory provisions or common law or equitable action; and

     

    (xvi) 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 April 4, 2000, 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 Administrative Agent or the Agents, Seller shall pay to
the relevant Agent, for the benefit of the relevant Funding Source with respect
to such 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
requires the consolidation of all or a portion of the assets and liabilities of
Company or Seller with the assets and liabilities of the Administrative Agent,
the Agents, any Committed Purchaser 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 Administrative Agent, the Agents and each 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 the Conduits, the Agents and the Administrative Agent (which
such counsel may be employees of any Conduit, an Agent or the Administrative
Agent) with respect thereto and with respect to advising the Conduits, the
Agents and the Administrative Agent as to their respective rights and remedies
under this Agreement.  Seller shall pay to the Administrative Agent
(in the case of costs and expenses incurred by the Administrative Agent) or the
relevant 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
Administrative Agent, the Agents 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 by such Conduit (“Other Costs”),
including, without limitation, the cost of auditing such Conduit’s books by
certified public accountants, the cost of rating 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 advising such Conduit or such shareholder as to matters
relating to such Conduit’s operations.  For the avoidance of any
doubt, Other Costs shall include costs and expenses in connection with any audit
performed by Protiviti Inc., including the audit they performed in February and
March 2009.

     

    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 and
Servicer.

     

     

    Section
10.5 Accounting Based
Consolidation Event.  If an Accounting Based Consolidation
Event shall at any time occur then, upon demand by the Administrative Agent or
any Agent, Seller shall pay to the Administrative Agent, for the benefit of the
relevant Affected Entity, such amounts as such Affected Entity reasonably
determines will compensate or reimburse such Affected Entity for any resulting
(i) fee, expense or increased cost charged to, incurred or otherwise suffered by
such Affected Entity, (ii) reduction in the rate of return on such Affected
Entity’s capital or reduction in the amount of any sum received or receivable by
such Affected Entity or (iii) internal capital charge or other imputed cost
determined by such Affected Entity to be allocable to Seller or the transactions
contemplated in this Agreement in connection therewith. Amounts under this Section 10.5 may be
demanded at any time without regard to the timing of issuance of any financial
statement by any Conduit or by any Affected Entity.

     

    ARTICLE XI

    THE ADMINISTRATIVE
AGENT

     

    Section
11.1 Authorization and
Action.  Each
Purchaser hereby designates and appoints BTMU to act as its agent hereunder and
under each other Transaction Document, and authorizes the Administrative Agent
to take such actions as agent on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of this Agreement and the
other Transaction Documents together with such powers as are reasonably
incidental thereto.  The Administrative 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 Administrative Agent shall be read into this
Agreement or any other Transaction Document or otherwise exist for the
Administrative Agent.  In performing its functions and duties
hereunder and under the other Transaction Documents, the Administrative 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, any Original Seller or any of such Seller Party’s or
Original Seller’s successors or assigns.  The Administrative Agent
shall not be required to take any action that exposes the Administrative Agent
to personal liability or that is contrary to this Agreement, any other
Transaction Document or applicable law.  The appointment and authority
of the Administrative Agent hereunder shall terminate upon the indefeasible
payment in full of all Aggregate Unpaids.  Each Purchaser hereby
authorizes the Administrative 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
Administrative 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 Administrative 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 Administrative 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,
any Original Seller 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, any Original
Seller 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 Administrative 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, the Original Sellers or
Provider.  The Administrative Agent shall not be deemed to have
knowledge of any Amortization Event or Potential Amortization Event unless the
Administrative Agent has received notice from Seller or a
Purchaser.

     

    Section
11.4 Reliance by Administrative
Agent.  The
Administrative 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 Administrative Agent.  The Administrative 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 the Agents on behalf of the Committed Purchasers
in 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 Administrative Agent shall have received such advice, the
Administrative Agent may take or refrain from taking any action, as the
Administrative Agent shall deem advisable and in the best interests of the
Purchasers.  The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with a request
of all Agents on behalf of the Committed Purchasers in 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.

