EXHIBIT 10.12
XXXXXXXX SOCIETE D'EXERCICE LIBERAL D'AVOCATS A FORME ANONYME
CHANCE
Dated 24 May 2002
EXIDE EUROPE FUNDING LTD
as Seller
EXIDE HOLDING EUROPE S.A.
as Offer Agent
BATTERIES FUNDING LTD
as Buyer
CITIBANK, N.A.
as Operating Agent
--------------------------------------------------
ONWARD RECEIVABLES
SALE AGREEMENT
--------------------------------------------------
CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND CONSTRUCTION ............................................... 1
2. FACILITY ................................................................... 21
3. CONDITIONS PRECEDENT ....................................................... 21
4. PURCHASES .................................................................. 25
5. COLLECTIONS AND SETTLEMENT ................................................. 28
6. FEES, COSTS AND TAXES ...................................................... 30
7. PAYMENTS AND COMPUTATIONS, ETC. ............................................ 31
8. REPRESENTATIONS AND WARRANTIES OF EXIDE FUNDING AND EXIDE EUROPE ........... 32
9. AFFIRMATIVE COVENANTS OF EXIDE FUNDING ..................................... 36
10. NEGATIVE COVENANTS OF EXIDE FUNDING ........................................ 37
11. REPORTING REQUIREMENTS OF EXIDE FUNDING .................................... 38
12. SERVICER, COLLECTIONS AND THE ONWARD BUYER ACCOUNT ......................... 40
13. PROTECTION OF THE BUYER'S RIGHTS ........................................... 43
14. RESPONSIBILITIES OF EXIDE FUNDING .......................................... 44
15. AGENCY AND INDEMNITIES ..................................................... 45
16. AMENDMENTS, ETC. ........................................................... 49
17. NOTICES .................................................................... 49
18. NO WAIVER: REMEDIES ........................................................ 50
19. BINDING EFFECT: ASSIGNABILITY .............................................. 50
20. FURTHER ASSURANCE - RESTRUCTURING .......................................... 51
21. TERMINATION ................................................................ 51
22. NO PROCEEDINGS ............................................................. 52
23. EXECUTION IN COUNTERPARTS: SEVERABILITY .................................... 52
24. CONFIDENTIALITY ............................................................. 52
25. GOVERNING LAW AND JURISDICTION .............................................. 53
SCHEDULE 1 FORM OF ENIGMA LICENCE AGREEMENT ....................................... 54
SCHEDULE 2 FORM OF LETTER OF UNDERTAKING .......................................... 56
SCHEDULE 3 FORM OF SETTLEMENT STATEMENT ........................................... 61
SCHEDULE 4 FORM OF SUMMARY REPORT ................................................. 62
SCHEDULE 5 INITIAL CONDITIONS PRECEDENT ........................................... 63
SCHEDULE 6 FORM OF LETTER OF OFFER ................................................ 65
SCHEDULE 7 POWER OF ATTORNEY IN FAVOUR OF CITIBANK ................................ 69
SCHEDULE 8 LIST OF ACCOUNT DEBTORS OTHER THAN DESIGNATED ACCOUNT DEBTORS .......... 73
SCHEDULE 9 SPECIAL DILUTION RESERVE ............................................... 74
SCHEDULE 10 ONWARD BUYER ACCOUNT .................................................. 76
THIS ONWARD RECEIVABLES SALE AGREEMENT, dated 24 May 2002, is made among:
(1) EXIDE EUROPE FUNDING LTD, a company with its registered office at 00
Xxxxxxxxx Xxxxxx, Xxxxxx XX0 0XX, Channel Islands ("Exide Funding");
(2) EXIDE HOLDING EUROPE S.A., a French Societe Anonyme, with its registered
office at 0-0 Xxxxx xxx Xxxxxxx Xxxxxxxx, 00000 Xxxxxxxxxxxxx Xxxxx, Xxxxxx
(the "Offer Agent" or "Exide Europe" as applicable);
(3) BATTERIES FUNDING LIMITED, a company with its registered office at West
Block, International Financial Services Centre, Xxxxxx 0, Xxxxxxx (the
"Buyer"); and
(4) CITIBANK, N.A., a United States national banking association acting through
its London branch at 000 Xxxxxx, Xxxxxx XX0X 0XX (the "Operating Agent").
