EXHIBIT 10.16
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E EXECUTION COPY
Dated 24 May 2002
CMP BATTERIES LIMITED
EXIDE (DAGENHAM) LIMITED
FULMEN (U.K.) LIMITED
And
DETA UK LIMITED
together, the Sellers
EXIDE HOLDING EUROPE S.A.
as Offer Agent
BATTERIES FUNDING LIMITED
as BUYER
CITIBANK, N.A.
as Operating Agent
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RECEIVABLES SECURITISATION DEED
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CONTENTS
Clause Page
1. Definitions And Construction ................................................................ 1
2. Facility .................................................................................... 24
3. Conditions Precedent ........................................................................ 24
4. Purchases ................................................................................... 27
5. Collections And Settlement .................................................................. 32
6. Fees, Costs And Stamp Duty .................................................................. 35
7. Payments And Computations, Etc. ............................................................. 38
8. Representations And Warranties Of Each Seller And Exide Europe .............................. 39
9. Affirmative Covenants Of Each Seller ........................................................ 42
10. Negative Covenants Of Each Seller And Exide Europe .......................................... 44
11. Reporting Requirements Of Each Seller ....................................................... 45
12. Servicer, Collections And Buyer Account ..................................................... 47
13. Protection Of The Buyer's Rights ............................................................ 51
14. Responsibilities Of Each Seller ............................................................. 52
15. Agency And Indemnities ...................................................................... 54
16. Amendments, Etc. ............................................................................ 56
17. Notices ..................................................................................... 57
18. No Waiver: Remedies ......................................................................... 57
19. Binding Effect: Assignability ............................................................... 58
20. Further Assurance - Restructuring ........................................................... 59
21. Termination ................................................................................. 59
22. No Proceedings .............................................................................. 60
23. Execution In Counterparts: Severability ..................................................... 60
24. Confidentiality ............................................................................. 60
25. Governing Law And Jurisdiction .............................................................. 61
26. Process Agent ............................................................................... 61
Schedule 1 ....................................................................................... 62
Part 1 Offices Of The Sellers/Collection Account/Seller Non Transaction Account ............. 62
Part 2 Buyer Account ........................................................................ 63
Schedule 2 Form Of Admission Of Additional Seller ................................................ 64
Form Of Settlement Statement .................................................................... 67
Schedule 4 Form Of Summary Report ........................................................... 68
Schedule 5 Initial Conditions Precedent ..................................................... 70
Schedule 6 Letter Of Offer .................................................................. 72
Part 1 On Initial Offer Date ........................................................... 72
Part 2 On Any Subsequent Offer Date .................................................... 74
Schedule 7 Form Of Contract ................................................................. 76
Schedule 8 .................................................................................. 77
Part 1 Information To Be Provided To Exide Europe ...................................... 77
Part 2 Form Of Monthly Summary ......................................................... 78
Schedule 9 Letter Of Undertaking ............................................................ 80
Schedule 10 List Of Account Debtors Other Than Designated Account Debtors ................... 85
Schedule 11 Payment Instructions ............................................................ 86
Part 1 ................................................................................. 86
Part 2 ................................................................................. 86
Schedule 12 Enigma Licence Agreement ........................................................ 87
Schedule 13 Form Of Interim Trust Account Bank Mandates ..................................... 89
Schedule 14 Form Of Trust Account Bank Mandates ............................................. 135
Schedule 15 Directors' Certificate .......................................................... 144
Schedule 16 Power Of Attorney In Favour Of Citibank And Batteries Funding Limited ........... 146
Schedule 17 Special Dilution Reserve ........................................................ 149
THIS RECEIVABLES SECURITISATION DEED, dated 24 May 2002, is made among:
(1) CMP BATTERIES LIMITED, a company with its registered office at ▇.▇. ▇▇▇
▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("CMP");
(2) FULMEN (U.K.) LIMITED, a company with its registered office at ▇.▇. ▇▇▇
▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Fulmen");
(3) DETA UK LIMITED, a company with its registered office at ▇.▇. ▇▇▇ ▇,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Deta");
(4) EXIDE (DAGENHAM) LIMITED, a company with its registered office at ▇.▇.
▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Exide Dagenham");
(all of the above parties, together with any Additional Seller (as
defined herein) are collectively referred to as the "Sellers", or where
the context requires, are also individually referred to as a "Seller");
(5) EXIDE HOLDING EUROPE S.A., a French Societe Anonyme, with its
registered office at ▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the "Offer Agent" or "Exide Europe" as
applicable);
(6) BATTERIES FUNDING LIMITED, a company with its registered office at West
Block, International Financial Services Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the
"Buyer");
(7) CITIBANK, N.A., a United States national banking association acting
through its London branch at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"Operating Agent").
Preliminary Statements
(A) The Sellers and the Buyer have agreed, upon the terms and subject to
the conditions of this Deed, that the Offer Agent may from time to time
for and on behalf of the Sellers offer to assign Receivables arising,
from time to time, from Contracts and, in the event that the Buyer
determines to accept such offers, it will do so in the manner
prescribed herein; and
(B) The Operating Agent has been requested and is willing to act as
Operating Agent as set out in this Deed and, in particular, in Clause
15(A), subject to the ability of the Operating Agent to delegate its
obligations pursuant to the terms of this Deed, in particular, Clause
4(G).
NOW, THEREFORE, the parties agree as follows:
1. Definitions And Construction
In this Deed (including the Preliminary Statements):
(A) Accounting Terms: All accounting terms not specifically defined in this
Deed shall be construed in accordance with generally accepted
accounting principles as in effect on the date hereof in England and
Wales.
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(B) Defined Terms: The following terms shall have the meanings indicated:
"Acceptance Fee" has the meaning ascribed to that term in Clause 4(B).
"Account Debtor" means a Person obliged to make payment(s) pursuant to
a Contract.
"Accounts Receivable Listing" means a list, by invoice number, of all
of the Contracts entered into with Designated Account Debtors which are
shown on each Seller's general ledger as outstanding as at (but
excluding) each relevant Reference Date including the information
specified in Clause 4(E) together with such other information
concerning each Contract, and in such format, as the Operating Agent
may specify.
"Accounts Receivable Trial Balance" means each Seller's accounts
receivable trial balance computer printout, containing a list of
Designated Account Debtors together with the aged Outstanding Balance
of the Receivables.
"Accruals" means, as of any time, the aggregate amount by which the
face value of Eligible Receivables which are Paid Receivables have been
reduced by virtue of any prompt payment discounts, accruals for volume
rebates, warranty claims by the applicable Designated Account
Debtor(s), and other credit notes (including, without limitation,
credit notes issued to Account Debtors as a result of disputes, claims
and invoicing errors by the Sellers).
"Additional Designated Account Debtor" means an Account Debtor
designated by a Seller as a Designated Account Debtor pursuant to
Clause 4(A)(2).
"Additional Seller" means any member of the Exide European Group which
becomes party to this Deed in accordance with Clause 19(D).
"Advance Payment" means, at any time, the aggregate amount of any
withdrawals from (prior to the Payment Instruction Date) the Collection
Accounts and (on and following the Payment Instruction Date) the
Dedicated Collection Accounts made by the Sellers under Clause 12(C) to
the extent they are outstanding and not repaid.
"Adverse Claim" means any claim of ownership, lien, security interest,
mortgage, charge, or encumbrance, or other right or claim of any
Person.
"Admission of Additional Seller" means an agreement substantially in
the form set out in Schedule 2.
"Affiliate" when used with respect to a Person, a Subsidiary of that
Person or a Holding Company of that Person or any other Subsidiary of
that Holding Company.
"Approved Currency" means (a) on the date hereof, (i) in relation to
each Seller, Sterling, (ii) in relation to CMP, Euro and (b)
thereafter, with the prior written consent of the Operating Agent and
in addition to Sterling and (in respect of CMP) Euro, Euro and Dollars.
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"Approved Jurisdiction" means each (i) jurisdiction in the European
Union, or (ii) any other jurisdiction in respect of which the Seller
has obtained as security from the applicable Designated Account Debtor
a clear and unconditional demand letter of credit (governed by the
Uniform Customs and Practice for Documentary Credits) from a bank whose
short-term debt is rated at least A-1 and P-1 by the Rating Agencies,
the term of which is in form and substance satisfactory to the
Operating Agent (acting reasonably) and the conditions of which are in
form and substance satisfactory to the Operating Agent (acting
reasonably), and which letter of credit has been fully assigned to the
Operating Agent on behalf of the Buyer (which assignment shall include
full notice to the applicable bank issuing the letter of credit),
requiring payment to be made directly to the Operating Agent on behalf
of the Buyer.
"Buyer Account" means each account in the name of the Buyer with
Citibank, the details of which are set out in Schedule 1 Part 2, or
(with the prior written consent of the Operating Agent) such other
account at such bank as the Buyer may utilise for the purposes of this
Deed and designate as a Buyer Account.
"Buyer Entitlement" means, at any time, in respect of the total amount
standing to the credit of each Collection Account, the portion thereof
attributable to or representing Collections together with interest
credited by the Collection Account Bank to such portion.
"Capital" equals, on any Settlement Date, the aggregate of the Dollar
Equivalent of the Existing Receivables Purchase Price and Future
Receivables Purchase Price paid to the Sellers (including, on such
Settlement Date, if any) less the aggregate amount of Collections which
have been paid to the Buyer as of such Settlement Date.
"Citibank" means Citibank, N.A., a national banking association under
the laws of the United States of America.
"Collection Account" means in respect of each Seller, the trust account
set opposite the relevant Seller's name in Schedule 1 Part 1 under the
heading "Collection Account", in each case in the name of the
appropriate Seller (or, with respect to Exide Dagenham, its agent,
Exide Batteries Limited "Exide Batteries"), established with the
Collection Account Bank pursuant to an Interim Trust Account Bank
Mandate or such other account or accounts with the Collection Account
Bank as may, with the prior written consent of the Operating Agent, be
utilised for the purposes of this Deed and designated as a Collection
Account.
"Collection Account Bank" means, in respect of each Seller, such bank
and branch at which a Collection Account or a Dedicated Collection
Account is, with the prior written consent of the Operating Agent,
maintained from time to time.
"Collections" means, with respect to any Purchased Receivable, all cash
collections received and other cash proceeds of that Purchased
Receivable (excluding any cash proceeds arising under any transaction
as referred to in Clause 19(C)) and of any Related Security with
respect to that Purchased Receivable received.
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"Concentration Amount" means as of any date, with respect to each
Designated Account Debtor, the product of (a) the Concentration Limit
applicable to such Designated Account Debtor and (b) the Dollar
Equivalent of the Programme Eligible Receivables.
"Concentration Limit" means, in relation to the aggregate Receivables
for each Designated Account Debtor: (a) for any single Designated
Account Debtor rated at least A-l or P-l or its equivalent by the
Rating Agencies, 17%; (b) for any single Designated Account Debtor
rated A-2 or P-2 or its equivalent by the Rating Agencies, 8.5%; (c)
for any single Designated Account Debtor rated A-3 or P-3 or its
equivalent by the Rating Agencies, 5.66%; (d) for any single Designated
Account Debtor rated below A-3 or P-3 or not rated on its short term
debt, 3.4% (to the extent an Designated Account Debtor does not have a
short term rating but has an actual or implied senior long-term debt
rating, the applicable percentage will be determined based on
equivalent senior long-term debt ratings (as determined by the
Operating Agent) for the short term ratings specified above).
"Contract" means a written agreement (and, for the avoidance of doubt,
includes any oral agreement evidenced by an invoice containing or
referring to the standard terms of business of the relevant Seller)
between a Seller and an Account Debtor pursuant to which such Account
Debtor is obliged to pay for goods or services sold or provided by such
Seller (including any value added tax in respect thereof) from time to
time.
"Country" means the United Kingdom.
"Credit and Collection Policy" means each Seller's policies, practices
and procedures relating to Contracts and Receivables in form and
content satisfactory to the Operating Agent in accordance with
paragraph (k) of Schedule 5 as modified from time to time with the
consent of the Operating Agent.
"Currency Exchange Agreement" means the spot currency agreement and the
forward currency agreement to be entered into on or prior to the
Effective Date by the Buyer and a counterparty rated at least A-1 and
P-1 or its equivalent by the Rating Agencies (a "Swap Counterparty") to
exchange, respectively, the amount in Dollars received by the Buyer
under the Facilities Agreement into the currencies of the denomination
of the Receivables acquired by the Buyer under all Origination
Agreements to which it is a party and the currencies of the amount of
Collections payable to the Buyer under all Origination Agreements to
which it is a party into Dollars.
"Currency Exchange Costs" means the costs payable by the Buyer to the
counterparty under the Currency Exchange Agreement (expressed as a
percentage of Capital);
"Custody Documents" means this Deed or any Letter of Offer hereunder.
"Debt" means any indebtedness, present or future, actual or contingent
in respect of moneys borrowed or raised or any financial accommodation
whatever and, without limitation, shall include:
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(1) indebtedness under or in respect of a negotiable or other
financial instrument, Guarantee, interest, gold or currency
exchange, hedge or arrangement of any kind, redeemable share,
share the subject of a Guarantee, discounting arrangement, finance
lease or hire purchase agreement;
(2) the deferred purchase price (for more than 90 days) of an asset or
service; and
(3) any obligation to deliver goods or other property or provide
services paid for in advance by a financier or in relation to
another financing transaction.
"Dedicated Collection Account" means in respect of each Seller, the
trust account to be established with the Collection Account Bank on or
prior to the Payment Instruction Date pursuant to a Trust Account Bank
Mandate.
"Deemed Settlement Date" means a date which would have been a
Settlement Date were it not to fall during a Specified Bank Holiday
Period.
"Default Ratio" as of any date, is equal to the ratio (expressed as a
percentage) for the most recent month for which such ratio is available
of (i) aggregate Eligible Receivables which are Paid Receivables that
were 91-120 days past due at the end of each such month plus Eligible
Receivables which are Paid Receivables that were charged off (or,
without duplication, which should have been charged off) as
uncollectible during each such month which, if they had not been
charged off (or, without duplication, which should have been charged
off) would have been less than 90 days past due during such month to
(ii) aggregate sales giving rise to Receivables that were generated
during the calendar month immediately preceding the commencement of the
Loss Horizon preceding such date.
"Defaulted Receivable" means an Eligible Receivable which is a Paid
Receivable and:
(1) which, after the original due date, remains unpaid in whole or in
part for more than 90 days;
(2) in respect of which the Designated Account Debtor has taken any
action, or suffered any event to occur, of the type described in
Clause 11(D)(2); or
(3) which has been, or should be, written off or provided for in the
Seller's books as uncollectible in accordance with the Credit and
Collection Policy.
"Designated Account Debtor" means, at any time, all Account Debtors
(other than those designated in Schedule 10) unless the Operating Agent
has advised the Offer Agent (on behalf of the Sellers) that an Account
Debtor shall not be considered a Designated Account Debtor.
"Determination Date" means initially, the Effective Date and
thereafter, each following Monday (or such other day as may be agreed
from time to time between the Offer Agent (on behalf of the Sellers)
and the Operating Agent); provided however, if such day is not a
Programme Business Day, the applicable Determination Date shall be the
next succeeding Programme Business Day.
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"Diluted Receivable" means that portion of any Eligible Receivable
which is a Paid Receivable which is either (a) reduced or cancelled as
a result of (i) any defective or rejected goods or services, or any
failure by any Seller to deliver any goods or services or otherwise to
perform under the underlying Contract or invoice, or (ii) any change in
the terms of or cancellation of any Contract or invoice or any other
adjustment by any Seller which reduces the amount payable by the
Designated Account Debtor on the related Paid Receivable or (iii) any
set-off in respect of any claim by the Designated Account Debtor on the
related Eligible Receivable which is a Paid Receivable or (b) subject
to any specific dispute, offset, counterclaim or defence whatsoever
(except the discharge in bankruptcy of the Designated Account Debtor
thereof).
"Dilution Horizon" means, at any time, the estimated weighted average
period in days between the issuance of invoices and the related credit
note, if any, by the Programme Sellers, as such period is calculated by
the Operating Agent from time to time.
"Dilution Horizon Ratio" equals the higher of (a) the Dollar Equivalent
of total sales giving rise to Programme Receivables for the Programme
Sellers for the past Dilution Horizon divided by the Dollar Equivalent
of the outstanding balance of Eligible Receivables (whether or not they
are Paid Receivables) (as such term is used in each applicable
Origination Agreement) aggregated among all Origination Agreements as
of the end of the most recent month and (b) 0.5.
"Dilution Ratio" as of any date, is equal to the ratio (expressed as a
percentage) for the most recently ended month of (i) the aggregate
amount of Receivables that become Diluted Receivables during each such
month to (ii) the aggregate sales giving rise to Receivables that were
originated during the preceding month.
"Dilution Reserve" means as of any Settlement Date:
(PER minus DefR) x max [DYN, FLOOR]
where:
DYN = [(SF2 x ED) + DVF] x DHR
FLOOR = ED x DHR
Provided that the Dilution Reserve shall never be less than the amount
such that, when aggregated to the floor applicable to the Loss Reserve,
is equal to the Euro Equivalent of Dollars 15,000,000
where:
PER = The aggregate amount of the Programme Eligible
Receivables
DefR = The aggregate amount of Programme Eligible Receivables
that are Defaulted Receivables (as defined in and
aggregated among all Origination Agreements)
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SF2 = Stress Factor 2 = 2.25
ED = The average Programme Dilution Ratio during the
preceding 12 months
DVF = Dilution Volatility Factor
DHR = Dilution Horizon Ratio
"Dilution Volatility Factor" means as of any date, a percentage equal
to the product of (i) the amount by which (A) the highest two month
average Programme Dilution Ratio during the most recently ended twelve
month period exceeds (B) the average of the Programme Dilution Ratios
during such twelve month period and (ii) (A) the highest two month
average Programme Dilution Ratio during such twelve month period
divided by (B) the average of the Programme Dilution Ratios during such
twelve month period.
"Directors' Certificate" means a certificate in the form appended in
Schedule 15.
"Discount" means, with respect to (i) Existing Receivables the subject
of a Letter of Offer or (ii) Purchased Receivables (which were Future
Receivables at the time of their Purchase) having come into existence
during the relevant Reference Period, on the relevant Settlement Date,
the sum of applicable Yield, the applicable Country's Proportionate
Share of Programme Costs, applicable Accruals and the sums then
required to bring applicable Reserves and the Stamp Duty Reserve to
their required levels.
"Dollar Equivalent" of any sum in any currency at any time means the
amount of Dollars that would be purchased under the Currency Exchange
Agreement at the Spot Rate determined for such sum as at the most
recent Settlement Date.
"Dollars" and the sign "$" each mean the lawful currency of the United
States of America.
"Early Amortisation Event" means the first to occur of:
(1) any Originator or Exide Europe defaults in the payment on the due
date of any payment due and payable by it under or relating to the
Relevant Documents to which it is a party and such default
continues unremedied for a period of five (5) Local Business Days
after the earlier of such Originator or Exide Europe becoming
aware of such default and the receipt by such Originator or Exide
Europe of written notice by the Operating Agent requiring the same
to be remedied;
(2) subject to Clause 12(D), any Originator, Exide Europe or the Offer
Agent (if an Affiliate of Exide Technologies other than Exide
Europe) defaults in the performance or observance of any of its
other covenants and obligations, or breaches any representation or
warranty under the Relevant Documents to which it is a party,
which in the reasonable opinion of the Operating Agent is
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materially prejudicial to the interests of the Buyer and/or the
Lenders and/or the Operating Agent, and such default is not
remedied to the satisfaction of the Operating Agent within five
Local Business Days of the earlier of such Originator, Exide
Europe or the Offer Agent (if an Affiliate of Exide Technologies
other than Exide Europe) becoming aware of such default and
receipt by such Originator, Exide Europe or the Offer Agent (if an
Affiliate of Exide Technologies other than Exide Europe) of
written notice by the Operating Agent requiring the same to be
remedied (for the avoidance of doubt, for the purposes of this
paragraph (2) if such Originator satisfies its obligations
pursuant to Clause 5(D) within such five Local Business Day
period, such default or breach shall not be considered to be an
Early Amortisation Event);
(3) an effective resolution is passed for the winding up of any
Originator, Exide Europe, Exide Batteries (for so long as it is
the agent of Exide Dagenham) or the Offer Agent (if an Affiliate
of Exide Technologies other than Exide Europe);
(4) any Originator, Exide Europe, Exide Batteries (for so long as it
is the agent of Exide Dagenham) or the Offer Agent (if an
Affiliate of Exide Technologies other than Exide Europe) ceases or
threatens to cease to carry on its business or ceases to carry on
the whole or a substantial part of its business, or stops payment
or threatens to stop payment of its debts, or such Originator or
Exide Batteries (for so long as it is the agent of Exide Dagenham)
becomes unable to pay its debts, or is deemed unable to pay its
debts within the meaning of section 123 of the Insolvency ▇▇▇ ▇▇▇▇
(as that section may be amended, varied or re-enacted) (or, with
respect to Exide Europe, within the meaning of Law No. 85-98 of 25
January 1985 (as amended) or, with respect to the Offer Agent (if
an Affiliate of Exide Technologies other than Exide Europe),
within the meaning of equivalent provisions under applicable law),
or becomes unable to pay its debts as they fall due, or the value
of its assets falls to less than the amount of its liabilities
(taking into account for both these purposes its contingent and
prospective liabilities) or otherwise becomes insolvent;
(5) Exide Europe ceases at any time to own, directly or indirectly, a
minimum of 80% of each class of the outstanding capital stock of
any Seller;
(6) any Debt of a member of the Exide Europe Group in excess (in the
aggregate) of the Euro Equivalent of $5,000,000 becoming
prematurely due and payable or is placed on demand as a result of
an event of default (howsoever described) under the document
relating to that Debt;
(7) any sale of Eligible Receivables pursuant to this Deed ceases to
create or is determined not to be a valid sale in equity of such
Eligible Receivables;
(8) proceedings are initiated against any Originator, Exide Europe,
Exide Batteries (for so long as it is the agent of Exide Dagenham)
or the Offer Agent
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(if an Affiliate of Exide Technologies other than Exide Europe) in
respect of its liquidation, winding-up, administration,
insolvency, composition, reorganisation (other than a
reorganisation the terms of which have been approved by the
Operating Agent and where such Originator, Exide Europe, Exide
Batteries (for so long as it is the agent of Exide Dagenham) or
the Offer Agent (if an Affiliate of Exide Technologies other than
Exide Europe) is solvent) under any applicable liquidation,
administration, insolvency, composition, reorganisation or other
similar laws save where such proceedings are being contested in
good faith by such Originator, Exide Europe, Exide Batteries (for
so long as it is the agent of Exide Dagenham) or (if an Affiliate
of Exide Technologies other than Exide Europe) the Offer Agent, or
an administrative or other receiver, servicer or other similar
official is appointed in relation to such Originator, Exide
Europe, Exide Batteries (for so long as it is the agent of Exide
Dagenham) or (if an Affiliate of Exide Technologies other than
Exide Europe) the Offer Agent or in relation to the whole or any
substantial part of the undertaking or assets of such Originator,
Exide Europe, Exide Batteries (for so long as it is the agent of
Exide Dagenham) or (if an Affiliate of Exide Technologies other
than Exide Europe) the Offer Agent or an encumbrancer shall take
possession of the whole or any substantial part of the undertaking
or assets of such Originator, Exide Europe, Exide Batteries (for
so long as it is the agent of Exide Dagenham) or (if an Affiliate
of Exide Technologies other than Exide Europe) the Offer Agent, or
a distress or execution or other process shall be levied or
enforced upon or sued out against the whole or any substantial
part of the undertaking or assets of such Originator, Exide Europe
or (if an Affiliate of Exide Technologies other than Exide Europe)
the Offer Agent and in any of the foregoing cases it shall not be
discharged within 15 days;
(9) if any Originator, Exide Europe, Exide Batteries (for so long as
it is the agent of Exide Dagenham) or (if an Affiliate of Exide
Technologies other than Exide Europe) the Offer Agent shall
initiate or consent to judicial proceedings relating to itself
under any applicable liquidation, administration, insolvency,
composition, reorganisation or other similar laws or shall make a
conveyance or assignment for the benefit of its creditors
generally;
(10) for any three month period, the average Default Ratio exceeds 6%;
(11) for any three month period, the average Dilution Ratio exceeds
12%;
(12) for any three month period, the Loss to Liquidation Ratio exceeds
0.5%;
(13) for any three month period, the average Programme Default Ratio
exceeds 6%;
(14) for any three month period, the average Programme Dilution Ratio
exceeds 12%;
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(15) for any three month period, the average Programme Loss to
Liquidation Ratio exceeds 0.5%;
(16) a Programme Amortisation Event (as such term is defined in any
other Origination Agreement) occurs;
(17) any amount owing under the US DIP Facility Agreement becomes
immediately due and payable as a result of the occurrence of an
Event of Default (as that term is defined in the US DIP Facility
Agreement) thereunder; and
(18) an Event of Default (as that term is defined under the Facilities
Agreement) occurs.
"Effective Date" means the date upon which the initial conditions
precedent set forth in Schedule 5 have been satisfied and which has
been designated as such by the Operating Agent, which day shall be a
Thursday (or such other day as may be agreed by the Offer Agent (on
behalf of the Sellers) and the Operating Agent) which is a Programme
Business Day.
"Eligible Receivable" means a Receivable:
(1) the Account Debtor of which is a corporate body or corporate
entity which is (according to the address specified in the related
invoice) resident of an Approved Jurisdiction;
(2) the Account Debtor of which is a Designated Account Debtor and is
not an Affiliate of any party to this Deed;
(3) the Account Debtor of which is not the Account Debtor of any
Defaulted Receivables the aggregate Outstanding Balance of which
equals or exceeds 10% of the aggregate Outstanding Balance of all
Receivables of such Account Debtor;
(4) in respect of the Account Debtor of which no delivery or shipment
has been cancelled or suspended for credit reasons and no credit
line or accommodation has been cancelled or suspended for credit
reasons, in either case at any time in the 2 years preceding the
date that the invoice relating thereto is despatched;
(5) which is not a Defaulted Receivable (A) at the date of Purchase
(in respect of Existing Receivables) and (B) at the date on which
such Receivables becomes a Paid Receivable (in respect of Future
Receivables);
(6) which, according to the Contract related thereto, is required to
be paid in full on a date which falls (A) not earlier than the
Purchase Date (in respect of Existing Receivables) and not earlier
than the date on which such Receivables becomes a Paid Receivable
(in respect of Future Receivables) and (B) within 90 days in
respect of CMP and Deta (and which is not, in respect of Deta, and
-10-
for the avoidance of doubt, subject to a Sales Scheme) or 120 days
in respect of Fulmen and Exide Dagenham, after the earlier of the
original billing date and the date that the invoice relating
thereto is despatched;
(7) the Dollar Equivalent of the Outstanding Balance of which, when
added to the Dollar Equivalent of the Outstanding Balance (as that
term is defined under each Origination Agreement) of all other
Paid Receivables (as such term is used in each applicable
Origination Agreement) owing by the same Account Debtor or any of
its Affiliates under all Origination Agreements, does not exceed
the Concentration Amount;
(8) which is denominated and payable only in an Approved Currency;
(9) which (A) arises under a form of Contract set out in Schedule 7
(or which otherwise has been duly authorised by the Operating
Agent), which is stated to be, and is, governed (for the purposes
of the conflict of laws principles of the Approved Jurisdiction in
question) by English law and which, together with such Receivable,
is in full force and effect and constitutes the legal, valid,
binding and enforceable obligation of the Account Debtor, (B) is
freely assignable (or if not assignable without the consent of the
Account Debtor, such consent has been obtained to the satisfaction
of the Operating Agent) and (C) is not subject to any Adverse
Claim or dispute, set off, counterclaim or defence whatsoever;
(10) which, together with the Contract related thereto, does not
contravene in any material respect any applicable laws, rules or
regulations and with respect to which the Seller is not in
violation of any such law, rule or regulation in any material
respect;
(11) which (A) satisfies all applicable requirements of the Credit and
Collection Policy and (B) complies with such other criteria and
requirements (other than those relating to the collectability of
such Receivable) as the Operating Agent may from time to time
specify to the Seller and which are based on a criterion or
requirement of any one or more of the Rating Agencies;
(12) which is not subject to withholding taxes on payments from the
Account Debtors in respect thereof;
(13) which represents all or part of the sales price in respect of the
supply of goods or services in the Approved Jurisdiction in
question;
(14) the Account Debtor of which is not a government agency or local
authority unless, the Account Debtor of which is considered a
separate corporate entity under applicable law that is owned,
directly or indirectly by a government agency or local authority;
(15) which has not been prepaid in whole or in part;
-11-
(16) for which all goods and services to which it relates have been
delivered and performed, and all requirements of such Contract
concerning the nature, amount, quality, condition or delivery of
the goods or services, or upon which payment of such Receivable
may be dependent, have been fulfilled in all material respects;
and
(17) the Account Debtor of which has, in respect of Purchased
Receivables (other than Defaulted Receivables) falling due for
payment on or after 31 August 2002, paid in full the most recent
Purchased Receivable owing by it directly to the credit of the
relevant Dedicated Collection Account.
"Enigma" means the proprietary computer software furnished by Citibank
pursuant to the Enigma Licence Agreement, as such computer software may
be modified, updated or replaced by Citibank from time to time.
"Enigma Licence Agreement" means an agreement in the form of Schedule
12 hereto, duly executed by the Offer Agent.
"Euro" means the single currency unit of the Participating Member
States.
"Euro Equivalent" of any sum and at any time means the amount of Euro
that would be purchased under the Currency Exchange Agreement at the
Spot Rate for such sum at such time.
"Exide Europe" means Exide Holding Europe S.A., a French societe
anonyme.
"Exide Europe Group" means Exide Europe and all of its Subsidiaries.
"Exide Group" means Exide Technologies and all of its Subsidiaries.
"Exide Technologies" means Exide Technologies, a Delaware Corporation.
"Existing Receivables" means all Receivables which are specified by (or
on behalf of) the Sellers (i) in the initial Letter of Offer as being
in existence in respect of Designated Account Debtors as at the Initial
Reference Date and (ii) in any subsequent Letter of Offer, as being in
existence in respect of Additional Designated Account Debtors as at the
Reference Date immediately preceding the Offer Date in respect of such
Letter of Offer.
"Existing Receivables Purchase Price" means, on any Purchase Date, in
respect of Existing Receivables comprised in a Group of Receivables, an
amount in Sterling equal to the Outstanding Balance of those of the
Receivables which are Eligible Receivables as at the Reference Date
immediately preceding the relevant Offer Date less the Discount
applicable on the Purchase Date immediately succeeding such Offer Date,
as calculated by the Operating Agent.
"Facilities Agreement" means the agreement entered into on or about the
date hereof among, inter alia, the Buyer and the Lenders.
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"Facility Fee" means 0.75 % per annum of the positive difference
between (i) the Facility Limit and (ii) Programme Capital (as such fee
is calculated monthly in arrears and applied on each Settlement Date).
"Facility Limit" means Dollars 177,500,000 as such amount may be
reduced from time to time upon notice given by the Operating Agent to
the Offer Agent (on behalf of the Sellers) as a result of the event
specified in Clause 7.1 of the Facilities Agreement.
"Fees Letter" means the fees letters dated as of the date hereof,
between Exide Europe and the Operating Agent in respect of the
calculation and payment of certain fees.
"Foreign Currency Reserve" as of any Settlement Date will equal 5% of
Programme Capital on such Settlement Date, or such other amount as
determined by the Operating Agent (and notified in writing to the Offer
Agent), acting reasonably (upon the written request of a Seller after
any redetermination of the level of the Foreign Currency Reserve, the
Operating Agent agrees to provide such Seller with information relating
to the basis of such redetermination).
"Future Receivables" means all Receivables owing by a Designated
Account Debtor which are not Existing Receivables.
"Future Receivables Purchase Price" means, on any Settlement Date, in
respect of Future Receivables comprised in a Group of Receivables which
have come into existence during any Reference Period, an amount in
Sterling equal to the Outstanding Balance of those of the Receivables
which are Eligible Receivables as at the Reference Date immediately
preceding such Settlement Date less the Discount applicable on such
Settlement Date, as calculated by the Operating Agent.
"German Excess Loss Reserve" means the positive difference (if any)
between (i) the aggregate of the German Sellers' Proportionate Share
(as such term is defined under the German RSA) of the Loss Reserve and
(ii) an amount equal to 9% of the Outstanding Balance of Paid
Receivables which are Eligible Receivables (as each such term is
defined in the German RSA) under the German RSA.
"Group of Receivables" means, at any time, all Receivables purchased or
to be purchased by the Buyer on a Purchase Date or, as appropriate, the
Group of Receivables specified in a Letter of Offer.
"Guarantee" means any guarantee, indemnity, letter of credit or any
other obligation or irrevocable offer (whatever called and of whatever
nature):
(1) to pay or to purchase;
(2) to provide funds (whether by the advance of money, the purchase of
or subscription for shares or other securities, the purchase of
assets, rights or services, or otherwise) for the payment or
discharge of;
(3) to indemnify against the consequences of default in the payment
of; or
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(4) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition of another person.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Initial Offer Date" means the date which is two Programme Business
Days before the Effective Date.
"Initial Purchase" means the first Purchase completed under this Deed.
"Initial Reference Date" means 24 May 2002.
"Interest Period" means initially, the period commencing on (and
including) the Effective Date and ending on (but excluding) the
following Settlement Date, and thereafter, each period beginning on
(and including) the day following the last day of the immediately
preceding Interest Period and ending on (but excluding) the following
Settlement Date; provided however, if such day is not a Programme
Business Day, the applicable Interest Period shall end on the next
succeeding Programme Business Day.
"Interim Trust Account Bank Mandates" means the mandates substantially
in the form set out in Schedule 13.
"Lenders" means any bank, financial institution, trust, fund or other
entity which is or may from time to time become a party to the
Facilities Agreement as a "Lender" thereunder.
"Letter of Offer" has the meaning assigned to that term in Clause 4(A).
"Letter of Undertaking" means the Letter of Undertaking given by Exide
Europe substantially in the form set out in Schedule 9 to this Deed.
"LIBOR" means (a) the applicable Screen Rate or (b) (if no Screen Rate
is available one week Dollars) the arithmetic mean of the rates
(rounded upwards to four decimal places) as supplied to the Operating
Agent at its request quoted by the Reference Banks to leading banks in
the London interbank market, as of 11.00 a.m. London time on the
Quotation Day for the offering of deposits in Dollars for a period
comparable to the Interest Period.
"Loan" means any loan to be made to the Buyer by the Lenders pursuant
to the Facilities Agreement or, when made, the principal amount
outstanding thereof.
"Local Business Day" means any day (other than a Saturday or Sunday) on
which banks and foreign exchange markets are open for business in
London. Where an obligation is expressed in this Deed to be performed
on a Local Business Day and such Local Business Day is not also a
Programme Business Day, the applicable Local
-14-
Business Day shall be the immediately preceding Local Business Day
which is also a Programme Business Day.
"Loss Reserve" as of any Settlement Date will equal:
(PER minus DefR) x [max(DYN,FLOOR)] plus DefR where:
DYN = SFl x LR x LHR
FLOOR = CF
Provided that the Loss Reserve shall never be less than an amount such
that, when aggregated to the floor applicable to the Dilution Reserve
is equal to the Euro Equivalent of Dollars 15,000,000 where:
PER = The aggregate amount of Programme Eligible Receivables
DefR = the aggregate amount of Programme Eligible Receivables that are
Defaulted Receivables (as defined in and aggregated among all
Origination Agreements)
SF1 = Stress Factor One = 2.25
LHR = Loss Horizon Ratio
CF = Concentration Floor = 17%
LR = Loss Ratio
"Loss Horizon" equals the sum of 90 days plus the Weighted Average Term
calculated among all Origination Agreements as of the Settlement Date.
"Loss Horizon Ratio" equals the total sales giving rise to Programme
Receivables for the Programme Sellers for the Loss Horizon divided by
the outstanding balance of Programme Receivables as of the end of the
most recent month.
"Loss Ratio" as of any date equals the highest 3 month average Default
Ratio aggregated among all Origination Agreements which has occurred in
the 12 months immediately preceding such date.