     

    Section
11.5 Non-Reliance on Administrative
Agent and Other
Purchasers.  Each
Purchaser expressly acknowledges that neither the Administrative 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
Administrative Agent hereafter taken, including, without limitation, any review
of the affairs of any Seller Party, any Original Seller or Provider, shall be
deemed to constitute any representation or warranty by the Administrative
Agent.  Each Purchaser represents and warrants to the Administrative
Agent that it has and will, independently and without reliance upon the
Administrative 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
Committed Purchasers agree to reimburse and indemnify the Administrative Agent
and its officers, directors, employees, representatives and agents ratably
according to their Pro Rata Shares and 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 Administrative Agent, acting in its
capacity as Administrative Agent, is entitled to reimbursement by the Seller
Parties hereunder and (ii) for any other expenses incurred by the Administrative
Agent, in its capacity as Administrative 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 Administrative
Agent in its
Individual Capacity.  The
Administrative 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 Administrative Agent were not the Administrative Agent
hereunder.  With respect to the acquisition of Purchaser Interests
pursuant to this Agreement, the Administrative 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 Administrative Agent, and the
terms “Committed Purchaser,” “Purchaser, “ “Committed Purchasers” and
“Purchasers” shall include the Administrative Agent in its individual
capacity.

     

    Section
11.8 Successor Administrative
Agent.  The
Administrative Agent may, upon thirty days’ notice to Seller and the Purchasers,
and the Administrative Agent will, upon the direction of all of the Purchasers
(other than the Administrative Agent, in its individual capacity) resign as
Administrative Agent.  If the Administrative Agent shall resign, then
the Agents, acting on behalf of the Committed Purchasers in their respective
Conduit Groups, during such thirty-day period shall collectively appoint from
among the Purchasers a successor agent.  If for any reason no
successor Administrative Agent is collectively appointed by the Agents, acting
on behalf of the Committed Purchasers in 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 Administrative
Agent hereunder and under the other Transaction Documents and Seller and
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
Administrative Agent’s resignation hereunder as Administrative Agent, the
retiring Administrative 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 Administrative Agent under this Agreement and
under the other Transaction Documents.

     

    ARTICLE XII

    ASSIGNMENTS;
PARTICIPATIONS

     

    Section
12.1 Assignments.  (a)  Seller,
Servicer, Administrative Agent, the Agents and each Committed Purchaser 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, Servicer, the Administrative Agent, the
Agents and each Committed Purchaser hereby agree that any assignee of such
Conduit of this Agreement or all or any of the Purchaser Interests of such
Conduit shall have all of the rights and benefits under this Agreement as if the
terms “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 nor Servicer shall have the right to assign its rights or obligations
under this Agreement.

     

    (b) Any Committed
Purchaser may at any time and from time to time assign to one or more Persons
(“Purchasing
Committed Purchasers”) 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 Committed Purchaser and such
selling Committed Purchaser.  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 Committed Purchaser, other than to an Affiliate of
such Committed Purchaser, another Committed Purchaser or an Affiliate of another
Committed Purchaser, 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 Committed Purchaser 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
Administrative Agent and the Agents, promptly following any request therefor by
the Administrative Agent, any Agent or any Conduit, an enforceability opinion in
form and substance satisfactory to the Administrative Agent, such Agent and such
Conduit.  Upon delivery of the executed Assignment Agreement to the
Administrative Agent and the Agents, such selling Committed Purchaser shall be
released from its obligations hereunder to the extent of such
assignment.  Thereafter the Purchasing Committed Purchaser shall for
all purposes be a Committed Purchaser party to this Agreement and shall have all
the rights and obligations of a Committed Purchaser 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, the Administrative Agent or the Agents shall
be required.

     

    (c) Each of the
Committed Purchasers 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 Committed
Purchaser”), such Affected Committed Purchaser shall be obliged, at the
request of any Conduit, the Administrative Agent or any Agent, to assign all of
its rights and obligations hereunder to (x) another Committed Purchaser or (y)
another funding entity nominated by the Administrative Agent or any Agent and
acceptable to such Conduit, and willing to participate in this Agreement through
the Liquidity Termination Date in the place of such Affected Committed
Purchaser; provided that the
Affected Committed Purchaser (or the relevant Funding Administrative Agent on
behalf of the Affected Committed Purchaser) receives payment in full, pursuant
to an Assignment Agreement, of an amount equal to such Committed Purchaser’s Pro
Rata Share of the Capital and Yield owing to the Committed Purchasers 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
such Committed Purchasers.

