exhibit10a.htm


    
      

    

     

    SECOND AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT

     

     

    dated as of March
27, 2009,

     

     

    Among

     

    ENERGIZER
RECEIVABLES FUNDING CORPORATION, as Seller,

     

    ENERGIZER BATTERY,
INC., as Servicer

     

     

    MIZUHO CORPORATE
BANK, LTD.

     

    as Agent and as a
Funding Agent

     

     

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

     

    as a Funding
Agent

     

     

    and

     

    THE SEVERAL
CONDUITS AND COMMITTED PURCHASERS PARTY HERETO

     

    FROM TIME TO
TIME

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    TABLE
OF CONTENTS

     

    POOL PURCHASE

    PRELIMINARY STATEMENTS

     

    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
    10.1

            	
              Indemnities by the Seller
      Parties[INSERT PAGE NUMBER]

            


    

    
      	
              Section
    10.2

            	
              Increased Cost and Reduced
      Return[INSERT PAGE NUMBER]

            


    

    
      	
              Section
    10.3

            	
              Other Costs and
      Expenses[INSERT PAGE NUMBER]

            


    

    
      	
              Section
    10.4

            	
              Allocations[INSERT PAGE
      NUMBER]

            


    

     

    ARTICLE XI

     

    THE
AGENT

     

    
      	
              Section
    11.1

            	
              Authorization and
      Action

            


    

    
      	
              Section
    11.2

            	
              Delegation of
      Duties

            


    

    
      	
              Section
    11.3

            	
              Exculpatory
      Provisions

            


    

    
      	
              Section
    11.4

            	
              Reliance by
      Agent

            


    

    
      	
              Section
    11.5

            	
              Non-Reliance on Agent and Other
      Purchasers

            


    

    
      	
              Section
    11.6

            	
              Reimbursement and
      Indemnification

            


    

    
      	
              Section
    11.7

            	
              Agent in its Individual
      Capacity

            


    

    
      	
              Section
    11.8

            	
              Successor
      Agent

            


    

     

    ARTICLE XII

     

    ASSIGNMENTS;
PARTICIPATIONS

     

    
      	
              Section
    12.1

            	
              Assignments

            


    

    
      	
              Section
    12.2

            	
              Participations

            


    

     

    ARTICLE XIII

     

     

    {RESERVED}

     

     

    ARTICLE XIV

     

    MISCELLANEOUS

     

    
      	
              Section
    14.1

            	
              Waivers and
      Amendments

            


    

    
      	
              Section
    14.2

            	
              Notices

            


    

    
      	
              Section
    14.3

            	
              Ratable
      Payments

            


    

    
      	
              Section
    14.4

            	
              Protection of Ownership Interests
      of the Purchasers

            


    

    
      	
              Section
    14.5

            	
              Confidentiality

            


    

    
      	
              Section
    14.6

            	
              Bankruptcy
      Petition

            


    

    
      	
              Section
    14.7

            	
              Limitation of
      Liability

            


    

    
      	
              Section
    14.8

            	
              CHOICE OF
    LAW

            


    

    
      	
              Section
    14.9

            	
              CONSENT TO
      JURISDICTION

            


    

    
      	
              Section
    14.10

            	
              WAIVER OF JURY
      TRIAL

            


    

    
      	
              Section
    14.11

            	
              Integration; Binding Effect;
      Survival of Terms

            


    

    
      	
              Section
    14.12

            	
              Counterparts; Severability;
      Section References

            


    

    
      	
              Section
    14.13

            	
              Mizuho Corporate Bank
      Roles

            


    

    
      	
              Section
    14.14

            	
              Characterization

            


    

    
      	
              Section
    14.15

            	
              Withholding

            


    

    
      	
              Section
    14.16

            	
              Patriot
  Act

            


    

     

    EXHIBIT
1

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    



    POOL
PURCHASE

     

    SECOND AMENDED AND
RESTATED RECEIVABLES PURCHASE AGREEMENT

     

     

    This Second Amended
and Restated Receivables Purchase Agreement dated as of March 27, 2009 is among
ENERGIZER RECEIVABLES FUNDING CORPORATION, a Delaware corporation (“Seller”), ENERGIZER
BATTERY, INC., a Delaware corporation (“Energizer”), as
Servicer (Servicer together with Seller, the “Seller Parties” and
each a “Seller
Party”), the entities listed on Schedule A to this
Agreement (together with any of their respective successors and assigns
hereunder, the “Committed
Purchasers”), WORKING CAPITAL MANAGEMENT CO., LP (“WCMC”), GOTHAM
FUNDING CORPORATION (“Gotham”), VICTORY
RECEIVABLES CORPORATION (“Victory” and together
with WCMC and Gotham, the “Conduits”), THE BANK
OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH (“BTMU”), as a Funding
Agent, MIZUHO CORPORATE BANK, LTD., as a Funding Agent and as agent for the
Purchasers hereunder or any successor agent hereunder (together with its
successors and assigns hereunder, the “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.

     

    Mizuho Corporate
Bank, Ltd. has been requested and is willing to act as Agent on behalf of the
Conduits and the Committed Purchasers in accordance with the terms
hereof.

     

    Seller, Servicer,
the Committed Purchasers, the Conduits, the Funding Agents and the 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 or otherwise modified to date (the Original RPA and the
First Amended and Restated RPA together, the “Original Agreement”),
and desire to amend and restate the Original Agreement to remove Playtex
Products, Inc. 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 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 Agent to purchase on their behalf,
or if either of the Relevant Conduits shall decline to purchase, the 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 amount of the Purchaser Interests so purchased by the Purchasers in such
Conduit Group from time to time in an aggregate amount 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 Funding 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
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 Funding 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 simultaneous to the 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
Funding 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.

     

    Section
1.3 Decreases

     

        Seller shall provide
the Funding Agents with prior written notice in conformity with the Required
Notice Period (a “Reduction Notice”) of
any proposed reduction of Aggregate Capital from Collections, with a copy of
such Reduction Notice delivered simultaneously to the 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 Agent and each
Funding 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 Funding
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
Mizuho Corporate Bank Ltd. as a Funding Agent) or 1251 Avenue of the Americas,
New York, New York 10020 or an account or address designated from time to time
by BTMU (in the case of a Purchaser in the Conduit Group with BTMU as a Funding
Agent), as applicable, until the applicable Seller Party is otherwise notified
in writing by the relevant Funding Agent.  Upon notice to Seller, the
relevant Funding 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 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, it being
understood that any breach of a representation or warranty or occurrence of an
Amortization Event that was disclosed to the Agent and Funding Agents prior to
the date hereof and that is no longer continuing after giving effect to the
revisions effected by this Agreement shall be deemed to have been waived by the
due execution of this Agreement by the parties hereto.  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 Funding Agent (or to an account designated by such Funding 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 Funding 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 Funding 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 Funding
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 Funding Agent (i) remit to an account designated by such
Funding 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 Agent’s 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 Agent
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 Funding 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 Funding 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 Funding Agents (with
a copy thereof to the 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 Funding Agents.  Such repurchase
shall be without representation, warranty or recourse of any kind by, on the
part of, or against any Purchaser, any Funding Agent or the 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 Funding 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 Funding 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 Prime Rate in accordance with the terms and
conditions hereof.  Until Seller gives notice to the Agent of another
Discount Rate in accordance with Section 4.4, the
initial Discount Rate for any Committed Purchaser Interest shall be the Prime
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 Prime 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 Funding
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 Funding 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 Funding 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 Prime 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 Prime Rate is being requested as a new
Discount Rate, give the relevant Funding Agent irrevocable notice of the new
Discount Rate for the Purchaser Interest associated with such Terminating
Tranche.  Until Seller gives notice to the relevant Funding 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 Prime Rate.