"Loss to Liquidation Ratio" as of any date, is equal to the ratio
(expressed as a percentage) of (i) the Dollar Equivalent of the
aggregate outstanding balance of all Receivables that were written off
by the Sellers during the twelve month period most recently ended prior
to such date to (ii) the aggregate amount of such total sales giving
rise to Receivables less the Dollar Equivalent of the total Diluted
Receivables during such twelve month period.
"Mandatory Cost Rate" has the meaning ascribed to that term in the
Facilities Agreement.
"Margin" means 3.75% per annum.
-15-
"Offer Date" means, initially, the Initial Offer Date and, thereafter,
each Determination Date.
"Origination Agreement" means as of any time each agreement or deed
pursuant to which a member of the Exide Europe Group sells trade
receivables originated in the ordinary course of business of such
member company and which has been designated from time to time as such
by the Operating Agent. Until and unless a designation has been made by
the Operating Agent to the contrary, the Origination Agreements shall
consist of (i) for the United Kingdom, this Deed, (ii) for France, (a)
the Receivables Subrogation Agreement dated 6 June 1997 (as amended on
the date hereof) between CEAC, Compagnie Europeenne d'Accumulateurs
S.A.S. (the "French Seller"), Exide Europe Funding Ltd. ("Exide
Funding"), the Offer Agent and the Operating Agent (the "French RSA")
and (b) the Onward Receivables Sale Agreement dated as of the date
hereof between Exide Europe Funding Ltd., the Buyer, the Offer Agent
and the Operating Agent (the "French ORSA"), (iii) for Spain, the
Receivables Sale Agreement dated as of the date hereof between Sociedad
Espanola del Acumulador Tudor, S.A., Fulmen Iberica, S.L. (the "Spanish
Sellers"), the Buyer, the Offer Agent and the Operating Agent (the
"Spanish RSA"), (iv) for Italy, (a) the Receivables Purchase Agreement
dated 3 June 1997 (as amended on the date hereof) between Exide Italia
S.r.l., (the "Italian Seller") Archimede Securitisation s.r.l., the
Offer Agent and the Operating Agent (the "Italian RSA") and (b) the
Onward Sale Agreement dated as of the date hereof between Archimede
Securitisation s.r.l., the Buyer and the Operating Agent (the "Italian
OSA"), and (v) for Germany, the German Receivables Sale Agreement dated
as of the date hereof between Exide Automotive Batterie GmbH, Deutsche
Exide GmbH, Deutsche Exide Standby GmbH, (the "German Sellers") the
Buyer, the Offer Agent and the Operating Agent (the "German RSA").
"Originator" means each of CMP, Fulmen, Exide Dagenham, Deta and any
Additional Seller, in its capacity as Seller or Sub-Servicer, as the
context may require.
"Outstanding Balance" of any Receivable at any time means the then
unpaid face amount thereof (including VAT) (except for purposes of
determining the Default Ratio, where the unpaid face amount of any Paid
Receivable which has been, or would be, written off or provided for in
a Seller's books as uncollectible in accordance with the Credit and
Collection Policy shall be deemed to be zero).
"Paid Receivables" means all Purchased Receivables the Existing
Receivables Purchase Price (in respect of Existing Receivables) and
Future Receivables Purchase Price (in respect of Future Receivables) of
which has been paid by the Buyer pursuant to the provisions of this
Deed.
"Payment Instruction Date" means 31 July 2002.
"Person" means an individual, partnership, company, body corporate,
corporation, trust, unincorporated association, joint venture,
government, or governmental body or agency or other entity.
-16-
"Programme" means the revolving sale of trade receivables originated by
Exide and certain Subsidiaries of Exide Europe and the funding of such
revolving sale pursuant to the funding arrangements established in
relation to each Origination Agreement.
"Programme Amortisation Event" means any Early Amortisation Event under
each other Origination Agreement other than an Early Amortisation Event
of the type described in any of paragraphs (5), (7), (10), (11) or (12)
of the definition "Early Amortisation Event" hereunder;
"Programme Business Day" means any day (other than a Saturday or
Sunday) on which banks are open for business in New York, London,
Dublin, Paris, Frankfurt am Main, Milan and Madrid and which is a
TARGET Day.
"Programme Capital" equals, at any time, Capital aggregated among all
Origination Agreements.
"Programme Costs" means (i) the Facility Fee and (ii) all other fees
set out in the Fees Letter.
"Programme Default Ratio" as of any date, is equal to the weighted
average of the Default Ratios calculated among all Origination
Agreements;
"Programme Dilution Ratio" as of any date, is equal to the weighted
average of the Dilution Ratios calculated among all Origination
Agreements.
"Programme Eligible Receivables" means, on any Settlement Date, the
aggregate Dollar Equivalent of the Outstanding Balance of Eligible
Receivables (as that term is defined in each Origination Agreement),
aggregated among all Origination Agreements which are Paid Receivables
and which are to become Paid Receivables (as such term is defined in
each Origination Agreement) on such Settlement Date, aggregated among
all Origination Agreements.
"Programme Loss to Liquidation Ratio" as of any date, is equal to the
weighted average of the Loss to Liquidation Ratios calculated among all
Origination Agreements.
"Programme Receivables" means the aggregate Dollar Equivalent of
Receivables (as defined in and aggregated among all Origination
Agreements).
"Programme Reserves" means the Reserves aggregated among all
Origination Agreements.
"Programme Sellers" means, collectively, all of the Affiliates of Exide
Europe designated as Sellers or Originators pursuant to all of the
Origination Agreements.
"Proportionate Share" equals, at any time:
(a) in respect of a Seller, the result of the formula: the Dollar
Equivalent of all Eligible Receivables which are Paid Receivables
from such Seller, divided by
-17-
the Dollar Equivalent of all Eligible Receivables which are Paid
Receivables; and
(b) in respect of the Country, the result of the formula: the Dollar
Equivalent of all Eligible Receivables which are Paid Receivables
in the Country, divided by the Dollar Equivalent of all Eligible
Receivables which are Paid Receivables (as such term is used in
each Origination Agreement), aggregated among all Origination
Agreements.
"Purchase" means a purchase or purported purchase by the Buyer of a
Group of Receivables from a Seller pursuant to the acceptance of an
offer in accordance with this Deed.
"Purchase Date" means the Effective Date and each Settlement Date after
the Effective Date occurring before the Termination Date on which there
is a Purchase of Receivables by the Buyer as contemplated by this Deed.
"Purchased Receivable" means a Receivable (whether or not an Eligible
Receivable) purchased or purported to be purchased by the Buyer
pursuant to the acceptance of an offer in accordance with this Deed.
"Quarterly Settlement Date" means, initially, the first Settlement Date
falling in September 2002 and, thereafter, until the Termination Date,
the first Settlement Date falling in the third calendar month following
the calendar month of the immediately preceding Quarterly Settlement
Date;
"Quotation Day" means, in relation to any Interest Period, two Business
Days before the first day of that period unless market practice differs
in the London interbank market for Dollar, in which case the Quotation
Day for that currency will be determined by the Operating Agent in
accordance with market practice in the London interbank market (and if
quotations would normally be given by leading banks in the London
interbank market on more than one day, the Quotation Day will be the
last of those days).
"Rating Agencies" means Standard & Poor's Ratings Group, a division of
the McGraw Hill Companies Inc. and ▇▇▇▇▇'▇ Investors Service, Inc.
"Receivable" means the indebtedness (including VAT) owed or which will
become owed by any Designated Account Debtor under a Contract arising
from a sale or contract of sale of merchandise or provision or contract
of provision of services by a Seller and representing part or all of
the sale price of such merchandise or services and includes the right
to payment of any interest or finance charges and other obligations of
such Designated Account Debtor with respect thereto.
"Reference Banks" means the principal London offices of Citibank, N.A.,
Barclays Bank PLC and The Royal Bank of Scotland plc or such other
banks as may be determined by the Operating Agent.
-18-
"Reference Date" means each Friday or any other later date (as may be
agreed from time to time between the Offer Agent (on behalf of the
Sellers) and the Operating Agent) falling immediately prior to the next
succeeding Determination Date.
"Reference Period" means, initially, the period beginning on (and
including) the Initial Reference Date and ending on (but excluding) the
next following Reference Date and thereafter, each period from (and
including) a Reference Date to (but excluding) the next following
Reference Date.
"Related Security" means with respect to any Receivable all of the
Seller's interest in any goods and work in progress (including returned
or repossessed goods and work in progress) relating to the sale
creating such Receivable, and all insurance policies, security,
deposits, guarantees, indemnities, letters of credit, bills of
exchange, cheques, other negotiable instruments, warranties, retention
of title and other agreements and arrangements not created or made by
the Buyer supporting or securing payment of such Receivable.
"Relevant Date" means the earlier of:
(1) the date on which all Capital of all Groups of Receivables is
reduced to zero; and
(2) the date on which the Outstanding Balance of all Eligible
Receivables which are Paid Receivables is reduced to zero.
"Relevant Documents" means this Deed, the Letter of Undertaking, the
Interim Trust Account Bank Mandates, the Trust Account Bank Mandates
and the Fees Letter.
"Reserves" means as of any date, the Dollar Equivalent of the Country's
Proportionate Share of the sum of the Loss Reserve, the German Excess
Loss Reserve, the Dilution Reserve, the Special Dilution Reserve, the
Yield Reserve and the Foreign Currency Reserve.
"Sales Scheme" means, in respect of Deta, a scheme pursuant to which
(a) Receivables have extended or delayed payment terms exceeding 90
days, arise from sales on consignment or sales or (b) the good giving
rise to such Receivables has been sold on a return basis.
"Screen Rate" means the British Bankers' Association Settlement Rate
for one week Dollars displayed on the appropriate page of Telerate
Screen. If the agreed page is replaced or service ceases to be
available, the Operating Agent may specify another page or service
displaying the appropriate rate.
"Security Interest" means any mortgage, pledge, lien, charge,
assignment, hypothecation or security interest or any other agreement
or arrangement having the effect of conferring security.
-19-
"Sellers" means, CMP, Fulmen, Deta, Exide Dagenham and any Additional
Seller made party to this Deed in accordance with Clause 19(D), and
"Seller" means any of them.
"Seller Entitlement" means, at any time, in respect of the total amount
standing to the credit of each Collection Account together with
interest thereon, the portion thereof which is not attributable to or
representing Collections.
"Seller Non-Transaction Account" means in respect of each Seller, the
account set opposite the relevant Seller's name in Schedule 1 Part 1,
under the heading "Seller Non-Transaction Account", in each case in the
name of the appropriate Seller, established with the Collection Account
Bank, or such other account at such branch of such bank as each Seller
may from time to time specify by written notice to the Collection
Account Bank with a copy to the Operating Agent.
"Servicer" means at any time the Person then authorised pursuant to
this Deed to service, administer and collect Purchased Receivables.
"Settlement Date" means initially, the Effective Date and thereafter,
each Thursday (or such other day as may be agreed from time to time
between the Offer Agent (on behalf of the Sellers) and the Operating
Agent) provided that in relation to a Thursday falling in a Specified
Bank Holiday Period, the Settlement Date shall be the Thursday
immediately succeeding such Thursday and provided further that, if any
such day is not a Programme Business Day, the Settlement Date shall be
the next succeeding Programme Business Day.
"Settlement Period" means any period beginning on (and including) a
Settlement Date and ending on (but excluding) the next following
Settlement Date.
"Settlement Statement" means a statement, as of any Settlement Date,
prepared by the Operating Agent substantially in the form of Schedule 3
showing (amongst other things) the amount of Receivables purchased by
the Buyer during the last Settlement Period.
"Special Dilution Reserve" means:
(a) on each Settlement Date other than that falling immediately prior
to a Deemed Settlement Date, an amount equal to the percentage,
set opposite such settlement Date in Schedule 17, of the
Programme Eligible Receivables on such date (including any
Eligible Receivables sold or transferred on such date under or
pursuant to each Origination Agreement); and
(b) on each Settlement Date falling immediately prior to a Deemed
Settlement Date, an amount determined by the Operating Agent
(acting reasonably) as a reserve to cover the estimated excess of
Collections to be received over Receivables which may be
generated under all Origination Agreements during the two
successive Reference Periods immediately succeeding such
Settlement
-20-
Date (such amount to be notified by the Operating Agent to the
Offer Agent on the Determination Date immediately preceding such
Settlement Date),
provided however that the Special Dilution Reserve determined in
paragraph (a) or (b) above may be adjusted from time to time by the
Operating Agent (acting reasonably) on the basis of actual excess of
Collections received over Receivables generated based on recent history
of Collections' and Receivables' generation and any expected change in
the sales pattern of any Seller (including, without limitation, a
reduction of the number of Designated Account Debtors and a reduction
of sales to designated Account Debtors) (such adjustment amounts to be
notified by the Operating Agent to the Offer Agent on the Determination
Date immediately preceding such Settlement Date).
"Specified Bank Holiday Period" means the relevant calendar week:
(a) in which the 25/th/ of December falls;
(b) in which Easter falls; and
(c) in which the 15/th/ of August falls.
"Spot Rate" means, as of any Settlement Date, the spot rate utilised
under the Currency Exchange Agreement, as determined for such
Settlement Date.
"Stamp Duty" means any stamp duty, stamp duty reserve tax, registration
or other transaction or documentary tax (including without limitation,
any penalty or interest payable in connection with any failure to pay
or any delay in paying any of the same).
"Stamp Duty Account" means the account kept pursuant to Clause 6(D).
"Stamp Duty Reserve" as of any time means 4% of the value of the
Outstanding Balance of Paid Receivables (or such greater or lesser
amount that may be required under then-applicable United Kingdom stamp
duty legislation).
"Sterling" and the sign "(pound)" each mean the lawful currency of the
United Kingdom.
"Subsidiary" means, in relation to any company or corporation, a
company or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation; or
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly by the first mentioned company or
corporation; or
(c) which is a Subsidiary of another Subsidiary of the first
mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
-21-
"Summary Report" means a report as of each Determination Date or more
frequently if requested by the Operating Agent, substantially in the
form of Schedule 4, furnished by each Seller to the Operating Agent
pursuant to Clause 11(E).
"Summary Report Date" means each Determination Date or such other dates
as the Operating Agent may request.
"TARGET" means the Trans-European Automated Real-time Gross Settlement
Express Transfer Payment System.
"TARGET Day" means any day on which TARGET is open for the settlement
of payments in Euro.
"Temporary Adjustment Account" means the sub-account held by the Buyer
with Citibank, N.A., London branch, denominated in Sterling and
utilised for the purposes set out in Clause 12(D), under the account
number ▇▇▇▇▇▇▇▇.
"Termination Date" means the earliest to occur of (1) 15 February 2004,
(2) an Early Amortisation Event and (3) the US DIP Facility Termination
Date.
"Trust Account Bank Mandate" means an agreement in respect of each
Dedicated Collection Account substantially in the form set out in
Schedule 14.
"Turnover Rate" means, as of any Purchase Date, the average of each of
the three most recently ended months of the Dollar Equivalent of the
aggregate outstanding balance of Paid Receivables (aggregated among all
Origination Agreements) as of the last day of each such month, over the
average or each of the three most recently ended months of the total
sales giving rise to Programme Receivables as of the last day of each
such month.
"US DIP Facility Agreement" means the $250,000,000 secured superior
priority debtor in possession credit agreement entered into on 15 April
2002 between Exide Technologies and certain of its Subsidiaries as
debtors and debtors-in-possession, Citicorp USA, Inc. as Administrative
Agent, Collateral Monitoring Agent and Arranger, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. as Sole Book Manager and Lead Manager and the lenders and issuers
from time to time party thereto.
"US DIP Facility Termination Date" has the meaning given to "Scheduled
Termination Date" in the US DIP Facility Agreement.
"Weighted Average Term" means the weighted average term of all Paid
Receivables, calculated on the basis of the formula: (original stated
payment term of each invoice x amount of such invoice) / invoice
amount.
"Yield" will be calculated on the first Purchase Date and on each
Settlement Date thereafter on the basis of the outstanding Capital as
at such dates times the Yield Rate divided by 360 times the number of
days elapsed in the relevant Interest Period.
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"Yield Rate" means the percentage rate per annum which is the aggregate
of the applicable (i) Margin, (ii) LIBOR and (iii) the Mandatory Costs
Rate (if any).
"Yield Reserve" means, as of any Settlement Date, an amount equal to
the sum of (a) the product of (i) the Programme Eligible Receivables
less the Defaulted Receivables (aggregated among all Origination
Agreements) and (ii) the Yield Reserve Rate and (b) the product of (i)
the Dollar Equivalent of the Outstanding Balance of all Paid
Receivables (as aggregated among all Origination Agreements) and (ii)
0.75% (substitute servicer reserve).
"Yield Reserve Rate" means as of any Settlement Date, the product of
(1) two times the Turnover Rate for such date and (2) the sum of (a) 1
month LIBOR times 1.5 plus the Margin plus the Mandatory Costs Rate (if
applicable); (b) the Currency Exchange Costs; (c) the Facility Fee; and
(d) the other fees set out in the Fees Letter.
(C) This Deed: Any reference to "this Deed" or any other agreement or
document shall, unless the context otherwise requires, include this
Deed or, as the case may be, that other agreement or document as from
time to time amended, supplemented or novated, and any document which
amends, supplements or novates this Deed or, as the case may be, that
other agreement or document. Any reference to Clauses or paragraphs in
this Deed is, subject to any contrary indication, a reference to a
Clause or paragraph in this Deed.
(D) Origination Agreements: All references in this Deed to terms defined in
the Origination Agreements or to amounts which are aggregated among all
Origination Agreements, shall, unless the contrary is indicated, be
deemed to refer to the equivalent concepts in the Origination
Agreements where the same defined term is not used.
(E) Headings: Headings shall be ignored in construing this Deed.
(F) Time: Save where the contrary is indicated, any reference in this Deed
to a time of day (including opening and closing of business hours)
shall be construed as a reference to London time.
(G) Time of Essence: Time shall be of the essence in this Deed and all
documents delivered pursuant to the terms of this Deed, subject to the
prior waiver of such timing by the affected party.
(H) Third Party Rights: A person who is not party to this Deed will have no
rights under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ or
otherwise to enforce any terms of this Deed.
(I) Limited Recourse Provisions under Facilities Agreement and Currency
Exchange Agreement: Any amount payable hereunder by reference to
amounts payable by the Buyer under the Facilities Agreement and the
Currency Exchange Agreement shall be due and payable irrespective of
whether the Buyer is liable to pay such amounts as a
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result of the limited recourse provisions contained in the Facilities
Agreement or the Currency Exchange Agreement.
2. FACILITY
On the terms and conditions set out in this Deed, the Buyer may, in the
Buyer's sole discretion until the Termination Date, purchase at a
discount from each Seller full title and ownership in and to certain
Receivables arising under Contracts by acceptance of a Letter of Offer
in accordance with the terms of this Deed. Nothing in this Deed shall
oblige the Buyer to make any purchase at any time, and nothing in this
Deed shall oblige a Seller to deliver any Letter of Offer to the Buyer
or to sell any Receivables to the Buyer.
3. CONDITIONS PRECEDENT
(A) To Initial Purchase: Without prejudice to the unlimited right of the
Buyer at any time to refuse or otherwise not to accept any Letter of
Offer delivered under this Deed, with or without cause, the Letter of
Offer in relation to the proposed Initial Purchase may only be accepted
subject to the condition precedent that the Operating Agent receives on
or before the date on which the first Letter of Offer may be accepted
the documents and information specified in Schedule 5, each in form and
substance satisfactory to the Operating Agent.
(B) To All Purchases (including the Initial Purchase): Without prejudice to
the unlimited right of the Buyer at any time to refuse or otherwise not
to accept any Letter of Offer delivered under this Deed, with or
without cause, each Letter of Offer in relation to a proposed Purchase
(including the Initial Purchase) may only be accepted if the further
following conditions precedent are satisfied or waived by the Operating
Agent:
(1) On each Determination Date immediately prior to each proposed
Purchase Date, the Offer Agent has delivered by electronic mail
or facsimile to the Operating Agent each Accounts Receivables
Trial Balance to be entered into Enigma and, as soon as
practicable thereafter but before 11.00 a.m. London time on the
relevant Determination Date, the relevant Accounts Receivables
Listing.
(2) On each Purchase Date the following statements must be true and
correct (and each Seller will be deemed to have so certified on
such date that):
(a) the representations and warranties of each Seller contained
in this Deed are true and correct on and as of such day as
though made on such day and by reference to the then
existing circumstances;
(b) each Seller has delivered such certificate as may be
required by the Operating Agent as to such Seller's
solvency;
(c) after the proposed Purchase the Outstanding Balance of Paid
Receivables which are Eligible Receivables would be at least
equal to the sum of (i)
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (▇▇) applicable Accruals and
(iii) Reserves in relation to outstanding Capital;
(d) there has been no Early Amortisation Event which has not been
waived by the Operating Agent in writing;
(e) there has been no sale by a Seller of any of its Receivables
out of the ordinary course of its business without the prior
written consent of the Operating Agent;
(f) in respect of the Purchase of Receivables whose Designated
Account Debtors are resident in a European Union jurisdiction
other than in England or Wales, after the proposed Purchase,
Capital in respect of such Purchased Receivables which are
Paid Receivables and Eligible Receivables does not exceed 15%
of the Capital in respect of all Paid Receivables which are
Eligible Receivables; and
(g) after the proposed Purchase, Programme Capital would not
exceed the Facility Limit.
(3) On or prior to each Settlement Date each Seller shall have
complied with all of its reporting and other obligations under
this Deed, unless any such failure to comply has been waived by
the Operating Agent in respect of such Settlement Date.
(4) The Operating Agent has received such other approvals, legal
opinions or documents as the Operating Agent may reasonably
request.
(5) The appointment of the Offer Agent by the Sellers is in full force
and effect and has not been revoked or otherwise terminated.
(6) On or prior to each Quarterly Settlement Date, the Operating Agent
has received a Directors' Certificate from each Seller.
(7) the Buyer is able to obtain appropriate funds from its currency
swap counterparty under the Currency Exchange Agreement.
(C) To All Payments of Future Receivables Purchase Price: The payment by
the Buyer of the Future Receivables Purchase Price in respect of
Purchased Receivables on each Settlement Date in the manner
contemplated in Clause 4 (D) is subject to the fulfilment of the
following conditions precedent on the relevant Settlement Date:
(1) on each Determination Date immediately prior to each proposed
Settlement Date, the Offer Agent has delivered by electronic mail
or facsimile to the Operating Agent each Accounts Receivables
Trial Balance to be entered into Enigma and, as soon as
practicable thereafter but before 11.00 a.m. London time on the
relevant Determination Date, the relevant Accounts Receivables
Listing;
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(2) after the payment of the Future Receivables Purchase Price, the
Outstanding Balance of Paid Receivables which are Eligible
Receivables would be at least equal to the sum of (i) aggregate
outstanding Capital, (ii) applicable Accruals and (iii) Reserves
in relation to outstanding Capital;
(3) there has been no Early Amortisation Event which has not been
waived by the Operating Agent in writing;
(4) in respect of the payment for a Future Receivables Purchase Price
of Receivables whose Designated Account Debtors are resident in a
European Union jurisdiction other than in England or Wales, after
the proposed payment, Capital in respect of such Paid Receivables
which are Eligible Receivables does not exceed 15% of the Capital
in respect of all Paid Receivables which are Eligible Receivables;
and
(5) after the payment of the Future Receivables Purchase Price,
Programme Capital would not exceed the Facility Limit.
(6) The appointment of the Offer Agent by the Sellers is in full force
and effect and has not been revoked or otherwise terminated.
(7) the Buyer is able to obtain appropriate funds from its currency
swap counterparty under the Currency Exchange Agreement.
(D) To any Purchase and any Payment for Future Receivables from the Payment
Instruction Date: Any purchase of Receivables and payment for Future
Receivables from the Payment Instruction Date is, in addition to the
conditions set out in Clause 3(B) and 3(C) subject to the following
conditions precedent on the relevant Settlement Date:
(1) each Seller has provided evidence to the Operating Agent that it
has given to each Designated Account Debtor by way of registered
letter instructions in the form set out in Schedule 11 Part 1 to
make all the payments in respect of Receivables to the credit of
the relevant Dedicated Collection Account and that similar
instructions to this effect in the form set out in Schedule 11
Part 2 have been inserted in each of the invoices to be addressed
to such Designated Account Debtors; and
(2) a Dedicated Collection Account has been opened with the relevant
Collection Account Bank and a Trust Account Bank Mandate has been
entered into with respect to each such Dedicated Collection
Account.
(E) New Forms of Contract: The Operating Agent shall, as soon as reasonably
practicable after submission to it of a form of Contract other than the
form set out in Schedule 7, notify the relevant Seller as to whether it
approves of the form for the purposes of paragraph (9) of the
definition of "Eligible Receivable", such approval not to be
unreasonably withheld. In considering whether to approve such other
form of Contract, the Operating Agent may, as a condition of
considering whether to give its
-26-
approval, take such legal advice as it deems appropriate including,
without limitation, advice from English, Scottish or Northern Irish
solicitors, and all related costs, charges, and expenses (including
without limitation reasonable legal fees, disbursements and VAT
thereon) shall be for the account of the relevant Seller.
4. PURCHASES
(A) Making Offers: The Offer Agent may, on behalf of each Seller, by 11:00
a.m., London time:
(1) On the Initial Offer Date, deliver to the Operating Agent, acting
on behalf of the Buyer, a Letter of Offer by facsimile (and shall
send the original Letter of Offer to an Operating Agent's office
outside the United Kingdom (as the Operating Agent may direct the
Offer Agent from time to time) by ordinary post on the day it is
delivered by facsimile) substantially in the form of Schedule 6
Part 1 (a "Letter of Offer") in respect of the assignment of:
(a) all Existing Receivables (if any) specified in such Letter of
Offer as in existence as at (but excluding) the Initial
Reference Date relating to each Designated Account Debtor on
the Initial Offer Date;
(b) all Future Receivables (if any) in respect of a Designated
Account Debtor on the Initial Offer Date which are not
specified in the Letter of Offer and which have come or will
come into existence from (and including) the Initial
Reference Date to (but excluding) the Effective Date; and
(c) all Future Receivables (if any) in respect of a Designated
Account Debtor which will come into existence from (and
including) the Effective Date to (but excluding) the next
Settlement Date,
such Initial Letter of Offer to specify (i) the proposed Purchase
Date of the Receivables in respect of which such Initial Letter of
Offer is delivered and (ii) the then Outstanding Balance of the
Receivables (if any) set out in (a) above and the Existing
Receivables Purchase Price with respect thereto, as computed by
the Operating Agent. The computation of the Existing Receivables
Purchase Price by the Operating Agent shall, in the absence of
manifest error, be deemed to be conclusive;
(2) On any Offer Date subsequent to the Initial Offer Date and falling
prior to the Termination Date, nominate a new Account Debtor to be
a Designated Account Debtor (and if one new Account Debtor is so
designated, all new Account Debtors will, unless the Operating
Agent agrees otherwise, be so designated) (an "Additional
Designated Account Debtor");
(3) On any Offer Date subsequent to the Initial Offer Date, deliver to
the Operating Agent, acting on behalf of the Buyer, a Letter of
Offer by facsimile (and shall send the original Letter of Offer to
an Operating Agent's office
-27-
outside the United Kingdom (as the Operating Agent may direct the
Offer Agent from time to time)) by ordinary post on the day it is
delivered by facsimile) substantially in the form of Schedule 6
Part 2 in respect of the assignment of:
(a) all Future Receivables (if any) in respect of each Designated
Account Debtor (including, for the avoidance of doubt, each
Additional Designated Account Debtor) which will come into
existence during the immediately succeeding Settlement
Period; and
(b) in relation to each Additional Designated Account Debtor on
such Offer Date:
(i) all Existing Receivables (if any) in respect of such
Additional Designated Account Debtor specified in such
Letter of Offer as in existence as at (but excluding)
the immediately preceding Reference Date; and
(ii) all Future Receivables (if any) in respect of an
Additional Designated Account Debtor which are not
specified in the Letter of Offer and which have come or
will come into existence from (and including) the
Reference Date immediately preceding such Offer Date to
(but excluding) the immediately succeeding Settlement
Date,
such Letter of Offer to specify (i) the proposed Purchase Date of
the Receivables in respect of which such Letter of Offer is
delivered and (ii) the then Outstanding Balance of the Existing
Receivables (if any) set out in (b)(i) above and the Existing
Receivables Purchase Price with respect thereto. The Operating
Agent shall compute the Existing Receivables Purchase Price in
accordance with this Deed and the computation of the Existing
Receivables Purchase Price by the Operating Agent shall, in the
absence of manifest error, be deemed to be conclusive.
(B) Offer and Acceptance: The delivery of the Letter of Offer by facsimile
shall be irrevocable and will constitute an offer by each relevant
Seller to sell to the Buyer each of (i) the Existing Receivables (if
any) designated pursuant to Clause 4(E) and the Related Security with
respect thereto for the Existing Receivables Purchase Price applicable
to such Existing Receivables as set out in the Letter of Offer and (ii)
the Future Receivables (if any) designated pursuant to Clause 4(E) and
the Related Security with respect thereto for an amount of(pound)10 in
cash (the "Acceptance Fee") plus the Future Receivables Purchase Price
in accordance with Clause 4(D) of this Deed. The Buyer may, in its sole
discretion, accept a Letter of Offer with respect to both (i) all
Existing Receivables referred to in such Letter of Offer and (ii) all
Future Receivables referred to in such Letter of Offer by payment in
full of the Existing Receivables Purchase Price relating to such
Existing Receivables and the Acceptance Fee (which
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Acceptance Fee must be paid in cash) to the account referred to and in
accordance with Clause 4(C).
Payment of the Existing Receivables Purchase Price in respect of the
Existing Receivables referred to in such Letter of Offer will constitute:
(1) acceptance of the offer in respect of the Existing Receivables
referred to in such Letter of Offer; and
(2) the transfer to the Buyer of title and ownership in and to those
Receivables and the Related Security with respect to those
Receivables, and
Payment of the Acceptance Fee in respect of Future Receivables referred to
in such Letter of Offer will constitute:
(1) acceptance of the offer in respect of the Future Receivables referred
to in such Letter of Offer;
(2) the transfer to the Buyer of title and ownership in and to those
Receivables and the Related Security with respect to those
Receivables; and
(3) an undertaking by the Buyer to pay the Future Receivables Purchase
Price pursuant to Clause 4(D) of this Deed.
If the Buyer accepts an offer in accordance with this Clause 4(B), no
Seller shall concern itself as to whether the Buyer has received
instructions from the Operating Agent in relation to such acceptance.
(C) Method of Payment in relation to acceptance of a Letter of Offer: If the
Buyer wishes to accept a Letter of Offer, it will make payment in full of
the Existing Receivables Purchase Price in respect of Existing Receivables
(if any) referred to in such Letter of Offer and the Acceptance Fee in
respect of Future Receivables referred to in such Letter of Offer on the
immediately succeeding proposed Purchase Date in the currency and funds
specified in Clause 7(B) and (subject to the provisions of Clause 12(C) in
respect of the Existing Receivables Purchase Price in relation to Existing
Receivables offered on any Offer Date other than the Initial Offer Date) to
the account specified in Clause 7(C). If the Buyer wishes to reject a
Letter of Offer, it shall notify the Offer Agent prior to 11.00 am on the
proposed Purchase Date of such rejection; provided, for the avoidance of
doubt, that failure to so notify the Offer Agent of a rejection of a Letter
of Offer shall not constitute an acceptance or deemed acceptance of the
Letter of Offer, and a Letter of Offer which has not been accepted by 11.00
am on the proposed Purchase Date shall be deemed to be rejected.
(D) Covenant for Payment in respect of Purchased Receivables which are Future
Receivables: In consideration of the sale and assignment by the relevant
Seller of Future Receivables (which Receivables have been automatically
assigned in equity pursuant to Clause 4 (B)), the Buyer shall (subject to
the conditions set out in Clause 3), on each Settlement Date, pay in full
the Future Receivables Purchase Price (as
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calculated by the Operating Agent in accordance with this Deed) in
respect of Future Receivables having come into existence during the
Reference Period immediately preceding such Settlement Date in the
currency and funds specified in Clause 7(B) and (subject to the
provisions of Clause 12(C)) to the account specified in Clause 7(C).
The computation of the Future Receivables Purchase Price by the
Operating Agent shall, in the absence of manifest error, be deemed to
be conclusive.
(E) Determination of Receivables: No later than 11:00 a.m. on the Initial
Offer Date and thereafter on each Determination Date immediately
preceding a Settlement Date, the Offer Agent will, on behalf of the
Sellers, deliver to the Operating Agent (or as the Operating Agent may
direct) the Accounts Receivables Listing generated in relation to such
Settlement Date specifying, inter alios:
(1) on the Initial Offer Date:
(i) the Initial Reference Date;
(ii) each Designated Account Debtor;
(iii) each Existing Receivable which is the subject of
the Letter of Offer delivered on the Initial Offer
Date and the Seller thereof;
(iv) each of such Existing Receivables which is an
Eligible Receivable;
(v) the Outstanding Balance of such Existing
Receivables which are Eligible Receivables as at
(but excluding) the Initial Reference Date and the
Seller thereof; and
(vi) the Seller of the Future Receivables referred to in
the Letter of Offer delivered on the Initial Offer
Date,
(2) on each subsequent Determination Date:
(i) the relevant Reference Date;
(ii) each Additional Designated Account Debtor (if any)
the Existing Receivables of which are subject of a
Letter of Offer on such Determination Date;
(iii) each Existing Receivable from such Additional
Designated Account Debtor which are the subject of
a Letter of Offer on such Determination Date and
the Seller thereof;
(iv) each of such Existing Receivables which is an
Eligible Receivable;
(v) the Outstanding Balance of such Existing
Receivables which are Eligible Receivables as at
(but excluding) the immediately preceding Reference
Date and the Seller thereof;
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(vi) each Purchased Receivable which is a Future
Receivable which has come into existence during the
Reference Period immediately preceding such
Determination Date and the Seller thereof;
(vii) each of such Purchased Receivables set out in (vi)
above which is an Eligible Receivable as at (but
excluding) the Reference Date immediately preceding
such Determination Date;
(viii) the Outstanding Balance of such Purchased
Receivables which are Eligible Receivables as at
(but excluding) the Reference Date immediately
preceding such Determination Date and the Seller
thereof; and
(ix) the Seller of the Future Receivables referred to in
any Letter of Offer delivered on such Determination
Date,
(F) Perfection: Each of the Seller, the Offer Agent and the Buyer will take
all such steps and comply with all such formalities as may be required
by the Buyer to perfect or more fully to evidence or secure title to
the Receivables assigned (or purported to be assigned) pursuant to
Clause 4.
(G) Delegation of Powers of Operating Agent: The Operating Agent hereby
delegates to the Offer Agent and each Seller its obligations to compute
the Existing Receivables Purchase Price and the Future Receivables
Purchase Price under this Clause 4, which delegation is irrevocably
accepted by the Offer Agent and each Seller. The Offer Agent shall
notify the Operating Agent of all calculations made by it under this
Clause 4. The Operating Agent may revoke this delegation in writing at
any time.
(H) Appointment of Offer Agent:
(a) Exide Europe is hereby appointed by each Seller as Offer Agent
to make offers to the Buyer on behalf of each such Seller
pursuant to the terms hereof and perform all the related
functions and Exide Europe hereby accepts such appointment as
Offer Agent on the terms and subject to the conditions of this
Deed;
(b) each Seller agrees that the Buyer and the Operating Agent
shall be entitled to assume without further enquiry that
performance by the Offer Agent purportedly on behalf of such
Seller is duly authorised and undertaken on behalf of such
Seller; and
(c) Exide Europe may not resign its appointment as Offer Agent
without the consent of the Operating Agent on behalf of the
Buyer.
(I) Appointment of CMP Batteries Limited:
(a) CMP is hereby appointed by each other Seller as its agent to
receive, for and on behalf of such Seller, any payment to be
made hereunder by the Buyer
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which is attributable to such Seller and CMP hereby accepts such
appointment on the terms and subject to the conditions of this
Deed;
(b) each Seller other than CMP agrees that any payment made to CMP
shall constitute performance by the Buyer of its payment
obligations and the Buyer shall not concern itself as to how CMP
deals with the payment to such Seller and how amounts paid in
respect of any Letter of Offer are distributed between each such
Seller.
(c) CMP may not resign from its appointment under this Clause 4 (I)
without the consent of the Operating Agent.