     

    Section
12.2 Participations.  Any
Committed Purchaser 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
Committed Purchasers in the same Conduit Group, its obligation hereunder or any
other interest of such Committed Purchaser hereunder.  Notwithstanding
any such sale by a Committed Purchaser of a participating interest to a
Participant, such Committed Purchaser’s rights and obligations under this
Agreement shall remain unchanged, such Committed Purchaser shall remain solely
responsible for the performance of its obligations hereunder, and Seller, each
Conduit, the relevant Agent and the Administrative Agent shall continue to deal
solely and directly with such Committed Purchaser in connection with such
Committed Purchaser’s rights and obligations under this
Agreement.  Each Committed Purchaser agrees that any agreement between
such Committed Purchaser and any such Participant in respect of such
participating interest shall not restrict such Committed Purchaser’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).

     

     

    Section
12.3 Federal
Reserve.  Notwithstanding any other provision of this Agreement
to the contrary, any Committed Purchaser may at any time pledge or grant a
security interest in all or any portion of its rights (including, without
limitation, any Purchaser Interest and any rights to payment of Capital and
Yield) under this Agreement to secure obligations of such Committed Purchaser to
a Federal Reserve Bank, without notice to or consent of the Seller, the
Administrative Agent, the Agents or any Purchaser; provided that no such
pledge or grant of a security interest shall release a Committed Purchaser from
any of its obligations hereunder, or substitute any such pledgee or grantee for
such Committed Purchaser as a party hereto.

     

     

    ARTICLE XIII

    {RESERVED}

     

     

    ARTICLE XIV

    MISCELLANEOUS

     

    Section
14.1 Waivers and
Amendments.  (a)  No
failure or delay on the part of the Administrative Agent, the Agents 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 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 Agents and the
Administrative Agent, at the direction of all Agents on behalf of the Committed
Purchasers in 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 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 Administrative Agent or the Agents for the benefit of the Purchasers,
(D) except pursuant to Article XII hereof,
change the amount of the Capital of any Purchaser, any Committed Purchaser’s Pro
Rata Share (other than, to the extent applicable in each case, pursuant to Section 4.6 or the
terms of 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 Committed Purchaser’s Commitment, (E) amend,
modify or waive any provision of 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 Administrative Agent and the Agents, amend, modify or waive
any provision of this Agreement if the effect thereof is to affect the rights or
duties of such Administrative Agent or any 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 Committed Purchasers, but with the
consent of Seller, the Administrative Agent may amend this Agreement solely to
add additional Persons as Committed Purchasers hereunder; (ii) the
Administrative Agent, the Agents on behalf of the Committed Purchasers 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, 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
Purchasers, the Agents and the Administrative Agent; and (iii) the
Administrative Agent, acting upon the direction of both Agents on behalf of the
Committed Purchasers 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 Administrative Agent and
the Agents to effect purchases and Tranche Period and Discount Rate selections,
as applicable, based on telephonic notices made by any Person whom the
Administrative Agent or the relevant Agent, as applicable, in good faith
believes to be acting on behalf of Seller.  Seller agrees to deliver
promptly to the Administrative Agent or the relevant 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 not affect the validity of such notice.  If
the written confirmation differs from the action taken by the Administrative
Agent or the relevant Agent, as applicable, the records of the Administrative
Agent or such 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 Administrative Agent may request, to
perfect, protect or more fully evidence the Purchaser Interests, or to enable
the Administrative Agent, the Agents 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 Administrative
Agent may, or the Administrative Agent may direct Seller or 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 Agents or a designee thereof.  Seller or 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 Administrative Agent, the
Agents or any Purchaser may (but shall not be required to) perform, or cause
performance of, such obligations, and the Administrative Agent’s, the Agents’ 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
Administrative Agent at any time and from time to time in the sole discretion of
the Administrative Agent, and appoints the Administrative 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 Administrative 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 Administrative 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 Agent, the Administrative 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 Agent, the Administrative 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 (and notwithstanding any other express or
implied agreement to the contrary), each Seller Party, each Purchaser, each
Agent and the Administrative 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(c)) 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, except to the extent that confidentiality is
reasonably necessary to comply with U.S. federal or state securities
laws.

     

    (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
Administrative Agent, the Agents, the Committed Purchasers or the Conduits by
each other, (ii) by the Administrative Agent, the Agents or the Purchasers to
any prospective or actual assignee or participant of any of them and (iii) by
the Administrative Agent, the Agents 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 assets for
which BTMU or any Committed Purchaser acts as an administrative agent and to any
officers, directors, employees, outside accountants and attorneys of any of the
foregoing.  In addition, the Purchasers, the Agents and the
Administrative 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,
Servicer, the Agents, the Administrative Agent and each Committed Purchaser
hereby covenant and agree 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, an Agent, the Administrative Agent or any Committed
Purchaser, no claim may be made by any Seller Party or any other Person against
a Conduit, an Agent, the Administrative Agent or any Committed Purchaser 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 BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.