     

    Section
4.5 Suspension of the LIBO
Rate

     

                   (a)  If any
Committed Purchaser notifies the relevant Funding Agent and the 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 Funding Agent shall
suspend the availability of such LIBO Rate and require Seller to select the
Prime 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 Funding 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 or the 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 or the 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 Agent (each such notice an “Extension Notice”) at
least 60 days prior to the Liquidity Termination Date then in
effect.  After the Agent’s receipt of any Extension Notice, the 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 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 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 Agent within the Consent Period
(each Committed Purchaser that does not wish to consent to such extension or
wishes to revoke its prior Consent Notice or fails to respond to the 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 Agent shall promptly notify Seller of any Consent
Notice or other notice received by the Agent pursuant to this Section
4.6(a).

     

    (b) Upon receipt of notice from the 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 Agent and
each Funding 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 Agent and each Funding Agent, the 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 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.

     

    (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 Agent, the Funding 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) Corporate Existence and
Power.  Such Seller Party is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation.  Such Seller Party is duly qualified to do business and
is in good standing as a foreign corporation, and has and holds all corporate
power and all governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its business is
conducted, except where the failure to so 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 powers and authority and have been duly authorized by
all necessary corporate 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, (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 Agent 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 Agent 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 Agent for the benefit of the relevant Purchaser or Purchasers (and the 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 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 Agent has 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 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, 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 ability of the initial 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 Agent has
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 Agent 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 Agent 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 IV of Schedule
B are required to be delivered on or before the effective date of this
Agreement.  The Agent and each Funding 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 Agent on or prior to the date of such
purchase, in form and substance satisfactory to the Agent, all Monthly Reports
and Interim Reports as and when due under Section 8.5 and (ii)
upon the Agent’s request, Servicer shall have delivered to the Agent 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 Agent 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 Agent 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 Agent, which right may be exercised at any time on demand of the Agent,
to rescind the related purchase and direct Seller to pay to the Funding 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
Agent:

     

    (i) Annual
Reporting.  Within 90 days after the close of each of its
respective fiscal years, 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 Agent) on such financial
statements of, and certified in a manner acceptable to the Agent by,
PricewaterhouseCoopers LLP or other  independent public accountants
reasonably acceptable to the Agent.

     

    (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 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 Agent’s consent 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 Agent.

     

    (viii) Other
Information.  (A) Within 45 days after a request from the
Agent, 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
Agent may from time to time reasonably request in order to protect the interests
of the Agent and the Purchasers under or as contemplated by this
Agreement.

     

    (b) Notices.  Such
Seller Party will notify the Agent 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 Agent from time to time such information with
respect to it, any Original Seller and the Receivables as the 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 Agent upon reasonable notice and at the sole cost of such
Seller Party, permit the 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.

     

    (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 Agent
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
Agent, describing the Purchaser Interests and (B) upon the request of the 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 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 Agent and the
Purchasers as assignees of Seller) under the Receivables Sale Agreement as the
Agent 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 without the prior written consent of the Agent and each of the Funding
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 Agent and the Purchasers as assignees of Seller) under the Transfer
Agreement as Seller or the Agent 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 Agent 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 Agent may reasonably request), and (ii)
establish and maintain, in favor of the Agent, for the benefit of 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 Agent 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 Agent’s (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 Agent for the benefit of the
Purchasers as the Agent 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 Agent 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 Agent may reasonably request),
and (ii) establish and maintain, in favor of Seller and the Agent, for the
benefit of 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 and the
Agent (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 and the Agent’s (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 Agent,
for the benefit of the Purchasers, as Seller or the Agent 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 Agent 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 Agent;

     

     

    (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 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 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 Agent 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 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 Agent evidence satisfactory to
the Agent of such insurance coverage.  Evidence of each policy shall
be furnished to the Agent and any Purchaser in certificated form upon the
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 Agent 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 Agent at least thirty (30) days’ prior written
notice thereof and (ii) delivered to the Agent all financing statements,
instruments and other documents requested by the Agent in connection with such
change or relocation.

     

    (b) Change in Payment
Instructions to Obligors

     

        Except as may be
required by the 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 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
Agent and the Purchasers provided for herein), and Seller will defend the right,
title and interest of the Agent 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 Agent, 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 and the Agent, 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
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 Agent and upon the assumption of all of the duties and
obligations of “Servicer” hereunder
by a successor Servicer acceptable to the Agent, Energizer Battery, Inc. may
resign as Servicer.

     

    (b) In the ordinary
course of business and with the prior consent of the 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 may, from time to time,
delegate 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 any Original Seller pursuant to the Transfer
Agreement.  Each Original Seller, as delegatee, shall agree, in form
and substance acceptable to the Agent, 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 any 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 Agent 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 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 Agent, be terminated forthwith on notice given by the
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 Agent and the Purchasers for the full and prompt performance of all duties
and responsibilities of Servicer hereunder and (ii) the Agent 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 Agent 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 Agent delivers to any
Collection Bank a Collection Notice pursuant to Section 8.3, the
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 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 Agent, segregate,
in a manner acceptable to the 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 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 Agent
or the Purchasers under this Agreement.  Notwithstanding anything to
the contrary contained herein, the 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 Agent at any time following a Potential
Amortization Event, deliver or make available to the Agent all such Records, at
a place selected by the 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
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 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 Agent for the benefit of the
Purchasers, effective when the 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 Agent, and agrees that the 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 Agent
rather than Seller.

     

    Section
8.4 Responsibilities of
Seller

     

        Anything herein to
the contrary notwithstanding, the exercise by the Agent 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 Agent and each Funding Agent (i) on the tenth day of
each month and at such times as the Agent shall request, a Monthly Report and
(ii) at such times as the Agent shall request, a listing by Obligor of all
Receivables together with an aging of such Receivables and (iii) on the
twenty-second day of each month and at such times as the Agent shall request, an
Interim Report.