5. COLLECTIONS AND SETTLEMENT
(A) Collection of Receivables:
(1) Prior to an Early Amortisation Event, each Servicer shall:
(a) on each Local Business Day prior to the Payment Instruction
Date, deposit and cause each Designated Account Debtor to
deposit all Collections of Purchased Receivables to the
relevant Collection Account;
(b) on each Local Business Day from the Payment Instruction
Date, deposit and cause each Designated Account Debtor to
deposit all Collections of Purchased Receivables to the
relevant Dedicated Collection Account; and
(c) on each Settlement Date (subject to Clause 12(C)) transfer
all Collections received since the last Settlement Date to
the Buyer Account.
(2) Upon demand of the Operating Agent, each Servicer shall set aside
and hold in trust for the Buyer all Collections received by it and
immediately deposit such Collections to the relevant Buyer
Account.
(3) The Operating Agent shall issue a Settlement Statement to the
Offer Agent (on behalf of the Sellers) within two Programme
Business Days after each Settlement Date in relation to the
Settlement Period which ended on that Settlement Date.
(B) Settlement Procedures prior to Termination Date: Prior to the
Termination Date the procedures described in this Clause 5(B) will be
applicable:
(1) On each Determination Date the Operating Agent shall calculate:
(a) Capital as at the forthcoming Settlement Date; and
(b) Yield and Programme Costs in respect of th0e Capital as at
the forthcoming Settlement Date.
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(2) On each Settlement Date the Operating Agent shall cause to be paid
from the Buyer Accounts in the following order of priority:
(a) to the Buyer, Yield and the Country's Proportionate Share of
Programme Costs in respect of the Interest Period ending on that
Settlement Date;
(b) to each Seller, (i) (on the date of the Initial Purchase) the
Existing Receivables Purchase Price for the Existing Receivables
offered for Purchase on the Initial Offer Date and the Acceptance
Fee in respect of all Future Receivables offered for Purchase on
such Initial Offer Date and (ii) (on any Settlement Date
thereafter) the Acceptance Fee for all Future Receivables offered
for Purchase on the immediately preceding Offer Date and, to the
extent such amounts are not satisfied by way of set-off pursuant
to Clause 12 (C), the Existing Receivables Purchase Price for all
Existing Receivables (if any) offered for Purchase on the
immediately preceding Offer Date and the Future Receivables
Purchase Price for all Purchased Receivables (which were Future
Receivables) which have come into existence during the
immediately preceding Reference Period;
(c) to the Buyer, such amounts as determined by the Operating Agent
as are required to repay Programme Capital and result in the
Programme Reserves being equal to the amount calculated pursuant
to Clause 5(B)(3); and
(d) to each Seller, its Proportionate Share of all amounts standing
to the credit of the Buyer Account after payment of the amounts
set forth in (a), (b) and (c) above, by way of deferred purchase
price for the Purchased Receivables.
(3) On each Determination Date, the Operating Agent shall calculate the
Reserves and the Programme Reserves required in respect of that
Settlement Period commencing on the next following Settlement Date.
(C) Settlement Procedures after Termination Date: On the Termination Date and
each day thereafter, the procedures described in this Clause 5(C) will be
applicable for all Purchased Receivables:
(1) On each Settlement Date, the Operating Agent shall cause to be paid
from the Buyer Account to the Buyer all amounts standing to the credit
of the Buyer Account.
(2) When the Operating Agent notifies each Seller that Programme Capital
has been reduced to zero and all Yield (as aggregated among all
Origination Agreements), Programme Costs and other fees due under this
Deed (including the fees payable under the Fees Letter) have been
paid, then an amount equal to the Seller's Proportionate Share of any
future Collections on Purchased
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Receivables shall be remitted by the Buyer to each Seller by way
of deferred purchase price for all of the Purchased Receivables.
(D) Adjustments and Allowances:
(1) If on any day the Outstanding Balance of any Paid Receivable is
either (a) reduced or adjusted as a result of any defective,
rejected, repossessed or returned goods or services or any cash
discount (whether commercial, financial or otherwise), rebate or
other adjustment made by the Seller or any other Person, or (b)
reduced or cancelled as a result of a set off or by agreement in
respect of any claim by the Designated Account Debtor thereof
against any Seller or any other Person (whether such claim arises
out of the same or another transaction) (including without
limitation any change in the due date for payment of any Paid
Receivable otherwise than with the prior consent of the Operating
Agent), such Seller will be deemed to have received on such day a
Collection of such Paid Receivable in the amount of such
reduction, adjustment or cancellation and shall credit such amount
to the relevant Buyer Account by way of indemnity.
(2) If on any day any of the representations or warranties in Clause 8
is no longer true with respect to a Paid Receivable, the relevant
Seller will be deemed to have received on such day a Collection of
such Paid Receivable equal to its original Outstanding Balance
less any Collections previously received with respect thereto and
shall credit to the relevant Buyer Account an amount equal to such
deemed Collection by way of indemnity.
(3) If any Existing Receivable expressed to be an Eligible Receivable
in the relevant Accounts Receivables Listing was not an Eligible
Receivable at the time of Purchase or any Future Receivable
expressed to be an Eligible Receivable in the relevant Accounts
Receivables Listing was not an Eligible Receivables on the
Settlement Date on which the Future Receivable Purchase Price was
paid in respect of such Future Receivable, on the date such fact
becomes known to any Seller, such Seller will be deemed to have
received a Collection of such Paid Receivable equal to its
original Outstanding Balance less any Collections previously
received with respect thereto and shall credit to the relevant
Buyer Account an amount equal to such deemed Collection by way of
indemnity.
(4) If, following any payment in respect of a deemed Collection of a
Purchased Receivable pursuant to Clause 5(D)(2) and 5(D)(3) above,
the Buyer shall receive any further Collections in respect of such
Purchased Receivable, the Buyer shall (provided the Termination
Date has not yet occurred) pay to the relevant Seller an amount or
amounts equal to such further Collections by way of repayment of
indemnity.
(E) Application of Collections: Any payment by a Designated Account Debtor
in respect of any indebtedness owed by it to a Seller and any credits in
respect of defective,
-34-
rejected, repossessed or returned goods or other non cash items of a
Designated Account Debtor will, except as otherwise specified in
writing by such Account Debtor or otherwise required by contract or law
and unless otherwise instructed by the Operating Agent, be applied as a
Collection of Purchased Receivables of such Designated Account Debtor,
in the order of the age of such Purchased Receivables, starting with
the oldest such Purchased Receivables, to the extent of any amounts
then due and payable thereunder before being applied to or in respect
of any other indebtedness of such Designated Account Debtor.
(F) Trust: If for any reason any Receivable purported to be assigned cannot
be duly assigned to the Buyer as contemplated hereby but the Buyer has
accepted the offer relating to that Receivable then, with effect from
the date on which the Buyer accepted such offer, that Receivable shall
be treated as if it had been validly and duly assigned to the Buyer and
each Seller shall hold the same and all Collections related thereto in
trust absolutely for the Buyer and all such Collections shall be
applied as if such Receivable had been validly and duly assigned. The
provisions of this Clause shall be without prejudice to:
(a) any obligations or representations of each Seller hereunder in
respect of any Receivables; and
(b) any liabilities of each Seller or rights of the Buyer in relation
to any breach or inaccuracy on the part of the Sellers of the
matters referred to in this Clause.
All Collections in respect of any such Receivables received by a Seller
shall, pending their application to the Buyer Account, be held on trust
for and to the order of the Buyer.
(G) Sellers' obligations joint and several: All obligations, covenants,
indemnities, representations and warranties of, given or made by any
Seller under the Relevant Documents (in any of its capacities under the
Relevant Documents) are joint and several with those of any other
Seller (in any of its capacities under the Relevant Documents).
6. FEES, COSTS AND STAMP DUTY
(A) Servicer Fees: Until the later of the Termination Date and the Relevant
Date, for any period during which a Seller or an Affiliate of the
Seller is not a Servicer (or a Sub-Servicer), such Seller will pay the
Buyer, upon its demand, a servicing fee as determined by the Operating
Agent, not exceeding 110% of the fees, costs and expenses, plus value
added tax (if applicable), charged by the substitute Servicer in
performing such function.
(B) Costs and Expenses: Each Seller agrees to pay on demand of the
Operating Agent all reasonable costs and expenses incurred by the
Operating Agent in connection with the preparation, execution and
delivery of the Relevant Documents and the other documents to be
delivered pursuant to the Relevant Documents or in connection
therewith, such costs and expenses to include, without limitation, the
reasonable fees
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and out-of-pocket expenses of legal advisers (plus VAT thereon) to the
Buyer and the Operating Agent with respect thereto and with respect to
advising the Buyer and the Operating Agent as to their respective
rights and remedies under this Deed, and all costs and expenses, if
any (including legal fees and expenses plus VAT thereon), in
connection with the enforcement of the Relevant Documents, the other
documents to be delivered pursuant to the Relevant Documents or in
connection therewith and the Purchased Receivables.
(C) Duties and Taxes: In addition, each Seller will pay on demand of the
Operating Agent any sales, excise, registration and other taxes, duties
and fees payable in connection with the execution, delivery, filing or
recording of the Relevant Documents or the purchase, assignment or
reassignment of Receivables under or pursuant to the Relevant Documents
or the other documents to be delivered under the Relevant Documents or
in any way connected with any transaction contemplated by the Relevant
Documents. Each Seller agrees to indemnify the Operating Agent and the
Buyer on demand of the Operating Agent against any liabilities with
respect to or resulting from any delay in paying or omission to pay any
such taxes, duties or fees.
(D) Stamp Duty Reserve: As of each Settlement Date, the Buyer shall ensure
that an amount equal to the Stamp Duty Reserve is on deposit in the
sub-account with Citibank, N.A., London branch, denominated in Sterling
and utilised for such purpose under the account number ▇▇▇▇▇▇▇▇ (the
Stamp Duty Account ). The Buyer covenants that it shall hold the Stamp
Duty Account upon trust for itself and the Operating Agent as
beneficiaries absolutely, and that funds standing to the credit of the
Stamp Duty Account may only be used to pay applicable stamp duty in the
United Kingdom in the circumstances described in Clauses 6(E) and (F)
or to adjust the amount standing to the credit of the Stamp Duty
Account to reflect the required level of the Stamp Duty Reserve as of
each Settlement Date.
(E) Liability for Stamp Duty: Each of the Sellers and the Offer Agent (a
"Relevant Party") agrees with the Buyer and the Operating Agent that if
a Relevant Party (or any of its Affiliates) causes executed originals
or counterparts of any of the Custody Documents to be brought into the
United Kingdom, or executed originals or counterparts of any of the
Custody Documents are brought into the United Kingdom in any of the
circumstances contemplated in Clause 6(F), such Relevant Party will pay
and hold itself responsible for and will seek no indemnity from the
Buyer or the Operating Agent in respect of Stamp Duty that may be
required by the Buyer or the Operating Agent to be paid, provided
always that no Relevant Party shall pay or be responsible for any
penalty arising from any failure on the part of the Buyer or the
Operating Agent to present any executed original or counterpart of any
Custody Document for stamping within 30 days after it has first been
brought into the United Kingdom. Each of the parties to this Deed
agrees that, except to the extent that a Relevant Party is liable to
pay Stamp Duty in accordance with the foregoing, the liability to pay
Stamp Duty in respect of a Custody Document shall be borne by the party
which brings, or causes the bringing of, the executed original or
counterpart of the relevant Custody Document into the United Kingdom.
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(F) Documents not to be brought into United Kingdom: Each of the Buyer and
the Operating Agent undertakes that it shall not at any time cause or
permit executed originals or counterparts of any of the Custody
Documents to be brought into the United Kingdom, except in accordance
with the provisions of this Clause 6(F). Nothing in this Deed shall in
any way inhibit or restrict the right of a Relevant Party to bring any
executed original or counterpart of any Custody Document into the
United Kingdom at any time. Notwithstanding any other provision of this
Deed, the Buyer and the Operating Agent shall be entitled at any time
to cause or permit an executed original or counterpart of any of the
Custody Documents to be brought into the United Kingdom:
(1) if it is required to do so for the purposes of any judicial,
arbitration, regulatory or administrative proceedings in the
United Kingdom involving matters which are the subject of the
relevant Custody Document, or if, in its reasonable opinion, it is
necessary to produce the same as evidence in any of such
proceedings and either:
(a) the judge, arbitrator or other person responsible for the
determination of such proceedings has ruled that an executed
original or counterpart of any of the Custody Documents must
be brought into the United Kingdom (provided that if an
appeal against the ruling is permissible and the relevant
Seller so requests, and on the condition that the such
Seller indemnifies either the Buyer or the Operating Agent,
as the case may be, to its respective satisfaction on an
after-tax basis for all costs involved in such an appeal,
the Buyer or the Operating Agent, as the case may be, will
pursue such an appeal pending which neither the Buyer nor
the Operating Agent, as the case may be, will cause an
executed original or counterpart of any of the Custody
Documents to be brought into the United Kingdom); or
(b) the rules governing the conduct of such proceedings provide
that a certified unstamped copy of the relevant Custody
Document, or any other form of evidence of the matters which
are subject of such proceedings cannot be produced as
adequate evidence of the purposes of such proceedings; or
(2) if it is required to do so for the purpose of the determination by
any tax authority or court or tribunal or its liability to
taxation (other than Stamp Duty); or
(3) if as a result of a change in applicable law or the interpretation
of such law by any court or tribunal or a change in the published
practice of any governmental authority, or in any published
extra-statutory concession, an executed original or counterpart of
any of the Custody Documents is required to be brought in to the
United Kingdom or a liability to Stamp Duty in respect thereof
shall otherwise arise; or
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(4) if it is at any time required by any law or the published practice
of any governmental authority, central bank, regulatory authority,
taxation authority or comparable authority; or
(5) on the occurrence of an Early Amortisation Event.
(G) Computations: All computations of interest and fees shall be made on
the basis of a year of 360 days for any currency other than Sterling
and 365 days in the case of Sterling for the actual number of days
(including the first but excluding the last day) elapsed.
(H) Computation of Time Periods: Unless otherwise stated in this Deed, in
the computation of a period of time from a specified date to a later
specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding".
7. PAYMENTS AND COMPUTATIONS, ETC.
(A) Mechanics: All amounts to be paid to or deposited with the Operating
Agent for its own account or for the account of the Buyer by any Seller
and/or the Servicer under this Deed shall be paid or deposited no later
than 12:00 noon (local time in the place of payment) on the day when
due in immediately available same day funds to the relevant account
specified below.
(B) Currency: All amounts payable by a Seller and/or Servicer under this
Deed to the Operating Agent for its own account or for the account of
the Buyer shall be paid in Sterling or, where such payments relate to a
Purchased Receivable, in the currency of such Purchased Receivable (or
any other currency which is agreed from time to time between the Offer
Agent and the Operating Agent). All amounts payable by the Buyer under
this Deed shall be paid in the currency specified herein and the
Existing Receivables Purchase Price and Future Receivables Purchase
Price amounts payable by the Buyer under this Deed shall be paid in the
currency of the Purchased Receivables.
(C) Accounts: Any amounts payable under this Deed shall be remitted to the
following accounts:
(1) if to a Seller, the relevant Seller Non-Transaction Account of
CMP;
(2) if to the Buyer, to the relevant Buyer Account; and
(3) if to the Operating Agent for its own account, Account No. 83267
(Sort Code 18-50-08) with Citibank, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
(D) Grossing Up: To the fullest extent permitted by law, each Seller (in
each of its capacities under the Relevant Documents) will make all
payments under this Deed regardless of any defence or counterclaim.
Further, if such Seller (in any of its capacities under the Relevant
Documents) is compelled by law to make any deductions or withholdings
from any payments pursuant to the Relevant Documents, including,
without limitation, payments in respect of Receivables or Collections,
such Seller will
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pay such additional amounts as may be necessary in order that the net
amount received by the Operating Agent or the Buyer after such
deductions or withholdings (including any required deduction or
withholding on such additional amounts) will equal the amount that the
Operating Agent or the Buyer (as appropriate) would have received had
no such deductions or withholdings been made. Each relevant Seller
will provide the Operating Agent with evidence satisfactory to the
Operating Agent that it has paid such deductions or withholdings.
(E) Appropriation of Payments: Regardless of any appropriation by any
Seller or Servicer, the Operating Agent shall determine the
appropriation of any payment to it for the account of the Buyer to any
amount to be paid to or deposited with it for the account of the Buyer
by such Seller and/or Servicer under this Deed.
8. REPRESENTATIONS AND WARRANTIES OF EACH SELLER AND EXIDE EUROPE
Each of the Sellers (in each of its capacities under the Relevant
Documents) and Exide Europe represents and warrants to the Buyer and
the Operating Agent, in each case in relation to the matters relating
to itself (provided that the representations made and warranties given
by Exide Dagenham in this Clause shall be deemed to also be made and
given in respect of Exide Batteries), as of the Effective Date, as
follows:
(A) Incorporation: Each Seller and Exide Europe is a company duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation or organisation.
(B) Seller Power and Authority: Each Seller has full power and authority to
effect, and has taken all necessary action to authorise, the execution,
delivery and performance by it of the Relevant Documents to which it is
a party and all other instruments and documents to be delivered under
the Relevant Documents to which it is a party, and the transactions
contemplated by the Relevant Documents to which it is a party.
(C) Exide Europe Power and Authority: Exide Europe has full power and
authority to effect, and has taken all necessary action to authorise,
the execution, delivery and performance by it of the Relevant Documents
to which it is a party and all other instruments or documents to be
delivered under the Relevant Documents to which it is a party, and the
transactions contemplated by the Relevant Documents to which it is a
party.
(D) Non-Violation: The execution, delivery and performance by each Seller
and Exide Europe of the Relevant Documents to which it is a party and
all other instruments and documents to be delivered pursuant to the
Relevant Documents to which it is a party and all transactions
contemplated by the Relevant Documents to which it is a party:
(1) do not contravene (a) any Seller's or Exide Europe's memorandum or
articles of association (or analogous constitutive documents), (b)
any law, rule or regulation applicable to any Seller or Exide
Europe, (c) any material contractual restriction contained in any
agreement or instrument binding on or affecting any Seller or its
assets or Exide Europe or Exide Europe's assets, or (d) any order,
writ, judgment, award, injunction or decree binding on or
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affecting any Seller, or any of the Seller's assets or Exide
Europe or Exide Europe's assets;
(2) do not result in or require the creation of any lien, security
interest or other charge or encumbrance upon or with respect to
any of the Seller's or Exide Europe's assets or undertaking; and
(3) will not constitute a breach of, nor give rise to any actual or
potential event of default under, any Debt of any member of the
Exide European Group, or under any document relating to such Debt.
(E) Consents: No consent, authorisation, approval, notice or filing is
required (or, if required, which has not been obtained on a timely
basis) for the due execution, delivery or performance by each Seller or
Exide Europe of the Relevant Documents to which it is a party or any
other document to be delivered in connection with the Relevant
Documents to which it is a party or for the transactions contemplated
by the Relevant Documents to which it is a party.
(F) Obligations Binding: Each of the Relevant Documents to which it is a
party constitutes the legal, valid, binding and enforceable obligation
of each Seller and Exide Europe.
(G) Accounts: The most recent audited annual accounts of each Seller and
Exide Europe, copies of which have been furnished to the Operating
Agent, present a true and fair view of the financial condition of such
Seller and its consolidated Subsidiaries (if any) or Exide Europe and
its consolidated Subsidiaries (if any), as applicable, as at that date
and the results of the operations of such Seller and those
Subsidiaries, or Exide Europe and those Subsidiaries, as applicable,
for the period ended on that date, all in accordance with generally
accepted accounting principles consistently applied.
(H) No Material Adverse Change to Seller: Since the date of this Deed,
there has been no change in the business or financial condition of such
Seller which may materially adversely affect the ability of such Seller
to perform its obligations under the Relevant Documents.
(I) No Material Adverse Change to Exide Europe Group: Since the date of
this Deed, there has been no change in the business or financial
condition of the Exide Europe Group which may materially adversely
affect the ability of Exide Europe to perform its obligations under the
Relevant Documents to which it is a party.
(J) No Litigation: There are no actions, suits or proceedings current or
pending, or to the knowledge of any Seller threatened, against or
affecting such Seller or its Subsidiaries (if any) or any of their
respective assets, or Exide Europe or Exide Europe's assets, in any
court, or before any arbitrator of any kind, or before or by any
governmental body, which may materially adversely affect the financial
condition of such Seller and its Subsidiaries taken as a whole or Exide
Europe, or materially adversely affect the ability of such Seller or
Exide Europe to perform its obligations under the Relevant Documents to
which it is a party.
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(K) No Default: No Seller nor Exide Europe or any of its Subsidiaries is in
default with respect to any order of any court, arbitrator or
governmental body, excluding defaults with respect to orders of
governmental agencies which are not material to the business or
operations of such Seller, Exide Europe or any of its Subsidiaries, and
would not materially adversely affect the ability of such Seller, Exide
Europe or any of its Subsidiaries to perform its obligations under the
Relevant Documents to which it is a party.
(L) No Adverse Claim: Each Receivable will, together with the Contract
related thereto, at all times be owned by such Seller free and clear of
any Adverse Claim, and upon each Purchase the Buyer will acquire full
equitable and beneficial title and ownership to and of such Receivable,
the Collections and the Related Security then existing or thereafter
arising free and clear of any Adverse Claim.
(M) Performance of Contracts: All goods and services to which each
Purchased Receivable relates have been delivered and performed, and all
requirements of such Contract concerning the nature, amount, quality,
condition or delivery of the goods or services, or upon which payment
of the Purchased Receivable may be dependent, have been fulfilled in
all material respects.
(N) Information: None of the information and reports (including but not
limited to each portfolio profile and each Summary Report) furnished or
to be furnished (whether by way of computerised data or otherwise) by
such Seller (in any of its capacities under the Relevant Documents) or
Exide Europe, to the Operating Agent or Exide Europe, as applicable, is
inaccurate in any material respect (except as otherwise disclosed to
the Operating Agent at the time of delivery) as of the date so
furnished, or contains any material misstatement of fact or omits to
state a material fact or any fact necessary to make the statements
contained therein not materially misleading.
(O) Place of Business: The principal place of business and registered
office of each Seller is as set forth in Schedule 1 or at such other
location(s) approved by the Operating Agent (such approval not to be
unreasonably withheld or delayed).
(P) Location of Books: The offices where each Seller keeps all its books,
records and documents evidencing Receivables or the related Contracts
are at the locations set forth in Schedule 1 or at such other
location(s) approved by the Operating Agent (such approval not to be
unreasonably withheld or delayed).
(Q) Location of Bank Accounts: The bank accounts to which each Seller has
directed the Designated Account Debtors to remit payments for the
Receivables are (a) prior to the Payment Instruction Date, the
Collection Accounts and (b) on and following the Payment Instruction
Date, the Dedicated Collection Accounts (or, in each case, such other
account(s) at such location(s) as may have been previously approved by
the Operating Agent and in relation to each of which (in relation to a
Collection Account) an Interim Trust Account Bank Mandate or (in
relation to a Dedicated Collection Account) a Trust Account Bank
Mandate has been duly executed by such Seller (in such capacity and in
its capacity as Sub-Servicer) and delivered to the Operating Agent)
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and in respect of which the relevant bank has acknowledged the Trust
Commencement (as that term is defined in any Interim Trust Account
Bank Mandate or Trust Account Bank Mandate) and has agreed not to
exercise any right of set-off, net-off, combination or consolidation
of accounts or counterclaim whatsoever (such agreement being given, in
respect of the Collection Accounts, only in respect of the Buyer
Entitlement).
(R) No Winding-Up: No step has been taken or is intended by any Seller,
Exide Europe or to the best of such Seller's or Exide Europe's
knowledge by any other Person for such Seller's or Exide Europe's
winding-up, liquidation, dissolution, administration, merger or
consolidation or for the appointment of a receiver or administrator of
such Seller or Exide Europe on all or any of its assets.
(S) No Breach: There has been no breach by any Seller of any of its
obligations under the Relevant Documents to which it is a party or by
Exide Europe of any of its obligations under the Letter of Undertaking.
(T) Eligibility: Each (i) Existing Receivable the subject of a Letter of
Offer which is expressed to be an Eligible Receivable in the relevant
Accounts Receivables Listing is an Eligible Receivable as at the time
of Purchase and (ii) each Future Receivable the subject of a Letter of
Offer which is expressed to be an Eligible Receivable in the relevant
Accounts Receivable Listing is an Eligible Receivable as at the
Settlement Date immediately succeeding the Reference Period in which
such Future Receivable has come into existence.
(U) Exide Europe Group: Each of the Sellers, the French Seller, the German
Sellers, the Italian Seller, the Spanish Seller and Exide Funding (and
each entity acceding as a "Seller" to any Origination Agreement) is a
member of the Exide Europe Group.
(V) Aggregate Amount of Receivables: The amount of Receivables aggregated
among all Origination Agreements (other than the Italian RSA and the
Italian OSA) is such that the purchase price amounts paid by the Buyer
in respect of such Receivables under each Origination Agreement to
which it is a party (other than the Italian OSA) in the three month
period commencing on the date of the Initial Purchase is not less than
Euro 12,700,000.
Each of the Sellers and Exide Europe further represents and warrants
that the representations and warranties in this Clause 8 shall be true
and correct on and as of each Settlement Date as though made on each
such date and by reference to the then-existing circumstances.
9. AFFIRMATIVE COVENANTS OF EACH SELLER
Until the later of the Termination Date and the Relevant Date, each
Seller (provided that the covenants made in this Clause by Exide
(Dagenham) shall be deemed to also be made in respect of Exide
Batteries) will (in each of its capacities under the Relevant
Documents), unless the Operating Agent otherwise consents:
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(A) Compliance with Law: Comply in all material respects with all
applicable laws, rules, regulations and orders binding on it, its
business and assets and all Receivables and related Contracts, except
where non-compliance would not have a material adverse effect on its
ability to perform its obligations hereunder.
(B) Maintain Existence: Preserve and maintain its corporate existence.
(C) Access: Upon reasonable prior notice, permit the Operating Agent, or
its agents or representatives, to visit the offices of such Seller
during normal office hours and examine and make and take away copies of
all books, records and documents relating to the Receivables and to
discuss matters relating to the Receivables or such Seller's
performance hereunder with any of the officers or employees of such
Seller having knowledge of such matters and co-operate in the
reconstruction of the Accounts Receivable Trial Balance pursuant to
Clause 13(C).
(D) Maintain Records: Maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate
records in the event of their destruction), 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 identification on each
Purchase Date of each new Purchased Receivable and the daily
identification of all Collections of and adjustments to each existing
Purchased Receivable).
(E) Perform Contracts: Timely and fully perform and comply with all
material provisions, covenants and other promises required to be
observed by it under the Contracts relating to the Purchased
Receivables.
(F) Priority: Ensure that at all times the claims against it under this
Deed rank at least pari passu with the claims of all its other
unsecured creditors save those whose claims are preferred by any
bankruptcy, insolvency or other similar laws of general application.
(G) Credit and Collection Policy: Comply in all material respects with its
Credit and Collection Policy with respect to each Receivable purchased
or to be offered for purchase pursuant to this Deed and the related
Contract.
(H) Value Added Tax: Make all relevant value added tax or other applicable
tax payments in respect of supplies of goods or services pursuant to a
Contract or which otherwise relate to Purchased Receivables, and pay
all value added tax (if any) payable in respect of any value added tax
supply made, or input value added tax suffered, by the Buyer, the
Operating Agent or any of the Operating Agent's Affiliates with respect
to supplies of goods or services by the Seller pursuant to a Contract
or which otherwise relates to Purchased Receivables.
(I) Collections: If such Seller is not acting as Sub-Servicer, (1) give all
reasonable assistance (including the provision of information) to any
Servicer in accordance with the provisions of this Deed, and (2) remit
any Collections on Purchased Receivables to the Servicer within one
Local Business Day after the receipt or deemed receipt thereof.
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(J) Payment Instructions: (i) Instruct, no later than on the Payment
Instruction Date, the Designated Account Debtors to make payments in
respect of Purchased Receivables to the relevant Dedicated Collection
Account and (ii) instruct each Additional Designated Account Debtor
which has become a Designated Debtor following the Payment Instruction
Date, to make payments in respect of Purchased Receivables as of the
Purchase Date immediately succeeding the Offer Date on which the
relevant Account Debtor has become an Additional Designated Account
Debtor to the relevant Dedicated Collection Account, in each case by
way of letter (substantially in the form set out in Schedule 11) and by
the insertion of a payment instruction to this effect in each invoice
relating to a Designated Account Debtor.
(K) Bank Accounts: (i) prior to the Payment Instruction Date, instruct all
Designated Account Debtors to pay all Collections into the relevant
Collection Account referred to in Clause 8(Q) and (ii) on and following
the Payment Instruction Date, instruct all Designated Debtors to pay
all Collections into the relevant Dedicated Collection Account referred
to in Clause 8(Q).
(L) Audit Costs: Each Seller shall pay the fees and expenses for up to four
audits to be carried out by such accounting firm as is selected by the
Operating Agent in respect of the Receivables (the scope of which to be
determined by the Operating Agent, acting reasonably) in each financial
year of such Seller, plus the costs of one additional audit to be
conducted within 4 months after the execution of this Deed. Except for
such additional audit, any further additional audit(s) that may be
required by the Operating Agent during any such financial year shall be
for the Operating Agent's own account.
(M) Provision of Information to Exide Europe: Each Seller shall promptly
provide Exide Europe with computerised information regarding the
Purchased Receivables on the dates shown, and containing the
information set forth in Schedule 8, its Accounts Receivables Trial
Balance and all such different or other information as the Operating
Agent may reasonably determine from time to time to properly allow
Exide Europe and/or the Operating Agent to identify all required
information in respect of Account Debtors and Receivables.
10. NEGATIVE COVENANTS OF EACH SELLER AND EXIDE EUROPE
Until the later of the Termination Date and the Relevant Date, neither
a Seller (in each of its capacities under the Relevant Documents and
provided that the covenants made in this Clause by Exide (Dagenham)
shall be deemed to also be made in respect of Exide Batteries) and (in
respect of paragraph (F) below), Exide Europe will, without the consent
of the Operating Agent:
(A) No Disposal of Receivables: Except as otherwise provided herein, sell,
assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon or with respect to,
any Receivable purchased or to be offered for purchase under this Deed
or the related Contract, or assign any right to receive income in
respect thereof.
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(B) No Transfer of Business: No Seller shall transfer all or substantially
all of its assets and undertaking to any person without the prior
written consent of the Operating Agent, such consent not to be
unreasonably withheld, unless such transfer would have no adverse
effect on the ability of the Seller to collect and sell Receivables as
contemplated by this Deed.
(C) No Security Interest over Receivables and Contracts: No Seller shall
create nor permit to subsist any Security Interest on any of its
Receivables and related Contracts.
(D) No Amendment to Receivables: Extend, amend or otherwise modify the
terms of any Purchased Receivable, or amend, modify or waive any term
or condition of any Contract related thereto, or commence or settle any
legal action to enforce collection of any Purchased Receivable without
the prior written consent of the Operating Agent.
(E) No Change to Credit and Collection Policy: Make any change in the
character of its business or in the Credit and Collection Policy, which
change would or might, in either case, materially impair the
collectability of any Receivable purchased or to be offered for
purchase under this Deed or the enforcement of any related Contract
against the related Designated Account Debtor or any other relevant
Person or the operation of this Deed without the prior written consent
of the Operating Agent.
(F) Cross Indemnity: Neither Exide Europe nor any Seller shall amend or
otherwise change the Deed of Payment Allocation and Cross-Indemnity
dated on or about the Effective Date between Exide Europe and the
Programme Sellers, except in respect of amendments or changes of a
purely technical or immaterial nature which do not affect either: (i)
the title of the Buyer to the Receivables assigned (or purported to be
assigned) pursuant to Clause 4 or (ii) the effectiveness of the
assignment (or purported assignment) pursuant to Clause 4.
11. REPORTING REQUIREMENTS OF EACH SELLER
Until the later of the Termination Date and the Relevant Date, each of
the Sellers and Exide Europe (in each case in relation to matters
relating to itself) will, unless the Operating Agent otherwise
consents, furnish to the Operating Agent:
(A) Annual Accounts of Seller: As soon as available and in any event within
180 days after the end of each of each Seller's financial years, a copy
of such Seller's audited annual accounts and (if they are prepared)
consolidated accounts in conformity with generally accepted accounting
principles, applied on a basis consistent with that of the preceding
financial year.
(B) Annual Accounts of Exide Europe: As soon as available and in any event
within 180 days after the end of each of Exide Europe's financial
years, a copy of Exide Europe's annual accounts, prepared (as
appropriate) on a consolidated basis in conformity with generally
accepted accounting principles, applied on a basis consistent with that
of the preceding financial year, together with the report of an
internationally recognised firm of independent auditors.
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(C) Other Financial Information: Upon request of the Operating Agent, such
financial information, accounts and records with respect to such Seller
or Exide Europe which are relevant to the Programme, as the Operating
Agent may from time to time reasonably request.
(D) Defaults and other Events: Forthwith on becoming aware of any of the
events described in (1), (2), (3) or (4) below or any event which, with
the giving of notice or lapse of time or both, would constitute one of
such events, the statement of the chief financial officer or chief
accounting officer of such Seller or, as the case may be, Exide Europe,
setting out details of that event and the action which such Seller or,
as the case may be, Exide Europe, proposes to take with respect to that
event:
(1) such Seller or Exide Europe fails to pay any principal of or
premium or interest on any Debt in excess (in the aggregate)
of the Euro Equivalent of $5,000,000, when the same becomes
due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such
failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such
Debt, or any other default under any agreement or instrument
relating to any Debt, or any other event, shall occur and
shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of
such default or event is to accelerate or to permit the
acceleration of the maturity of such Debt, or any such Debt
shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof, or any
present or future mortgage, charge or other security interest
on or over any assets of such Seller or Exide Europe becomes
enforceable;
(2) a resolution is passed or a petition is presented or an order
made for the winding up, liquidation, dissolution, merger or
consolidation of such Seller or Exide Europe (except for the
purposes of a bona fide reconstruction or amalgamation with
the consent of the Operating Agent), or a petition is
presented or an order made for the appointment of an
administrator in relation to such Seller, Exide Europe or a
receiver, administrative receiver or manager is appointed over
any part of the assets or undertaking of such Seller or Exide
Europe or any event analogous, to any of the foregoing occurs
(except, in the case where a petition is presented (i) the
proceeding is frivolous or vexatious and (ii) the Originator
or Exide Europe is solvent and is contesting the proceeding in
good faith);
(3) an Early Amortisation Event occurs; or
(4) an Event of Default (as such term is defined in the US DIP
Facility Agreement) occurs under the US DIP Facility
Agreement.
(E) Summary Report: Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the
condition or operations, financial or otherwise, of such Seller or any
member of the Exide Europe Group, as the
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Operating Agent may from time to time reasonably request in order to
protect the interests of the Buyer or the Operating Agent, including,
prior to 10:00 am, London time, on each Summary Report Date, a Summary
Report (with, among other things, the information necessary to
determine the Default Ratio).
(F) Designated Account Debtors: Within two calendar weeks after the end of
each calendar quarter (or such more frequent time as the Operating
Agent may request in writing), each Seller shall deliver to the
Operating Agent a current list of all Designated Account Debtors in
respect of Purchased Receivables and the addresses of such Designated
Account Debtors.
The obligations of each Seller to deliver reports or similar
information to the Buyer pursuant to this Deed may be delegated by each
Seller to Exide Europe, and the performance by Exide Europe of such
obligations hereunder shall be deemed to be the performance by each
Seller of such obligations; provided however, that such Seller shall
remain liable for any non-performance of such obligations.