     

    Section
14.9 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 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 ADMINISTRATIVE AGENT, ANY 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
ADMINISTRATIVE AGENT, ANY AGENT OR ANY PURCHASER OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT, ANY 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 THE BOROUGH OF MANHATTAN, NEW
YORK, NEW YORK.

     

    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 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 BTMU Corporate Bank Roles.  Each
of the Committed Purchasers acknowledges that BTMU acts, or may in the future
act, (i) as administrative agent and/or funding agent for any Conduit or any
Committed Purchaser 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 for any Conduit or any Committed
Purchaser (collectively, the “BTMU Corporate Bank
Roles”).  Without limiting the generality of this Section 14.13, each
Committed Purchaser hereby acknowledges and consents to any and all BTMU
Corporate Bank Roles and agrees that in connection with any BTMU Corporate Bank
Role, BTMU 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 Gotham and Victory.

     

    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 Agent and the Administrative
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
Agent or the Administrative Agent or any assignee thereof of any obligation of
Seller or a Transferor or any other person arising in connection with the
Receivables, the Related Security, or the related Contracts, or any other
obligations of Seller or a Transferor.

     

    (b) In addition to any
ownership interest which the Administrative Agent may from time to time acquire
pursuant hereto, Seller hereby grants to the Administrative 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 Administrative 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 Administrative 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.

     

    Section
14.16 Patriot
Act.  Each
Agent and the Administrative Agent (for itself and not on behalf of any Agent)
hereby notifies each Seller Party that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Patriot Act”), it is required to obtain, verify and record information
that identifies the Seller, which information includes the name and address of
the Seller and other information that will allow such Agent or the
Administrative Agent, as applicable, to identify the Seller in accordance with
the Patriot Act.

     

    Section
14.17 No
Recourse.  The
obligations (if any) of any Committed Purchaser under this Agreement are solely
the corporate obligations of such Committed Purchaser.  No recourse
shall be had for any obligation, covenant or agreement (including, without
limitation, the payment of any amount owing in respect to this Agreement or the
payment of any fee hereunder or for any other obligation or claim) arising out
of or based upon this Agreement or any other agreement, instrument or
Transaction Document entered into pursuant hereto or in connection herewith
against any stockholder, employee, officer, director, manager, administrator,
partner or incorporator of any Committed Purchaser, as such, by the enforcement
of any assessment or by any legal or equitable proceeding, by virtue of any
statute or otherwise.

     

     [SIGNATURE
PAGES FOLLOW]

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    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: William C.
Fox

     

     

    Title: Vice
President and Treasurer

    
      	
               
      

            	
              Address:

            	
              533 Maryville
      University Drive

            


    

     

    
      	
               
      

            	
              St. Louis,
      Missouri  63141

            


    

     

     

    ENERGIZER BATTERY,
INC.

     

    By:                                                                

     

     

    Name: William C.
Fox

    Title: Vice
President and Treasurer

     

    
      	
               
      

            	
              Address:

            	
              533 Maryville
      University Drive

            


    

     

    
      	
               
      

            	
              St. Louis,
      Missouri  63141

            


    

     

     

    ENERGIZER PERSONAL
CARE, LLC

     

    By:                                                                

     

     

    Name: William C.
Fox

    Title: Vice
President and Treasurer

     

    
      	
               
      

            	
              Address:

            	
              6 Research
      Drive

            


    

     

    
      	
               
      

            	
              Shelton,
      CT  06484

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


     

    GOTHAM FUNDING
CORPORATION

     

    By:                                                                

     

     

    


     

    
      	
               
      

            	
              Address:

            	
              (for
      opinions) c/o J.H. Management
Corporation

            


    

     

    
      	
               
      

            	
              One
      International Place

            


    

     

    
      	
               
      

            	
              Boston, MA
      02110

            


    

     

    
      	
               
      

            	
              (for other
      communications) c/o The Bank of Tokyo-Mitsubishi UFJ,
  Ltd.,

            


    

    
      	
               
      

            	
              New York
      Branch

            


    

    
      	
               
      

            	
              1251 Avenue
      of the Americas

            


    