     

    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
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 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.
and Mizuho Corporate Bank, Ltd., as Documentation Agents.  For the
purposes of this Agreement, such covenants shall survive the termination of such
credit agreement, and any waiver, amendment, restatement, supplement or other
modification thereof shall have no effect.

     

    Section
9.2 Remedies

     

        Upon the occurrence
and during the continuation of an Amortization Event, the Agent may, or upon the
direction of any Funding Agent on behalf of the 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 Agent, the Funding Agents and the Purchasers
otherwise available under any other provision of this Agreement, by operation of
law, at equity or otherwise, all of which are hereby expressly preserved,
including, without limitation, all rights and remedies provided under the UCC,
all of which rights shall be cumulative.

     

     

    ARTICLE X

    INDEMNIFICATION

     

    Section
10.1 Indemnities by the Seller
Parties

     

        Without limiting any
other rights that the Agent or any Purchaser may have hereunder or under
applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand to)
the Agent, each Funding Agent, each Funding Source and each Purchaser and their
respective assigns, officers, directors, agents and employees (each an “Indemnified Party”)
from and against any and all damages, losses, claims, taxes, liabilities, costs,
expenses and for all other amounts payable, including reasonable attorneys’ fees
(which attorneys may be employees of the Agent, such Funding Agent, such Funding
Source or such Purchaser) and disbursements (all of the foregoing being
collectively referred to as “Indemnified Amounts”)
awarded against or incurred by any of them arising out of or as a result of this
Agreement or the acquisition, either directly or indirectly, by a Purchaser of
an interest in the Receivables, and (B) 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 Agent for the benefit of the Purchasers, or to
transfer to the Agent for the benefit of the Purchasers, legal and equitable
title to, and ownership of, a first priority perfected undivided percentage
ownership interest (to the extent of the Purchaser Interests contemplated
hereunder) or security interest in the Receivables, the Related Security and the
Collections, free and clear of any Adverse Claim (except as created by the
Transaction Documents);

     

    (xii) 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 Agent 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 Agent, Seller shall pay to the relevant Funding Agent,
for the benefit of the relevant Funding Source with respect to such Funding
Agent’s Conduit Group, such amounts charged to such Funding Source or such
amounts to otherwise compensate such Funding Source for such increased cost or
such reduction.  For the avoidance of doubt, if the issuance of FASB
Interpretation No. 46, or any other change in accounting standards or the
issuance of any other pronouncement, release or interpretation, causes or
requires the consolidation of all or a portion of the assets and liabilities of
Company or Seller with the assets and liabilities of the Agent, any 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 Agent, the Funding 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 Funding Agents and the Agent (which such counsel
may be employees of any Conduit, a Funding Agent or the Agent) with respect
thereto and with respect to advising the Conduits, the Funding Agents and the
Agent as to their respective rights and remedies under this
Agreement.  Seller shall pay to the Agent (in the case of costs and
expenses incurred by the Agent) or the relevant Funding Agent (in the case of
costs and expenses incurred by the Purchasers in the related Conduit Group) on
demand any and all costs and expenses of the Agent and the Purchasers, if any,
including reasonable counsel fees and expenses in connection with the
enforcement of this Agreement and the other documents delivered hereunder and in
connection with any restructuring or workout of this Agreement or such
documents, or the administration of this Agreement following an Amortization
Event.  Seller shall reimburse any Conduit on demand for all other
costs and expenses incurred 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.

     

     

    ARTICLE XI

    THE
AGENT

     

    Section
11.1 Authorization and
Action

     

        Each Purchaser hereby
designates and appoints Mizuho Corporate Bank, Ltd. to act as its agent
hereunder and under each other Transaction Document, and authorizes the Agent to
take such actions as agent on its behalf and to exercise such powers as are
delegated to the Agent by the terms of this Agreement and the other Transaction
Documents together with such powers as are reasonably incidental
thereto.  The Agent shall not have any duties or responsibilities,
except those expressly set forth herein or in any other Transaction Document, or
any fiduciary relationship with any Purchaser, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities on the part of
the Agent shall be read into this Agreement or any other Transaction Document or
otherwise exist for the Agent.  In performing its functions and duties
hereunder and under the other Transaction Documents, the Agent shall act solely
as agent for the Purchasers and does not assume nor shall be deemed to have
assumed any obligation or relationship of trust or agency with or for any Seller
Party, any Original Seller or any of such Seller Party’s or Original Seller’s
successors or assigns.  The Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement, any other Transaction Document or applicable law.  The
appointment and authority of the Agent hereunder shall terminate upon the
indefeasible payment in full of all Aggregate Unpaids.  Each Purchaser
hereby authorizes the Agent to execute each of the Uniform Commercial Code
financing statements on behalf of such Purchaser (the terms of which shall be
binding on such Purchaser).

     

    Section
11.2 Delegation of
Duties

     

        The Agent may execute
any of its duties under this Agreement and each other Transaction Document by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.  The Agent shall not
be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.

     

    Section
11.3 Exculpatory
Provisions

     

        Neither the Agent nor
any of its directors, officers, agents or employees shall be (i) liable for any
action lawfully taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Transaction Document (except for
its, their or such Person’s own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Purchasers for any recitals, statements,
representations or warranties made by any Seller Party, 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 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 Agent
shall not be deemed to have knowledge of any Amortization Event or Potential
Amortization Event unless the Agent has received notice from Seller or a
Purchaser.

     

    Section
11.4 Reliance by
Agent

     

        The Agent shall in
all cases be entitled to rely, and shall be fully protected in relying, upon any
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to Seller),
independent accountants and other experts selected by the Agent.  The
Agent shall in all cases be fully justified in failing or refusing to take any
action under this Agreement or any other Transaction Document unless it shall
first receive such advice or concurrence of the Funding 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 Agent shall have received such advice, the Agent may take or
refrain from taking any action, as the Agent shall deem advisable and in the
best interests of the Purchasers.  The Agent shall in all cases be
fully protected in acting, or in refraining from acting, in accordance with a
request of all Funding 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 Agent and Other
Purchasers

     

        Each Purchaser
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including, without limitation, any review of the affairs of any Seller
Party, any Original Seller or Provider, shall be deemed to constitute any
representation or warranty by the Agent.  Each Purchaser represents
and warrants to the Agent that it has and will, independently and without
reliance upon the Agent or any other Purchaser and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, prospects, financial and
other conditions and creditworthiness of Seller and made its own decision to
enter into this Agreement, the other Transaction Documents and all other
documents related hereto or thereto.

     

    Section
11.6 Reimbursement and
Indemnification

     

        The Committed
Purchasers agree to reimburse and indemnify the 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 Agent, acting in its capacity as Agent, is entitled to
reimbursement by the Seller Parties hereunder and (ii) for any other expenses
incurred by the Agent, in its capacity as Agent and acting on behalf of the
Purchasers, in connection with the administration and enforcement of this
Agreement and the other Transaction Documents.