12. SERVICER, COLLECTIONS AND BUYER ACCOUNT
(A) Designation of Servicer: The servicing, administering and collection of
the Receivables shall be conducted by Citibank, N.A., London Branch
(the "Servicer") or such other Person so designated from time to time
pursuant to this Clause 12(A). Until the Operating Agent gives notice
to the Servicer of a designation of a new Servicer, Citibank, N.A.,
London Branch is designated as, and agrees, subject to the provisions
of this paragraph (A), to perform the duties and obligations of a
Servicer pursuant to the terms of this Deed. The Servicer hereby
delegates to each Seller in respect of the Purchased Receivables
originated by such Seller, its duties and obligations as Servicer and
each such Seller (each a "Sub-Servicer") hereby agrees to perform the
duties and obligations of the Servicer pursuant to the terms of this
Deed in relation to the Purchased Receivables originated by it. The
delegation hereby granted to each Sub-Servicer may not be terminated by
the Sub-Servicer without the prior written consent of the Servicer and
may be terminated at any time and without a cause by the Servicer and,
for so long as a Seller is acting as Sub-Servicer pursuant to the terms
of this Deed, (i) it shall perform the duties and obligations of the
Servicer in respect of the Purchased Receivables originated by it and
(ii) all duties, obligations and indemnities expressed to be those of a
"Servicer" pursuant to Clause 5 and this Clause 12 shall be regarded
for all purposes as those of the relevant Sub-Servicer. The Servicer
shall not be liable for the performance of the duties and obligations
of any Sub-Servicer under this Deed and each Sub-Servicer shall be
liable to the Operating Agent and the Buyer for the performance of its
duties and obligations as Sub-Servicer under this Deed. Each
Sub-Servicer may, with the prior written consent of the Operating
Agent, subcontract with any other Person for servicing, administering
or collecting the Purchased Receivables; provided, however, that such
Sub-Servicer (a) procures to the Operating Agent that its
sub-contractor shall not delegate the servicing duties and obligations
sub contracted to it by the Sub-Servicer without the prior written
consent of the Operating Agent and (b) will remain liable for the
performance of its duties and obligations of
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Sub-Servicer under this Deed. The Operating Agent hereby agrees that
Exide Dagenham will, from the date hereof, subcontract with Exide
Batteries the duties and obligations of Exide Dagenham as Sub-Servicer.
The Operating Agent may at any time designate as Servicer any Person to
succeed the Servicer (which designation shall, for the avoidance of
doubt, automatically terminate the delegation hereby granted to the
Sub-Servicer) or any successor Servicer, on the condition in each case
that any such Person agrees to perform the duties and obligations of
Servicer pursuant to the terms of this Deed.
(B) Duties of Servicer:
Each Servicer:
(1) will take or cause to be taken all such actions as may be
necessary or advisable to collect each Purchased Receivable, all
in accordance with applicable laws, rules and regulations, with
reasonable care and diligence, and in accordance with the Credit
and Collection Policy and the instructions of the Operating Agent.
Each of the Seller and the Buyer hereby appoints the Servicer as
its agent to enforce its respective rights and interests in and
under the Purchased Receivables, the Related Security and the
Contracts;
(2) will (i) prior to the Payment Instruction Date, pay all
Collections to be paid directly by all Designated Account Debtors
in the relevant Collection Account and deposit to the relevant
Collection Account immediately upon receipt any Collection
received not paid to such Collection Account and (ii) no later
than on the Payment Instruction Date and on each Local Business
Day thereafter, pay all Collections to be paid directly by all
Designated Account Debtors in the relevant Dedicated Collection
Account and deposit to the relevant Dedicated Collection Account
immediately upon receipt any Collection received and not paid to
such Dedicated Collection Account;
(3) (i) may, unless and until instructed otherwise by the Operating
Agent, deposit in the relevant Collection Account monies other
than Collections and (ii) will not deposit in any Dedicated
Collection Account monies other than Collections. Each Servicer
shall segregate all cash, cheques and other instruments received
by it from time to time constituting Collections of Purchased
Receivables as the Operating Agent may direct and deposit in a
bank account designated by the Operating Agent all such cash,
cheques and other instruments (together with the Buyer's
Entitlement to the Collection Account) as soon as practicable and
in any event on the first Local Business Day following receipt by
such Servicer of such Collections and will take such other steps
(whether or not contemplated by the Interim Trust Account Bank
Mandate) as the Operating Agent may require;
(4) confirms that, in accordance with the Interim Trust Account Bank
Mandates and the Trust Account Bank Mandates, the relevant
Collection Account Bank has been instructed to make available to
such Servicer information showing amounts received on each Local
Business Day and standing to the credit of the
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relevant Collection Account and the Dedicated Collection Account
as at the close of business on that day;
(5) upon receipt of the information referred to in (4) above the
Servicer shall, on behalf of the Buyer and the relevant Seller,
make all such determinations and calculations as are necessary in
order to determine, in respect of amounts standing to the credit
of the relevant Collection Account and the Dedicated Collection
Account on each Local Business Day, the Buyer Entitlement and the
Seller Entitlement respectively in relation to the Collection
Account, and shall direct (subject to Clause 12(C)) the relevant
Collection Account Bank, prior to 12:00 noon on each Local
Business Day, to transfer to the Buyer Account the Buyer
Entitlement in relation to the Collection Accounts and all monies
standing to the credit of the Dedicated Collection Accounts;
(6) other than the transfers referred to in paragraph (5) above,
Clause 5(A) and Clause 12(C) no Servicer shall, without the prior
written consent of the Operating Agent, withdraw funds from the
relevant Collection Account or Dedicated Collection Account or
direct the Collection Account Bank to make any transfers from such
Collection Account or Dedicated Collection Account, except for
withdrawals or transfers of cleared funds standing to the credit
of any Collection Account which represent the Seller Entitlement
and provided that any such withdrawal or transfer would not cause
such Collection Account to become overdrawn;
(7) may not extend, amend, modify or waive the terms of any Purchased
Receivable or amend, modify or waive any term or condition of any
Contract related thereto where such extension, amendment,
modification or waiver would prejudicially affect such Purchased
Receivable, unless the Operating Agent shall have otherwise
consented in writing. Each Seller shall deliver to the relevant
Servicer (if such Seller has ceased to be a Sub-Servicer) all
documents, instruments and records which evidence or relate to the
Purchased Receivables which the Operating Agent may reasonably
request;
(8) if other than a Seller (and such Seller has ceased to be a
Sub-Servicer), will provide to the relevant Seller all such
information as the Seller may require for purposes of the Summary
Report and will as soon as practicable following receipt pay to or
to the order of such Seller the collections of any Receivable
which is not a Purchased Receivable;
(9) if other than a Seller (and such Seller has ceased to be a
Sub-Servicer), will as soon as practicable upon demand make
available or (if so demanded) deliver to such Seller all
documents, instruments and records in its possession which
evidence or relate to Receivables of such Seller other than
Purchased Receivables, and copies of documents, instruments and
records in its possession which evidence or relate to Purchased
Receivables which the Operating Agent may reasonably request; and
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(10) if other than a Seller (and such Seller has ceased to be a
Sub-Servicer), and notwithstanding anything to the contrary
contained in this Deed, will have no obligation to collect,
enforce or take any other action described in this Deed with
respect to any Receivable that is not a Purchased Receivable other
than to turn over, make available or deliver to the relevant
Seller the collections and documents with respect to any such
Receivable as described in (8) and (9) above.
(C) Advance Payments: The Sellers may, from time to time on any Local
Business Day prior to the Termination Date unless and until the
Operating Agent directs otherwise withdraw, by way of advance payment
on account of such Existing Receivables Purchase Price and Future
Receivables Purchase Price as will or may be payable to the Sellers on
the next following Settlement Date, any amount or amounts standing to
the credit of, prior to the Payment Instruction Date, the Collection
Accounts and, on and following the Payment Instruction Date, the
Dedicated Collection Accounts representing Collections. Any amount so
withdrawn (an "Advance Payment") during each Reference Period shall be
set off pro tanto against the Buyer's obligation (if any) to pay
Existing Receivables Purchase Price and Future Receivables Purchase
Price payable on the next following Settlement Date and, to the extent
the amount of the Advance Payments made during such Reference Period
exceeds the amount of the Existing Receivables Purchase Price and
Future Receivables Purchase Price (or, where no Existing Receivables
Purchase Price and Future Receivables Purchase Price is payable), be
refunded by the Sellers in full by the transfer of cleared funds to the
Buyer Accounts not later than 12:00 noon on the next following
Settlement Date; provided always that any Advance Payment shall be
refunded by the Sellers by the transfer of cleared funds to the Buyer
Account immediately upon the demand of the Operating Agent. The Sellers
shall not be obliged to pay interest on any Advance Payment.
(D) Failure to Report: If there is a failure at any time by a Servicer to
report and quantify the amount of Collections received or the amounts
of any Advance Payments and/or the funds standing to the credit of the
Collection Account, Dedicated Collection Account or Buyer Account in
respect of any Settlement Period such that the amounts due by any
Seller and the Buyer pursuant to Clauses 4(B), 4(C) and 12(C) cannot be
accurately determined (in the Operating Agent's reasonable opinion),
there will fall due from the relevant Seller to the Buyer on the
Settlement Date at the end of such Settlement Period (on account of
repayment of Advance Payments) an amount equal to the anticipated
Collections in respect of such Settlement Period as determined by the
Operating Agent, acting reasonably. For the purposes of this Clause
12(D), it shall be considered reasonable for the Operating Agent to
anticipate that all Collections due during such Settlement Period were
received by the relevant Servicer during such Settlement Period. The
Buyer shall deposit such amount into the Temporary Adjustment Account.
Upon the Operating Agent becoming satisfied that a proper assessment of
the amounts due by way of repayment of Advance Payments has been made,
there shall be an adjustment in accordance with such assessment, by way
of repayment from the Buyer (provided the Termination Date has not
occurred) or by way
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of further payment by the relevant Seller, as required, and such
adjusted sum shall be treated for all purposes under this Deed as the
Collections received during such Settlement Period. Provided that such
failure by the relevant Servicer does not last longer than two
consecutive Settlement Periods and the provisions of this Clause 12(D)
are complied with, such failure shall not by itself constitute an Early
Amortisation Event.
13. PROTECTION OF THE BUYER'S RIGHTS
(A) Notice of Sale: the Operating Agent may at any time (and each Seller
following the Operating Agent's request shall) notify the Designated
Account Debtors, or any of them, of Purchased Receivables of the
Buyer's ownership of the Purchased Receivables and the Collections of
the Purchased Receivables and direct (or cause each Seller to direct)
all the Designated Account Debtors of Purchased Receivables, or any of
them, that payment of all amounts payable under any such Purchased
Receivable be made directly to the Operating Agent or its designee.
(B) Legal Assignment: Each Seller shall, if requested by the Operating
Agent, forthwith execute a legal assignment to the Buyer or the
Operating Agent or as the Operating Agent may direct (as determined by
the Operating Agent) in such form as the Operating Agent requires of
all or any of the Purchased Receivables and the Related Security and
the full benefit thereof and will, if so required, give notice thereof
to the relevant Designated Account Debtor.
(C) Reconstruction of Accounts Receivable Trial Balance: If at any time a
Seller does not (i) generate an Accounts Receivable Trial Balance on
the Determination Date immediately preceding each Settlement Date or
(ii) provide the information to Exide Europe enumerated in Clause 9(M),
the Operating Agent will have the right to reconstruct that Accounts
Receivable Trial Balance or such information so that a determination of
the Purchased Receivables can be made, and such reconstruction will be
conclusive (in the absence of manifest error) for the purposes of
determining Purchased Receivables.
(D) Operating Agent's Right to Perform: If the Originator or the Offer
Agent fails to perform any of its agreements or obligations under this
Deed, the Operating Agent may (but shall not be required to) itself
perform, or cause performance of, such agreement or obligation.
(E) Power of Attorney: Without prejudice to the provisions of Clauses 13(A)
to (D), each Seller irrevocably constitutes and appoints and procures
that Exide Batteries will constitute and appoint the Operating Agent
and the Buyer, with full power of substitution, as its true and lawful
attorney and agent, with full power and authority in its name or
otherwise, and in its place and stead, and for its use and benefit at
any time after the occurrence of an Early Amortisation Event to take
such action each of the Buyer and the Operating Agent may deem
necessary or desirable in order to protect the interests of the Buyer
and/or the Lenders and/or the Operating Agent and/or to perfect title
to any of the Purchased Receivables, or Related Security, including the
redirection
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of mail and the endorsement of drafts, cheques and other payment media,
to perform any agreement or obligation of such Seller or Exide
Batteries under or in connection with this Deed and/or under the
Interim Trust Account Bank Mandate(s) and the Trust Account Bank
Mandate(s), and to exercise all other remedies of such Seller or Exide
Batteries under this Deed or existing at law. In furtherance of the
power herein granted, each Seller will assist and co-operate with the
Operating Agent and provide such facilities as the Operating Agent may
request. The power of attorney hereby granted is given by way of
security, is coupled with an interest, and is irrevocable and will
extend to and be binding upon the successors and assigns of each
Seller. The Sellers hereby agree that they shall execute and cause
Exide Batteries to execute the Power of Attorney set out in the form of
Schedule 16 in respect of their obligations under this Clause 13(E).
14. RESPONSIBILITIES OF EACH SELLER
Anything herein to the contrary notwithstanding:
(A) Perform Contracts: Each Seller will perform all its obligations under
the Contracts related to the Purchased Receivables to the same extent
as if such Purchased Receivables had not been sold pursuant to this
Deed and the exercise by either the Operating Agent or the Buyer of its
rights hereunder will not relieve such Seller from such obligations.
(B) Exoneration of Buyer and Operating Agent: None of the Buyer nor the
Operating Agent will have any obligation or liability with respect to
any Purchased Receivables, any Related Security or related Contracts,
nor will the Buyer or the Operating Agent be obliged to perform any of
the obligations of any Seller thereunder.
(C) Trust: Until the Operating Agent requests otherwise, each Seller will
hold in trust for the sole benefit of the Buyer the Contracts and other
documentary items relating to the uncollected Purchased Receivables at
its address specified in this Deed. To the extent that the Contracts or
other documentary items also relate to Receivables that are not
Purchased Receivables, such Seller will hold them in trust for both the
Buyer and itself to the extent of the respective rights of the Buyer
and itself therein unless possession thereof is required by the Buyer
to enforce its ownership rights. Each Seller will deliver such
Purchased Receivables, Contracts and documents to the Operating Agent
(or as it may direct), if so directed by the Operating Agent and the
Operating Agent will make them available to the relevant Seller to the
extent that they contain material or information that does not relate
to Purchased Receivables and to the extent that the Buyer's interests
are not thereby compromised.
(D) Marking: Each Seller will ▇▇▇▇ clearly and unambiguously its ordinary
business records, including without limitation its master data
processing records, relating to the Purchased Receivables with a legend
acceptable to the Operating Agent indicating that such Purchased
Receivables are owned by the Buyer. Each Seller agrees that from time
to time it will promptly execute and deliver all instruments and
documents, and take all further action that the Operating Agent may
reasonably request in order to
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perfect, protect or more fully evidence the Buyer's ownership interest
in the Purchased Receivables, the Collections and the Related Security
and pending such time will keep an up to date record of all Purchased
Receivables.
(E) Third Party Servicer: At any time following the designation of a
Servicer other than Citibank, N.A., London Branch or the termination of
the delegation granted to any Sub-Servicer pursuant to Clause 12(A):
(1) The relevant Seller will, at the Operating Agent's request, (a)
assemble all the documents, instruments and other records
(including, without limitation, computer tapes and disks) which
evidence the Purchased Receivables, and the related Contracts and
Related Security, or which are otherwise necessary or desirable to
collect such Purchased Receivables, and will make the same
available to the Operating Agent at a place selected by the
Operating Agent or its designee or (if so requested) deliver the
same to the Operating Agent (or as it may direct), and (b)
segregate all cash, cheques and other instruments received by it
from time to time constituting Collections of Purchased
Receivables in a manner acceptable to the Operating Agent and
will, promptly upon receipt, remit all such cash, cheques and
instruments, duly endorsed or with duly executed instruments of
transfer, to the Operating Agent or its designee.
(2) The relevant Seller authorises the Operating Agent to take any and
all steps in such Seller's name and on behalf of such Seller
necessary or desirable, in the determination of the Operating
Agent, to collect all amounts due under any and all Purchased
Receivables, including, without limitation, endorsing such
Seller's name on cheques and other instruments representing
Collections and enforcing such Purchased Receivables and the
related Contracts and Related Security.
(F) Value Added Tax: For the purpose of ensuring recoupment of any value
added tax forming part of a Purchased Receivable:
(1) all or part of which remains unpaid after the statutory period for
purposes of claiming bad debt relief has elapsed; or
(2) (without prejudice to Clause 5(D)) which or the Outstanding
Balance of which is, or would be, reduced, adjusted or cancelled
by any Seller and/or any other Person whether as a result of the
matters in Clause 5(D) or for any other reason;
each Seller will use its reasonable endeavours to recover such value
added tax (or the appropriate part thereof) from the appropriate tax
authorities, as agent and trustee of the Buyer, and promptly remit it
to the Buyer and, until so remitted, will hold in trust for the Buyer
any dividend received or value added tax recovered by such Seller in
respect thereof (and any such dividend or recovery will be and be
treated as a Collection). Each Seller will make such accounting
write-offs and transfers and raise
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such credit notes as may be necessary or desirable for this purpose,
and take all such other steps as may be reasonably requested by the
Operating Agent. In particular, each Seller will, at the request of the
Operating Agent, accept a re-assignment of any such Purchased
Receivable (for a nil consideration) solely for the purpose of
facilitating recoupment of such value added tax.
15. AGENCY AND INDEMNITIES
(A) Agency: In acting under this Deed the Operating Agent shall have only
such duties, obligations and responsibilities as are expressly set out
in this Deed (and such other duties, obligations and responsibilities
as are reasonably incidental) and acts solely as agent of the Buyer.
However, without prejudice to the generality of the foregoing, only the
Operating Agent shall be entitled to receive and retain fees and other
amounts (including indemnification under this Clause 15) payable to the
Operating Agent for its own account.
(B) Indemnities by Sellers and Exide Europe: The Sellers and (in relation
to matters relating to itself) Exide Europe agree to indemnify the
Buyer, the Operating Agent and their respective Affiliates and any
Servicer (if a Seller has ceased to be a Sub-Servicer) from and against
any and all damages, losses, claims, liabilities and related reasonable
costs and expenses, including attorneys' fees and disbursements
together with VAT thereon (all of the foregoing being collectively
referred to as "Indemnified Amounts") awarded against or incurred by
any of them arising out of or relating to this Deed or the ownership of
Purchased Receivables, excluding, however, (a) such amounts resulting
from gross negligence or wilful misconduct on the part of the Person
who would otherwise be entitled to claim such indemnification or (b)
recourse (except as otherwise specifically provided in this Deed) for
uncollectible Purchased Receivables or for losses arising out of late
Collections. Without limiting the foregoing, Indemnified Amounts
include amounts relating to or resulting from:
(1) reliance on any representation or warranty made or deemed made by
any Seller (in any of its capacities under the Relevant Documents)
or Exide Europe under or in connection with this Deed, or any
other information or report delivered by such Seller (in any of
its capacities under the Relevant Documents) pursuant to this
Deed, which shall have been false or incorrect in any material
respect when made or deemed made or delivered (to the extent that
such amounts have not already been recovered by the applicable
indemnified party pursuant to Clause 5(D));
(2) the failure by any Seller (in any of its capacities under the
Relevant Documents) or Exide Europe to comply with any term,
provision or covenant contained in this Deed or with any
applicable law, rule or regulation with respect to any Receivable,
the related Contract or the Related Security, or the nonconformity
of any Receivable or the related Contract or the Related Security
with any such applicable law, rule or regulation;
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(3) the failure to vest and maintain vested in the Buyer ownership of
each Purchased Receivable, free and clear of any Adverse Claim
whether existing at the time of the Purchase of such Receivable or
at any time thereafter, excluding any such Adverse Claim created
by the Buyer;
(4) any dispute, claim, offset or defence (other than discharge in
bankruptcy or winding up by reason of insolvency or analogous
event of the Designated Account Debtor) of the Designated Account
Debtor to the payment of any Receivable which is, or is purported
to be, a Purchased Receivable (including, without limitation, a
defence based on such Receivable or the related Contract not being
a legal, valid, binding and enforceable obligation of such
Designated Account Debtor), or any other claim resulting from the
sale of the goods or services related to such Receivable or the
furnishing or failure to furnish such goods or services;
(5) any failure of any Seller (in any of its capacities under the
Relevant Documents) or Exide Europe, to perform its duties or
obligations in accordance with the provisions of this Deed;
(6) the Buyer makes a request for a Loan and/or contracts for a
foreign exchange transaction to fund any anticipated Purchase
following the delivery of a Letter of Offer or to make a Future
Receivables Purchase Price payment in the manner contemplated in
this Deed and such Purchase not taking place or such Future
Receivables Purchase Price payment not being made as a result of
the operation of Clause 3 or any other provision of this Deed, or
a sale of Receivables not being effected in relation to a Letter
of Offer or a Future Receivables Purchase Price payment not being
made by reason of any event described in Clause 11(D)(1), (2), (3)
or (4) or any breach by any Seller (in whatever capacity) or Exide
Europe of any of its obligations under or in connection with this
Deed;
(7) any products liability claim, or personal injury or property
damage claim, or other similar or related claim or action of
whatever sort arising out of or in connection with goods,
merchandise or services which are the subject of any Receivable or
Contract; and
(8) the payment of the Existing Receivables Purchase Price or the
Future Receivables Purchase Price of any Receivable other than an
Eligible Receivable (to the extent that such amounts have not
already been recovered by the applicable indemnified party
pursuant to Clause 5(D)).
The Operating Agent will provide each Seller with a certificate or
certificates showing in reasonable detail the basis for the calculation
of Indemnified Amounts claimed under this Clause 15(B) provided, for
the avoidance of doubt, that the provision of such certificate or
certificates shall not be a condition for the making of any claim under
this Clause 15(B).
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(C) Costs, increased costs and gross-up for withholding tax under the
Facilities Agreement and the Currency Exchange Agreement: The Sellers
hereby agree from time to time to indemnify the Buyer for, and to pay
to it on demand of the Operating Agent, an amount equal to the
Country's Proportionate Share of (i) all costs, increased costs,
indemnities, tax, tax gross-up, tax indemnities, default interest and
all other amounts (other than interest and principal payments) which
are required to be paid by the Buyer under and in accordance with the
terms of the Facilities Agreement and (ii) all costs, indemnities, tax,
tax gross-up and termination costs which are required to be paid by the
Buyer under and in accordance with the Currency Exchange Agreement.
(D) Judgment Currency: Each reference in this Deed to a specific currency
is of the essence. The obligation of each Seller (in any of its
capacities under the Relevant Documents) or Exide Europe in respect of
any sum due from it to the Operating Agent or the Buyer under this Deed
will, notwithstanding any judgment in any other currency, or any
bankruptcy or winding up by reason of insolvency or analogous event of
such Seller or Exide Europe, be discharged only to the extent that on
the Local Business Day following receipt by the Operating Agent or the
Buyer of any sum adjudged or determined to be so due in such other
currency, the Operating Agent could in accordance with normal banking
procedures purchase the currency specified in this Deed with such other
currency. If the amount of currency so purchased is less than the
amount of the specified currency originally due to the Operating Agent
or the Buyer, each of the Sellers and Exide Europe agrees, as a
separate obligation and notwithstanding any such judgment, bankruptcy,
winding up or analogous event, to indemnify the Operating Agent and the
Buyer against such loss.
(E) Payment: Any amounts subject to the indemnification provisions of
Clause 15(B), (C) or (D) shall be paid by the Sellers or Exide Europe
to the Operating Agent within two Programme Business Days following the
Operating Agent's demand therefor.
(F) After Tax Amount: In the event that any taxing authority seeks to
charge to tax any sum paid to the Buyer or the Operating Agent or any
of their respective Affiliates as a result of the indemnities or other
obligations contained herein or impose a requirement on the payer of
such indemnity to deduct tax, then the amount so payable shall be
grossed up by such amount as will ensure that after payment of the tax
so charged there shall be left a sum equal to the amount that would
otherwise be payable under such indemnity or obligation.
16. AMENDMENTS, ETC.
(A) Amendments and Waivers: No amendment or waiver of any provision of this
Deed nor consent to any departure by any Seller therefrom shall in any
event be effective unless the same shall be in writing and signed by
(1) such Seller, the Buyer and the Operating Agent with respect to an
amendment, or (2) such Seller, the Buyer or the Operating Agent, as the
case may be, with respect to a waiver or consent by it, and then such
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
-56-
(B) Entire Agreement: This Deed contains a final and complete integration
of all prior expressions by the parties with respect to the subject
matter of this Deed and constitutes the entire agreement among the
parties with respect to the subject matter of this Deed, superseding
all prior oral or written understandings.
17. NOTICES
All notices and other communications provided for under this Deed
shall, unless otherwise stated in this Deed, be in writing in the
English language (including telex and fax communication) and mailed
(first class, postage paid) or delivered to each party at its address
set out under its name on the execution pages of this Deed or at such
other telex or fax number or address as may be designated by such party
in a written notice to the other parties. All such notices and
communications will be effective (other than in respect of a Letter of
Offer delivered pursuant to Clause 4(A)), (i) in the case of written
notice, five days after being deposited in the post, or (ii) in the
case of notice by telex, when telexed against receipt of answer back,
or (iii) in the case of notice by fax, at the time of transmission
unless served on a day which is not a Local Business Day or after
5.00pm at the place in which the recipient is located, in which case it
will be effective at 9.00am at the place in which the recipient is
located on the following Local Business Day. In each case notice must
be addressed as aforesaid.
18. NO WAIVER: REMEDIES
(A) No Waiver: No failure on the part of the Buyer, any Seller (in any of
its capacities under the Relevant Documents) or the Operating Agent to
exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy. The remedies in this Deed are
cumulative and not exclusive of any remedies provided by law.
(B) Set Off: Without limiting the provisions of Clause 18(A) the Buyer and
the Operating Agent are hereby authorised (except in relation to the
payment of the Acceptance Fee) by the Sellers and Exide Europe at any
time after any of the Sellers or Exide Europe is in default of its
obligations under this Deed or an Early Amortisation Event has
occurred, to set off and apply, and/or to instruct Citibank or any of
Citibank's Affiliates to set off and apply, any and all deposits at any
time held and other indebtedness at any time owing (whether general or
special, time or demand, provisional or final and in whatever currency)
by the Buyer, the Operating Agent, Citibank or, as the case may be, any
such Affiliate to or for the credit or the account of any Seller
against any and all of the obligations of any Seller or Exide Europe
(in any of its capacities under the Relevant Documents), now or
hereafter existing under this Deed, to the Buyer or the Operating Agent
or their respective successors and assigns or, as the case may be, now
or hereafter due or owing on any account to Citibank or any of
Citibank's Affiliates (and for this purpose to convert one currency
into another).
-57-
19. BINDING EFFECT: ASSIGNABILITY
(A) Successors and Assigns: This Deed is binding upon and enures to the
benefit of (1) each Seller, Exide Europe and any of their successors
and permitted assignees in accordance with Clause 19(B); (2) the Buyer
and also in relation to the benefit, but not the burden of this Deed,
each Person to whom the Buyer has for the time being in accordance with
Clause 19(C) (2) or (3) granted or assigned (or agreed to grant or
assign) all or part of any Purchased Receivable (or any participation
or interest, whether proprietary or contractual, in or in respect of
all or part of any Purchased Receivable) and/or all or any of its
rights, benefits and interest in or under this Deed and their
respective successors and assignees; and (3) Citibank and its
successors as Operating Agent (and the terms "Seller", "Exide Europe",
"Buyer" and "Operating Agent" shall be construed accordingly).
(B) Sellers and Exide Europe: Neither a Seller nor Exide Europe may assign
any of its rights, benefits or interest in or under this Deed except
with the prior consent of the Operating Agent.
(C) The Buyer: The Buyer may assign all or part of any Purchased
Receivables and/or all or any of its rights, benefits and interest in
or under this Deed to any Lender.
(D) Additional Sellers: The Operating Agent may, in its sole and absolute
discretion, at the request of Exide Europe, admit a member of the Exide
Europe Group as a Seller under this Deed (for the purposes of this
Clause 19(D), such party or parties shall be referred to as the
"Additional Seller"). In addition to the discretion of the Operating
Agent, the admission the Additional Seller shall also be subject to the
following conditions precedent:
(1) the Operating Agent receives the documents and information
specified in Schedule 5 in respect of the Additional Seller, each
in form and substance satisfactory to the Operating Agent;
(2) the Additional Seller, each Seller and the Buyer have delivered to
the Operating Agent a duly completed and executed Admission of
Additional Seller in the form attached as Schedule 2 (together
with confirmation of due execution and delivery, in form and
substance satisfactory to the Operating Agent) and the Operating
Agent has indicated its consent by execution of the Admission of
Additional Seller; and
(3) Exide Europe shall have confirmed in writing to the Operating
Agent that the Letter of Undertaking shall apply, on the terms
stated therein, to all of the obligations of the Additional Seller
under the Programme;
upon which time the Additional Seller shall be deemed to be a party to
this Deed from and after the next Settlement Date subsequent to the
execution of the Admission of Additional Seller by the Operating Agent,
and the Additional Seller shall be under the same obligations towards
each of the other parties to this Deed as if it had been an original
party hereto as a "Seller" and a "Sub-Servicer".
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20. FURTHER ASSURANCE - RESTRUCTURING
Each of the Sellers and Exide Europe hereby agrees that:
(A) in the event that it receives notice from the Operating Agent for the
purpose of amending the existing Programme on the basis that:
(1) the Receivables which are the subject of the French RSA will be
first purchased from the French Sellers by a French fonds commun
de creances (the "FCC"), such purchases to be funded by the
subscription or purchase by the Buyer of units issued by the FCC;
or
(2) the Receivables which are the subject of the Italian RSA will be
first purchased by a company set up pursuant to law 130 of 30
April 1999 in Italy (the "Law 130 Company"), such purchases to be
funded by the subscription or purchase by the Buyer of notes
issued by the Law 130 Company,
upon commercial terms consistent with those applicable under the
existing Programme (save in relation to additional costs arising as a
result of the involvement of a FCC and/or a Law 130 Company), each of
the Sellers and Exide Europe undertakes to the Operating Agent and the
Buyer that it will enter into such arrangements, documents and
agreements as are necessary or desirable, in the opinion of the
Operating Agent (acting reasonably), for the purposes of giving effect
to the transactions set out in paragraphs (1) and (2) and ensuring
consistency between such transactions and the other transactions
contemplated under the Programme.
(B) if, by reason of any change (a) in any law or regulation or in its
interpretation or application or (b) in the generally recognised market
practice after the date hereof (in each case as evidenced by legal
advice from a reputable law firm delivered by the Operating Agent to
Exide Europe), the Operating Agent determines that the interests of the
Buyer and/or the Operating Agent under the Programme may be affected as
a result of such change, then the parties to this Deed, acting in good
faith, shall co-operate with a view to restructuring this Deed, the
other Relevant Documents and the transactions contemplated herein and
therein upon such terms and conditions as would result in the interests
of the Buyer and/or the Operating Agent to be protected, to the best
extent possible under applicable law, in the same manner as if that
change had not occurred.
All the fees, costs and expenses (including legal fees) arising as a
result of any of the events described in paragraphs (A) and (B) will
be borne by the Sellers.
21. TERMINATION
This Deed will create and constitute the continuing obligations of the
parties in accordance with its terms, and will remain in full force and
effect until such time, after the Termination Date, as all Programme
Capital of all Groups of Receivables have been reduced to zero and all
Yield (as aggregated among all Originator Agreements), Programme Costs
and other fees due under this Deed or the Fees Letter have been paid;
provided, however, that the rights and remedies with respect to any
breach of any representation and warranty made by any Seller in or
pursuant to this Deed, the
-59-
provisions of Clause 21 and the indemnification and payment provisions
of this Deed will be continuing and will survive any termination of
this Deed.
22. NO PROCEEDINGS
Each Seller, Exide Europe, the Offer Agent (if not Exide Europe) and
the Operating Agent each hereby agree that they will not institute
against the Buyer any bankruptcy, insolvency or similar proceeding
until all amounts owing by the Buyer under the Facilities Agreement and
the Currency Exchange Agreement have been paid in full and that no
recourse shall be had for the payment of any amount owing hereunder or
claims arising out of or based upon the Relevant Documents against any
member, equity holder, employee, officer, director or affiliate of the
Buyer.
23. EXECUTION IN COUNTERPARTS: SEVERABILITY
(A) Counterparts: This Deed 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.
(B) Severability: If any provision in or obligation under this Deed shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations
under this Deed, or of such provision or obligation in any other
jurisdiction, shall not be affected or impaired thereby.
24. CONFIDENTIALITY
(A) Unless otherwise required by applicable law or regulation, or as
requested by any regulator or tribunal with competent jurisdiction
over, or over any business of, the relevant party, and subject to
Clause 23(B) below, each of the parties agrees to maintain the
confidentiality of this Deed in its communications with third parties
and otherwise.
(B) The provisions of Clause 23(A) shall not apply:
(1) to the disclosure of any information which is or becomes public
knowledge other than as a result of the conduct of the recipient;
(2) to the disclosure of any information to the Finance Parties (as
defined in the Facilities Agreement) under the Facilities
Agreement (including any participant, potential participant or
potential Lender thereunder), the Swap Counterparty and any
secured party under the Deed of Charge (as defined in the
Facilities Agreement), any FCC (including the custodian and the
management company thereof) and/or Law 130 Company set-up pursuant
to Clause 20 and the Rating Agencies (including their officers,
employees, agents and advisers), provided that such Persons will
hold that information confidential on the same basis as the
Operating Agent;
(3) to the disclosure of any written consent of the parties hereto.
-60-
25. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Deed is governed by, and shall be construed in
accordance with, the laws of England.
(B) Consent to Jurisdiction: The parties hereto hereby irrevocably and for
the benefit of each other submit to the jurisdiction of the courts of
England in any action or proceeding arising out of or relating to this
Deed, and hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in such courts. The
parties hereto hereby irrevocably waive, to the fullest extent they may
effectively do so, the defence of an inconvenient forum to the
maintenance of such action or proceeding. As an alternative method of
service, the Sellers, Exide Europe and the Buyer also irrevocably
consent to the service of any and all process in any such action or
proceeding by the delivery of copies of such process to the Sellers,
Exide Europe or the Buyer, as applicable, at the address designated for
notices under this Deed. The Sellers, Exide Europe and the Buyer agree
that a final judgment in any action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing shall affect the right to
serve process in any other manner permitted by law. Each of the parties
hereto which is not incorporated in England irrevocably appoints the
person specified against its signature to accept any service of any
process on its behalf and further undertakes to the other parties
hereto that it will at all times during the continuance of this Deed
maintain the appointment of some person in England as its agent for the
service of process and irrevocably agrees that the service of any writ,
notice or other document for the purposes of any suit, action or
proceeding in the courts of England shall be duly served upon it if
delivered or sent to the address of such appointee (or to such other
address in England as that party may notify to the other parties
hereto).
26. PROCESS AGENT
Exide Europe agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in
connection with any suit, action or proceeding in England, to CMP
Batteries Limited, ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇. If the appointment of the person mentioned in this Clause ceases
to be effective Exide Europe shall immediately appoint a further person
in England to accept service of process on its behalf in England and,
failing such appointment with 15 business days, the Buyer shall be
entitled to appoint such a person by notice to Exide Europe. Nothing
contained herein shall affect the right to serve process in any other
manner permitted by law.
IN WITNESS WHEREOF, this Deed has been duly executed and delivered as a Deed.
-61-
SHEDULE 1
Part 1
Offices of the Sellers/Collection Account/Seller Non Transaction Account
Seller Collection Account Seller Non-Transaction Account
CMP BATTERIES LIMITED Sterling Sterling
P.O. Box 1 00230447 00230420
Salford Road, Over Hulton (Sort Code 12-08-95) (Sort Code 12-08-95)
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Euro Euro
00227092 To be notified to the Operating Agent
(Sort code 12-08-95) prior to the Effective Date
FULMEN (U.K.) LIMITED 00330887 00330860
▇.▇. ▇▇▇ ▇ (Sort Code 12-08-95) (Sort Code 12-08-95)
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
DETA UK LIMITED To be notified to the 00282407
▇.▇. ▇▇▇ ▇ Operating Agent prior to the (Sort Code 12-08-95)
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
EXIDE (DAGENHAM) LIMITED (opened in the name of Exide (opened in the name of Exide Batteries
▇.▇. ▇▇▇ ▇ Batteries Limited acting as Limited acting as agent of Exide
Salford Road, Over Hulton agent of Exide (Dagenham) (Dagenham) Limited)
▇▇▇▇▇▇, ▇▇▇ ▇▇▇ Limited) 00313382 00313366
(Sort Code 12-08-95) (Sort Code 12-08-95)
-62-
Part 2
Buyer Account
Account Number: ▇▇▇▇▇▇▇▇
Currency: Sterling
Sort Code: 18-50-08
Bank: Citibank, N.A., London
Bank Swift Code: ▇▇▇▇▇▇▇▇
Account Number: ▇▇▇▇▇▇▇▇
Currency: Euro
Sort Code: 18-50-08
Bank: Citibank, N.A., London
Bank Swift Code: ▇▇▇▇▇▇▇▇
-63-
SCHEDULE 2
FORM OF ADMISSION OF ADDITIONAL SELLER
To: Citibank, N.A. Copy to: Exide Holding Europe
336 Strand ▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ 92636 Gennevilliers Cedex
U.K. France
ADMISSION OF ADDITIONAL SELLER
Pursuant to the Receivables Securitisation Deed dated [o] May 2002 (the
"Agreement") among inter alia, you, Batteries Funding Limited and certain UK
Affiliates of Exide Holding Europe.