    
      	
               
      

            	
              New York, New
      York 10020

            


    

     

    VICTORY RECEIVABLES
CORPORATION

     

    By:                                                                

     

     

    


     

    
      	
               
      

            	
              Address:

            	
              (for
      opinions) c/o J.H. Management
Corporation

            


    

     

    
      	
               
      

            	
              One
      International Place

            


    

     

    
      	
               
      

            	
              Boston, MA
      02110

            


    

     

    
      	
               
      

            	
              (for other
      communications) c/o The Bank of Tokyo-Mitsubishi UFJ,
  Ltd.,

            


    

    
      	
               
      

            	
              New York
      Branch

            


    

    
      	
               
      

            	
              1251 Avenue
      of the Americas

            


    

    
      	
               
      

            	
              New York, New
      York 10020

            


    


    
      
        
          THIRD AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT

          


        

         


      

      
         


        
          

        

      

      
         


      

    


    


     

    THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as a Committed
Purchaser

     

    By:                                                                

     

     

    Name:

     

     

    Title:

     

    
      	
               
      

            	
              Address:

            	
              The Bank of
      Tokyo-Mitsubishi UFJ, Ltd.,

            


    

    
      	
               
      

            	
              New York
      Branch

            


    

     

    
      	
               
      

            	
              1251 Avenue
      of the Americas

            


    

     

    
      	
               
      

            	
              New York, NY
      10020

            


    

     

    
      	
               
      

            	
              Attention:
      Securitization Group

            


    

     

     

     

    THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Administrative Agent and as an
Agent

     

    By:                                                                

     

     

    Name:

     

     

    Title:

     

    
      	
               
      

            	
              Address:

            	
              The Bank of
      Tokyo-Mitsubishi UFJ, Ltd.,

            


    

    
      	
               
      

            	
              New York
      Branch

            


    

     

    
      	
               
      

            	
              1251 Avenue
      of the Americas

            


    

     

    
      	
               
      

            	
              New York, NY
      10020

            


    

     

    
      	
               
      

            	
              Attention:
      Securitization Group

            


    

     

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    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):

     

    “Accounting Based
Consolidation Event” means the consolidation, for financial and/or
regulatory accounting purposes, of all or any portion of the assets and
liabilities of any Conduit that are subject to this Agreement or any other
Transaction Document with all or any portion of the assets and liabilities of an
Affected Entity. An Accounting Based Consolidation Event shall be deemed to
occur on the date any Affected Entity shall acknowledge in writing that any such
consolidation of the assets and liabilities of any Conduit shall
occur.

     

    “Accounts Receivable Turnover
Ratio” means, for any Settlement Period, the ratio computed as of the
most recent Settlement Date by dividing (i) the aggregate amount of Receivables
originated during the 12 months ending on such Settlement Date by (ii) the
average month end amount of the aggregate Outstanding Balance of Receivables
during the 12 months ending on such Settlement Date.

     

    “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.

     

    “Administrative Agent”
has the meaning set forth in the preamble to this Agreement.

     

    “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 Committed
Purchaser” has the meaning specified in Section
12.1(c).

     

    “Affected Entity”
means (i) any Committed Purchaser, (ii) any insurance company, bank or other
funding entity providing liquidity, credit enhancement or back-up purchase
support or facilities to any Conduit, (iii) any agent, administrator or manager
of any Conduit, or (iv) any bank holding company in respect of any of the
foregoing.

     

    “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” means each of
BTMU and any other entity that becomes a party hereto from time to time in its
respective capacity as a “Agent” under 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 and
Servicer 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
Third Amended and Restated Receivables Purchase Agreement, as it may be amended,
restated, supplemented or otherwise modified and in effect from time to
time.

     

    “Alternate Base Rate”
means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1⁄2 of 1%.  Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.

     

    “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 Administrative
Agent following the occurrence of any other Amortization Event and (iv) the date
which is 30 Business Days after the Administrative 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 Administrative
Agent or any Agent to relate to such Purchaser Interest (as applicable)
subsequent to the date of such reduction, assignment, transfer or termination
(or in respect of 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 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 or St. Louis, Missouri 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, and, if the
applicable Business Day is used with respect to any advances based upon CP
Costs, any day upon which commercial paper markets in the United States are
open.