     

    Section
11.7 Agent in its Individual
Capacity

     

        The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with Seller or any Affiliate of Seller as though the Agent were
not the Agent hereunder.  With respect to the acquisition of Purchaser
Interests pursuant to this Agreement, the Agent shall have the same rights and
powers under this Agreement in its individual capacity as any Purchaser and may
exercise the same as though it were not the Agent, and the terms “Committed
Purchaser,” “Purchaser, “ “Committed Purchasers” and “Purchasers” shall include
the Agent in its individual capacity.

     

    Section
11.8 Successor
Agent

     

        The Agent may, upon
thirty days’ notice to Seller and the Purchasers, and the Agent will, upon the
direction of all of the Purchasers (other than the Agent, in its individual
capacity) resign as Agent.  If the Agent shall resign, then the
Funding 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 Agent is collectively appointed by the Funding 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 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 Agent’s
resignation hereunder as Agent, the retiring Agent shall be discharged from its
duties and obligations hereunder and under the other Transaction Documents and
the provisions of this Article XI and Article X shall
continue in effect for its benefit with respect to any actions taken or omitted
to be taken by it while it was Agent under this Agreement and under the other
Transaction Documents.

     

     

    ARTICLE XII

    ASSIGNMENTS;
PARTICIPATIONS

     

    Section
12.1 Assignments

     

                   (a)  Seller,
Servicer, Agent 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 Agent 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 “WCMC,” “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
Agent, promptly following any request therefor by the Agent or any Conduit, an
enforceability opinion in form and substance satisfactory to the Agent and such
Conduit.  Upon delivery of the executed Assignment Agreement to the
Agent, 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 or the
Agent 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 or the Agent, to assign all of its rights and obligations
hereunder to (x) another Committed Purchaser or (y) another funding entity
nominated by the 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 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 Funding Agent and the 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).

     

     

    ARTICLE XIII

    {RESERVED}

     

     

    ARTICLE XIV

    MISCELLANEOUS

     

    Section
14.1 Waivers and
Amendments

     

                  (a)  No failure or
delay on the part of the Agent or any Purchaser in exercising any power, right
or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power, right or
remedy.  The rights and remedies herein provided shall be cumulative
and nonexclusive of any rights or remedies provided by law.  Any
waiver of this Agreement shall be effective only in the specific instance and
for the specific purpose for which given.

     

    (b) No provision of
this Agreement may be amended, supplemented, modified or waived except in
writing in accordance with the provisions of this Section
14.1(b).  Each Conduit, Seller, the Funding Agents and the
Agent, at the direction of all Funding Agents on behalf of 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 Agent 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 Agent, amend, modify or waive any provision of this
Agreement if the effect thereof is to affect the rights or duties of such Agent;
or

     

    (iii) without the written
consent of the then Servicer, amend, modify or waive any provision of Article VIII if the
effect thereof is to affect the rights or duties of such Servicer.

     

    Notwithstanding the
foregoing, (i) without the consent of the Committed Purchasers, but with the
consent of Seller, the Agent may amend this Agreement solely to add additional
Persons as Committed Purchasers hereunder; (ii) the Agent, the Funding 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 Funding Agents and the Agent; and (iii) the Agent, acting upon
the direction of both Funding 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 Agent and the Funding
Agents to effect purchases and Tranche Period and Discount Rate selections, as
applicable, based on telephonic notices made by any Person whom the Agent or the
relevant Funding Agent, as applicable, in good faith believes to be acting on
behalf of Seller.  Seller agrees to deliver promptly to the Agent or
the relevant Funding Agent, as applicable, a written confirmation of each
telephonic notice signed by an authorized officer of Seller; provided, however, the absence
of such confirmation shall not affect the validity of such notice.  If
the written confirmation differs from the action taken by the Agent or the
relevant Funding Agent, as applicable, the records of the Agent or such Funding
Agent, as applicable, shall govern absent manifest error.

     

    Section
14.3 Ratable
Payments

     

        If any Purchaser,
whether by setoff or otherwise, has payment made to it with respect to any
portion of the Aggregate Unpaids owing to such Purchaser (other than payments
received pursuant to Section 10.2 or 10.3) in a greater
proportion than that received by any other Purchaser entitled to receive a
ratable share of such Aggregate Unpaids, such Purchaser agrees, promptly upon
demand, to purchase for cash without recourse or warranty a portion of such
Aggregate Unpaids held by the other Purchasers so that after such purchase each
Purchaser will hold its ratable proportion of such Aggregate Unpaids; provided that if all
or any portion of such excess amount is thereafter recovered from such
Purchaser, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.

     

    Section
14.4 Protection of Ownership
Interests of the Purchasers

     

                  (a)  Seller agrees that
from time to time, at its expense, it will promptly execute and deliver all
instruments and documents, and take all actions, that may be necessary or
desirable, or that the Agent may request, to perfect, protect or more fully
evidence the Purchaser Interests, or to enable the Agent or the Purchasers to
exercise and enforce their rights and remedies hereunder.  At any time
upon the occurrence and during the continuance of a Potential Amortization
Event, the Agent may, or the Agent may direct Seller or 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 Funding 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 Agent or any Purchaser
may (but shall not be required to) perform, or cause performance of, such
obligations, and the Agent’s or such Purchaser’s reasonable costs and expenses
incurred in connection therewith shall be payable by Seller as provided in Section
10.3.  Each Seller Party irrevocably authorizes the Agent at
any time and from time to time in the sole discretion of the Agent, and appoints
the Agent as its attorney-in-fact, to act on behalf of such Seller Party (i) to
execute on behalf of Seller as debtor and to file financing statements necessary
or desirable in the Agent’s sole discretion to perfect and to maintain the
perfection and priority of the interest of the Purchasers in the Receivables and
(ii) to file a carbon, photographic or other reproduction of this Agreement or
any financing statement with respect to the Receivables as a financing statement
in such offices as the Agent in its sole discretion deems necessary or desirable
to perfect and to maintain the perfection and priority of the interests of the
Purchasers in the Receivables.  This appointment is coupled with an
interest and is irrevocable.