1. Terms defined in the Agreement shall, subject to any contrary
indication, have the same meanings herein.
2. The Additional Seller hereby requests the Operating Agent to accept
this Admission of Additional Seller pursuant to and for the purposes of
Clause 19(D) of the Agreement so as to take effect in accordance with
the terms thereof.
3. The Additional Seller confirms that it has received a copy of the
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will
not hereafter rely on the Operating Agent to check or enquire on its
behalf into the legality, validity, effectiveness, adequacy, accuracy
or completeness of any such information and further agrees that it has
not relied and will not rely on the Operating Agent to assess or keep
under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of Batteries Funding Limited or
any Seller.
4. The Additional Seller hereby undertakes with the Operating Agent and
each of the other parties to the Agreement that it will perform in
accordance with their terms all those obligations which by the terms of
the Agreement will be assumed by it after acceptance of this Admission
of Additional Seller by the Operating Agent and satisfaction of the
conditions precedent subject to which this Admission of Additional
Seller is expressed to take effect.
5. The Operating Agent makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement or any document relating
thereto and assumes no responsibility for the financial condition of
Batteries Funding Limited or any Seller or for the performance and
observance by Batteries Funding Limited or any Seller of any of their
respective obligations under the Agreement or any document relating
thereto
-64-
and any and all such conditions and warranties, whether express or
implied by law or otherwise, are hereby excluded.
6. The Additional Seller requests that in respect of references to any
Seller in the Agreement, the following information be inserted in
respect of the Additional Seller:
==================================================================================================
(i) Number of days in respect of the payment of invoices for the . days
purposes of paragraph (6) of the definition of "Eligible
Receivable"
--------------------------------------------------------------------------------------------------
(ii) Date of most recent audited annual accounts for the purposes .
of Clause 8(G)
--------------------------------------------------------------------------------------------------
(iii) principal place of business of Additional Seller for the .
purposes of Clause 8(O) and Schedule 1
.
--------------------------------------------------------------------------------------------------
(iv) Collection Account/Dedicated Collection Account . (Sort Code)
--------------------------------------------------------------------------------------------------
(v) Seller Non-Transaction Account for the purposes of Schedule 1 . (Sort Code)
==================================================================================================
7. This Admission of Additional Seller and the rights, benefits and
obligations of the parties hereunder is governed by and shall be
construed in accordance with English law.
[ADDITIONAL SELLER]
By:
Address:
Attention:
Telefax:
Date:
AGREED TO BY:
[RELEVANT ADDITIONAL SELLER] CMP BATTERIES LIMITED
By: By:
DETA UK LIMITED FULMEN (U.K.) LIMITED
By: By:
EXIDE (DAGENHAM) LIMITED BATTERIES FUNDING LIMITED
By: By:
-65-
CONSENTED TO THIS ______ DAY OF __________, ________:
Citibank, N.A., London Branch
By:
-66-
SCHEDULE 3
FORM OF SETTLEMENT STATEMENT
SETTLEMENT STATEMENT
SELLER: Exide United Kingdom (CMP Batteries Limited, Exide (Dagenham)
Deta UK Limited, Fulmen (U.K.) Limited)
CURRENCY: GBP and EUR
Batteries Funding - Settlement Statement as of: 23-May-02
Next Settlement Date: 30-May-02
PRIOR SETTLEMENT STATEMENT:
GBP EUR
(1) Outstanding Balance - -
(2) Reserve Accounts - -
(3) Unearned Discount - -
(4) Capital - -
Adjustments to Prior Month Balance
(5) Total Collections - -
(6) Adjustments to Reserve Account - -
(7) Discount Collected - -
(8) Cash & Deemed Collections - -
(9) New Receivables Sold - -
(10) Change in Reserve - -
(11) Change in Discount - -
(12) Net Cash Paid (7-8) - -
Ending Balance as of this Date:
(13) Outstanding Balance - -
(14) Reserve Account - -
(15) Discount - -
(16) Capital - -
PAYMENT OF FEES DUE ON NEXT SETTLEMENT DATE
GBP EUR
Purchaser Fees Due on the next Settlement Statement
above 0.0000% - -
Agency Fee 50.00 bp - -
Facility Fee 75.00 bp - -
Investor Fee 2.00 bp - -
Please remit funds to Batteries Funding Limited's account at Citibank
London, GBP to account number 0010123773 and EUR to account number
0010123765
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SCHEDULE 4
FORM OF SUMMARY REPORT
Batteries Funding Limited
Seller : UK
Currency : Total Sterling Portfolio
Summary Report Date 02/05/19
Summary Report for period ended 02/05/18
==========================================================================
Capital Requested at next purchase ----->
Sold Portfolio Ageing by invoice due date :
Current - Due beyond 91 -----> 9.203,02 0,092%
Current - Due in 90 days -----> 760.909,12 7,604%
Current - Due in 60 days -----> 2.172.543,93 21,711%
Current - Due in 30 days -----> 4.163.210,30 41,604%
1 - 30 days Overdue -----> 2.197.431,56 21,959%
31 - 60 days Overdue -----> 441.151,66 4,408%
61 - 90 days Overdue -----> 63.591,94 0,635%
91 - 120 days Overdue -----> 75.341,52 0,753%
121 - 150 days Overdue -----> -9.519,35 -0,095%
151 - 180 days Overdue -----> 39.729,28 0,397%
181 + days Overdue -----> 93.256,08 0,932%
------------------
Total -----> 10.006.849,06
Estimated Cash Days 1 - 30 -----> 7.064.192,99
Collections in Days 31 - 60 -----> 2.172.543,93
future periods Days 61 - 90 -----> 760.909,12
Days 91 + -----> 9.203,02
------------------
Total -----> 10.006.849,06
Collections in
current period Received by due date -----> 220.946,85
by due date : Received 30 days after due date ---> 461.668,76
Received 60 days after due date ---> 65.647,07
Received 90 days after due date ---> 8.786,70
Received 91+ days after due date --> 9.208,98
------------------
Total Collections -----> 766.258,36
Total new receivables sold this month -----> -52.047,78
Sold Credit Notes Outstanding --------> 1.839.082,24 15,525%
Credit Notes issued in last 30 days ------> 780.347,96 7,234%
Total Credit Notes Outstanding --------> 2.401.800,99 19,810%
Credit Notes issued in last 30 days ------> 782.327,80 7,447%
Total Invoices sold --------> 25.959
Total New Invoices sold --------> 0
Total delinquent receivables in sold portfolio ---> 703.551,13
Total delinquent receivables (Sold + Unsold) -----> 415.376,51
Total defaulted receivables in sold portfolio ----> 198.807,53
Total defaulted receivables (Sold + Unsold) ------> -88.466,63
-68-
Batteries Funding Limited
Seller : UK
Currency : Total Sterling Portfolio
Summary Report Date 02/05/19
Summary Report for period ended 02/05/18
==========================================================================
Average Credit Terms (Sold Portfolio) --------> 0,000
Average Credit Terms (Total Portfolio) --------> 0,000
Weighted Credit Terms (Sold Portfolio) --------> 0,000
Weighted Credit Terms (Total Portfolio) --------> 0,000
Net invoices issued in the last seven days -----> -221.692,03
Total Portfolio Ageing (Sold + Unsold) by invoice due date
Current -----> 7.109.101,15 73,120%
1 - 30 Days Overdue -----> 2.198.015,61 22,608%
31 - 60 Days Overdue -----> 439.548,72 4,521%
61 - 90 Days Overdue -----> 64.294,42 0,661%
91 - 120 Days Overdue -----> 77.426,35 0,796%
121 - 150 Days Overdue -----> -9.519,35 -0,098%
151 - 180 Days Overdue -----> 39.947,43 0,411%
181 + Days Overdue -----> -196.321,06 -2,019%
------------------
Total Receivables -----> 9.722.493,27
=========================================================================
ALL INFORMATION HEREIN IS TRUE AND ACCURATE
____________________ ____________________
Authorised Signature Authorised Signature
-69-
SCHEDULE 5
INITIAL CONDITIONS PRECEDENT
(a) A certified copy of the resolutions of the board of directors (or
analogous body) of the Seller approving this Deed and the other
documents to be delivered by it and the transactions contemplated in
this Deed.
(b) Certified copies of the memorandum and articles of association of each
Seller.
(c) A certificate of an appropriate officer of each Seller certifying the
names and true signatures of the officers authorised on its behalf to
sign or, as appropriate, witness the sealing of this Deed and the other
documents to be delivered by it (on which certificate the Operating
Agent may conclusively rely until such time as the Operating Agent
receives from the Seller a revised certificate meeting the requirements
of this paragraph (c)).
(d) Relevant Interim Trust Account Bank Mandates duly executed by each
Seller, the applicable Collection Account Bank, the Buyer and Citibank
in relation to each Collection Account.
(e) A favourable opinion of legal advisers to the Operating Agent as to sale
of Receivables and other relevant matters, in such form as the Operating
Agent may reasonably require.
(f) A favourable opinion of legal advisers to the Sellers as to capacity and
corporate powers of each Seller in such form as the Operating Agent may
reasonably require.
(g) Letter of Undertaking from Exide Europe in a form acceptable to the
Operating Agent, plus a favourable opinion of legal advisers
satisfactory to the Operating Agent as to the execution and
enforceability of the Letter of Undertaking.
(h) A favourable opinion of legal advisers to Exide Europe as to capacity
and corporate powers of Exide Europe in such form as the Operating Agent
may reasonably require.
(i) A Directors' Certificate from the directors of each Seller in relation
to the solvency of such Seller and a certificate from the directors of
Exide Europe in relation to the solvency of Exide Europe in form and
substance acceptable to the Operating Agent.
(j) Execution of the Relevant Documents (as defined in each of the
Origination Agreements) and all documentation to be delivered therewith.
(k) Satisfactory review by the Operating Agent of each Seller's billing and
collection operations and reporting systems and implementation of any
additional receivable tracking and reporting systems in form and
substance satisfactory to the Operating Agent.
(l) Preparation of a written Credit and Collection Policy by each Seller, in
form and substance satisfactory to the Operating Agent.
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(m) The Operating Agent has received such other approvals, opinions or
documents as it may reasonably request.
(n) A direction from Exide Europe or the Seller with regard to the payment
of Citibank's (on its own behalf), the Operating Agent's and Batteries
Funding's reasonable legal costs (together with disbursements and VAT)
in form and substance satisfactory to the Operating Agent.
(o) Enigma Licence Agreement duly executed by Exide Europe.
(p) Satisfaction of all initial conditions precedent set forth in Schedule 2
to the Facilities Agreement.
(q) Execution of the Currency Exchange Agreement.
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SCHEDULE 6
LETTER OF OFFER
Part 1
on Initial Offer Date
From: Exide Holding Europe
▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
To: Batteries Funding Limited
West Block
International Financial Services Centre
▇▇▇▇▇▇ ▇
Copy to: Citibank, N.A.
Citicorp Centre
33 Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Date:
SUBJECT TO CONTRACT
Dear Sirs,
1. We refer to a Receivables Securitisation Deed dated [.] May 2002 (as from
time to time amended, supplemented or novated) (the "Deed") among, inter
alios, you, Citibank, N.A., the undersigned and CMP Batteries Limited, Deta
UK Limited, Exide (Dagenham) Limited and Fulmen (U.K.) Limited (the
"Sellers").
2. This Letter of Offer does not record the existence of a contract on the
date hereof and the Sellers have no intention to enter into a contract at
any time prior to the acceptance (if any) of this Letter of Offer in
accordance with the terms of the Deed.
3. We, on behalf of [name of the Sellers] as beneficial owners, hereby offer
to sell, to assign and to transfer to you:
(i) Existing Receivables with an Outstanding Balance of [.] (being the
Existing Receivables identified for you pursuant to Clause 4(E) of the
Agreement) on the next Settlement Date for an Existing Receivables
Purchase Price calculated in accordance with the Deed of [.];
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(ii) (a) Future Receivables which have come and will come into existence
between (and including) the Initial Reference Date and (but excluding)
the next Settlement Date and (b) Future Receivables which will come
into existence during the next Settlement Period for an Acceptance Fee
of (pound)10.
4. The provisions of the Deed will apply to this letter and the related
Initial Purchase (if any) by the Buyer, and except as otherwise provided
herein, capitalised terms in this letter will have the meaning ascribed to
them in the Deed.
5. The Discount computed for the Group of Receivables (which are Existing
Receivables and Eligible Receivables) the subject of this letter is [.].
6. The offer made under this letter constitutes an irrevocable offer by [name
of the Sellers], binding upon them, to assign and to sell to you the
ownership interest in the Receivables referred to in this Letter of Offer
and the Related Security.
7. This Letter of Offer shall be governed by English law.
Yours faithfully
EXIDE HOLDING EUROPE, acting on behalf of [Sellers]
By:
Authorised Signatory
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Part 2
On Any Subsequent Offer Date
From: Exide Holding Europe
▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
To: Batteries Funding Limited
West Block
International Financial Services Centre
▇▇▇▇▇▇ ▇
Copy to: Citibank, N.A.
Citicorp Centre
33 Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Date:
SUBJECT TO CONTRACT
Dear Sirs,
1. We refer to a Receivables Securitisation Deed dated [.] May 2002 (as from
time to time amended, supplemented or novated) (the "Deed") among, inter
alios, you, Citibank, N.A., the undersigned and CMP Batteries Limited, Deta
UK Limited, Exide (Dagenham) Limited and Fulmen (U.K.) Limited (the
"Sellers").
2. This Letter of Offer does not record the existence of a contract on the
date hereof and the Sellers have no intention to enter into a contract at
any time prior to the acceptance (if any) of this Letter of Offer in
accordance with the terms of the Deed.
3. We, on behalf of [name of Sellers] as beneficial owners, hereby offer to
sell, to assign and to transfer to you:
[(i)] Future Receivables which will come into existence during the next
Settlement Period for an Acceptance Fee of (Pounds)10;
[in the event only of Additional Designated Account Debtors offering
Receivables for the first time:
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(ii) Existing Receivables with respect to Additional Designated Account
Debtors notified to you on the date hereof with an Outstanding
Balance of [.] (being the Existing Receivables identified for you
pursuant to Clause 4(E) of the Agreement) on the next Settlement
Date for an Existing Receivables Purchase Price calculated in
accordance with the Deed of [.]; and
(iii) Future Receivables with respect to Additional Designated Account
Debtors notified to you on the date hereof which have come and will
come into existence between (and including) the Initial Reference
Date and (but excluding) the next Settlement Date for the Acceptance
Fee;]
4. The provisions of the Agreement will apply to this letter and the related
Purchase (if any) by the Buyer, and except as otherwise provided herein,
capitalised terms in this letter will have the meaning ascribed to them
in the Agreement.
[5. The Discount computed for the Group of Receivables (which are Existing
Receivables and the Eligible Receivables) the subject of this letter is
[.].]
[5/6.] The offer made under this Letter of Offer constitutes an irrevocable
offer by [name of Sellers], binding upon them, to assign and to sell to
you the ownership interest in the Receivables referred to in this Letter
of Offer and the Related Security.
[6/7.] This Letter of Offer shall be governed by English law.
Yours faithfully
EXIDE HOLDING EUROPE, acting on behalf of [Sellers]
By:
Authorised Signatory
-75-
SCHEDULE 7
FORM OF CONTRACT
-76-
SCHEDULE 8
Part 1
Information to be Provided to Exide Europe
1. On the last Local Business Day in each calendar week prior to each
Purchase Date:
a computerised download containing the following fields:
- number, which identifies the applicable Seller
- customer number
- customer name
- customer type
- location of customer (country)
- invoice number
- journal number
- issue date of invoice
- due date of invoice
- currency of invoice
- currency amount of invoice
- type of invoice
and other fields which may vary from applicable Seller to applicable
Seller and which are necessary for Enigma to select Eligible
Receivables.
2. On or before the third Determination Date of each calendar month, the
information requested in Part 2 of this Schedule 8 in respect of the
previous calendar month.
3. On or before the third Determination Date of each of the calendar months
of March, June, September and December (or such more frequent time as
the Operating Agent may request in writing in accordance with Clause
11(G) of the Agreement):
a computerised download containing the addresses of the Account Debtors
listed in paragraph 1 above, containing the following specific
information:
- full customer name
- address field 1
- address field 2
- address field 3
- town
- area code
- country of address
AND ALL OTHER INFORMATION WHICH MIGHT BE NECESSARY FOR THE CORRECT
IDENTIFICATION BY THE OPERATING AGENT AND/OR EXIDE EUROPE OF THE ACCOUNT
DEBTOR/CUSTOMER AND INVOICE.
-77-
Part 2
Form of Monthly Summary
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Citibank [Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇]
CC: ▇▇▇▇▇▇ ▇▇▇▇▇▇ - Exide Europe Headquarters [Fax: ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇]
Seller: ................................
Date Prepared: ................................
For month: ................................
All information relates to 3rd party domestic customers.
1. Total value of sales (incl. VAT): ...................
2. Total value of Write-offs in the month (overdue 90
days or less): ...................
3. Total value of Credit Notes
(Disputes/Claims/invoicing errors etc, incl. VAT): ...................
4. Level of accruals for volume rebates: ...................
5. Amount of credit notes issued for volume rebates
in the month: ...................
6. Expenses for warranty claims during the month: ...................
7. Prompt payment discounts paid during the month: ...................
Receivable Ageing - Month-end Ledger
(only necessary if the downloaded file does not contain all 3rd party domestic
customers, e.g. Italy)
=======================================================================
Days Past Due Amounts in Ledger Currency
=======================================================================
Current
-----------------------------------------------------------------------
1 - 30
-----------------------------------------------------------------------
31 - 60
-----------------------------------------------------------------------
61 - 90
-----------------------------------------------------------------------
91 - 120
-----------------------------------------------------------------------
121 +
=======================================================================
-78-
We certify that all information contained in this summary is true and accurate
[SELLER NAME]
.............................................
Name
-79-
SCHEDULE 9
LETTER OF UNDERTAKING
[EXIDE HOLDING EUROPE S.A. LETTERHEAD]
Letter of Undertaking
Date: [.] May 2002
To: Batteries Funding Limited ("Batteries Funding"); and Citibank, N.A.,
London Branch as Operating Agent and Servicer under the Origination
Agreements and Agent under the Facilities Agreement,
Dear Sirs
1. We refer to the following agreements:
(i) the Receivables Securitisation Deed dated as of the date hereof
between CMP Batteries Limited, Exide (Dagenham) Limited, Deta UK
Limited, Fulmen (U.K.) Limited (together with any additional
member of the Exide Europe Group acceding to the Receivables
Securitisation Deed after the date hereof, the "UK Originators"),
ourselves as Offer Agent, Batteries Funding and Citibank, N.A. as
Operating Agent (the "U.K. Origination Agreement");
(ii) (a) the Receivables Subrogation Agreement dated 6 June 1997 (as
amended on the date hereof) between Compagnie Europeenne
d'Accumulateurs S.A.S. (together with any additional member of
the Exide Europe Group acceding to the Receivables Subrogation
Agreement after the date hereof, the "French Originators"), Exide
Europe Funding Ltd. ("Exide Funding"), ourselves as Offer Agent
and Citibank, N.A. as Operating Agent and (b) the Onward
Receivables Sale Agreement dated as of the date hereof between
Exide Funding, ourselves as Offer Agent, Batteries Funding and
the Operating Agent (the "French Origination Agreements");
(iii) the Receivables Sale Agreement dated as of the date hereof
between Sociedad Espanola del Acumulador Tudor, S.A., Fulmen
Iberica S.L. (together with any additional member of the Exide
Europe Group acceding to such Receivables Sale Agreement after
the date hereof, (the "Spanish Originators"), ourselves as Offer
Agent, Batteries Funding and Citibank, N.A., as Operating Agent
(the "Spanish Origination Agreement");
(iv) (a) the Receivables Purchase Agreement dated 3 June 1997 (as
amended on the date hereof) between Societa Industriale
Accumulatori S.r.l. and Compagnia Generale Accumulatori S.p.A.
(now Exide Italia S.r.l.) (together with any additional member of
the Exide Europe Group acceding to the Receivables Sale Agreement
after the date hereof, the "Italian Originators"), ourselves as
Offer Agent, Archimede Securitisation s.r.l. and Citibank, N.A.
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as the Operating Agent and (b) the Onward Sale Agreement dated as
of the date hereof between Archimede Securitisation s.r.l.,
Batteries Funding and the Operating Agent (the "Italian
Origination Agreements");
(v) the Receivables Sale Agreement dated as of the date hereof
between Exide Automotive Batterie GmbH, Deutsche Exide GmbH and
Deutsche Exide Standby GmbH (together with any additional member
of the Exide Europe Group acceding to such Receivables Sale
Agreement after the date hereof, the "German Originators" and,
together with the UK Originators, the French Originators, the
Spanish Originators and the Italian Originators, the
"Originators"), ourselves as Offer Agent, Batteries Funding and
Citibank, N.A. as Operating Agent (the "German Origination
Agreement" and, together with the UK Origination Agreement, the
French Origination Agreements, the Spanish Origination Agreement
and the Italian Origination Agreements, the "Origination
Agreements"); and
(vi) the Facilities Agreement dated the date hereof among Batteries
Funding, Citibank, N.A., London Branch as Agent and Arranger and
the lenders from time to time party to the Facilities Agreement
(the "Facilities Agreement").
2. Unless otherwise specified in this letter, terms defined in the
Origination Agreements shall have the same meanings when used herein.
3. Any reference in this letter to any other agreement or document shall,
unless the context otherwise requires, include that other agreement or
document as from time to time amended, supplemented or novated and any
document which amends, supplements or novates that other agreement or
document.
4. We hereby confirm to you that the Facilities Agreement and the
Origination Agreements, all their respective terms and conditions and
all related documents, fully meet our approval.
5. We are aware that the Facilities Agreement and the Origination
Agreements have been entered into on the condition that, inter alia,
our indirect and beneficial ownership of at least 80% of the issued
share capital of each Originator and Exide Funding and we control each
Originator and Exide Funding. We are further aware that the Facilities
Agreement and the Origination Agreements have been entered into in
reliance on this Letter of Undertaking.
6. We confirm that we currently own indirectly and beneficially at least
80% of the issued share capital of each Originator and Exide Funding
and that we control each Originator and Exide Funding and we covenant,
subject to paragraph 6 below, that we will not reduce our percentage
shareholding or alter our control of each Originator and Exide Funding
(so long as Exide Funding is a party to any Relevant Document) until
the Facilities Agreement and the Origination Agreements have been
terminated and all obligations under the Origination Agreements to each
of you have been met by the Originators and Exide Funding.
-81-
7. We undertake to you that in the event that our percentage shareholding
in any Originator falls below 80% of the issued share capital of such
Originator or that we cease to control such Originator, we shall ensure
that (a) you (or, as the case may be, Archimede or Exide Funding) will
receive from such Originator, prior to the date on which our
shareholding falls below 80% of the issued share of such Originator or
we cease to control such Originator, an amount equal to the Outstanding
Balance of the Receivables which have been purchased from such
Originator (such amount to be treated as a Collection for the purpose
of the relevant Origination Agreement) and that such Originator will
cease to offer to sell Receivables under the terms of the Origination
Agreement to which it is a party.
8. We further covenant to ensure that each Originator and Exide Funding
(in each of their capacities under the Origination Agreements) at all
times duly perform and comply with all their obligations to each of you
under or in connection with the Origination Agreements and, in
particular, that we will at all times take all measures necessary or
desirable to ensure that the billing, credit and collection policies
and procedures of such Originator and Exide Funding are not changed in
any way that may materially adversely affect the interests of either of
you under the Origination Agreements. We further covenant that we will
comply with our obligations in this paragraph 8 even if any of the
relevant obligations of the Originators or Exide Funding under the
Origination Agreements are determined by a court of competent
jurisdiction to be invalid or unenforceable.
9. Without limiting our covenant in paragraph 7 above, we further covenant
to either ensure that: (i) each Originator and Exide Funding will at
all times duly perform and comply with or (ii) we will perform and
comply with, on behalf of each Originator and Exide Funding, all
reporting, documentary and calculation requirements of the Originators
and Exide Funding under the Origination Agreements and that the same
are met in a timely fashion.
10. We further covenant to provide you with immediate notice upon becoming
aware of any of any breach by any Originator or Exide Funding of any of
its obligations under the Origination Agreements and any of the events
described in (A), (B) or (C) below or any event which, with the giving
of notice or lapse of time or both, would constitute one of such
events:
(A) Any Originator or Exide Funding fails to pay any principal of or
premium or interest on any debt, when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the
agreement or instrument relating to such debt, or any other
default under any agreement or instrument relating to any debt, or
any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to
accelerate or to permit the acceleration of the maturity of such
debt, or any such debt shall be declared to be due and payable or
required to
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be prepaid (other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof, or any present or future
mortgage, charge or other security interest on or over any assets of
such Originator or Exide Funding becomes enforceable;
(B) a resolution is passed or a petition is presented or an order made for
the winding up, liquidation, dissolution, merger or consolidation of
such Originator or Exide Funding (except for the purposes of a bona
fide reconstruction or amalgamation with your consent), or a petition
is presented or an order made for the appointment of an administrator
in relation to any Originator or Exide Funding, or a receiver,
administrative receiver or manager is appointed over any part of the
assets or undertaking of any Originator or Exide Funding, or any event
analogous, to any of the foregoing occurs (except, in the case where a
petition is presented (i) the proceeding is frivolous or vexatious and
(ii) such Originators or Exide Funding is solvent and is contesting
the proceeding in good faith); or
(C) an Early Amortisation Event under any of the Origination Agreements
occurs.
11. We undertake that we will provide to the Operating Agent all documents
which Exide Technologies, ourselves or any European Affiliate of Exide
Technologies is required to provide under the US DIP Facility Agreement in
relation to ourselves and such European Affiliate as and when the same are
provided under the US DIP Facility Agreement.
12. This Letter of Undertaking is governed by the laws of England. We hereby
irrevocably and for your benefit submit to the jurisdiction of the courts
of England in any action or proceeding arising out of or relating to this
letter, and hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in such courts. We hereby
irrevocably waive, to the fullest extent that we may effectively do so, the
defence of an inconvenient forum to the maintenance of such action or
proceeding. We agree that a final judgement in any action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgement or in any other manner provided by law. We irrevocably
appoint the Person specified against our signature to accept any service of
any process on our behalf and further undertake that we will at all times
during the continuance of this letter maintain the appointment of some
Person in England as its agent for the service of process and irrevocably
agree that the service of any writ, notice or other document for the
purposes of any suit, action or proceeding in the courts of England shall
be duly served upon it if delivered or sent to the address of such
appointee (or to such other address in England as that party may notify to
the other parties hereto).
Yours faithfully
-83-
__________________________ Process Agent:
EXIDE HOLDING EUROPE S.A. CMP Batteries Limited
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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SCHEDULE 10
LIST OF ACCOUNT DEBTORS OTHER THAN DESIGNATED ACCOUNT DEBTORS
FIAT
-85-
SCHEDULE 11
PAYMENT INSTRUCTIONS
Part 1
Date: [.]
To [Designated Account Debtor]
Dear Sir,
1. We refer to the payments to be made to us in relation to [relevant
Contracts].
2. We hereby kindly instruct you to make all such payments owing to us, from
the date hereof, to the credit of our account [account details of Dedicated
Collection Account] with [details of bank holding the relevant Dedicated
Collection Account].
Yours sincerely,
[NAME OF SELLER]
Part 2
(to be inserted in each invoice)
"Please ensure that all your payments owing to us are made to the credit of our
account [account details of Dedicated Collection Account] with [details of bank
holding the relevant Dedicated Collection Account]"
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SCHEDULE 12
ENIGMA LICENCE AGREEMENT
[.] May 2002
Attention: Company Secretary and Financial Director
Enigma Licence Agreement
Dear Sirs:
In connection with the preparation of certain data required to be delivered
under the origination agreements dated (or amended) as of the date hereof
between certain of your European subsidiaries, Batteries Funding Limited,
yourselves and ourselves (together with any other origination agreement which
may be entered after the date hereof, the "Agreements") we are making available
to you certain proprietary computer software and related documentation
collectively known as "Enigma". Enigma has been developed by us, on the basis of
commercially available software which we purchased, to help manage the
securitisation of trade receivables portfolios. This letter is to confirm the
terms on which we are licensing your use of Enigma.
Acknowledging that Enigma is and shall remain the property of Citibank, N.A.,
you shall be entitled to use Enigma solely in connection with the performance of
your obligations under the Agreements. Only those of your personnel responsible
for such performance will be allowed to have access to Enigma and the use
thereof. You will keep Enigma confidential and not copy or divulge any of its
content to any third parties and shall return to us or destroy all copies of
Enigma in your possession upon the termination of the Agreements.
Should Enigma fail accurately to produce information required under the
Agreements from adequate and accurate input, we will (i) provide all assistance
you reasonably request to enable the timely production of such information using
alternative methods, (ii) immediately commence efforts to identify and correct
the cause of such failure, and (iii) should the foregoing prove unsuccessful,
co-operate fully with you in devising alternative solutions, taking into account
the actual circumstances, and in obtaining any required approval thereof from
other parties. Further, we will promptly update your version of Enigma with any
future program improvements.
Except as provided above and in the Agreements, we shall have no responsibility
whatever arising out of any Enigma failure, do not in any manner warrant or
guaranty its performance and in no event shall we have monetary liability in
connection with such failure or such performance or the consequences thereof,
your having acknowledged that our foregoing commitment of assistance and
co-operation is appropriate in the circumstances and your sole remedy.
-87-
Please acknowledge your acceptance of the foregoing in the place provided below.
Very truly yours,
CITIBANK, N.A.,
London Branch
By:
Title: Vice President
Agreed and accepted
EXIDE HOLDING EUROPE
By: _____________________
Name:
Title:
By: _____________________
Name:
Title:
-88-
SCHEDULE 13
FORM OF INTERIM TRUST ACCOUNT BANK MANDATES
TRUST ACCOUNT BANK MANDATE
Dated [.] May 2002:
between
(1) CMP BATTERIES LIMITED, (Company No. 2375355), ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Seller");
(2) BATTERIES FUNDING LIMITED, West Block, International Financial Services
Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the "Buyer");
(3) CITIBANK, N.A. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (in its capacity as Operating
Agent under the Receivables Securitisation Deed (defined below), the
"Operating Agent"); and
(4) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the "Bank").
Pursuant to the Receivables Securitisation Deed dated [.] May 2002 (as amended
from time to time, the "Receivables Securitisation Deed") between, inter alia,
the Seller, the Buyer and the Operating Agent, under which at the date hereof
the Seller is Seller and Sub-Servicer, it is agreed:
TRUST
1. Capitalised terms used herein, unless otherwise defined herein, shall have
the meanings given in the Receivables Securitisation Deed.
2. The Seller confirms to the Buyer and the Operating Agent that it has
directed all of the Account Debtors to remit payments for the Purchased
Receivables denominated in Sterling into the following account at the bank:
Sort Code: 12-08-95
Account No: ▇▇▇▇▇▇▇▇
Account Title: Collection Account
3. The Seller hereby declares that, with effect from (and including) the time
it first sells Receivables to the Buyer under the Receivables
Securitisation Deed (the "Trust Commencement"), it will hold the Collection
Account, which shall thereafter be designated as a trust account (the
"Trust Account"), upon trust for the Buyer and itself as beneficiaries
absolutely.
4. As of and from the Trust Commencement:
(a) All moneys at any time standing to the credit of the Trust Account in
respect of the Buyer Entitlement and any interest on such moneys are
and shall be
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beneficially owned by the Buyer, and all other moneys at any time
standing to the credit of the Trust Account are and shall be
beneficially owned by the Seller;
(b) The Seller shall pay or procure the payment of all Collections into
the Trust Account.
(c) All cheques, telegraphic transfers and other payment media and all
cash in respect of Purchased Receivables (including Defaulted
Receivables which are Purchased Receivables) received and all proceeds
thereof and all other Collections of Purchased Receivables and/or held
at any time by or on behalf of the Seller are and shall be in trust
for the Buyer in accordance with its entitlements and received and/or
held for and on behalf of the Buyer for payment and credit to the
Trust Account.
(d) Clause 4(b) and (c) hereof shall apply to cheques and other payment
media whether payable to the Seller its full legal name or expressed
to be payable to the Seller under any of its trading name(s) or
otherwise.
(e) Should moneys be released from the Trust Account to or to the order of
the Seller, which represent the Buyer Entitlement, then the Seller
shall hold such amount on trust for the Buyer upon the terms of this
Mandate and shall immediately repay such amount into the Trust
Account.
(f) Except in accordance with the Receivables Securitisation Deed and this
Mandate, the Seller shall not, nor shall it be entitled to, withdraw
or cause the withdrawal of or instruct the Bank to pay or otherwise
remit any moneys from or to the debit of the Trust Account.
(g) The Seller agrees that all bank charges and the like in respect of the
Trust Account are for the account of the Seller and it undertakes on
demand to reimburse any bank charges or the like debited from time to
time, for which it is responsible hereunder, to the Trust Account.
(h) Each of the Seller and the Operating Agent shall be entitled to
receive from the Bank, bank statements relating to the Trust Account,
and (if necessary) the Seller shall inform the Bank accordingly.
(i) The Seller will ensure that the Operating Agent is furnished with such
information as the Operating Agent may from time to time request in
relation to the identification of moneys standing to the credit of the
Trust Account.
BANK MANDATE
5. The mandate given to the Bank by virtue of this document (the "Mandate") is
given on the basis that the Bank complies with the procedures set out in,
and the terms of, Clauses 5-24 hereof. The Bank acknowledges, by its
execution of this Mandate, that the Trust Account is a trust account. So
long as the Bank complies with its obligations
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under Clauses 5-24, the Bank shall not be liable in respect of any claim or
action relating to a breach of the trust set forth in Clauses 1-4 above.
6. The Bank is hereby instructed:
(a) to honour and comply with all cheques, drafts, bills, promissory
notes, acceptances, negotiable instruments and orders expressed to be
drawn, accepted, made or given and to honour and comply with all
directions given in writing or by way of electronic impulses to effect
transfers by way of electronic means ("Instructions") from the Trust
Account to the Buyer's account (Account No. ▇▇▇▇▇▇▇▇, Sort Code
18-50-08), or to the Seller Non-Transaction Account (Account No.
▇▇▇▇▇▇▇▇, Sort Code 12-08-95) (but to no other accounts whatsoever) at
any time or times; and
(b) to treat all Instructions given by the Seller (subject to Clause
7(b)), the Buyer or the Operating Agent in respect of the Trust
Account as being endorsed on behalf of the Seller and to deal with
them.
7. The Mandate is given on the basis that the Bank:
(a) waives any right it has or may hereafter acquire to set-off, combine,
consolidate or merge the Trust Account with any other account of the
Seller or any other person or any liabilities of the Seller or any
other person to the Bank and agrees that it may not set off, transfer,
combine or withhold payment of any sum whatsoever standing to the
credit of the Trust Account in or towards or conditionally upon
satisfaction of any liabilities to it of the Seller or any other
person (unless ordered to set off, combine, transfer, consolidate,
merge or withhold by order of a court of competent jurisdiction or
required by statute); and
(b) agrees (with the consent of the Seller, such consent evidenced by the
Seller's execution of this Mandate), upon receipt of a notice in the
form annexed hereto from the Operating Agent, which notice may be
received by facsimile to the Bank's Manchester Office at ▇▇-▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (facsimile no. 0161 839 1314) (the "Buyer's
Notice") (provided that if the Buyer's Notice has been sent by
facsimile, the Operating Agent shall send an original copy to the Bank
by registered post):
(i) to comply with any direction of the Operating Agent expressed to
be given by the Operating Agent in respect of the operation of
the Trust Account and the Bank shall be entitled to rely on any
such notice purporting to have been given on behalf of the
Operating Agent without enquiry; and
(ii) that all right, authority and power of the Seller in respect of
the operation of the Trust Account shall be deemed to be
terminated and of no further effect and the Bank agrees that it
shall, upon receipt of the
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Buyer's Notice, comply with the directions of the Operating Agent
in relation to the operation of the Trust Account.