     

    “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 Administrative Agent or the relevant Agent, as the case
may be, 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, as the same may be amended,
restated, supplemented or otherwise modified from time to time in the form of
Exhibit VI-A or
Exhibit VI-B
among a Transferor, Seller, the Administrative 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-A or Exhibit VI-B, as
applicable, from the Administrative Agent to a Collection Bank or any similar or
analogous notice from the Administrative Agent to a Collection
Bank.

     

    “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 by such Conduit in the commercial
paper market.

     

    “Commitment” means,
for each Committed Purchaser, the commitment of such Committed Purchaser to
purchase Purchaser Interests from Seller, in an amount not to exceed (i) in the
aggregate, the amount set forth opposite such Committed Purchaser’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.

     

    “Committed Purchaser”
means (i) BTMU, with respect to Gotham and Victory and their Conduit Group, and
(ii) any other entity listed on Schedule A hereto that becomes a party hereto
from time to time with respect to any other Conduit.

     

    “Committed Purchaser
Interest” means a Purchaser Interest funded by a Committed
Purchaser.

     

    “Concentration Limit”
means, at any time, for any Obligor, (i) an amount equal to 25% of the 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 Administrative Agent and the
Agents; provided, that, if
the short term rating of any Obligor set forth in the table below shall decrease
from the level indicated in the table below (with respect to any rating agency)
for such Obligor, the Special Concentration Limit for such Obligor shall
automatically be canceled; provided, further, 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 either
Agent may, upon not less than three Business Days’ notice to Seller, cancel any
Special Concentration Limit.  The Administrative Agent and the Agents
hereby designate the following Special Concentration Limits with respect to the
Obligors set forth in the table below.

     

    


    
      	
              Obligor

            	
              Special
      Concentration Limit

            	
              Short
      Term Rating

            
	
              Wal-Mart
      Stores, Inc

            	
              30% of the
      aggregate Outstanding Balance of all Eligible Receivables at such
      time.

            	
              A-1+ by
      S&P and

              P-1 by
      Moody’s

            
	
              Walgreens

            	
              12% of the
      aggregate Outstanding Balance of all Eligible Receivables at such
      time.

            	
              A-1 by
      S&P and P-1 by Moody’s

            
	
              Lowe’s
      Companies, Inc.

            	
              10% of the
      aggregate Outstanding Balance of all Eligible Receivables at such
      time.

            	
              A-1 by
      S&P and P-1 by Moody’s

            
	
              Target
      Corporation

            	
              20% of the
      aggregate Outstanding Balance of all Eligible Receivables at such
      time.

            	
              A-1 by
      S&P and P-1 by Moody’s

            
	
              The Home
      Depot, Inc

            	
              10% of the
      aggregate Outstanding Balance of all Eligible Receivables at such
      time.

            	
              A-2 by
      S&P and P-2 by Moody’s

            
	
              CVS
      Corp.

            	
              6% of the
      aggregate Outstanding Balance of all Eligible Receivables at such
      time.

            	
              A-2 by
      S&P and P-2 by Moody’s

            


    

    


    “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 Committed
Purchasers and such Conduit’s or Conduits’ 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 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, 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.

     

    “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
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 the Transferors during the preceding
two calendar months then most recently ended divided by (ii) the
aggregate Net Receivables 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:

    


    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 two
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 the Transferors during the month three months prior to
such month, calculated on a monthly basis.

     

    “Days Sales
Outstanding” means, for any Settlement Period, the ratio computed as of
the most recent Settlement Date by dividing (a) 360 by (b) the Accounts
Receivable Turnover Ratio for the most recent Settlement Period.

     

    “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 4% above the
Alternate Base 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 the Transferors during the calendar month
five 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 the Transferors’
suspense accounts 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 either Agent to Seller in writing.

     

    “Dilution Ratio”
means, as of the last day of any calendar month, a percentage equal to (i) the
sum of the aggregate amount of Dilutions plus Credit Memos as at such day divided by (ii) the
aggregate gross sales of the Transferors during the calendar month three
calendar months prior to such calendar month.

     

    “Dilution Reserve”
means, on any date, an amount equal to the product of (i) the greater of (A) 20%
and (B) the sum of (1) the general ledger accrual balance of the Transferors
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 Transferors on
such date, provided that the
Dilution Reserve shall, at no time, be less than $0.00.

     

    “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 Alternate Base Rate, as applicable, with respect to each
Committed Purchaser Interest.

     

    “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 Administrative 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 any Transferor
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 a
Transferor,

     

    (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 (A) Originator’s business or (B) an Original Seller’s
business and subsequently sold to Originator pursuant to the terms of the
Transfer Agreement.