     

    Section
14.5 Confidentiality

     

                   (a)  Each Seller
Party, each Funding Agent, the Agent and each Purchaser shall maintain and shall
cause each of its employees and officers to maintain the confidentiality of the
Transaction Documents and the other confidential or proprietary information with
respect to the other parties hereto and their respective businesses obtained by
it or them in connection with the structuring, negotiating and execution of the
transactions contemplated herein, except that such Seller Party, such Funding
Agent, the Agent and such Purchaser and its officers and employees may disclose
such information to such Person’s external accountants and attorneys and as
required by any applicable law or order of any judicial or administrative
proceeding.  Anything herein to the contrary notwithstanding, each
Seller Party, each Purchaser, each Funding Agent and the Agent, each Indemnified
Party and any successor or assign of any of the foregoing (and each employee,
representative or other agent of any of the foregoing) may disclose to any and
all Persons, without limitation of any kind, the “tax treatment” and “tax
structure” (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated herein and all materials of any kind
(including opinions or other tax analyses) that are or have been provided to any
of the foregoing relating to such tax treatment or tax structure, and it is
hereby confirmed that each of the foregoing have been so authorized since the
commencement of discussions regarding the transactions.

     

    (b) Anything herein to
the contrary notwithstanding, each Seller Party hereby consents to the
disclosure of any nonpublic information with respect to it (i) to the Agent, the
Funding Agents, the Committed Purchasers or the Conduits by each other, (ii) by
the Agent, the Funding Agents or the Purchasers to any prospective or actual
assignee or participant of any of them and (iii) by the Agent or a Conduit to
any rating agency, Commercial Paper dealer, any Funding Source or other provider
of a surety, guaranty or credit or liquidity enhancement to a Conduit or any
entity organized for the purpose of purchasing, or making loans secured by,
financial assets for which Mizuho Corporate Bank, Ltd. or BTMU acts as the
administrative agent and to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing.  In addition, the
Purchasers, the Funding Agents and the Agent may disclose any such nonpublic
information pursuant to any law, rule, regulation, direction, request or order
of any judicial, administrative or regulatory authority or proceedings (whether
or not having the force or effect of law).

     

    Section
14.6 Bankruptcy
Petition

     

        Seller, Servicer, the
Funding Agents, the 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 (and WCMC in its capacity as
Committed Purchaser), it will not institute against, or join any other Person in
instituting against, such Conduit any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.

     

    Section
14.7 Limitation of
Liability

     

        Except with respect
to any claim arising out of the willful misconduct or gross negligence of a
Conduit, a Funding Agent, the Agent or any Committed Purchaser, no claim may be
made by any Seller Party or any other Person against a Conduit, a Funding Agent,
the 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 INTERNAL LAWS (AND NOT THE
LAW OF CONFLICTS) 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 AGENT OR ANY PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER PARTY IN
THE COURTS OF ANY OTHER JURISDICTION.  ANY JUDICIAL PROCEEDING BY ANY
SELLER PARTY AGAINST THE AGENT OR ANY PURCHASER OR ANY AFFILIATE OF THE AGENT OR
ANY PURCHASER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT
EXECUTED BY SUCH SELLER PARTY PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY
IN A COURT IN 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 Mizuho Corporate Bank
Roles

     

        Each of the Committed
Purchasers acknowledges that Mizuho Corporate Bank, Ltd. 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 “Mizuho Corporate Bank
Roles”).  Without limiting the generality of this Section 14.13, each
Committed Purchaser hereby acknowledges and consents to any and all Mizuho
Corporate Bank Roles and agrees that in connection with any Mizuho Corporate
Bank Role, Mizuho Corporate Bank, Ltd. 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
WCMC.

     

    Section
14.14 Characterization

     

                   (a)  It is the
intention of the parties hereto that each purchase hereunder shall constitute
and be treated as an absolute and irrevocable sale, which purchase shall provide
the applicable Purchaser with the full benefits of ownership of the applicable
Purchaser Interest.  Except as specifically provided in this
Agreement, each sale of a Purchaser Interest hereunder is made without recourse
to Seller; provided, however, that (i)
Seller shall be liable to each Purchaser, each Funding Agent and the Agent for
all representations, warranties, covenants and indemnities made by Seller
pursuant to the terms of this Agreement, and (ii) such sale does not constitute
and is not intended to result in an assumption by any Purchaser, any Funding
Agent or the Agent or any assignee thereof of any obligation of Seller or 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 Agent may from time to time acquire pursuant
hereto, Seller hereby grants to the Agent for the ratable benefit of the
Purchasers a valid and perfected security interest in all of Seller’s right,
title and interest in, to and under all Receivables now existing or hereafter
arising, the Collections, each Lock-Box, each Collection Account, all Related
Security, the Demand Note, all other rights and payments relating to such
Receivables and all proceeds of any thereof prior to all other liens on and
security interests therein to secure the prompt and complete payment of the
Aggregate Unpaids.  The Agent and the Purchasers shall have, in
addition to the rights and remedies that they may have under this Agreement, all
other rights and remedies provided to a secured creditor under the UCC and other
applicable law, which rights and remedies shall be cumulative.

     

    Section
14.15 Withholding

     

        Any Purchaser that is
not incorporated under the laws of the United States of America, or a state
thereof, agrees to deliver to the Agent (with copies to  Seller) two
duly completed copies of United States Internal Revenue Service Forms W-8BEN or
W-8ECI, certifying in either case that such Purchaser is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes.

     

    Section
14.16 Patriot
Act

     

        Each Funding Agent
and the Agent (for itself and not on behalf of any Funding 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 Funding Agent or the Agent, as
applicable, to identify the Seller in accordance with the Patriot
Act.


    IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date
hereof.

     

     

    ENERGIZER
RECEIVABLES FUNDING CORPORATION

     

    By:                                                                

    Name:

    Title:

    
      	
               
      

            	
              Address:

            	
              533 Maryville
      University Drive

            


    

    
      	
               
      

            	
              St. Louis,
      Missouri  63141

            


    

     

     

    ENERGIZER BATTERY,
INC.

     

    By:

    Name:

                                       
Title:

      
        	
                 
      

              	
                Address:

              	
                533 Maryville
      University Drive

              


      

      
        	
                 
      

              	
                St. Louis,
      Missouri  63141

              


      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    EXHIBIT I

     

    DEFINITIONS

     

    As
used in this Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):

     

    “Accrual Period” means
each calendar month, provided that the initial Accrual Period hereunder means
the period from (and including) the date of the initial purchase hereunder to
(and including) the last day of the calendar month thereafter.

     

    “Adverse Claim” means
a lien, security interest, charge or encumbrance, or other right or claim in, of
or on any Person’s assets or properties in favor of any other
Person.

     

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

     

    “Affiliate” means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such Person or
any Subsidiary of such Person.  A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of voting
securities of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or
otherwise.

     

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

     

    “Aggregate Capital”
means, on any date of determination, the aggregate amount of Capital of all
Purchaser Interests outstanding on such date.

     

    “Aggregate Reduction”
has the meaning specified in Section
1.3.

     

    “Aggregate Reserves”
means, on any date of determination, the sum of the Loss Reserve, the Yield
Reserve, and the Dilution Reserve.