Unless and until it receives a notice in writing from or purporting to
be from the Operating Agent to the contrary, the Bank is authorised to
continue to operate the Trust Account without regard to such trust.
For the avoidance of doubt, the parties acknowledge that the terms of
the trust set forth in Clause 1-4 above do not apply to the Seller
Non-Transaction Account, and the Bank may operate such account at all
times without regard to the trust set forth in Clauses 1-4 above.
8. If the Bank has received the Buyer's Notice, any instructions (including,
but not limited to Instructions), notices or other directions, dated or
purporting to be dated after the date of receipt of the Buyer's Notice by
the Bank, shall be signed by or on behalf of the Operating Agent by the
person or persons specified by the Operating Agent in the Buyer's Notice or
as otherwise agreed or directed by the Operating Agent hereafter in
writing.
9. The Bank may use (at the Bank's direction and/or the discretion of the
Bank's correspondents and entirely at the Seller's risk save in the case of
fraud or negligence by the Bank) telephone, facsimile or any other similar
transmission system for the purpose of giving any commitment on the
Seller's behalf authorised under clause 6 above or sending any message
relating or appearing to relate to the Trust Account and that the Seller
may give its Instructions to the Bank by such means.
10. Until the Bank shall have been notified by the Operating Agent that the
Receivables Securitisation Deed has been terminated:
(a) the Bank shall provide the Seller, the Buyer and the Operating Agent
with a monthly statement in respect of the Trust Account or upon
request from time to time, and in the latter case such statement shall
be provided as soon as reasonably practicable after receipt of a
request for a statement;
(b) the Seller covenants that it will not open any further bank accounts
with the Bank other than as expressly contemplated by this Mandate or
similar Mandate dated as of the date hereof, without the prior written
consent of the Bank (which for the purposes of this paragraph (b)
shall mean the Bank's Manchester Office (referred to above) and the
Operating Agent; and
(c) the Bank agrees and undertakes that (i) it will take no steps against
the Buyer for the purpose of recovering any amounts or any other debts
or liabilities owing to it in connection with the Trust Account, this
Mandate or the Receivables Securitisation Deed by the Buyer and that,
(ii) it will not petition or commence proceedings for liquidation or
winding up (or similar proceedings) nor join any person in doing so,
nor commence any proceedings against the Buyer in connection with the
Trust Account, this Mandate or the Receivables Securitisation Deed.
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11. The Bank confirms that it has received no written notice of any third party
interest or claim in the Trust Account.
12. Each of the Seller, the Buyer and the Operating Agent agree to deliver a
schedule to this Mandate setting forth the names and signatures of those
agents of the Seller, the Buyer and Operating Agent (as applicable) who are
authorised on behalf of the Seller, the Buyer or the Operating Agent, as
applicable, to execute and receive notices, statements, instructions
(including but not limited to Instructions) and directions in connection
with this Mandate. Reliance upon a notice or instructions (including but
not limited to Instructions) or directions apparently or purportedly signed
by any of such authorised signatories shall operate as a discharge of the
Bank in relation to any notice or instructions (including but not limited
to Instructions) or directions relied and acted upon by it.
13. The Seller agrees to deliver a schedule to this Mandate (if required)
setting forth all the names in which the Bank is authorised to collect
cheques or other payment media as described in Clause 4(d), and agrees to
enter into any indemnity reasonably required by the Bank where such names
are unconnected with the name of the Seller.
14. If any notice, instruction (including but not limited to Instructions) or
direction received by the Bank under, and in accordance with, this Mandate
is in the Bank's view unclear and/or ambiguous, the Bank may in its
absolute discretion and without liability on its part act upon what it
reasonably believes in good faith to be the intent of such notice or
instruction, until any ambiguity or conflict (which, in any case where the
Bank refuses to execute instructions, it shall promptly notify the
Operating Agent) has been resolved to its satisfaction.
15. Any final payment instructions given in any notice received by the Bank
before 1:00 p.m. on any banking day if preceded by the necessary pre-advice
required to effect funds movement shall be executed on the same day,
failing which they shall be implemented as soon as practical but in any
event for value by no later than the opening of business on the next
succeeding banking day.
A "banking day" for the purposes of this Mandate is a day (other than a
Saturday or a Sunday) on which banks are open for business in London.
16. The Seller shall be liable to pay the Bank's costs, charges and expenses in
relation to the Trust Account (including any amounts which the Bank cannot
recover from the Buyer as a result of the operation of Clause 10(c))
whether or not the Bank has received the Buyer's Notice and notwithstanding
any Early Amortisation under the Receivables Securitisation Deed, without
recourse to the Buyer or the Operating Agent, and the Bank agrees to seek
payment of these costs, charges and expenses solely from the Seller and not
to debit such charges to the Trust Account, or seek to claim such amounts
from the Buyer or the Operating Agent (for the avoidance of doubt, nothing
in this Clause 16 shall prevent the Bank from recovering from the Operating
Agent monies owed to the Bank by the Operating Agent other than the costs,
charges and expenses in relation to the Trust Account described in this
Clause 16) in any other
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manner, and the Bank shall be entitled to debit account number ▇▇▇▇▇▇▇▇
held by the Seller with all costs, charges and expenses referred to above.
17. In performance of this Mandate, the Bank may rely on any instruction
(including but not limited to Instructions), notice, direction or
communication appearing or purporting to be given under and in accordance
with this Mandate and reasonably believed by the Bank to be genuine, and
the Bank shall have no obligation to make enquiries as to the
justification, validity or contents of any instructions (including but not
limited to Instructions) directions or notices delivered to it pursuant to
this Mandate.
18. If the Bank (which, for the purposes of this Clause 18 means (i) the Bank's
Head office at the ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (ii) the Bank's Manchester
Office (referred to above) receives any written notice (containing
sufficient information to identify the Trust Account and the branch at
which the account is held) that a third party has claimed any interest in,
or a right to, the credit balance on the Trust Account, then the Bank will
forthwith notify the Operating Agent accordingly.
GENERAL
19. The Seller hereby warrants that it has full power and authority to effect
and has taken all necessary action to authorise the execution, delivery and
performance by it of this Mandate and the matters contemplated by this
Mandate.
20. This Mandate may be terminated by the mutual agreement of the parties. The
Bank may also request a termination of this Mandate by providing written
notice to the Seller, the Buyer and the Operating Agent of its intention to
terminate this Mandate. After such notice, the following procedures shall
apply:
(a) provided no Early Amortisation Event has occurred, the Seller, the
Buyer and the Operating Agent shall use reasonable efforts to locate
another bank or financial institution for the location of the Trust
Account which is mutually acceptable to the Seller, the Buyer and the
Operating Agent;
(b) 90 days after the date upon which the Operating Agent receives the
notice from the Bank referred to above (or such earlier date as agreed
to by the Bank, the Seller and the Operating Agent), the Bank shall be
entitled to close the Trust Account. All sums standing to the credit
of the Trust Account as at such date (and any future sums received by
the Bank which have been directed towards the Trust Account and which
have been accepted for deposit by the Bank; however, for the avoidance
of doubt, after the closure of the Trust Account, the Bank shall be
under no obligation to accept such sums) shall be deposited into the
account designated by the Seller, the Buyer and Operating Agent, and
notified to the Bank; and
(c) if, during the 90 day period referred to in paragraph (b) above, the
Seller, the Buyer and the Operating Agent are unable to mutually agree
upon a replacement location for the Trust Account, the Trust Account
and all sums standing to the credit of the Trust Account as at such
date (and any future
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sums received by the Bank which have been directed towards the
Trust Account and which have been accepted for deposit by the
Bank; however, for the avoidance of doubt, after the closure of
the Trust Account, the Bank shall be under no obligation to accept
such sums) shall be transferred to and held with Citibank, N.A.,
London branch. Provided no Early Amortisation Event has occurred,
the Seller, the Buyer and the Operating Agent shall continue to
use reasonable efforts after such time to locate another bank or
financial institution for the location of the Trust Account which
is mutually acceptable to the Seller, the Buyer and the Operating
Agent.
21. Headings used in this Mandate are for convenience of reference only and
shall not affect the interpretation of this Mandate.
22. This Mandate may be executed in counterparts, all of which taken together
shall constitute one and the same instrument.
23. Unless otherwise required by applicable law or regulation, or as requested
by any regulator with jurisdiction over, or over any business of, the
relevant party, each of the parties agrees to maintain the confidentiality
of this Agreement in its communications with third parties and otherwise.
24. This Mandate shall be governed by, and construed in accordance with, the
laws of England.
IN WITNESS WHEREOF, this Mandate has been duly executed and delivered as a Deed.
SIGNED as a deed by )
as attorney for CMP BATTERIES )
LIMITED in the presence of: )
Witness's
Signature: ...........................
Name: ...........................
Address: ...........................
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SIGNED as a deed by )
as attorney for BATTERIES FUNDING )
LIMITED in the presence of: )
Witness's
Signature: ........................
Name: ........................
Address: ........................
EXECUTED as a deed by )
CITIBANK N.A. as Operating )
Agent acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ........................
Name: ........................
Address: ........................
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ........................
Name: ........................
Address: ........................
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FORM OF BUYER'S NOTICE
CMP BATTERIES LIMITED A/C NO ▇▇▇▇▇▇▇▇
To: Bank of Scotland
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇
BUYER'S NOTICE
We Citibank, N.A., as Operating Agent under a receivables securitisation deed
dated [.] May 2002 between, inter alia, CMP BATTERIES LIMITED, Batteries Funding
Limited and Citibank, N.A., hereby give you notice (the "Buyer's Notice")
pursuant to clause 7(b) of the trust account bank mandate for the above account
dated [.] May 2002 (the "Mandate").
In accordance with the terms of the Mandate, you should henceforth operate the
above account solely in accordance with instructions given by ourselves, and
ignore any instructions or directions given by CMP BATTERIES LIMITED. This
Buyer's Notice does not affect the operation of CMP BATTERIES LIMITED's other
accounts (if any) with yourselves.
Please acknowledge safe receipt of this Buyer's Notice by signing and returning
a copy to us.
If you have any doubt as to the effect of this Buyer's Notice, you are advised
to refer to your legal advisers enclosing a copy of this notice and the Mandate
as a matter of urgency.
_________________________________
For and on behalf of
Citibank, N.A. in its capacity as
Operating Agent
RECEIPT ACKNOWLEDGED BY:
BANK OF SCOTLAND
_________________________________
By:
Date:
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TRUST ACCOUNT BANK MANDATE
Dated [.] May 2002:
between
(1) CMP BATTERIES LIMITED, (Company No. 2375355), ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Seller");
(2) BATTERIES FUNDING LIMITED, West Block, International Financial Services
Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the "Buyer");
(3) CITIBANK, N.A. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (in its capacity as Operating
Agent under the Receivables Securitisation Deed (defined below), the
"Operating Agent"); and
(4) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the "Bank").
Pursuant to the Receivables Securitisation Deed dated [.] May 2002 (as amended
from time to time, the "Receivables Securitisation Deed") between, inter alia,
the Seller, the Buyer and the Operating Agent, under which at the date hereof
the Seller is Seller and Sub-Servicer, it is agreed:
TRUST
1. Capitalised terms used herein, unless otherwise defined herein, shall have
the meanings given in the Receivables Securitisation Deed.
2. The Seller confirms to the Buyer and the Operating Agent that it has
directed all of the Account Debtors to remit payments for the Purchased
Receivables denominated in Euro into the following account at the bank:
Sort Code: 12-08-95
Account No: [ ]
Account Title: Collection Account
3. The Seller hereby declares that, with effect from (and including) the
time it first sells Receivables to the Buyer under the Receivables
Securitisation Deed (the "Trust Commencement"), it will hold the
Collection Account, which shall thereafter be designated as a trust
account (the "Trust Account"), upon trust for the Buyer and itself as
beneficiaries absolutely.
4. As of and from the Trust Commencement:
(a) All moneys at any time standing to the credit of the Trust Account in
respect of the Buyer Entitlement and any interest on such moneys are
and shall be beneficially owned by the Buyer, and all other moneys at
any time standing to the credit of the Trust Account are and shall be
beneficially owned by the Seller;
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(b) The Seller shall pay or procure the payment of all Collections
into the Trust Account.
(c) All cheques, telegraphic transfers and other payment media and all
cash in respect of Purchased Receivables (including Defaulted
Receivables which are Purchased Receivables) received and all
proceeds thereof and all other Collections of Purchased Receivables
and/or held at any time by or on behalf of the Seller are and shall
be in trust for the Buyer in accordance with its entitlements and
received and/or held for and on behalf of the Buyer for payment and
credit to the Trust Account.
(d) Clause 4(b) and (c) hereof shall apply to cheques and other payment
media whether payable to the Seller its full legal name or
expressed to be payable to the Seller under any of its trading
name(s) or otherwise.
(e) Should moneys be released from the Trust Account to or to the order
of the Seller, which represent the Buyer Entitlement, then the
Seller shall hold such amount on trust for the Buyer upon the terms
of this Mandate and shall immediately repay such amount into the
Trust Account.
(f) Except in accordance with the Receivables Securitisation Deed and
this Mandate, the Seller shall not, nor shall it be entitled to,
withdraw or cause the withdrawal of or instruct the Bank to pay or
otherwise remit any moneys from or to the debit of the Trust
Account.
(g) The Seller agrees that all bank charges and the like in respect of
the Trust Account are for the account of the Seller and it
undertakes on demand to reimburse any bank charges or the like
debited from time to time, for which it is responsible hereunder,
to the Trust Account.
(h) Each of the Seller and the Operating Agent shall be entitled to
receive from the Bank, bank statements relating to the Trust
Account, and (if necessary) the Seller shall inform the Bank
accordingly.
(i) The Seller will ensure that the Operating Agent is furnished with
such information as the Operating Agent may from time to time
request in relation to the identification of moneys standing to the
credit of the Trust Account.
BANK MANDATE
5. The mandate given to the Bank by virtue of this document (the "Mandate")
is given on the basis that the Bank complies with the procedures set out
in, and the terms of, Clauses 5-24 hereof. The Bank acknowledges, by its
execution of this Mandate, that the Trust Account is a trust account. So
long as the Bank complies with its obligations under Clauses 5-24, the
Bank shall not be liable in respect of any claim or action relating to a
breach of the trust set forth in Clauses 1-4 above.
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6. The Bank is hereby instructed:
(a) to honour and comply with all cheques, drafts, bills, promissory
notes, acceptances, negotiable instruments and orders expressed to
be drawn, accepted, made or given and to honour and comply with all
directions given in writing or by way of electronic impulses to
effect transfers by way of electronic means ("Instructions") from
the Trust Account to the Buyer's account (Account No. ▇▇▇▇▇▇▇▇,
Sort Code 18-50-08), or to the Seller Non-Transaction Account
(Account No. ., Sort Code 12-08-95) (but to no other accounts
whatsoever) at any time or times; and
(b) to treat all Instructions given by the Seller (subject to Clause 7
(b)), the Buyer or the Operating Agent in respect of the Trust
Account as being endorsed on behalf of the Seller and to deal with
them.
7. The Mandate is given on the basis that the Bank:
(j) waives any right it has or may hereafter acquire to set-off,
combine, consolidate or merge the Trust Account with any other
account of the Seller or any other person or any liabilities of the
Seller or any other person to the Bank and agrees that it may not
set off, transfer, combine or withhold payment of any sum
whatsoever standing to the credit of the Trust Account in or
towards or conditionally upon satisfaction of any liabilities to it
of the Seller or any other person (unless ordered to set off,
combine, transfer, consolidate, merge or withhold by order of a
court of competent jurisdiction or required by statute); and
(k) agrees (with the consent of the Seller, such consent evidenced by
the Seller's execution of this Mandate), upon receipt of a notice
in the form annexed hereto from the Operating Agent, which notice
may be received by facsimile to the Bank's Manchester Office at
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (facsimile no. 0161 839
1314) (the "Buyer's Notice") (provided that if the Buyer's Notice
has been sent by facsimile, the Operating Agent shall send an
original copy to the Bank by registered post):
(iii) to comply with any direction of the Operating Agent
expressed to be given by the Operating Agent in respect
of the operation of the Trust Account and the Bank shall
be entitled to rely on any such notice purporting to
have been given on behalf of the Operating Agent without
enquiry; and
(iv) that all right, authority and power of the Seller in
respect of the operation of the Trust Account shall be
deemed to be terminated and of no further effect and the
Bank agrees that it shall, upon receipt of the Buyer's
Notice, comply with the directions of the Operating
Agent in relation to the operation of the Trust Account.
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Unless and until it receives a notice in writing from or
purporting to be from the Operating Agent to the contrary, the
Bank is authorised to continue to operate the Trust Account
without regard to such trust. For the avoidance of doubt, the
parties acknowledge that the terms of the trust set forth in
Clause 1-4 above do not apply to the Seller Non-Transaction
Account, and the Bank may operate such account at all times
without regard to the trust set forth in Clauses 1-4 above.
8. If the Bank has received the Buyer's Notice, any instructions
(including, but not limited to Instructions), notices or other
directions, dated or purporting to be dated after the date of receipt
of the Buyer's Notice by the Bank, shall be signed by or on behalf of
the Operating Agent by the person or persons specified by the Operating
Agent in the Buyer's Notice or as otherwise agreed or directed by the
Operating Agent hereafter in writing.
9. The Bank may use (at the Bank's direction and/or the discretion of the
Bank's correspondents and entirely at the Seller's risk save in the
case of fraud or negligence by the Bank) telephone, facsimile or any
other similar transmission system for the purpose of giving any
commitment on the Seller's behalf authorised under clause 6 above or
sending any message relating or appearing to relate to the Trust
Account and that the Seller may give its Instructions to the Bank by
such means.
10. Until the Bank shall have been notified by the Operating Agent that the
Receivables Securitisation Deed has been terminated:
(a) the Bank shall provide the Seller, the Buyer and the Operating
Agent with a monthly statement in respect of the Trust Account
or upon request from time to time, and in the latter case such
statement shall be provided as soon as reasonably practicable
after receipt of a request for a statement;
(b) the Seller covenants that it will not open any further bank
accounts with the Bank other than as expressly contemplated by
this Mandate or similar Mandate dated as of the date hereof,
without the prior written consent of the Bank (which for the
purposes of this paragraph (b) shall mean the Bank's
Manchester Office (referred to above) and the Operating Agent;
and
(c) the Bank agrees and undertakes that (i) it will take no steps
against the Buyer for the purpose of recovering any amounts or
any other debts or liabilities owing to it in connection with
the Trust Account, this Mandate or the Receivables
Securitisation Deed by the Buyer and that, (ii) it will not
petition or commence proceedings for liquidation or winding up
(or similar proceedings) nor join any person in doing so, nor
commence any proceedings against the Buyer in connection with
the Trust Account, this Mandate or the Receivables
Securitisation Deed.
11. The Bank confirms that it has received no written notice of any third
party interest or claim in the Trust Account.
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12. Each of the Seller, the Buyer and the Operating Agent agree to deliver
a schedule to this Mandate setting forth the names and signatures of
those agents of the Seller, the Buyer and Operating Agent (as
applicable) who are authorised on behalf of the Seller, the Buyer or
the Operating Agent, as applicable, to execute and receive notices,
statements, instructions (including but not limited to Instructions)
and directions in connection with this Mandate. Reliance upon a notice
or instructions (including but not limited to Instructions) or
directions apparently or purportedly signed by any of such authorised
signatories shall operate as a discharge of the Bank in relation to any
notice or instructions (including but not limited to Instructions) or
directions relied and acted upon by it.
13. The Seller agrees to deliver a schedule to this Mandate (if required)
setting forth all the names in which the Bank is authorised to collect
cheques or other payment media as described in Clause 4(d), and agrees
to enter into any indemnity reasonably required by the Bank where such
names are unconnected with the name of the Seller.
14. If any notice, instruction (including but not limited to Instructions)
or direction received by the Bank under, and in accordance with, this
Mandate is in the Bank's view unclear and/or ambiguous, the Bank may in
its absolute discretion and without liability on its part act upon what
it reasonably believes in good faith to be the intent of such notice or
instruction, until any ambiguity or conflict (which, in any case where
the Bank refuses to execute instructions, it shall promptly notify the
Operating Agent) has been resolved to its satisfaction.
15. Any final payment instructions given in any notice received by the Bank
before 1:00 p.m. on any banking day if preceded by the necessary
pre-advice required to effect funds movement shall be executed on the
same day, failing which they shall be implemented as soon as practical
but in any event for value by no later than the opening of business on
the next succeeding banking day.
A "banking day" for the purposes of this Mandate is a day (other than a
Saturday or a Sunday) on which banks are open for business in London.
16. The Seller shall be liable to pay the Bank's costs, charges and
expenses in relation to the Trust Account (including any amounts which
the Bank cannot recover from the Buyer as a result of the operation of
Clause 10(c)) whether or not the Bank has received the Buyer's Notice
and notwithstanding any Early Amortisation under the Receivables
Securitisation Deed, without recourse to the Buyer or the Operating
Agent, and the Bank agrees to seek payment of these costs, charges and
expenses solely from the Seller and not to debit such charges to the
Trust Account, or seek to claim such amounts from the Buyer or the
Operating Agent (for the avoidance of doubt, nothing in this Clause 16
shall prevent the Bank from recovering from the Operating Agent monies
owed to the Bank by the Operating Agent other than the costs, charges
and expenses in relation to the Trust Account described in this Clause
16) in any other manner, and the Bank shall be entitled to debit
account number ▇▇▇▇▇▇▇▇ held by the Seller with all costs, charges and
expenses referred to above.
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17. In performance of this Mandate, the Bank may rely on any instruction
(including but not limited to Instructions), notice, direction or
communication appearing or purporting to be given under and in
accordance with this Mandate and reasonably believed by the Bank to be
genuine, and the Bank shall have no obligation to make enquiries as to
the justification, validity or contents of any instructions (including
but not limited to Instructions) directions or notices delivered to it
pursuant to this Mandate.
18. If the Bank (which, for the purposes of this Clause 18 means (i) the
Bank's Head office at the ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (ii) the Bank's
Manchester Office (referred to above) receives any written notice
(containing sufficient information to identify the Trust Account and
the branch at which the account is held) that a third party has claimed
any interest in, or a right to, the credit balance on the Trust
Account, then the Bank will forthwith notify the Operating Agent
accordingly.
GENERAL
19. The Seller hereby warrants that it has full power and authority to
effect and has taken all necessary action to authorise the execution,
delivery and performance by it of this Mandate and the matters
contemplated by this Mandate.
20. This Mandate may be terminated by the mutual agreement of the parties.
The Bank may also request a termination of this Mandate by providing
written notice to the Seller, the Buyer and the Operating Agent of its
intention to terminate this Mandate. After such notice, the following
procedures shall apply:
(a) provided no Early Amortisation Event has occurred, the Seller,
the Buyer and the Operating Agent shall use reasonable efforts
to locate another bank or financial institution for the
location of the Trust Account which is mutually acceptable to
the Seller, the Buyer and the Operating Agent;
(b) 90 days after the date upon which the Operating Agent receives
the notice from the Bank referred to above (or such earlier
date as agreed to by the Bank, the Seller and the Operating
Agent), the Bank shall be entitled to close the Trust Account.
All sums standing to the credit of the Trust Account as at
such date (and any future sums received by the Bank which have
been directed towards the Trust Account and which have been
accepted for deposit by the Bank; however, for the avoidance
of doubt, after the closure of the Trust Account, the Bank
shall be under no obligation to accept such sums) shall be
deposited into the account designated by the Seller, the Buyer
and Operating Agent, and notified to the Bank; and
(c) if, during the 90 day period referred to in paragraph (b)
above, the Seller, the Buyer and the Operating Agent are
unable to mutually agree upon a replacement location for the
Trust Account, the Trust Account and all sums standing to the
credit of the Trust Account as at such date (and any future
sums received by the Bank which have been directed towards the
Trust Account and which have been accepted for deposit by the
Bank; however, for
-103-
the avoidance of doubt, after the closure of the Trust
Account, the Bank shall be under no obligation to accept such
sums) shall be transferred to and held with Citibank, N.A.,
London branch. Provided no Early Amortisation Event has
occurred, the Seller, the Buyer and the Operating Agent shall
continue to use reasonable efforts after such time to locate
another bank or financial institution for the location of the
Trust Account which is mutually acceptable to the Seller, the
Buyer and the Operating Agent.
21. Headings used in this Mandate are for convenience of reference only and
shall not affect the interpretation of this Mandate.
22. This Mandate may be executed in counterparts, all of which taken
together shall constitute one and the same instrument.
23. Unless otherwise required by applicable law or regulation, or as
requested by any regulator with jurisdiction over, or over any business
of, the relevant party, each of the parties agrees to maintain the
confidentiality of this Agreement in its communications with third
parties and otherwise.
24. This Mandate shall be governed by, and construed in accordance with,
the laws of England.
IN WITNESS WHEREOF, this Mandate has been duly executed and delivered as a Deed.
SIGNED as a deed by )
as attorney for CMP BATTERIES )
LIMITED in the presence of: )
Witness's
Signature: ...............................
Name: ...............................
Address: ...............................
SIGNED as a deed by )
as attorney for BATTERIES FUNDING)
LIMITED in the presence of: )
Witness's
Signature: ...............................
Name: ...............................
Address: ...............................
-104-
EXECUTED as a deed by )
CITIBANK N.A. as Operating )
Agent acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: .............................
Name: .............................
Address: .............................
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: .............................
Name: .............................
Address: .............................
-105-
FORM OF BUYER'S NOTICE
CMP BATTERIES LIMITED A/C NO [.]
To: Bank of Scotland
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇
BUYER'S NOTICE
We Citibank, N.A., as Operating Agent under a receivables securitisation deed
dated [.] May 2002 between, inter alia, CMP BATTERIES LIMITED, Batteries Funding
Limited and Citibank, N.A., hereby give you notice (the "Buyer's Notice")
pursuant to clause 7(b) of the trust account bank mandate for the above account
dated [.] May 2002 (the "Mandate").
In accordance with the terms of the Mandate, you should henceforth operate the
above account solely in accordance with instructions given by ourselves, and
ignore any instructions or directions given by CMP BATTERIES LIMITED. This
Buyer's Notice does not affect the operation of CMP BATTERIES LIMITED's other
accounts (if any) with yourselves.
Please acknowledge safe receipt of this Buyer's Notice by signing and returning
a copy to us.
If you have any doubt as to the effect of this Buyer's Notice, you are advised
to refer to your legal advisers enclosing a copy of this notice and the Mandate
as a matter of urgency.
-----------------------------
For and on behalf of
Citibank, N.A. in its capacity as
Operating Agent
RECEIPT ACKNOWLEDGED BY:
BANK OF SCOTLAND
-----------------------------
By:
Date:
-106-
TRUST ACCOUNT BANK MANDATE
Dated [.] May 2002:
between
(1) FULMEN (U.K.) LIMITED, (Company No. 0221210), ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Seller");
(2) BATTERIES FUNDING LIMITED, West Block, International Financial Services
Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the "Buyer");
(3) CITIBANK, N.A., ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇ its capacity as Operating
Agent under the Receivables Securitisation Deed (defined below), the
"Operating Agent"); and
(4) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the "Bank").
Pursuant to the Receivables Securitisation Deed dated [.] May 2002 (as amended
from time to time, the "Receivables Securitisation Deed") between, inter alia,
the Seller, the Buyer and the Operating Agent, under which at the date hereof
the Seller is Seller and Sub-Servicer, it is agreed:
TRUST
1. Capitalised terms used herein, unless otherwise defined herein, shall have
the meanings given in the Receivables Securitisation Deed.
2. The Seller confirms to the Buyer and the Operating Agent that it has
directed all of the Account Debtors to remit payments for the Purchased
Receivables denominated in Sterling into the following account at the
bank:
Sort Code: 12-08-95
Account No: ▇▇▇▇▇▇▇▇
Account Title: Collection Account
3. The Seller hereby declares that, with effect from (and including) the time
it first sells Receivables to the Buyer under the Receivables
Securitisation Deed (the "Trust Commencement"), it will hold the
Collection Account, which shall thereafter be designated as a trust
account (the "Trust Account"), upon trust for the Buyer and itself as
beneficiaries absolutely.
4. As of and from the Trust Commencement:
(a) All moneys at any time standing to the credit of the Trust Account in
respect of the Buyer Entitlement and any interest on such moneys are
and shall be beneficially owned by the Buyer, and all other moneys at
any time standing to the credit of the Trust Account are and shall be
beneficially owned by the Seller;
-107-
(b) The Seller shall pay or procure the payment of all Collections into
the Trust Account.
(c) All cheques, telegraphic transfers and other payment media and all
cash in respect of Purchased Receivables (including Defaulted
Receivables which are Purchased Receivables) and all proceeds thereof
and all other Collections of Purchased Receivables received and/or
held at any time by or on behalf of the Seller are and shall be in
trust for the Buyer in accordance with its entitlements and received
and/or held for and on behalf of the Buyer for payment and credit to
the Trust Account.
(d) Clause 4(b) and (c) hereof shall apply to cheques and other payment
media whether payable to the Seller its full legal name or expressed
to be payable to the Seller under any of its trading name(s) or
otherwise.
(e) Should moneys be released from the Trust Account to or to the order
of the Seller, which represent the Buyer Entitlement, then the Seller
shall hold such amount on trust for the Buyer upon the terms of this
Mandate and shall immediately repay such amount into the Trust
Account.
(f) Except in accordance with the Receivables Securitisation Deed and
this Mandate, the Seller shall not, nor shall it be entitled to,
withdraw or cause the withdrawal of or instruct the Bank to pay or
otherwise remit any moneys from or to the debit of the Trust Account.
(g) The Seller agrees that all bank charges and the like in respect of
the Trust Account are for the account of the Seller and it undertakes
on demand to reimburse any bank charges or the like debited from time
to time, for which it is responsible hereunder, to the Trust Account.
(h) Each of the Seller and the Operating Agent shall be entitled to
receive from the Bank, bank statements relating to the Trust Account,
and (if necessary) the Seller shall inform the Bank accordingly.
(i) The Seller will ensure that the Operating Agent is furnished with
such information as the Operating Agent may from time to time request
in relation to the identification of moneys standing to the credit of
the Trust Account.
BANK MANDATE
5. The mandate given to the Bank by virtue of this document (the "Mandate")
is given on the basis that the Bank complies with the procedures set out
in, and the terms of, Clauses 5-24 hereof. The Bank acknowledges, by its
execution of this Mandate, that the Trust Account is a trust account. So
long as the Bank complies with its obligations under Clauses 5-24, the
Bank shall not be liable in respect of any claim or action relating to a
breach of the trust set forth in Clauses 1-4 above.
-108-
6. The Bank is hereby instructed:
(a) to honour and comply with all cheques, drafts, bills, promissory
notes, acceptances, negotiable instruments and orders expressed to be
drawn, accepted, made or given and to honour and comply with all
directions given in writing or by way of electronic impulses to
effect transfers by way of electronic means ("Instructions") from the
Trust Account to the Buyer's account (Account No. ▇▇▇▇▇▇▇▇, Sort Code
18-50-08), or to the Seller Non-Transaction Account (Account No.
▇▇▇▇▇▇▇▇, Sort Code 12-08-95) (but to no other accounts whatsoever)
at any time or times; and
(b) to treat all Instructions given by the Seller (subject to Clause
7(b)), the Buyer or the Operating Agent in respect of the Trust
Account as being endorsed on behalf of the Seller and to deal with
them.
7. The Mandate is given on the basis that the Bank:
(a) waives any right it has or may hereafter acquire to set-off, combine,
consolidate or merge the Trust Account with any other account of the
Seller or any other person or any liabilities of the Seller or any
other person to the Bank and agrees that it may not set off,
transfer, combine or withhold payment of any sum whatsoever standing
to the credit of the Trust Account in or towards or conditionally
upon satisfaction of any liabilities to it of the Seller or any other
person (unless ordered to set off, combine, transfer, consolidate,
merge or withhold by order of a court of competent jurisdiction or
required by statute); and
(b) agrees (with the consent of the Seller, such consent evidenced by the
Seller's execution of this Mandate), upon receipt of a notice in the
form annexed hereto from the Operating Agent, which notice may be
received by facsimile to the Bank's Manchester Office at ▇▇-▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (facsimile no. 0161 839 1314) (the
"Buyer's Notice") (provided that if the Buyer's Notice has been sent
by facsimile, the Operating Agent shall send an original copy to the
Bank by registered post):
(i) to comply with any direction of the Operating Agent expressed to
be given by the Operating Agent in respect of the operation of
the Trust Account and the Bank shall be entitled to rely on any
such notice purporting to have been given on behalf of the
Operating Agent without enquiry; and
(ii) that all right, authority and power of the Seller in respect of
the operation of the Trust Account shall be deemed to be
terminated and of no further effect and the Bank agrees that it
shall, upon receipt of the Buyer's Notice, comply with the
directions of the Operating Agent in relation to the operation
of the Trust Account.
-109-
Unless and until it receives a notice in writing from or purporting
to be from the Operating Agent to the contrary, the Bank is
authorised to continue to operate the Trust Account without regard to
such trust. For the avoidance of doubt, the parties acknowledge that
the terms of the trust set forth in Clause 1-4 above do not apply to
the Seller Non-Transaction Account, and the Bank may operate such
account at all times without regard to the trust set forth in Clauses
1-4 above.
8. If the Bank has received the Buyer's Notice, any instructions (including,
but not limited to Instructions), notices or other directions, dated or
purporting to be dated after the date of receipt of the Buyer's Notice by
the Bank, shall be signed by or on behalf of the Operating Agent by the
person or persons specified by the Operating Agent in the Buyer's Notice
or as otherwise agreed or directed by the Operating Agent hereafter in
writing.
9. The Bank may use (at the Bank's direction and/or the discretion of the
Bank's correspondents and entirely at the Seller's risk save in the case
of fraud or negligence by the Bank) telephone, facsimile or any other
similar transmission system for the purpose of giving any commitment on
the Seller's behalf authorised under clause 6 above or sending any message
relating or appearing to relate to the Trust Account and that the Seller
may give its Instructions to the Bank by such means.
10. Until the Bank shall have been notified by the Operating Agent that the
Receivables Securitisation Deed has been terminated:
(a) the Bank shall provide the Seller, the Buyer and the Operating Agent
with a monthly statement in respect of the Trust Account or upon
request from time to time, and in the latter case such statement
shall be provided as soon as reasonably practicable after receipt of
a request for a statement;
(b) the Seller covenants that it will not open any further bank accounts
with the Bank other than as expressly contemplated by this Mandate or
similar Mandate dated as of the date hereof, without the prior
written consent of the Bank (which for the purposes of this paragraph
(b) shall mean the Bank's Manchester Office (referred to above) and
the Operating Agent; and
(c) the Bank agrees and undertakes that (i) it will take no steps against
the Buyer for the purpose of recovering any amounts or any other
debts or liabilities owing to it in connection with the Trust
Account, this Mandate or the Receivables Securitisation Deed by the
Buyer and that, (ii) it will not petition or commence proceedings for
liquidation or winding up (or similar proceedings) nor join any
person in doing so, nor commence any proceedings against the Buyer in
connection with the Trust Account, this Mandate or the Receivables
Securitisation Deed.
11. The Bank confirms that it has received no written notice of any third
party interest or claim in the Trust Account.
-110-
12. Each of the Seller, the Buyer and the Operating Agent agree to deliver a
schedule to this Mandate setting forth the names and signatures of those
agents of the Seller, the Buyer and Operating Agent (as applicable) who
are authorised on behalf of the Seller, the Buyer or the Operating Agent,
as applicable, to execute and receive notices, statements, instructions
(including but not limited to Instructions) and directions in connection
with this Mandate. Reliance upon a notice or instructions (including but
not limited to Instructions) or directions apparently or purportedly
signed by any of such authorised signatories shall operate as a discharge
of the Bank in relation to any notice or instructions (including but not
limited to Instructions) or directions relied and acted upon by it.