     

    (xii) which arises solely
from the sale of goods or the provision of services to the related Obligor by a
Transferor, and not by any other Person (in whole or in part),

     

    (xiii) as to which the
Agents have not notified Seller that the Agents have, in their collective
reasonable business judgment, determined that such Receivable or class of
Receivables is not acceptable as an Eligible Receivable due to the credit
worthiness of the Obligor, including, without limitation, because such
Receivable arises under a Contract that is not acceptable to the Agents in their
collective reasonable business judgement,

     

    (xiv) which is not
subject to any right of rescission, set-off, counterclaim, dispute, any other
defense (including defenses arising out of violations of usury laws) of the
applicable Obligor against a Transferor or any other Adverse Claim, and the
Obligor thereon holds no right as against a Transferor to cause such Transferor
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 a
Transferor 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 (A) by Originator
directly to Seller under and in accordance with the Receivables Sale Agreement,
and (B) in the case of any Receivable transferred under the Transfer Agreement,
by an Original Seller directly to Originator under and in accordance with the
Transfer Agreement and subsequently sold by Originator directly to Seller under
and in accordance with the Receivables Sale Agreement, and, in either case, 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,

     

    (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 the
Transferors’ current practices to exceed $5,000,000, and

     

    (xxii) if the Obligor has
a credit that is more than 60 days past due that could be applied by such
Obligor to offset Receivables owing by such Obligor under any related Contract
(a “Net 60
Credit”), the aggregate amount of such Receivables in excess of the
amount of any Net 60 Credit.

     

    “EPC” has the meaning
set forth in the preamble to this Agreement.

     

    “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 Bank, N.A.

     

    “Facility Termination
Date” means the earliest of (i) May 3, 2010, (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.

     

    “Federal Funds Effective
Rate” means for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.

     

    “Fee
Letter” means one or more letter agreements dated as of May 4,
2009 among Seller, the Administrative Agent, Victory and Gotham, as they 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.

     

    “Funding Agreement”
means this Agreement and any agreement or instrument executed by any Funding
Source with or for the benefit of a Conduit.

     

    “Funding Source” means
(i) any Committed Purchaser or (ii) any insurance company, bank or other funding
entity providing liquidity, credit enhancement or back-up purchase support or
facilities to a 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 in the case of the Conduit Group related to Gotham and Victory,
$100,000,000.

     

    “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, any Original
Seller 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, any Original Seller
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 Exhibit XII hereto, furnished by Servicer to the Administrative
Agent and the Agents pursuant to Section
8.5.

     

    “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 Administrative 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 Administrative Agent, the applicable LIBO Rate for the relevant
Tranche Period shall instead be the rate determined by the Administrative Agent
to be the rate at which BTMU 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 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 Administrative 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) 3.0% per
annum.  The LIBO Rate shall be rounded, if necessary, to the next
higher 1/16 of 1%.

     

    “Liquidity Termination
Date” means May 3, 2010.

     

    “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 the Transferors during the four most recently ended calendar months divided by (ii) the
Net Receivables 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 of Servicer on such
date.

     

    “Loss Reserve Floor”
means 12%.

     

    “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 and any Original Seller are each
wholly-owned, direct or indirect subsidiaries 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, indirect subsidiary of Provider,
then “Material Provider Subsidiary” shall also mean and include any Subsidiary
of Energizer and, provided further
that, if any Original Seller shall cease to be a wholly-owned, direct subsidiary
of Provider, then “Material Provider Subsidiary” shall also mean and include any
Subsidiary of any Original Seller.

     

    “Monthly Report” means
a report, in substantially the form of Exhibit X hereto
(appropriately completed), furnished by Servicer to the Administrative Agent and
the Agents 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 61 days following the applicable “expected
receipt of goods date” (under and as defined in each applicable invoice of
Servicer to each applicable Obligor) exceeds 10% of the aggregate Outstanding
Balance of all Eligible Receivables.

     

    “Non-Renewing Committed
Purchaser” 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.

     

    “Original Agreement”
has the meaning set forth in the preliminary statements to this
Agreement.

     

    “Original Seller” has
the meaning set forth in the Receivables Sale Agreement.

     

    “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 May
4, 2009, 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 by such
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 determined from time to time
by BTMU, or as determined by any other Committed Purchaser from time to time, as
applicable (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.