     

    “Aggregate Unpaids”
means, at any time, an amount equal to the sum of, without duplication, all
Aggregate Capital and all other unpaid Obligations (whether due or accrued) at
such time.

     

    “Agreement” means this
Second Amended and Restated Receivables Purchase Agreement, as it may be
amended, restated, supplemented or otherwise modified and in effect from time to
time.

     

    “Amortization Date”
means the earliest to occur of (i) the day on which any of the conditions
precedent set forth in Section 6.2 are not
satisfied, (ii) the Business Day immediately prior to the occurrence of an
Amortization Event set forth in Section 9.1(d)(ii),
(iii) the Business Day specified in a written notice from the Agent following
the occurrence of any other Amortization Event and (iv) the date which is 30
Business Days after the Agent’s receipt of written notice from Seller that it
wishes to terminate the facility evidenced by this Agreement.

     

    “Amortization Event”
has the meaning specified in Article
IX.

     

    “Assignment Agreement”
has the meaning set forth in Section
12.1(b).

     

    “Authorized Officer”
means, with respect to any Person, its president, corporate controller,
treasurer or chief financial officer.

     

    “Broken Funding Costs”
means for any Purchaser Interest which: (i) has its Capital reduced without
compliance by Seller with the notice requirements hereunder or (ii) does not
become subject to an Aggregate Reduction following the delivery of any Reduction
Notice or (iii) is assigned pursuant to any Funding Agreement or otherwise
transferred or terminated prior to the date on which it was originally scheduled
to end; an amount equal to the excess, if any, of (A) the CP Costs or Yield (as
applicable) that would have accrued during the remainder of the Tranche Periods
or the tranche periods for Commercial Paper determined by the Agent to relate to
such Purchaser Interest (as applicable) subsequent to the date of such
reduction, assignment, transfer or termination (or in respect of clause (ii)
above, the date such Aggregate Reduction was designated to occur pursuant to the
Reduction Notice) of the Capital of such Purchaser Interest if such reduction,
assignment, transfer or termination had not occurred or such Reduction Notice
had not been delivered, over (B) the sum of (x) to the extent all or a portion
of such Capital is allocated to another Purchaser Interest, the amount of CP
Costs or Yield actually accrued during the remainder of such period on such
Capital for the new Purchaser Interest, and (y) to the extent such Capital is
not allocated to another Purchaser Interest, the income, if any, actually
received during the remainder of such period by the holder of such Purchaser
Interest from investing the portion of such Capital not so
allocated.  In the event that the amount referred to in clause (B)
exceeds the amount referred to in clause (A), the relevant Purchaser or
Purchasers agree to pay to Seller the amount of such excess.  All
Broken Funding Costs shall be due and payable hereunder upon
demand.

     

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

     

    “BTMU Pooled CP Costs”
means, for each day and with respect to the Capital associated with each
Purchaser Interest of Gotham or Victory as to which the BTMU Pooled CP Costs are
applicable, the sum of (i) the discount or yield accrued (including, without
limitation, any associated with financing the discount or interest component on
the roll-over of any relevant Pooled Commercial Paper) on the Pooled Commercial
Paper issued by Gotham or Victory, as applicable, on such day, plus (ii) any and
all accrued commissions in respect of the relevant placement agents and
commercial paper dealers, and issuing and paying agent fees incurred, in respect
of such Pooled Commercial Paper for such day, plus (iii) other costs (including
without limitation those associated with funding small or odd-lot amounts) with
respect to all receivable purchase, credit and other investment facilities which
are funded by the applicable Pooled Commercial Paper for such
day.  The BTMU Pooled CP Costs shall be determined by BTMU in its
capacity as Funding Agent for the related Conduit Group, whose determination
shall be conclusive.

     

    “Business Day” means
any day on which banks are not authorized or required to close in New York, New
York 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.

     

    “Capital” of any
Purchaser Interest means, at any time, (A) the Purchase Price of such Purchaser
Interest, minus (B) the sum of the aggregate amount of Collections and other
payments received by the Agent which in each case are applied to reduce such
Capital in accordance with the terms and conditions of this Agreement; provided that such
Capital shall be restored (in accordance with Section 2.5) in the
amount of any Collections or other payments so received and applied if at any
time the distribution of such Collections or payments are rescinded, returned or
refunded for any reason.

     

    “Change of Control”
means the acquisition by any Person, or two or more Persons acting in concert,
of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 30% or more of
the outstanding shares of voting stock of any Seller Party or
Provider.

     

    “Charged-Off
Receivable” means a Receivable: (i) as to which the Obligor thereof has
taken any action, or suffered any event to occur, of the type described in Section 9.1(d) (as if
references to Seller Party therein refer to such Obligor); (ii) as to which the
Obligor thereof, if a natural person, is deceased, (iii) which, consistent with
the Credit and Collection Policy, would be written off Seller’s books as
uncollectible, (iv) which has been identified by Seller as uncollectible or (v)
as to which any payment, or part thereof, remains unpaid for 91 days or more
from the original due date for such payment.

     

    “Collection Account”
means each concentration account, depositary account, lock-box account or
similar account in which any Collections are collected or deposited and which is
listed on Exhibit
IV.

     

    “Collection Account
Agreement” means an agreement substantially, as the same may be amended,
restated, supplemented or otherwise modified from time to time in the form of
Exhibit VI
among a Transferor, Seller, the Agent and a Collection Bank.

     

    “Collection Bank”
means, at any time, any of the banks holding one or more Collection
Accounts.

     

    “Collection Notice”
means a notice, in substantially the form of Annex A to Exhibit VI, as
applicable, from the Agent to a Collection Bank or any similar or analogous
notice from the 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) WCMC, with respect to Mizuho and its Conduit Group.

     

    “Committed Purchaser
Interest” means a Purchaser Interest funded by a Committed Purchaser
either (i) directly in the case of BTMU, or (ii) pursuant to a Funding Agreement
(other than this Agreement) effected between WCMC and any other Funding
Source.

     

    “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 Agent; 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
Funding Agent may, upon not less than three Business Days’ notice to Seller,
cancel any Special Concentration Limit.  The Agent hereby designates
the following Special Concentration Limits with respect to the Obligors set
forth in the table below.

     

    


    
      	
              Obligor

            	
              Special
      Concentration Limit

               

            	
              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’ Funding Agent.

     

    “Consent Notice” has
the meaning set forth in Section
4.6.

     

    “Consent Period” has
the meaning set forth in Section
4.6.

     

    “Contingent
Obligation” of a Person means any agreement, undertaking or arrangement
by which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes or is
contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or application for a letter of
credit.

     

    “Contract” means, with
respect to any Receivable, any and all instruments, agreements, invoices or
other writings pursuant to which such Receivable arises or which evidences such
Receivable.