13. The Seller agrees to deliver a schedule to this Mandate (if required)
setting forth all the names in which the Bank is authorised to collect
cheques or other payment media as described in Clause 4(d), and agrees to
enter into any indemnity reasonably required by the Bank where such names
are unconnected with the name of the Seller.
14. If any notice, instruction (including but not limited to Instructions) or
direction received by the Bank under, and in accordance with, this Mandate
is in the Bank's view unclear and/or ambiguous, the Bank may in its
absolute discretion and without liability on its part act upon what it
reasonably believes in good faith to be the intent of such notice or
instruction, until any ambiguity or conflict (which, in any case where the
Bank refuses to execute instructions, it shall promptly notify the
Operating Agent) has been resolved to its satisfaction.
15. Any final payment instructions given in any notice received by the Bank
before 1:00 p.m. on any banking day if preceded by the necessary
pre-advice required to effect funds movement shall be executed on the same
day, failing which they shall be implemented as soon as practical but in
any event for value by no later than the opening of business on the next
succeeding banking day.
A "banking day" for the purposes of this Mandate is a day (other than a
Saturday or a Sunday) on which banks are open for business in London.
16. The Seller shall be liable to pay the Bank's costs, charges and expenses
in relation to the Trust Account (including any amounts which the Bank
cannot recover from the Buyer as a result of the operation of Clause
10(c)) whether or not the Bank has received the Buyer's Notice and
notwithstanding any Early Amortisation Event under the Receivables
Securitisation Deed, without recourse to the Buyer or the Operating Agent,
and the Bank agrees to seek payment of these costs, charges and expenses
solely from the Seller and not to debit such charges to the Trust Account,
or seek to claim such amounts from the Buyer or the Operating Agent (for
the avoidance of doubt, nothing in this Clause 16 shall prevent the Bank
from recovering from the Operating Agent monies owed to the Bank by the
Operating Agent other than the costs, charges and expenses in relation to
the Trust Account described in this Clause 16) in any other manner, and
the Bank shall be entitled to debit account number ▇▇▇▇▇▇▇▇ held by the
Seller with all costs, charges and expenses referred to above.
-111-
17. In performance of this Mandate, the Bank may rely on any instruction
(including but not limited to Instructions), notice, direction or
communication appearing or purporting to be given under and in accordance
with this Mandate and reasonably believed by the Bank to be genuine, and
the Bank shall have no obligation to make enquiries as to the
justification, validity or contents of any instructions (including but not
limited to Instructions) directions or notices delivered to it pursuant to
this Mandate.
18. If the Bank (which, for the purposes of this Clause 18 means (i) the
Bank's Head office at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (ii) the Bank's
Manchester Office (referred to above) receives any written notice
(containing sufficient information to identify the Trust Account and the
branch at which the account is held) that a third party has claimed any
interest in, or a right to, the credit balance on the Trust Account, then
the Bank will forthwith notify the Operating Agent accordingly.
GENERAL
19. The Seller hereby warrants that it has full power and authority to effect
and has taken all necessary action to authorise the execution, delivery
and performance by it of this Mandate and the matters contemplated by this
Mandate.
20. This Mandate may be terminated by the mutual agreement of the parties. The
Bank may also request a termination of this Mandate by providing written
notice to the Seller, the Buyer and the Operating Agent of its intention
to terminate this Mandate. After such notice, the following procedures
shall apply:
(a) provided no Early Amortisation Event has occurred, the Seller, the
Buyer and the Operating Agent shall use reasonable efforts to locate
another bank or financial institution for the location of the Trust
Account which is mutually acceptable to the Seller, the Buyer and the
Operating Agent;
(b) 90 days after the date upon which the Operating Agent receives the
notice from the Bank referred to above (or such earlier date as
agreed to by the Bank, the Seller and the Operating Agent), the Bank
shall be entitled to close the Trust Account. All sums standing to
the credit of the Trust Account as at such date (and any future sums
received by the Bank which have been directed towards the Trust
Account and which have been accepted for deposit by the Bank;
however, for the avoidance of doubt, after the closure of the Trust
Account, the Bank shall be under no obligation to accept such sums)
shall be deposited into the account designated by the Seller, the
Buyer and Operating Agent, and notified to the Bank; and
(c) if, during the 90 day period referred to in paragraph (b) above, the
Seller, the Buyer and the Operating Agent are unable to mutually
agree upon a replacement location for the Trust Account, the Trust
Account and all sums standing to the credit of the Trust Account as
at such date (and any future sums received by the Bank which have
been directed towards the Trust Account and which have been accepted
for deposit by the Bank; however, for
-112-
the avoidance of doubt, after the closure of the Trust Account,
the Bank shall be under no obligation to accept such sums) shall
be transferred to and held with Citibank, N.A., London branch.
Provided no Early Amortisation Event has occurred, the Seller,
the Buyer and the Operating Agent shall continue to use
reasonable efforts after such time to locate another bank or
financial institution for the location of the Trust Account which
is mutually acceptable to the Seller, the Buyer and the Operating
Agent.
21. Headings used in this Mandate are for convenience of reference only and
shall not affect the interpretation of this Mandate.
22. This Mandate may be executed in counterparts, all of which taken together
shall constitute one and the same instrument.
23. Unless otherwise required by applicable law or regulation, or as requested
by any regulator with jurisdiction over, or over any business of, the
relevant party, each of the parties agrees to maintain the confidentiality
of this Agreement in its communications with third parties and otherwise.
24. This Mandate shall be governed by, and construed in accordance with, the
laws of England.
IN WITNESS WHEREOF, this Mandate has been duly executed and delivered as a Deed.
SIGNED as a deed by )
as attorney for FULMEN (U.K.) )
LIMITED in the presence of: )
Witness's
Signature: .............................
Name: .............................
Address: .............................
-113-
SIGNED as a deed by )
as attorney for BATTERIES FUNDING )
LIMITED in the presence of: )
Witness's
Signature: .............................
Name: .............................
Address: .............................
EXECUTED as a deed by )
CITIBANK N.A. as Operating )
Agent acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: .............................
Name: .............................
Address: .............................
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: .............................
Name: .............................
Address: .............................
-114-
FORM OF BUYER'S NOTICE
FULMEN . LIMITED A/C NO 00330887
To: Bank of Scotland
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇
BUYER'S NOTICE
We Citibank, N.A., as Operating Agent under a receivables securitisation deed
dated [.] May 2002 between, inter alia, FULMEN (U.K.) LIMITED, Batteries Funding
Limited and Citibank, N.A., hereby give you notice (the "Buyer's Notice")
pursuant to clause 7(b) of the trust account bank mandate for the above account
dated [.] May 2002 (the "Mandate").
In accordance with the terms of the Mandate, you should henceforth operate the
above account solely in accordance with instructions given by ourselves, and
ignore any instructions or directions given by FULMEN (U.K.) LIMITED. This
Buyer's Notice does not affect the operation of FULMEN (U.K.) LIMITED's other
accounts (if any) with yourselves.
Please acknowledge safe receipt of this Buyer's Notice by signing and returning
a copy to us.
If you have any doubt as to the effect of this Buyer's Notice, you are advised
to refer to your legal advisers enclosing a copy of this notice and the Mandate
as a matter of urgency.
_________________________________
For and on behalf of
Citibank, N.A. in its capacity as
Operating Agent
RECEIPT ACKNOWLEDGED BY:
BANK OF SCOTLAND
_________________________________
By:
Date:
-115-
TRUST ACCOUNT BANK MANDATE
Dated [.] May 2002:
between
(1) EXIDE BATTERIES LIMITED, (Company No. 898161), ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Seller's Agent");
(2) EXIDE (DAGENHAM) LIMITED, ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the "Seller");
(3) BATTERIES FUNDING LIMITED, West Block, International Financial Services
Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the "Buyer");
(4) CITIBANK, N.A. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (in its capacity as Operating
Agent under the Receivables Securitisation Deed (defined below), the
"Operating Agent"); and
(5) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the "Bank").
Pursuant to the Receivables Securitisation Deed dated [.] May 2002 (as amended
from time to time, the "Receivables Securitisation Deed") between, inter alia,
the Seller, the Buyer and the Operating Agent, under which at the date hereof
the Seller is Seller and Sub-Servicer, it is agreed:
TRUST
1. Capitalised terms used herein, unless otherwise defined herein, shall have
the meanings given in the Receivables Securitisation Deed. The Seller as
Sub-Servicer has delegated to the Seller's Agent the collection of
Purchased Receivables, as permitted under the Receivables Securitisation
Deed.
2. The Seller's Agent confirms to the Buyer and the Operating Agent that it
has directed all of the Account Debtors to remit payments for the Purchased
Receivables denominated in Sterling into the following account at the bank:
Sort Code: 12-08-95
Account No: ▇▇▇▇▇▇▇▇
Account Title: Collection Account
3. The Seller's Agent hereby declares that, with effect from (and including)
the time the Seller first sells Receivables to the Buyer under the
Receivables Securitisation Deed (the "Trust Commencement"), it will hold
the Collection Account, which shall thereafter be designated as a trust
account (the "Trust Account"), upon trust for the Buyer and the Seller as
beneficiaries absolutely.
-116-
4. As of and from the Trust Commencement:
(a) All moneys at any time standing to the credit of the Trust Account in
respect of the Buyer Entitlement and any interest on such moneys are
and shall be beneficially owned by the Buyer, and all other moneys at
any time standing to the credit of the Trust Account are and shall be
beneficially owned by the Seller;
(b) The Seller's Agent shall pay or procure the payment of all Collections
into the Trust Account.
(c) All cheques, telegraphic transfers and other payment media and all
cash in respect of Purchased Receivables (including Defaulted
Receivables which are Purchased Receivables) and all proceeds thereof
and all other Collections of Purchased Receivables received and/or
held at any time by or on behalf of the Seller are and shall be in
trust for the Buyer in accordance with its entitlements and received
and/or held for and on behalf of the Buyer for payment and credit to
the Trust Account.
(d) Clause 4(b) and (c) hereof shall apply to cheques and other payment
media whether payable to the Seller or the Seller's Agent its full
legal name or expressed to be payable to the Seller or the Seller's
Agent under any of its trading name(s) or otherwise.
(e) Should moneys be released from the Trust Account to or to the order of
the Seller or the Seller's Agent, which represent the Buyer
Entitlement, then the Seller or, as applicable, the Seller's Agent
shall hold such amount on trust for the Buyer upon the terms of this
Mandate and shall immediately repay such amount into the Trust
Account.
(f) Except in accordance with the Receivables Securitisation Deed and this
Mandate, the Seller or the Seller's Agent shall not, nor shall each of
them be entitled to, withdraw or cause the withdrawal of or instruct
the Bank to pay or otherwise remit any moneys from or to the debit of
the Trust Account.
(g) The Seller's Agent agrees that all bank charges and the like in
respect of the Trust Account are for the account of the Seller's Agent
and it undertakes on demand to reimburse any bank charges or the like
debited from time to time, for which it is responsible hereunder, to
the Trust Account.
(h) Each of the Seller's Agent and the Operating Agent shall be entitled
to receive from the Bank, bank statements relating to the Trust
Account, and (if necessary) the Seller's Agent shall inform the Bank
accordingly.
(i) The Seller's Agent will ensure that the Operating Agent is furnished
with such information as the Operating Agent may from time to time
request in relation to the identification of moneys standing to the
credit of the Trust Account.
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BANK MANDATE
5. The mandate given to the Bank by virtue of this document (the "Mandate") is
given on the basis that the Bank complies with the procedures set out in,
and the terms of, Clauses 5-24 hereof. The Bank acknowledges, by its
execution of this Mandate, that the Trust Account is a trust account. So
long as the Bank complies with its obligations under Clauses 5-24, the Bank
shall not be liable in respect of any claim or action relating to a breach
of the trust set forth in Clauses 1-4 above.
6. The Bank is hereby instructed:
(a) to honour and comply with all cheques, drafts, bills,
promissory notes, acceptances, negotiable instruments and
orders expressed to be drawn, accepted, made or given and to
honour and comply with all directions given in writing or by
way of electronic impulses to effect transfers by way of
electronic means ("Instructions") from the Trust Account to
the Buyer's account (Account No. ▇▇▇▇▇▇▇▇, Sort Code
18-50-08), or to the Seller Non-Transaction Account (Account
No. 00313366, Sort Code 12-08-95) (but to no other accounts
whatsoever) at any time or times; and
(b) to treat all Instructions given by the Seller's Agent (subject
to Clause 7(b)), the Buyer or the Operating Agent in respect
of the Trust Account as being endorsed on behalf of the
Seller's Agent and to deal with them.
7. The Mandate is given on the basis that the Bank:
(a) waives any right it has or may hereafter acquire to set-off,
combine, consolidate or merge the Trust Account with any other
account of the Seller's Agent or any other person or any
liabilities of the Seller's Agent or any other person to the
Bank and agrees that it may not set off, transfer, combine or
withhold payment of any sum whatsoever standing to the credit
of the Trust Account in or towards or conditionally upon
satisfaction of any liabilities to it of the Seller's Agent or
any other person (unless ordered to set off, combine,
transfer, consolidate, merge or withhold by order of a court
of competent jurisdiction or required by statute); and
(b) agrees (with the consent of the Seller and the Seller's Agent,
such consent evidenced by the Seller's and the Seller's
Agent's execution of this Mandate), upon receipt of a notice
in the form annexed hereto from the Operating Agent, which
notice may be received by facsimile to the Bank's Manchester
Office at ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (facsimile
no. 0161 839 1314) (the "Buyer's Notice") (provided that if
the Buyer's Notice has been sent by facsimile, the Operating
Agent shall send an original copy to the Bank by registered
post):
(i) to comply with any direction of the Operating Agent
expressed to be given by the Operating Agent in respect
of the operation of the Trust Account and the Bank
shall be entitled to rely on any such notice
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purporting to have been given on behalf of the Operating Agent
without enquiry; and
(ii) that all right, authority and power of the Seller's Agent in
respect of the operation of the Trust Account shall be deemed to
be terminated and of no further effect and the Bank agrees that
it shall, upon receipt of the Buyer's Notice, comply with the
directions of the Operating Agent in relation to the operation
of the Trust Account.
Unless and until it receives a notice in writing from or purporting
to be from the Operating Agent to the contrary, the Bank is
authorised to continue to operate the Trust Account without regard to
such trust. For the avoidance of doubt, the parties acknowledge that
the terms of the trust set forth in Clause 1-4 above do not apply to
the Seller Non-Transaction Account, and the Bank may operate such
account at all times without regard to the trust set forth in Clauses
1-4 above.
8. If the Bank has received the Buyer's Notice, any instructions (including,
but not limited to Instructions), notices or other directions, dated or
purporting to be dated after the date of receipt of the Buyer's Notice by
the Bank, shall be signed by or on behalf of the Operating Agent by the
person or persons specified by the Operating Agent in the Buyer's Notice
or as otherwise agreed or directed by the Operating Agent hereafter in
writing.
9. The Bank may use (at the Bank's direction and/or the discretion of the
Bank's correspondents and entirely at the Seller's and the Seller's
Agent's risk save in the case of fraud or negligence by the Bank)
telephone, facsimile or any other similar transmission system for the
purpose of giving any commitment on the Seller's Agent behalf authorised
under clause 6 above or sending any message relating or appearing to
relate to the Trust Account and that the Seller's Agent may give its
Instructions to the Bank by such means.
10. Until the Bank shall have been notified by the Operating Agent that the
Receivables Securitisation Deed has been terminated:
(a) the Bank shall provide the Seller's Agent, the Buyer and the
Operating Agent with a monthly statement in respect of the Trust
Account or upon request from time to time, and in the latter case
such statement shall be provided as soon as reasonably practicable
after receipt of a request for a statement;
(b) the Seller's Agent covenants that it will not open any further bank
accounts with the Bank other than as expressly contemplated by this
Mandate or similar Mandate dated as of the date hereof, without the
prior written consent of the Bank (which for the purposes of this
paragraph (b) shall mean the Bank's Manchester Office (referred to
above) and the Operating Agent; and
(c) the Bank agrees and undertakes that (i) it will take no steps against
the Buyer for the purpose of recovering any amounts or any other
debts or liabilities
-119-
owing to it in connection with the Trust Account, this Mandate or the
Receivables Securitisation Deed by the Buyer and that, (ii) it will
not petition or commence proceedings for liquidation or winding up
(or similar proceedings) nor join any person in doing so, nor
commence any proceedings against the Buyer in connection with the
Trust Account, this Mandate or the Receivables Securitisation Deed.
11. The Bank confirms that it has received no written notice of any third
party interest or claim in the Trust Account.
12. Each of the Seller's Agent, the Buyer and the Operating Agent agree to
deliver a schedule to this Mandate setting forth the names and signatures
of those agents of the Seller's Agent, the Buyer and Operating Agent (as
applicable) who are authorised on behalf of the Seller's Agent, the Buyer
or the Operating Agent, as applicable, to execute and receive notices,
statements, instructions (including but not limited to Instructions) and
directions in connection with this Mandate. Reliance upon a notice or
instructions (including but not limited to Instructions) or directions
apparently or purportedly signed by any of such authorised signatories
shall operate as a discharge of the Bank in relation to any notice or
instructions (including but not limited to Instructions) or directions
relied and acted upon by it.
13. The Seller's Agent agrees to deliver a schedule to this Mandate (if
required) setting forth all the names in which the Bank is authorised to
collect cheques or other payment media as described in Clause 4(d), and
agrees to enter into any indemnity reasonably required by the Bank where
such names are unconnected with the name of the Seller's Agent.
14. If any notice, instruction (including but not limited to Instructions) or
direction received by the Bank under, and in accordance with, this Mandate
is in the Bank's view unclear and/or ambiguous, the Bank may in its
absolute discretion and without liability on its part act upon what it
reasonably believes in good faith to be the intent of such notice or
instruction, until any ambiguity or conflict (which, in any case where the
Bank refuses to execute instructions, it shall promptly notify the
Operating Agent) has been resolved to its satisfaction.
15. Any final payment instructions given in any notice received by the Bank
before 1:00 p.m. on any banking day if preceded by the necessary
pre-advice required to effect funds movement shall be executed on the same
day, failing which they shall be implemented as soon as practical but in
any event for value by no later than the opening of business on the next
succeeding banking day.
A "banking day" for the purposes of this Mandate is a day (other than a
Saturday or a Sunday) on which banks are open for business in London.
16. The Seller's Agent shall be liable to pay the Bank's costs, charges and
expenses in relation to the Trust Account (including any amounts which the
Bank cannot recover from the Buyer as a result of the operation of Clause
10(c)) whether or not the Bank
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has received the Buyer's Notice and notwithstanding any Early Amortisation
Event under the Receivables Securitisation Deed, without recourse to the
Buyer or the Operating Agent, and the Bank agrees to seek payment of these
costs, charges and expenses solely from the Seller's Agent and not to
debit such charges to the Trust Account, or seek to claim such amounts
from the Buyer or the Operating Agent (for the avoidance of doubt, nothing
in this Clause 16 shall prevent the Bank from recovering from the
Operating Agent monies owed to the Bank by the Operating Agent other than
the costs, charges and expenses in relation to the Trust Account described
in this Clause 16) in any other manner, and the Bank shall be entitled to
debit account number ▇▇▇▇▇▇▇▇ held by the Seller's Agent with all costs,
charges and expenses referred to above.
17. In performance of this Mandate, the Bank may rely on any instruction
(including but not limited to Instructions), notice, direction or
communication appearing or purporting to be given under and in accordance
with this Mandate and reasonably believed by the Bank to be genuine, and
the Bank shall have no obligation to make enquiries as to the
justification, validity or contents of any instructions (including but not
limited to Instructions) directions or notices delivered to it pursuant to
this Mandate.
18. If the Bank (which, for the purposes of this Clause 18 means (i) the
Bank's Head office at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (ii) the Bank's
Manchester Office (referred to above) receives any written notice
(containing sufficient information to identify the Trust Account and the
branch at which the account is held) that a third party has claimed any
interest in, or a right to, the credit balance on the Trust Account, then
the Bank will forthwith notify the Operating Agent accordingly.
GENERAL
19. Each of Seller and the Seller's Agent hereby warrants that it has full
power and authority to effect and has taken all necessary action to
authorise the execution, delivery and performance by it of this Mandate
and the matters contemplated by this Mandate.
20. This Mandate may be terminated by the mutual agreement of the parties. The
Bank may also request a termination of this Mandate by providing written
notice to the Seller, the Seller's Agent, the Buyer and the Operating
Agent of its intention to terminate this Mandate. After such notice, the
following procedures shall apply:
(a) provided no Early Amortisation Event has occurred, the Seller, the
Seller's Agent, the Buyer and the Operating Agent shall use
reasonable efforts to locate another bank or financial institution
for the location of the Trust Account which is mutually acceptable to
the Seller, the Seller's Agent, the Buyer and the Operating Agent;
(b) 90 days after the date upon which the Operating Agent receives the
notice from the Bank referred to above (or such earlier date as
agreed to by the Bank, the Seller, the Seller's Agent and the
Operating Agent), the Bank shall
-121-
be entitled to close the Trust Account. All sums standing to the
credit of the Trust Account as at such date (and any future sums
received by the Bank which have been directed towards the Trust
Account and which have been accepted for deposit by the Bank;
however, for the avoidance of doubt, after the closure of the Trust
Account, the Bank shall be under no obligation to accept such sums)
shall be deposited into the account designated by the Seller, the
Seller's Agent, the Buyer and Operating Agent, and notified to the
Bank; and
(c) if, during the 90 day period referred to in paragraph (b) above, the
Seller, the Seller's Agent, the Buyer and the Operating Agent are
unable to mutually agree upon a replacement location for the Trust
Account, the Trust Account and all sums standing to the credit of the
Trust Account as at such date (and any future sums received by the
Bank which have been directed towards the Trust Account and which
have been accepted for deposit by the Bank; however, for the
avoidance of doubt, after the closure of the Trust Account, the Bank
shall be under no obligation to accept such sums) shall be
transferred to and held with Citibank, N.A., London branch. Provided
no Early Amortisation Event has occurred, the Seller, the Seller's
Agent, the Buyer and the Operating Agent shall continue to use
reasonable efforts after such time to locate another bank or
financial institution for the location of the Trust Account which is
mutually acceptable to the Seller, the Seller's Agent, the Buyer and
the Operating Agent.
21. Headings used in this Mandate are for convenience of reference only and
shall not affect the interpretation of this Mandate.
22. This Mandate may be executed in counterparts, all of which taken together
shall constitute one and the same instrument.
23. Unless otherwise required by applicable law or regulation, or as requested
by any regulator with jurisdiction over, or over any business of, the
relevant party, each of the parties agrees to maintain the confidentiality
of this Agreement in its communications with third parties and otherwise.
24. This Mandate shall be governed by, and construed in accordance with, the
laws of England.
IN WITNESS WHEREOF, this Mandate has been duly executed and delivered as a Deed.
SIGNED as a deed by )
as attorney for EXIDE BATTERIES )
LIMITED in the presence of: )
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Witness's
Signature: ..................................
Name: ..................................
Address: ..................................
SIGNED as a deed by )
as attorney for EXIDE (DAGENHAM )
LIMITED in the presence of: )
Witness's
Signature: ..................................
Name: ..................................
Address: ..................................
SIGNED as a deed by )
as attorney for BATTERIES FUNDING
LIMITED in the presence of: )
Witness's
Signature: ..................................
Name: ..................................
Address: ..................................
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EXECUTED as a deed by )
CITIBANK N.A. as Operating )
Agent acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ..................................
Name: ..................................
Address: ..................................
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ..................................
Name: ..................................
Address: ..................................
-124-
FORM OF BUYER'S NOTICE
EXIDE BATTERIES LIMITED A/C NO ▇▇▇▇▇▇▇▇
To: Bank of Scotland
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇
BUYER'S NOTICE
We Citibank, N.A., as Operating Agent under a receivables securitisation deed
dated [.] May 2002 between, inter alia, EXIDE (DAGENHAM) LIMITED, Batteries
Funding Limited and Citibank, N.A., hereby give you notice (the "Buyer's
Notice") pursuant to clause 7(b) of the trust account bank mandate for the above
account dated [.] May 2002 (the "Mandate").
In accordance with the terms of the Mandate with respect to the above account
opened in the name of EXIDE BATTERIES LIMITED (as agent of EXIDE (DAGENHAM)
LIMITED), you should henceforth operate the above account solely in accordance
with instructions given by ourselves, and ignore any instructions or directions
given by EXIDE BATTERIES LIMITED. This Buyer's Notice does not affect the
operation of EXIDE (DAGENHAM) LIMITED's or EXIDE BATTERIES LIMITED's other
accounts (if any) with yourselves.
Please acknowledge safe receipt of this Buyer's Notice by signing and returning
a copy to us.
If you have any doubt as to the effect of this Buyer's Notice, you are advised
to refer to your legal advisers enclosing a copy of this notice and the Mandate
as a matter of urgency.
---------------------------------
For and on behalf of
Citibank, N.A. in its capacity as
Operating Agent
RECEIPT ACKNOWLEDGED BY:
BANK OF SCOTLAND
---------------------------------
By:
Date:
-125-
TRUST ACCOUNT BANK MANDATE
Dated [.] May 2002:
between
(1) DETA UK LIMITED, (Company No. [.]), [.] (the "Seller");
(2) BATTERIES FUNDING LIMITED, West Block, International Financial Services
Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the "Buyer");
(3) CITIBANK, N.A., ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇ its capacity as Operating
Agent under the Receivables Securitisation Deed (defined below), the
"Operating Agent"); and
(4) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ (the "Bank").
Pursuant to the Receivables Securitisation Deed dated [.] May 2002 (as amended
from time to time, the "Receivables Securitisation Deed") between, inter alia,
the Seller, the Buyer and the Operating Agent, under which at the date hereof
the Seller is Seller and Sub-Servicer, it is agreed:
TRUST
1. Capitalised terms used herein, unless otherwise defined herein, shall have
the meanings given in the Receivables Securitisation Deed.
2. The Seller confirms to the Buyer and the Operating Agent that it has
directed all of the Account Debtors to remit payments for the Purchased
Receivables denominated in Sterling into the following account at the
bank:
Sort Code: 12-08-95
Account No: [.]
Account Title: Collection Account
3. The Seller hereby declares that, with effect from (and including) the
time it first sells Receivables to the Buyer under the Receivables
Securitisation Deed (the "Trust Commencement"), it will hold the
Collection Account, which shall thereafter be designated as a trust
account (the "Trust Account"), upon trust for the Buyer and itself as
beneficiaries absolutely.
4. As of and from the Trust Commencement:
(a) All moneys at any time standing to the credit of the Trust Account in
respect of the Buyer Entitlement and any interest on such moneys are
and shall be beneficially owned by the Buyer, and all other moneys at
any time standing to the credit of the Trust Account are and shall be
beneficially owned by the Seller;
-126-
(b) The Seller shall pay or procure the payment of all Collections into the
Trust Account.
(c) All cheques, telegraphic transfers and other payment media and
all cash in respect of Purchased Receivables (including
Defaulted Receivables which are Purchased Receivables) and all
proceeds thereof and all other Collections of Purchased
Receivables received and/or held at any time by or on behalf
of the Seller are and shall be in trust for the Buyer in
accordance with its entitlements and received and/or held for
and on behalf of the Buyer for payment and credit to the Trust
Account.
(d) Clause 4(b) and (c) hereof shall apply to cheques and other
payment media whether payable to the Seller its full legal
name or expressed to be payable to the Seller under any of its
trading name(s) or otherwise.
(e) Should moneys be released from the Trust Account to or to the
order of the Seller, which represent the Buyer Entitlement,
then the Seller shall hold such amount on trust for the Buyer
upon the terms of this Mandate and shall immediately repay
such amount into the Trust Account.
(f) Except in accordance with the Receivables Securitisation Deed
and this Mandate, the Seller shall not, nor shall it be
entitled to, withdraw or cause the withdrawal of or instruct
the Bank to pay or otherwise remit any moneys from or to the
debit of the Trust Account.
(g) The Seller agrees that all bank charges and the like in
respect of the Trust Account are for the account of the Seller
and it undertakes on demand to reimburse any bank charges or
the like debited from time to time, for which it is
responsible hereunder, to the Trust Account.
(h) Each of the Seller and the Operating Agent shall be entitled
to receive from the Bank, bank statements relating to the
Trust Account, and (if necessary) the Seller shall inform the
Bank accordingly.
(i) The Seller will ensure that the Operating Agent is furnished
with such information as the Operating Agent may from time to
time request in relation to the identification of moneys
standing to the credit of the Trust Account.
BANK MANDATE
5. The mandate given to the Bank by virtue of this document (the "Mandate")
is given on the basis that the Bank complies with the procedures set out
in, and the terms of, Clauses 5-24 hereof. The Bank acknowledges, by its
execution of this Mandate, that the Trust Account is a trust account. So
long as the Bank complies with its obligations under Clauses 5-24, the
Bank shall not be liable in respect of any claim or action relating to a
breach of the trust set forth in Clauses 1-4 above.
-127-
6. The Bank is hereby instructed:
(a) to honour and comply with all cheques, drafts, bills, promissory notes,
acceptances, negotiable instruments and orders expressed to be drawn,
accepted, made or given and to honour and comply with all directions
given in writing or by way of electronic impulses to effect transfers
by way of electronic means ("Instructions") from the Trust Account to
the Buyer's account (Account No. ▇▇▇▇▇▇▇▇, Sort Code 18-50-08), or to
the Seller Non-Transaction Account (Account No. ▇▇▇▇▇▇▇▇, Sort Code
12-08-95) (but to no other accounts whatsoever) at any time or times;
and
(b) to treat all Instructions given by the Seller (subject to Clause 7(b)),
the Buyer or the Operating Agent in respect of the Trust Account as
being endorsed on behalf of the Seller and to deal with them.
7. The Mandate is given on the basis that the Bank:
(a) waives any right it has or may hereafter acquire to set-off,
combine, consolidate or merge the Trust Account with any other
account of the Seller or any other person or any liabilities
of the Seller or any other person to the Bank and agrees that
it may not set off, transfer, combine or withhold payment of
any sum whatsoever standing to the credit of the Trust Account
in or towards or conditionally upon satisfaction of any
liabilities to it of the Seller or any other person (unless
ordered to set off, combine, transfer, consolidate, merge or
withhold by order of a court of competent jurisdiction or
required by statute); and
(b) agrees (with the consent of the Seller, such consent evidenced
by the Seller's execution of this Mandate), upon receipt of a
notice in the form annexed hereto from the Operating Agent,
which notice may be received by facsimile to the Bank's
Manchester Office at ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇
(facsimile no. 0161 839 1314) (the "Buyer's Notice") (provided
that if the Buyer's Notice has been sent by facsimile, the
Operating Agent shall send an original copy to the Bank by
registered post):
(i) to comply with any direction of the Operating Agent expressed to
be given by the Operating Agent in respect of the operation of
the Trust Account and the Bank shall be entitled to rely on any
such notice purporting to have been given on behalf of the
Operating Agent without enquiry; and
(ii) that all right, authority and power of the Seller in respect of
the operation of the Trust Account shall be deemed to be
terminated and of no further effect and the Bank agrees that it
shall, upon receipt of the Buyer's Notice, comply with the
directions of the Operating Agent in relation to the operation of
the Trust Account.
-128-
Unless and until it receives a notice in writing from or
purporting to be from the Operating Agent to the contrary, the
Bank is authorised to continue to operate the Trust Account
without regard to such trust. For the avoidance of doubt, the
parties acknowledge that the terms of the trust set forth in
Clause 1-4 above do not apply to the Seller Non-Transaction
Account, and the Bank may operate such account at all times
without regard to the trust set forth in Clauses 1-4 above.
8. If the Bank has received the Buyer's Notice, any instructions
(including, but not limited to Instructions), notices or other
directions, dated or purporting to be dated after the date of receipt
of the Buyer's Notice by the Bank, shall be signed by or on behalf of
the Operating Agent by the person or persons specified by the Operating
Agent in the Buyer's Notice or as otherwise agreed or directed by the
Operating Agent hereafter in writing.
9. The Bank may use (at the Bank's direction and/or the discretion of the
Bank's correspondents and entirely at the Seller's risk save in the
case of fraud or negligence by the Bank) telephone, facsimile or any
other similar transmission system for the purpose of giving any
commitment on the Seller's behalf authorised under clause 6 above or
sending any message relating or appearing to relate to the Trust
Account and that the Seller may give its Instructions to the Bank by
such means.
10. Until the Bank shall have been notified by the Operating Agent that the
Receivables Securitisation Deed has been terminated:
(a) the Bank shall provide the Seller, the Buyer and the Operating
Agent with a monthly statement in respect of the Trust Account or
upon request from time to time, and in the latter case such
statement shall be provided as soon as reasonably practicable
after receipt of a request for a statement;
(b) the Seller covenants that it will not open any further bank
accounts with the Bank other than as expressly contemplated by
this Mandate or similar Mandate dated as of the date hereof,
without the prior written consent of the Bank (which for the
purposes of this paragraph (b) shall mean the Bank's Manchester
Office (referred to above) and the Operating Agent; and
(c) the Bank agrees and undertakes that (i) it will take no steps
against the Buyer for the purpose of recovering any amounts or
any other debts or liabilities owing to it in connection with the
Trust Account, this Mandate or the Receivables Securitisation
Deed by the Buyer and that, (ii) it will not petition or commence
proceedings for liquidation or winding up (or similar
proceedings) nor join any person in doing so, nor commence any
proceedings against the Buyer in connection with the Trust
Account, this Mandate or the Receivables Securitisation Deed.
11. The Bank confirms that it has received no written notice of any third
party interest or claim in the Trust Account.
-129-
12. Each of the Seller, the Buyer and the Operating Agent agree to deliver
a schedule to this Mandate setting forth the names and signatures of
those agents of the Seller, the Buyer and Operating Agent (as
applicable) who are authorised on behalf of the Seller, the Buyer or
the Operating Agent, as applicable, to execute and receive notices,
statements, instructions (including but not limited to Instructions)
and directions in connection with this Mandate. Reliance upon a notice
or instructions (including but not limited to Instructions) or
directions apparently or purportedly signed by any of such authorised
signatories shall operate as a discharge of the Bank in relation to any
notice or instructions (including but not limited to Instructions) or
directions relied and acted upon by it.
13. The Seller agrees to deliver a schedule to this Mandate (if required)
setting forth all the names in which the Bank is authorised to collect
cheques or other payment media as described in Clause 4(d), and agrees
to enter into any indemnity reasonably required by the Bank where such
names are unconnected with the name of the Seller.
14. If any notice, instruction (including but not limited to Instructions)
or direction received by the Bank under, and in accordance with, this
Mandate is in the Bank's view unclear and/or ambiguous, the Bank may in
its absolute discretion and without liability on its part act upon what
it reasonably believes in good faith to be the intent of such notice or
instruction, until any ambiguity or conflict (which, in any case where
the Bank refuses to execute instructions, it shall promptly notify the
Operating Agent) has been resolved to its satisfaction.
15. Any final payment instructions given in any notice received by the Bank
before 1:00 p.m. on any banking day if preceded by the necessary
pre-advice required to effect funds movement shall be executed on the
same day, failing which they shall be implemented as soon as practical
but in any event for value by no later than the opening of business on
the next succeeding banking day.
A "banking day" for the purposes of this Mandate is a day (other than a
Saturday or a Sunday) on which banks are open for business in London.
16. The Seller shall be liable to pay the Bank's costs, charges and
expenses in relation to the Trust Account (including any amounts which
the Bank cannot recover from the Buyer as a result of the operation of
Clause 10(c)) whether or not the Bank has received the Buyer's Notice
and notwithstanding any Early Amortisation Event under the Receivables
Securitisation Deed, without recourse to the Buyer or the Operating
Agent, and the Bank agrees to seek payment of these costs, charges and
expenses solely from the Seller and not to debit such charges to the
Trust Account, or seek to claim such amounts from the Buyer or the
Operating Agent (for the avoidance of doubt, nothing in this Clause 16
shall prevent the Bank from recovering from the Operating Agent monies
owed to the Bank by the Operating Agent other than the costs, charges
and expenses in relation to the Trust Account described in this Clause
16) in any other manner, and the Bank shall be entitled to debit
account number ▇▇▇▇▇▇▇▇ held by the Seller with all costs, charges and
expenses referred to above.