     

    “Provider Credit
Agreement” means the Term Loan Credit Agreement dated as of December 3,
2007 among the 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., The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch and Mizuho Corporate Bank, Ltd., as
Documentation Agents, as in effect on May 4, 2009, 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 May 4, 2009 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 Committed Purchaser in the same Conduit Group, a percentage
equal to (i) the amount of the Commitment of such Committed Purchaser, divided by (ii) the aggregate
amount of all Commitments of all Committed Purchasers 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.

     

    “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” means
each Conduit and each Committed Purchaser.

     

    “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:

     

    


     

    ‘

    
      	
              
                C

              

            
	
              NRB–
      AR

            


    

    


    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 deemed recomputed) as of
the close of the business day immediately preceding the Amortization Date shall
remain constant at all times thereafter.

     

    “Purchasing Committed
Purchaser” has the meaning set forth in Section
12.1(b).

     

    “Receivable” means all
indebtedness and other obligations owed to Seller or a Transferor (at the time
it arises, and before giving effect to any transfer or conveyance under the
Transfer Agreement, the Receivables Sale Agreement or hereunder) or in which
Seller or a Transferor 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 a Transferor, 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 a Transferor 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 and
the Transfer Agreement in respect of such Receivable and all of Seller’s right,
title and interest in, to and under the Performance Undertaking,
and

     

    (vii) all proceeds of any
of the foregoing.

     

    “Relevant
Conduit” means with respect to the Conduit Group that includes BTMU
as a Committed Purchaser, either Gotham or Victory.

     

    “Required Notice
Period” means the number of days required notice (received no later than
12:00 p.m. (New York time) on the day such notice is delivered) 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 Administrative Agent or any 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 of each month, and (B) the last day of the relevant
Tranche Period in respect of each Committed Purchaser Interest.

     

    “Settlement Period”
means (A) in respect of each Purchaser Interest of a Conduit, the immediately
preceding Accrual Period, and (B) in respect of each Committed Purchaser
Interest, 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.

     

    “Stress Factor” means
a factor of 2.0 times.

     

    “Sub-Servicer” means
EPC and any other Person in its capacity as a sub-servicer in accordance with
Section
8.1(b).

     

    “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 Committed Purchaser,
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 Committed Purchaser, minus, an amount
equal to 2% of such Commitment, minus, (b) the
Capital of the Purchaser Interests funded by such Terminating Committed
Purchaser.

     

    “Termination Date” has
the meaning set forth in Section
2.2.

     

    “Termination
Percentage” has the meaning set forth in Section
2.2.

     

    “Terminating Committed
Purchaser” 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 Committed Purchaser Interest:

     

    (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 Administrative Agent, the relevant Agent and Seller, commencing
on a Business Day selected by Seller or the Administrative Agent and the
relevant 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 Alternate
Base Rate, a period commencing on a Business Day selected by Seller and agreed
to by the Administrative Agent and the relevant 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 Administrative Agent and the relevant
Agent.

     

    “Transaction
Documents” means, collectively, this Agreement, each Purchase Notice, the
Receivables Sale Agreement, the Transfer Agreement, each Collection Account
Agreement, the Performance Undertaking, the Fee Letter, the Subordinated Note
(as defined in the Receivables Sale Agreement), each Revolving Note (as defined
in the Transfer Agreement) and all other instruments, documents and agreements
executed and delivered in connection herewith.

     

    “Transferor” means
each of Originator and each Original Seller.

     

    “Transfer Agreement”
has the meaning set forth in the Receivables Sale Agreement.

     

    “UCC” means the
Uniform Commercial Code as from time to time in effect in the specified
jurisdiction.

     

    “Yield” means for each
respective Tranche Period relating to Committed Purchaser Interests, 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 and Servicer
Reserve” means, on any date an amount equal to the sum of (i) (BTMU’s
Prime Rate multiplied
by ADSO Reserve) divided by 360, and
(ii) (2.4% multiplied
by ADSO Reserve) divided by
360.

     

    where:

     

    ADSO                                =           As
of the last day of each calendar month, the highest

     

    Days Sales Outstanding during the most recent
twelve

     

    months preceding the last day of such calendar
month.

     

     

    
      	
              ADSO
      Reserve

            	
              =

            	
              ADSO
      multiplied by the Stress Factor

            


    

     

    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 New
York, and not specifically defined herein, are used herein as defined in such
Article 9.