     

    “CP Costs” means, (A)
with respect to the Capital associated with each Purchaser Interest of WCMC and for each
day, the sum of (i) discount or yield accrued on Pooled Commercial Paper issued
by WCMC on such
day, plus (ii) any and all accrued commissions in respect of placement agents
and Commercial Paper dealers, and issuing and paying agent fees incurred, in
respect of such Pooled Commercial Paper for such day, plus (iii) other costs
associated with funding small or odd-lot amounts with respect to all receivable
purchase facilities which are funded by such Pooled Commercial Paper for such
day, minus (iv) any accrual of income net of expenses received on such day from
investment of collections received under all receivable purchase facilities
funded substantially with such Pooled Commercial Paper, minus (v) any payment
received on such day net of expenses in respect of Broken Funding Costs related
to the prepayment of any Purchaser Interest of WCMC pursuant to the
terms of any receivable purchase facilities funded substantially with such
Pooled Commercial Paper, and (B) for any period and with respect to any Capital
funded by Commercial Paper notes issued by Gotham or Victory, (I) unless BTMU
has determined that the BTMU Pooled CP Costs shall be applicable, the Relevant
Conduit’s cost of funding such Capital, taking into account the weighted daily
average interest rate payable in respect of such Commercial Paper notes during
such period (determined in the case of discount Commercial Paper notes by
converting the discount to an interest bearing equivalent rate per annum),
applicable placement fees and commissions, and such other costs and expenses as
BTMU in good faith deems appropriate; and (II) to the extent BTMU has determined
that the BTMU Pooled CP Costs shall be applicable, the BTMU Pooled CP
Costs.  In addition to the foregoing costs, if Seller shall request
any Incremental Purchase during any period of time determined by Mizuho
Corporate Bank, Ltd. in its capacity as Funding Agent for the related Conduit
Group in its sole discretion to result in incrementally higher CP Costs
applicable to such Incremental Purchase and attributable to WCMC, the portion of
the Capital associated with any such Incremental Purchase and attributable to
WCMC shall,
during such period, be deemed to be funded by WCMC in a special
pool (which may include capital associated with other receivable purchase
facilities) for purposes of determining such additional CP Costs applicable only
to such special pool and charged each day during such period against such
Capital.

     

    “Credit and Collection
Policy” means Seller’s credit and collection policies and practices
relating to Contracts and Receivables existing on the date hereof and summarized
in Exhibit VIII
hereto, as modified from time to time in accordance with this
Agreement.

     

    “Credit Memo” means
any credit, discount or allowance issued to cancel an invoice, cancel and
replace an invoice, record a return, credit a customer for defective
merchandise, adjust for new sales policy changes, credit a customer for goods
and services taxes, provide a trade show credit or allow for other miscellaneous
adjustments, in each case in the ordinary course of business of
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 Outstanding Balance of all Receivables as to which any payment or part
thereof remains unpaid for no more than 60 days from the original due date for
such payment as of the last day of the most recently ended calendar
month.

     

    ”Credit Memo
Percentage” means as of the last day of any calendar month, a percentage
equal to:

     

    


     

    ((2.0 x ED) + (DS - ED) x DS ) x
DHR

                                               ED

     

    where:

     

    ED           =           the
Expected Credit Memo Ratio at such time.

     

    DS           =           the
Credit Memo Spike Ratio at such time.


     

    DHR           =           the
Credit Memo Horizon Ratio at such time.

     

    ”Credit Memo Spike
Ratio” means, as of the last day of any calendar month, the highest four
month rolling average of the Credit Memo-to-Sales Ratio calculated as of the
last day of each of the twelve calendar months then most recently
ended.

     

    “Credit Memo-to-Sales
Ratio” means, at any time, a percentage equal to (i) the aggregate amount
of Credit Memos which occurred during the month then most recently ended, divided by (ii) the
aggregate gross sales of the Transferors during the month three months prior to
such month, calculated on a monthly basis.

     

    “Deemed
Collections”  means the aggregate of all amounts Seller shall
have been deemed to have received as a Collection of a
Receivable.  Seller shall be deemed to have received a Collection in
full of a Receivable if at any time (i) the Outstanding Balance of any such
Receivable is either (x) reduced as a result of any defective or rejected or
returned goods or services, any discount or any adjustment or otherwise by
Seller (other than cash Collections on account of the Receivables) or (y)
reduced or canceled as a result of a setoff in respect of any claim by any
Person (whether such claim arises out of the same or a related transaction or an
unrelated transaction) or (ii) any of the representations or warranties in Article V are no
longer true with respect to any Receivable.

     

    “Default Fee” means
with respect to any amount due and payable by Seller in respect of any Aggregate
Unpaids, an amount equal to the greater of (i) $1000 and (ii) interest on any
such unpaid Aggregate Unpaids at a rate per annum equal to 2% above the Prime
Rate.

     

    “Default Ratio” means,
for any calendar month, a percentage equal to (i) the sum of (A) the aggregate
Outstanding Balance of all Receivables that were unpaid for 91-120 days as of
the last day of such month and (B) the actual write-offs during such calendar
month divided
by (ii) the aggregate gross sales of the Transferors during the calendar month
four calendar months prior to such calendar month.

     

    “Delinquency Ratio”
means, as of the last day of any month, the percentage equal to (i) the sum of
(a) the aggregate Outstanding Balance of all Receivables that were Delinquent
Receivables at such time plus (b) the ending balance of 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 the Agent to Seller in writing.

     

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

     

    “Dilution Reserve”
means, on any date, an amount equal to (a) 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 minus
(b) $78,000,000 or, if the Provider fails to comply with any Provider Financial
Covenant, $0.00, provided that the
Dilution Reserve shall, at no time, be less than $0.00; provided further that the
deduction in part (b) hereof shall only be applicable to and including April 2,
2009, and thereafter such deduction in part (b) hereof at all times shall be
$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 Prime 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 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, provided that until such time
as the Agent gives irrevocable written notice to Servicer regarding the removal
of this proviso, (i) Receivables under this clause (B) shall be limited to
Receivables, the related Obligor of which are publicly rated BBB- or better by
S&P or Baa3 or better by Moody’s and (ii) each such Obligor and its rating
shall be set forth in the Monthly Report,

     

    (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
Funding Agents have not notified Seller that the Funding 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 Funding Agents
in their collective reasonable business judgement,

     

    (xiv) which is not
subject to any right of rescission, set-off, counterclaim, any other defense
(including defenses arising out of violations of usury laws) of the applicable
Obligor against 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, and

     

    (xxi) the inclusion of
which as an Eligible Receivable does not cause the aggregate Outstanding Balance
of all Eligible Receivables considered a “billback receivable” under the
Transferors’ current practices to exceed $5,000,000.

     

    “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to
time.

     

    “Expected Credit Memo
Ratio” means, as of the last day of any calendar month, the average of
each three month rolling average of the Credit Memo-to-Sales Ratio calculated as
of the last day of each of the twelve months then most recently
ended.