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17. In performance of this Mandate, the Bank may rely on any instruction
(including but not limited to Instructions), notice, direction or
communication appearing or purporting to be given under and in
accordance with this Mandate and reasonably believed by the Bank to be
genuine, and the Bank shall have no obligation to make enquiries as to
the justification, validity or contents of any instructions (including
but not limited to Instructions) directions or notices delivered to it
pursuant to this Mandate.
18. If the Bank (which, for the purposes of this Clause 18 means (i) the
Bank's Head office at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (ii) the Bank's
Manchester Office (referred to above) receives any written notice
(containing sufficient information to identify the Trust Account and the
branch at which the account is held) that a third party has claimed any
interest in, or a right to, the credit balance on the Trust Account,
then the Bank will forthwith notify the Operating Agent accordingly.
GENERAL
19. The Seller hereby warrants that it has full power and authority to
effect and has taken all necessary action to authorise the execution,
delivery and performance by it of this Mandate and the matters
contemplated by this Mandate.
20. This Mandate may be terminated by the mutual agreement of the parties.
The Bank may also request a termination of this Mandate by providing
written notice to the Seller, the Buyer and the Operating Agent of its
intention to terminate this Mandate. After such notice, the following
procedures shall apply:
(a) provided no Early Amortisation Event has occurred, the Seller,
the Buyer and the Operating Agent shall use reasonable efforts
to locate another bank or financial institution for the
location of the Trust Account which is mutually acceptable to
the Seller, the Buyer and the Operating Agent;
(b) 90 days after the date upon which the Operating Agent receives
the notice from the Bank referred to above (or such earlier date
as agreed to by the Bank, the Seller and the Operating Agent),
the Bank shall be entitled to close the Trust Account. All sums
standing to the credit of the Trust Account as at such date (and
any future sums received by the Bank which have been directed
towards the Trust Account and which have been accepted for
deposit by the Bank; however, for the avoidance of doubt, after
the closure of the Trust Account, the Bank shall be under no
obligation to accept such sums) shall be deposited into the
account designated by the Seller, the Buyer and Operating Agent,
and notified to the Bank; and
(c) if, during the 90 day period referred to in paragraph (b) above,
the Seller, the Buyer and the Operating Agent are unable to
mutually agree upon a replacement location for the Trust Account,
the Trust Account and all sums standing to the credit of the
Trust Account as at such date (and any future sums received by
the Bank which have been directed towards the Trust Account and
which have been accepted for deposit by the Bank; however, for
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the avoidance of doubt, after the closure of the Trust Account, the
Bank shall be under no obligation to accept such sums) shall be
transferred to and held with Citibank, N.A., London branch. Provided
no Early Amortisation Event has occurred, the Seller, the Buyer and
the Operating Agent shall continue to use reasonable efforts after
such time to locate another bank or financial institution for the
location of the Trust Account which is mutually acceptable to the
Seller, the Buyer and the Operating Agent.
21. Headings used in this Mandate are for convenience of reference only and
shall not affect the interpretation of this Mandate.
22. This Mandate may be executed in counterparts, all of which taken together
shall constitute one and the same instrument.
23. Unless otherwise required by applicable law or regulation, or as requested
by any regulator with jurisdiction over, or over any business of, the
relevant party, each of the parties agrees to maintain the confidentiality
of this Agreement in its communications with third parties and otherwise.
24. This Mandate shall be governed by, and construed in accordance with, the
laws of England.
IN WITNESS WHEREOF, this Mandate has been duly executed and delivered as a Deed.
SIGNED as a deed by )
as attorney for DETA (U.K.) )
LIMITED in the presence of: )
Witness's
Signature: ............................
Name: ............................
Address: ............................
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SIGNED as a deed by )
as attorney for BATTERIES FUNDING )
LIMITED in the presence of: )
Witness's
Signature: ......................
Name: ......................
Address: ......................
EXECUTED as a deed by )
CITIBANK N.A. as Operating )
Agent acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ......................
Name: ......................
Address: ......................
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ......................
Name: ......................
Address: ......................
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FORM OF BUYER'S NOTICE
DETA UK LIMITED A/C NO [.]
To: Bank of Scotland
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇
BUYER'S NOTICE
We Citibank, N.A., as Operating Agent under a receivables securitisation deed
dated [.] May 2002 between, inter alia, DETA UK LIMITED, Batteries Funding
Limited and Citibank, N.A., hereby give you notice (the "Buyer's Notice")
pursuant to clause 7(b) of the trust account bank mandate for the above account
dated [.] May 2002 August (the "Mandate").
In accordance with the terms of the Mandate, you should henceforth operate the
above account solely in accordance with instructions given by ourselves, and
ignore any instructions or directions given by DETA UK LIMITED. This Buyer's
Notice does not affect the operation of DETA UK LIMITED's other accounts (if
any) with yourselves.
Please acknowledge safe receipt of this Buyer's Notice by signing and returning
a copy to us.
If you have any doubt as to the effect of this Buyer's Notice, you are advised
to refer to your legal advisers enclosing a copy of this notice and the Mandate
as a matter of urgency.
---------------------------------
For and on behalf of
Citibank, N.A. in its capacity as
Operating Agent
RECEIPT ACKNOWLEDGED BY:
BANK OF SCOTLAND
--------------------------------
By:
Date:
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SCHEDULE 14
FORM OF TRUST ACCOUNT BANK MANDATES
TRUST ACCOUNT BANK MANDATE
[This Trust Account Bank Mandate will be adopted on the basis of the Interim
Trust Account Bank Mandate for Exide Batteries/Exide Dagenham in the event
Collections are still collected by Exide Batteries for Exide Dagenham]
Dated [.] June 2002:
between
(1) [Relevant Seller], (Company No. [.]), [.] the "Seller");
(2) BATTERIES FUNDING LIMITED, West Block, International Financial Services
Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ (the "Buyer");
(3) CITIBANK, N.A., ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇ its capacity as Operating
Agent under the Receivables Securitisation Deed (defined below), the
"Operating Agent"); and
(4) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the "Bank").
Pursuant to the Receivables Securitisation Deed dated [.] May 2002 (as amended
from time to time, the "Receivables Securitisation Deed") between, inter alia,
the Seller, the Buyer and the Operating Agent, under which at the date hereof
the Seller is Seller and Sub-Servicer, it is agreed:
TRUST
1. Capitalised terms used herein, unless otherwise defined herein, shall have
the meanings given in the Receivables Securitisation Deed.
2. The Seller confirms to the Buyer and the Operating Agent that it has
directed all of the Account Debtors to remit payments for the Purchased
Receivables [denominated in Sterling/Euro] into the following account at
the bank:
Sort Code: 12-08-95
Account No: [.]
Account Title: Dedicated Collection Account
3. The Seller hereby declares that, with effect from (and including) the date
of the Mandate (the "Trust Commencement"), it will hold the Dedicated
Collection Account, which shall thereafter be designated as a trust account
(the "Trust Account"), upon trust for the Buyer as beneficiary absolutely.
4. As of and from the Trust Commencement:
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(a) All moneys at any time standing to the credit of the Trust Account and
any interest on such moneys are and shall be beneficially owned by the
Buyer;
(b) The Seller shall pay or procure the payment of all Collections into the
Trust Account.
(c) All cheques, telegraphic transfers and other payment media and all cash
in respect of Purchased Receivables (including Defaulted Receivables
which are Purchased Receivables) and all proceeds thereof and all other
Collections of Purchased Receivables received and/or held at any time
by or on behalf of the Seller are and shall be in trust for the Buyer
and received and/or held for and on behalf of the Buyer for payment and
credit to the Trust Account.
(d) Clause 4(b) and (c) hereof shall apply to cheques and other payment
media whether payable to the Seller its full legal name or expressed to
be payable to the Seller under any of its trading name(s) or otherwise.
(e) Should moneys be released from the Trust Account to or to the order of
the Seller, then the Seller shall hold such amount on trust for the
Buyer upon the terms of this Mandate and shall immediately repay such
amount into the Trust Account.
(f) Except in accordance with the Receivables Securitisation Deed and this
Mandate, the Seller shall not, nor shall it be entitled to, withdraw or
cause the withdrawal of or instruct the Bank to pay or otherwise remit
any moneys from or to the debit of the Trust Account.
(g) The Seller agrees that all bank charges and the like in respect of the
Trust Account are for the account of the Seller and it undertakes on
demand to reimburse any bank charges or the like debited from time to
time, for which it is responsible hereunder, to the Trust Account.
(h) Each of the Seller and the Operating Agent shall be entitled to receive
from the Bank, bank statements relating to the Trust Account, and (if
necessary) the Seller shall inform the Bank accordingly.
(i) The Seller will ensure that the Operating Agent is furnished with such
information as the Operating Agent may from time to time request in
relation to the identification of moneys standing to the credit of the
Trust Account.
BANK MANDATE
5. The mandate given to the Bank by virtue of this document (the "Mandate") is
given on the basis that the Bank complies with the procedures set out in,
and the terms of, Clauses 5-24 hereof. The Bank acknowledges, by its
execution of this Mandate, that the Trust Account is a trust account. So
long as the Bank complies with its obligations under Clauses 5-24, the Bank
shall not be liable in respect of any claim or action relating to a breach
of the trust set forth in Clauses 1-4 above.
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6. The Bank is hereby instructed:
(a) to honour and comply with all cheques, drafts, bills, promissory
notes, acceptances, negotiable instruments and orders expressed to be
drawn, accepted, made or given and to honour and comply with all
directions given in writing or by way of electronic impulses to
effect transfers by way of electronic means ("Instructions") from the
Trust Account to the Buyer's account (Account No. [.], Sort Code
18-50-08), or to the Seller Non-Transaction Account (Account No. [.],
Sort Code 12-08-95) (but to no other accounts whatsoever) at any time
or times; and
(b) to treat all Instructions given by the Seller (subject to Clause 7
(b)), the Buyer or the Operating Agent in respect of the Trust
Account as being endorsed on behalf of the Seller and to deal with
them.
7. The Mandate is given on the basis that the Bank:
(a) waives any right it has or may hereafter acquire to set-off, combine,
consolidate or merge the Trust Account with any other account of the
Seller or any other person or any liabilities of the Seller or any
other person to the Bank and agrees that it may not set off,
transfer, combine or withhold payment of any sum whatsoever standing
to the credit of the Trust Account in or towards or conditionally
upon satisfaction of any liabilities to it of the Seller or any other
person (unless ordered to set off, combine, transfer, consolidate,
merge or withhold by order of a court of competent jurisdiction or
required by statute); and
(b) agrees (with the consent of the Seller, such consent evidenced by the
Seller's execution of this Mandate), upon receipt of a notice in the
form annexed hereto from the Operating Agent, which notice may be
received by facsimile to the Bank's Manchester Office at ▇▇-▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ (facsimile no. 0161 839 1314) (the
"Buyer's Notice") (provided that if the Buyer's Notice has been sent
by facsimile, the Operating Agent shall send an original copy to the
Bank by registered post):
(i) to comply with any direction of the Operating Agent expressed
to be given by the Operating Agent in respect of the operation
of the Trust Account and the Bank shall be entitled to rely on
any such notice purporting to have been given on behalf of the
Operating Agent without enquiry; and
(ii) that all right, authority and power of the Seller in respect
of the operation of the Trust Account shall be deemed to be
terminated and of no further effect and the Bank agrees that
it shall, upon receipt of the Buyer's Notice, comply with the
directions of the Operating Agent in relation to the operation
of the Trust Account.
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Unless and until it receives a notice in writing from or purporting
to be from the Operating Agent to the contrary, the Bank is
authorised to continue to operate the Trust Account without regard to
such trust. For the avoidance of doubt, the parties acknowledge that
the terms of the trust set forth in Clause 1-4 above do not apply to
the Seller Non-Transaction Account, and the Bank may operate such
account at all times without regard to the trust set forth in Clauses
1-4 above.
8. If the Bank has received the Buyer's Notice, any instructions (including,
but not limited to Instructions), notices or other directions, dated or
purporting to be dated after the date of receipt of the Buyer's Notice by
the Bank, shall be signed by or on behalf of the Operating Agent by the
person or persons specified by the Operating Agent in the Buyer's Notice or
as otherwise agreed or directed by the Operating Agent hereafter in
writing.
9. The Bank may use (at the Bank's direction and/or the discretion of the
Bank's correspondents and entirely at the Seller's risk save in the case of
fraud or negligence by the Bank) telephone, facsimile or any other similar
transmission system for the purpose of giving any commitment on the
Seller's behalf authorised under clause 6 above or sending any message
relating or appearing to relate to the Trust Account and that the Seller
may give its Instructions to the Bank by such means.
10. Until the Bank shall have been notified by the Operating Agent that the
Receivables Securitisation Deed has been terminated:
(a) the Bank shall provide the Seller, the Buyer and the Operating Agent
with a monthly statement in respect of the Trust Account or upon
request from time to time, and in the latter case such statement
shall be provided as soon as reasonably practicable after receipt of
a request for a statement;
(b) the Seller covenants that it will not open any further bank accounts
with the Bank other than as expressly contemplated by this Mandate or
similar Mandate dated as of the date hereof, without the prior
written consent of the Bank (which for the purposes of this paragraph
(b) shall mean the Bank's Manchester Office (referred to above) and
the Operating Agent; and
(c) the Bank agrees and undertakes that (i) it will take no steps against
the Buyer for the purpose of recovering any amounts or any other
debts or liabilities owing to it in connection with the Trust
Account, this Mandate or the Receivables Securitisation Deed by the
Buyer and that, (ii) it will not petition or commence proceedings for
liquidation or winding up (or similar proceedings) nor join any
person in doing so, nor commence any proceedings against the Buyer in
connection with the Trust Account, this Mandate or the Receivables
Securitisation Deed.
11. The Bank confirms that it has received no written notice of any third party
interest or claim in the Trust Account.
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12. Each of the Seller, the Buyer and the Operating Agent agree to deliver a
schedule to this Mandate setting forth the names and signatures of those
agents of the Seller, the Buyer and Operating Agent (as applicable) who are
authorised on behalf of the Seller, the Buyer or the Operating Agent, as
applicable, to execute and receive notices, statements, instructions
(including but not limited to Instructions) and directions in connection
with this Mandate. Reliance upon a notice or instructions (including but
not limited to Instructions) or directions apparently or purportedly signed
by any of such authorised signatories shall operate as a discharge of the
Bank in relation to any notice or instructions (including but not limited
to Instructions) or directions relied and acted upon by it.
13. The Seller agrees to deliver a schedule to this Mandate (if required)
setting forth all the names in which the Bank is authorised to collect
cheques or other payment media as described in Clause 4(d), and agrees
to enter into any indemnity reasonably required by the Bank where such
names are unconnected with the name of the Seller.
14. If any notice, instruction (including but not limited to Instructions) or
direction received by the Bank under, and in accordance with, this Mandate
is in the Bank's view unclear and/or ambiguous, the Bank may in its
absolute discretion and without liability on its part act upon what it
reasonably believes in good faith to be the intent of such notice or
instruction, until any ambiguity or conflict (which, in any case where the
Bank refuses to execute instructions, it shall promptly notify the
Operating Agent) has been resolved to its satisfaction.
15. Any final payment instructions given in any notice received by the Bank
before 1:00 p.m. on any banking day if preceded by the necessary
pre-advice required to effect funds movement shall be executed on the
same day, failing which they shall be implemented as soon as practical
but in any event for value by no later than the opening of business on
the next succeeding banking day.
A "banking day" for the purposes of this Mandate is a day (other than a
Saturday or a Sunday) on which banks are open for business in London.
16. The Seller shall be liable to pay the Bank's costs, charges and expenses in
relation to the Trust Account (including any amounts which the Bank cannot
recover from the Buyer as a result of the operation of Clause 10(c))
whether or not the Bank has received the Buyer's Notice and notwithstanding
any Early Amortisation Event under the Receivables Securitisation Deed,
without recourse to the Buyer or the Operating Agent, and the Bank agrees
to seek payment of these costs, charges and expenses solely from the Seller
and not to debit such charges to the Trust Account, or seek to claim such
amounts from the Buyer or the Operating Agent (for the avoidance of doubt,
nothing in this Clause 16 shall prevent the Bank from recovering from the
Operating Agent monies owed to the Bank by the Operating Agent other than
the costs, charges and expenses in relation to the Trust Account described
in this Clause 16) in any other manner, and the Bank shall be entitled to
debit account number [o] held by the Seller with all costs, charges and
expenses referred to above.
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17. In performance of this Mandate, the Bank may rely on any instruction
(including but not limited to Instructions), notice, direction or
communication appearing or purporting to be given under and in accordance
with this Mandate and reasonably believed by the Bank to be genuine, and
the Bank shall have no obligation to make enquiries as to the
justification, validity or contents of any instructions (including but not
limited to Instructions) directions or notices delivered to it pursuant to
this Mandate.
18. If the Bank (which, for the purposes of this Clause 18 means (i) the Bank's
Head office at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (ii) the Bank's Manchester
Office (referred to above) receives any written notice (containing
sufficient information to identify the Trust Account and the branch at
which the account is held) that a third party has claimed any interest in,
or a right to, the credit balance on the Trust Account, then the Bank will
forthwith notify the Operating Agent accordingly.
GENERAL
19. The Seller hereby warrants that it has full power and authority to effect
and has taken all necessary action to authorise the execution, delivery and
performance by it of this Mandate and the matters contemplated by this
Mandate.
20. This Mandate may be terminated by the mutual agreement of the parties. The
Bank may also request a termination of this Mandate by providing written
notice to the Seller, the Buyer and the Operating Agent of its intention to
terminate this Mandate. After such notice, the following procedures shall
apply:
(a) provided no Early Amortisation Event has occurred, the Seller, the
Buyer and the Operating Agent shall use reasonable efforts to locate
another bank or financial institution for the location of the Trust
Account which is mutually acceptable to the Seller, the Buyer and the
Operating Agent;
(b) 90 days after the date upon which the Operating Agent receives the
notice from the Bank referred to above (or such earlier date as
agreed to by the Bank, the Seller and the Operating Agent), the Bank
shall be entitled to close the Trust Account. All sums standing to
the credit of the Trust Account as at such date (and any future sums
received by the Bank which have been directed towards the Trust
Account and which have been accepted for deposit by the Bank;
however, for the avoidance of doubt, after the closure of the Trust
Account, the Bank shall be under no obligation to accept such sums)
shall be deposited into the account designated by the Seller, the
Buyer and Operating Agent, and notified to the Bank; and
(c) if, during the 90 day period referred to in paragraph (b) above, the
Seller, the Buyer and the Operating Agent are unable to mutually
agree upon a replacement location for the Trust Account, the Trust
Account and all sums standing to the credit of the Trust Account as
at such date (and any future sums received by the Bank which have
been directed towards the Trust Account and which have been accepted
for deposit by the Bank; however, for
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the avoidance of doubt, after the closure of the Trust Account,
the Bank shall be under no obligation to accept such sums) shall
be transferred to and held with Citibank, N.A., London branch.
Provided no Early Amortisation Event has occurred, the Seller, the
Buyer and the Operating Agent shall continue to use reasonable
efforts after such time to locate another bank or financial
institution for the location of the Trust Account which is
mutually acceptable to the Seller, the Buyer and the Operating
Agent.
21. Headings used in this Mandate are for convenience of reference only and
shall not affect the interpretation of this Mandate.
22. This Mandate may be executed in counterparts, all of which taken together
shall constitute one and the same instrument.
23. Unless otherwise required by applicable law or regulation, or as requested
by any regulator with jurisdiction over, or over any business of, the
relevant party, each of the parties agrees to maintain the confidentiality
of this Agreement in its communications with third parties and otherwise.
24. This Mandate shall be governed by, and construed in accordance with, the
laws of England.
IN WITNESS WHEREOF, this Mandate has been duly executed and delivered as a Deed.
SIGNED as a deed by )
as attorney for [RELEVANT SELLER] )
in the presence of: )
Witness's
Signature: ..........................
Name: ..........................
Address: ..........................
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SIGNED as a deed by )
as attorney for BATTERIES FUNDING )
LIMITED in the presence of: )
Witness's
Signature: ..........................
Name: ..........................
Address: ..........................
EXECUTED as a deed by )
CITIBANK N.A. as Operating )
Agent acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ..........................
Name: ..........................
Address: ..........................
EXECUTED as a deed by )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
acting by )
acting under the authority of that )
company, in the presence of: )
Witness's
Signature: ..........................
Name: ..........................
Address: ..........................
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FORM OF BUYER'S NOTICE
[RELEVANT SELLER] A/C NO [.]
To: Bank of Scotland
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇
BUYER'S NOTICE
We Citibank, N.A., as Operating Agent under a receivables securitisation deed
dated [.] May 2002 between, inter alia, [Relevant Seller], Batteries Funding
Limited and Citibank, N.A., hereby give you notice (the "Buyer's Notice")
pursuant to clause 7(b) of the trust account bank mandate for the above account
dated [.] June 2002 August (the "Mandate").
In accordance with the terms of the Mandate, you should henceforth operate the
above account solely in accordance with instructions given by ourselves, and
ignore any instructions or directions given by [Relevant Seller]. This Buyer's
Notice does not affect the operation of [Relevant Seller's] other accounts (if
any) with yourselves.
Please acknowledge safe receipt of this Buyer's Notice by signing and returning
a copy to us.
If you have any doubt as to the effect of this Buyer's Notice, you are advised
to refer to your legal advisers enclosing a copy of this notice and the Mandate
as a matter of urgency.
_________________________________
For and on behalf of
Citibank, N.A. in its capacity as
Operating Agent
RECEIPT ACKNOWLEDGED BY:
BANK OF SCOTLAND
_________________________________
By:
Date:
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SCHEDULE 15
DIRECTORS' CERTIFICATE
FORM OF DIRECTORS' CERTIFICATE
To: Batteries Funding Limited
Citibank, N.A.
IN RELATION TO THE SALE OF TRADE RECEIVABLES ORIGINATED BY
[.] (the "Company")
WE HEREBY CERTIFY, that having made all appropriate searches and investigations
of the Company's books and records, the information held by the Registrar of
Companies, the Company's management and statutory accounts (including the notes
thereto and the reports thereon) and having made all enquiry of its officers,
auditors, and professional advisers and, without limiting the generality of the
foregoing, having considered the provisions of sections 123 and 238 to 243 of
the Insolvency ▇▇▇ ▇▇▇▇ (the "Act") and the provisions of (i) the Receivables
Securitisation Deed ("RSD") dated on or about [.] May 2002 between, amongst
others, the Company, Batteries Funding Limited, ("Batteries Funding") and
Citibank, N.A., (ii) the first Letter of Offer delivered by us under the RSD
(the documents at (i) and (ii) above being the "Relevant Transaction
Documents"), we have determined that:
(a) As at the date hereof the Company is not unable to pay its debts as they
fall due within the meaning of section 123(1) of the Act (but without
reference to the court for this purpose ) or otherwise and will not
become unable to do so in consequence of the entry by the Company into
the Relevant Transaction Documents and the performance of the
transactions effected (or, in the case of the first Letter of Offer,
contemplated) by the Relevant Transaction Documents, and the assets of
the Company are now and will remain immediately after execution of the
Relevant Transaction Documents and the performance of the transactions
effected (and, in the case of the first Letter of Offer, contemplated)
by the Relevant Transaction Documents greater than its liabilities
(taking into account its contingent and prospective liabilities ) at
such times for the purposes of section 123(2) and 242 of the Act and
there are reasonable grounds for believing that the foregoing state of
affairs will continue thereafter for at least the period of two years
from the date hereof;
(b) The transactions effected (and, in the case of the first Letter of
Offer, contemplated) by the Relevant Transaction Documents (taken as a
whole):-
(i) Will not be transactions at an undervalue within the meaning of
section 238 of the Act;
(ii) Will not constitute gratuitous alienations within the meaning of
section 242 of the Act;
-144-
(iii) Will not constitute unfair preferences for the purposes of section
243 of the Act; and
(iv) Will not be transactions entered into by the Company for the
purposes set out at items (a) or (b) of section 423(3) of the Act.
Since the value, in money or money's worth, of the consideration
received by the Company under or pursuant to the Relevant Transaction
Documents and since the value of consideration received by the Company
under or pursuant to the Relevant Transaction Documents is fully and
fairly equivalent to the value, in money and money's worth, of the
consideration provided by the Company under or pursuant to the Relevant
Transaction Documents and since the transactions (including without
limitation the purchase contemplated by the first Letter of Offer) will
constitute reciprocal) obligations of the Company with the other parties
thereto:
(c) Each Relevant Transaction Document is entered into by the Company in
good faith and for the purpose of carrying on its business, and there
are reasonable grounds for believing that the entry by the Company of
the transactions brought into effect (or, in the case of the first
Letter of Offer, contemplated) by the Relevant Transaction Documents
will benefit the Company;
(d) In entering into the Relevant Transaction Documents and in performing
the transactions brought into effect (or, in the case of the first
Letter of Offer, contemplated) by the Relevant Transaction Documents,
the Company is not influenced by a desire to give a preference to any
person as contemplated by section 239 of the Act and, in any event,
Batteries Funding is not one of the Company's creditors nor a surety or
guarantor for any of the Company's debts or other liabilities;
(e) No receiver or administrative receiver has been appointed in relation to
any of the assets or undertakings of the Company;
(f) No step has been taken with respect to the voluntary liquidation of the
Company; and
(g) No step has been taken for the dissolution of the Company.
This certificate is given on behalf of the Company.
DATED AS OF MAY 2002
________________________________ __________________________________
(Director) (Director)
-145-
SCHEDULE 16
POWER OF ATTORNEY IN FAVOUR OF CITIBANK AND BATTERIES FUNDING LIMITED
THIS POWER OF ATTORNEY is made on the [.] day of May 2002 by CMP BATTERIES
LIMITED, a company with its registered office is at ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇; by FULMEN (U.K.) LIMITED, a company with its
registered office at ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇; by
DETA UK LIMITED, a company with its registered office at ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇; by EXIDE (DAGENHAM) LIMITED, a company with its registered
office at ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, respectively
acting in their capacity as Sellers and Sub-Servicers, EXIDE BATTERIES LIMITED,
a company with its registered office at ▇.▇. ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, in its capacity as agent of EXIDE (DAGENHAM) LIMITED (together
the "Appointors" and each an "Appointor") in favour of CITIBANK, N.A., a company
whose registered office is at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ acting in its capacity
as Operating Agent ("Citibank") and BATTERIES FUNDING LIMITED, with its
registered office at West Block, International Financial Services Centre, ▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇. ("Batteries Funding") Citibank and Batteries Funding are referred to
herein collectively as the "Attorneys".
WHEREAS
(A) Pursuant to a receivable securitisation deed (the "RSD") dated [.] May
2002 made by and between the Sellers and Citibank and others, the
Sellers may, from time to time offer to sell to Batteries Funding
through the Offer Agent, certain receivables (the "Receivables") and
Batteries Funding may, in its sole discretion, accept an assignment of
all Receivables and Collections and Related Security for its benefit.
(B) Receivables, Collections and Related Security so acquired and not
subsequently reacquired by the Seller or collected in full are referred
to herein as the "Purchased Receivables".
(C) Under the RSD, Citibank is appointed as the Operating Agent of Batteries
Funding (if applicable).
(D) Terms not defined herein shall have the meaning ascribed to such terms
in the RSD.
NOW THIS DEED WITNESSETH as follows:
1. EACH OF THE APPOINTORS APPOINTS each of the Attorneys individually and
any receiver appointed from time to time in respect of the Receivables,
Collections and Related Security to be its true and lawful attorney for
it and in its name to do any of the following acts, deeds and things or
any of them as may be within the power of any Appointor after a Early
Amortisation Event has occurred:
(a) to exercise its rights, powers and discretions in respect of
the Purchased Receivables, Collections and in respect of the
related benefit of any related
-146-
guarantee and any other related rights (such related benefit and
other rights being the "Ancillary Rights");
(b) to exercise all the rights, powers, remedies and discretions
exercisable by a Seller by reason of such Seller remaining for
the time being legal owner of any of the Purchased Receivables
or the Ancillary Rights;
(c) to execute, sign, seal and deliver any document and to do any
other act or thing which it may deem to be necessary to protect
the interests of Batteries Funding and/or the Lenders and/or the
Operating Agent, proper or expedient for fully and effectually
vesting or transferring the Purchased Receivables and the
Ancillary Rights in or to Batteries Funding or its successors in
title or other person or persons entitled to the benefit thereof
(as the case may require) pursuant to and in accordance with the
RSD;
(d) to demand, ▇▇▇ for and receive all moneys due or payable under
or in respect of the Purchased Receivables and the Ancillary
Rights and pay such moneys to the persons to whom such moneys
are required to be paid under the RSD;
(e) to redirect mail and endorse drafts, cheques and other payments
media, to perform any agreement or obligation of an Appointor
under or in connection with the RSD and to exercise all other
remedies of an Appointor under the RSD or existing at law; and
(f) from time to time to substitute and appoint severally one or
more attorneys (the "Substitute Attorneys") for all or any of
the purposes aforesaid (including the power to authorise any
person so appointed to make further appointments).
2. The Appointors hereby agree at all times hereafter to ratify and confirm
any act, matter or deed whatsoever the Attorneys or any Substitute
Attorney shall lawfully do or cause to be done under or pursuant to this
Power of Attorney to the extent that such act or acts and execution are
within the power of the Appointors and within the contemplation of this
Power of Attorney and the Appointors shall indemnify the Attorneys or
any Substitute Attorney in respect of any loss, claim, cost, expense or
liability in connection with this Deed save to the extent that the same
arises out of their gross negligence, wilful default or bad faith.
3. The Appointors declare that this Power of Attorney has been given for
security purposes and to secure continuing obligations of the Appointors
under the Agreements and the abovementioned assignments, assignations
and trusts and the powers hereby created shall be irrevocable and shall
not be affected by the bankruptcy, liquidation, receivership, the making
of an administration order or appointment of an administrative receiver
or any other equivalent event of or affecting any of the Appointors.
4. The laws of England shall apply to this Power of Attorney and the
interpretation thereof and to all acts of the Attorneys or any
Substitute Attorney carried out under the terms hereof.
-147-
IN WITNESS whereof this Power of Attorney has been executed by the Appointors as
a deed the day and year first above written.
CMP BATTERIES LIMITED (as Seller)
By:
Witnessed by:
DETA UK LIMITED (as Seller)
By:
Witnessed by:
EXIDE (DAGENHAM) LIMITED (as Seller)
By:
Witnessed by:
FULMEN (U.K.) LIMITED (as Seller)
By:
Witnessed by:
EXIDE BATTERIES LIMITED
By:
Witnessed by:
-148-
Schedule 17
SPECIAL DILUTION RESERVE
*Settlement Date *Settlement Date Table Reserve
May 16, 2002 May 15, 2003 May Week 3 1.8%
May 23, 2002 May 22, 2003 May Week 4 0.1%
May 30, 2002 May 29, 2003 May Week 5 0.0%
June 7, 2002 June 5, 2003 June Week 1 0.5%
June 13, 2002 June 12, 2003 June Week 2 0.2%
June 20, 2002 June 19, 2003 June Week 3 0.0%
June 27, 2002 June 26, 2003 June Week 4 0.0%
July 5, 2002 July 3, 2003 July Week 1 0.0%
July 11, 2002 July 10, 2003 July Week 2 0.0%
July 18, 2002 July 17, 2003 July Week 3 0.4%
July 25, 2002 July 24, 2003 July Week 4 0.0%
August 1, 2002 July 31, 2003 August Week 1 0.0%
August 8, 2002 August 7, 2003 August Week 2 0.0%
August 15, 2002 August 14, 2003 August Week 3 0.0%
August 22, 2002 August 21, 2003 August Week 4 0.0%
August 29, 2002 August 28, 2003 August Week 5 2.4%
September 5, 2002 September 4, 2003 September Week 1 0.7%
September 12, 2002 September 11, 2003 September Week 2 0.0%
September 19, 2002 September 18, 2003 September Week 3 3.0%
September 26, 2002 September 25, 2003 September Week 4 0.0%
October 3, 2002 October 2, 2003 October Week 1 0.0%
October 10, 2002 October 9, 2003 October Week 2 0.0%
October 17, 2002 October 16, 2003 October Week 3 0.0%
October 24, 2002 October 23, 2003 October Week 4 1.3%
October 31, 2002 October 30, 2003 October Week 5 0.0%
November 7, 2002 November 6, 2003 November Week 1 0.0%
November 14, 2002 November 13, 2003 November Week 2 0.0%
November 21, 2002 November 20, 2003 November Week 3 0.0%
November 29, 2002 November 28, 2003 November Week 4 0.0%
December 5, 2002 December 4, 2003 December Week 1 0.0%
December 12, 2002 December 11, 2003 December Week 2 0.0%
December 19, 2002 December 18, 2003 December Week 3 0.0%
December 27, 2002 December 24, 2003 December Week 4 0.0%
January 3, 2003 January 2, 2004 January Week 1 0.0%
January 9, 2003 January 8, 2004 January Week 2 3.6%
January 16, 2003 January 15, 2004 January Week 3 2.8%
January 23, 2003 January 22, 2004 January Week 4 0.0%
January 30, 2003 January 29, 2004 January Week 5 0.0%
February 6, 2003 February 5, 2004 February Week 1 1.3%
February 13, 2003 February 12, 2004 February Week 2 2.2%
February 20, 2003 February 19, 2004 February Week 3 1.1%
February 27, 2003 February 26, 2004 February Week 4 0.0%
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ 4, 2004 March Week 1 2.7%
March 13, 2003 March 11, 2004 March Week 2 3.3%
March 20, 2003 March 18, 2004 March Week 3 0.0%
March 27, 2003 March 25, 2004 March Week 4 0.0%
April 3, 2003 April 1, 2004 April Week 1 0.8%
April 10, 2003 April 8, 2004 April Week 2 1.9%
April 17, 2003 April 15, 2004 April Week 3 0.0%
April 24, 2003 April 22, 2004 April Week 4 2.0%
-149-
*Settlement Date *Settlement Date Table Reserve
May 2, 2003 April 29, 2004 May Week 1 1.0%
May 8, 2003 May 6, 2004 May Week 2 3.2%
* If the date set out in the column below is not a Programme Business
Day, the Settlement Date shall be the next succeeding Programme
Business Day.
-150-
IN WITNESS whereof the parties hereto have duly executed this Receivables
Securitisation Deed as a deed the day and year first before written
SELLER:
Executed as a deed by )
CMP Batteries Limited )
acting by its duly authorised )
attorney in the presence of: )
Address: ▇.▇. ▇▇▇ ▇,
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretary
Telefax: ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇
Executed as a deed by )
Deta UK Limited )
acting by its duly authorised )
attorney in the presence of: )
Address: ▇.▇. ▇▇▇ ▇,
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretary
Telefax: ▇▇▇(▇) ▇▇▇▇ ▇▇▇▇▇▇
Executed as a deed by )
Exide (Dagenham) Limited )
acting by its duly authorised )
attorney in the presence of: )
Address: ▇.▇. ▇▇▇ ▇,
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretary
Telefax: ▇▇▇(▇) ▇▇▇▇ ▇▇▇▇▇▇
-151-
Executed as a deed by )
Fulmen (U.K.) Limited )
acting by its duly authorised )
attorney in the presence of: )
Address: ▇.▇. ▇▇▇ ▇,
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Company Secretary
Telefax: ▇▇▇(▇) ▇▇▇▇ ▇▇▇▇▇▇
OFFER AGENT:
Executed as a deed by )
Exide Holding Europe S.A. )
acting by its duly authorised attorney )
in the presence of: )
Address: ▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Mayettes
92 636 Gennevilliers Cedex
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telefax: ▇▇▇ ▇▇▇▇▇▇▇▇▇
BUYER:
SIGNED SEALED and DELIVERED )
by the duly authorised attorney of
Batteries Funding Limited )
In the presence of: )
Address: West Block
International Financial Services
Centre
Dublin 1
Attention: The Directors
Telefax: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-152-
OPERATING AGENT:
Executed as a deed by )
Citibank, N.A., London Branch )
acting by its duly authorised attorney )
in the presence of: )
Address: Citicorp Centre
33 Canada Square
▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telefax: ▇▇▇ (▇)▇▇▇ ▇▇▇ ▇▇▇▇
-153-