     

    “Extension Notice” has
the meaning set forth in Section
4.6.

     

    “Facility Account”
means Seller’s Account No. 10-45863 at JPMorgan Chase Bank, N.A.

     

    “Facility Termination
Date” means the earliest of (i) May 26, 2009, (ii) the Liquidity
Termination Date and (iii) the Amortization Date.

     

    “Federal Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
amended and any successor statute thereto.

     

    “Fee
Letter” means one or more letter agreements dated as of March
27, 2009 among Seller, the Agent, BTMU, Victory, Gotham, Mizuho and WCMC, 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 Agent” means
each of Mizuho Corporate Bank, Ltd. and BTMU in its respective capacity as a
“Funding Agent” under this Agreement.

     

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

     

    “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 (i) in the case of the Conduit Group related to WCMC, $100,000,000 and
(ii) 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 Agent 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 Agent for any reason, the applicable
LIBO Rate for the relevant Tranche Period shall instead be the applicable
British Bankers’ Association Interest Settlement Rate for deposits in U.S.
dollars as reported by any other generally recognized financial information
service as of 11:00 a.m. (London time) two Business Days prior to the first day
of such Tranche Period, and having a maturity equal to such Tranche Period, and
(ii) if no such British Bankers’ Association Interest Settlement Rate is
available to the Agent, the applicable LIBO Rate for the relevant Tranche Period
shall instead be the rate determined by the Agent to be the rate at which Mizuho
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 Agent in respect of Eurocurrency liabilities, as defined in Regulation D of
the Board of Governors of the Federal Reserve System as in effect from time to
time (expressed as a decimal), applicable to such Tranche Period plus (ii) 1.50%
per annum.  The LIBO Rate shall be rounded, if necessary, to the next
higher 1/16 of 1%.

     

    “Liquidity Termination
Date” means May 26, 2009.

     

    “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 three most recently ended calendar months divided by (ii) the
Outstanding Balance of all Eligible Receivables as of the last day of the most
recently ended calendar month.

     

    “Loss Percentage”
means, at any time, a percentage equal to the greater of (i) two multiplied by
the Loss Ratio multiplied by the Loss Horizon Ratio or (ii) Loss Reserve
Floor.

     

    “Loss Ratio” means, on
any date, the greatest three-month rolling average Default Ratio as calculated
for each of the 12 most recently ended calendar months.

     

    “Loss Reserve” means,
on any date, an amount equal to the Loss Percentage multiplied by the Net
Receivables Balance as of the close of business 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.

     

    “Mizuho” means Mizuho
Corporate Bank, Ltd. in its individual capacity and its successors.

     

    “Monthly Report” means
a report, in substantially the form of Exhibit X hereto
(appropriately completed), furnished by Servicer to the Agent pursuant to Section
8.5.

     

    “Net Receivables
Balance” means, at any time, the aggregate Outstanding Balance of all
Eligible Receivables at such time reduced by the sum of (i) the aggregate amount
by which the Outstanding Balance of all Eligible Receivables of each Obligor and
its Affiliates exceeds the Concentration Limit for such Obligor and (ii) the
aggregate amount by which the Outstanding Balance of all Eligible Receivables
having payment terms in excess of 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
March 27, 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 Mizuho (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. and Mizuho Corporate Bank, Ltd., as Documentation
Agents, as in effect on March 27, 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 March 27, 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
$200,000,000.

     

    “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
      + AR

              

            	 
    
	 
    	
              NRB

            	 
    


    

    


    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 (i) with respect to the Conduit Group that includes
Mizuho, WCMC and (ii) 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 set forth below
applicable to the Aggregate Reduction indicated below:

     

    
      	
              
                Aggregate
      Reduction

              

            	
              
                Required
      Notice Period

              

            
	
              ≤$100,000,000

            	
              two Business
      Days

            
	
              >$100,000,000

            	
              five Business
      Days

            


    

    


    “Restricted Junior
Payment” means (i) any dividend or other distribution, direct or
indirect, on account of any shares of any class of capital stock of Seller now
or hereafter outstanding, except a dividend payable solely in shares of that
class of stock or in any junior class of stock of Seller, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of capital stock of Seller
now or hereafter outstanding, (iii) any payment or prepayment of principal of,
premium, if any, or interest, fees or other charges on or with respect to, and
any redemption, purchase, retirement, defeasance, sinking fund or similar
payment and any claim for rescission with respect to the Subordinated Loans (as
defined in the Receivables Sale Agreement), (iv) any payment made to redeem,
purchase, repurchase or retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of capital
stock of Seller now or hereafter outstanding, and (v) any payment of management
fees by Seller (except for reasonable management fees to the Originator or its
Affiliates in reimbursement of actual management services
performed).

     

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

     

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

     

    “Servicer” means at
any time the Person (which may be the Agent) then authorized pursuant to Article VIII to
service, administer and collect Receivables.

     

    “Servicing Fee” has
the meaning set forth in Section
8.6.

     

    “Settlement Date”
means (A) the sixteenth day at each month, and (B) the last day of the relevant
Tranche Period in respect of each 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.

     

    “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 Agent and Seller, commencing on a Business Day selected by
Seller or the Agent pursuant to this Agreement.  Such Tranche Period
shall end on the day in the applicable succeeding calendar month which
corresponds numerically to the beginning day of such Tranche Period, provided,
however, that if there is no such numerically corresponding day in such
succeeding month, such Tranche Period shall end on the last Business Day of such
succeeding month; or

     

    (b)  if
Yield for such Purchaser Interest is calculated on the basis of the Prime Rate,
a period commencing on a Business Day selected by Seller and agreed to by the
Agent, provided no such period shall exceed one month.

     

    If
any Tranche Period would end on a day which is not a Business Day, such Tranche
Period shall end on the next succeeding Business Day, provided, however, that in the
case of Tranche Periods corresponding to the LIBO Rate, if such next succeeding
Business Day would fall in a new month, such Tranche Period shall end on the
immediately preceding Business Day.  In the case of any Tranche Period
for any Purchaser Interest which commences before the Amortization Date and
would otherwise end on a date occurring after the Amortization Date, such
Tranche Period shall end on the Amortization Date.  The duration of
each Tranche Period which commences after the Amortization Date shall be of such
duration as selected by the Agent.

     

    “Transaction
Documents” means, collectively, this Agreement, each Purchase Notice, the
Receivables Sale Agreement, 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 Reserve” means,
on any date, an amount equal to 1.5% multiplied by the Net Receivables Balance
as of the close of business of Servicer on such date.

     

    All accounting
terms not specifically defined herein shall be construed in accordance with
GAAP.  All terms used in Article 9 of the UCC in the State of New
York, and not specifically defined herein, are used herein as defined in such
Article 9.