Preliminary Statements
A. Through a Receivables Subrogation Agreement dated 7 June 1997 as amended on
the date hereof (the "Receivables Subrogation Agreement"), Exide Funding
has acquired and will acquire by way of subrogation, from time to time, all
of the rights, titles to and interests in certain Receivables from the
Originator;
B. Exide Funding desires to sell, from time to time, all of its rights, titles
to and interests in certain of its Receivables, and the Buyer is willing,
from time to time, to consider purchasing such Receivables from Exide
Funding on or after the Effective Date; and
C. Citibank N.A. has been requested and is willing to act as Operating Agent
as set out in this Agreement and, in particular, in Clause 15(A), subject
to the right of the Operating Agent to delegate its obligations pursuant to
the terms of this Agreement, in particular, Clause 4(G).
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
In this Agreement (including the Preliminary Statements):
(A) Accounting Terms: All accounting terms not specifically defined in this
Agreement shall be construed in accordance with generally accepted
accounting principles as in effect on the date hereof in England and Wales.
(B) Defined Terms: The following terms shall have the meanings indicated:
"Account Debtor" means a Person obliged to make payment(s) pursuant to a
Contract.
-1-
"Accounts Receivable Listing" means a list, by invoice number, of all
Receivables in respect of the Contracts entered into with Designated Account
Debtors which are shown on Exide Funding's or each Originator's general ledger
as outstanding as at (but excluding) each relevant Reference Date including, the
information specified in Clause 4(D) together with such other information
concerning each Receivables, and in such format, as the Operating Agent may
specify.
"Accounts Receivable Trial Balance" means Exide Funding's accounts receivable
trial balance computer printout, containing a list of Designated Account Debtors
together with the aged Outstanding Balance of the Receivables to be purchased on
any Daily Purchase Date.
"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 relevant Originator).
"Additional Designated Account Debtor" has the meaning given to such terms in
the Receivables Subrogation Agreement.
"Adverse Claim" means any claim of ownership, a lien, privilege, saisie,
revendication, hypotheque, security interest, mortgage, charge, or other
encumbrance, securing any obligation of any person or any other type of
preferential arrangement (including, without limitation, title, transfer and
retention arrangements) having a similar effect or other right or claim of any
Person.
"Affiliate" means, 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, on the date hereof, Euro and, thereafter, with the
prior written consent of the Operating Agent and in addition to Euro, Dollars.
"Capital" equals on any Settlement Date, the aggregate of the Dollar Equivalent
of the Receivables Funded Purchase Price and Receivables Daily Purchase Price
paid to Exide Funding (including, on such Settlement Date, if any) less the
aggregate amount of Collections which have been paid to the Buyer on such
Settlement Date.
"Cash Collateral Reserve" means the cash reserve held by Exide Funding pursuant
to Clause 6 of the Limited Recourse Loan Agreement.
"Citibank" means Citibank, N.A., a national banking association under the laws
of the United States of America.
"Collections" means, with respect to any Paid Receivable, all cash collections
received and other cash proceeds of that Paid Receivable (excluding any cash
proceeds arising
-2-
under any transaction as referred to in Clause 19(C)) and of any Related
Security with respect to that Paid Receivable.
"Commitment Letter" means the commitment letter entered into on the date hereof,
as amended from time to time, between CEAC, the Beneficiary named therein and
the Operating Agent.
"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 Originator) governed by French law
between an Originator and an Account Debtor substantially in the form set out in
Schedule 7 of the Receivables Subrogation Agreement pursuant to which the
Account Debtor is obliged to pay for goods or services sold or provided by such
Originator (including any value added tax in respect thereof) from time to time.
"Country" means France.
"Credit and Collection Policy" means each Originator's policies, practices and
procedures relating to Contracts and Receivables described in the Receivables
Subrogation Agreement, 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 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.
-3-
"Currency Exchange Costs" means the costs payable by the Buyer to the
counterparty under the Currency Exchange Agreement (expressed as a percentage of
Capital).
"Daily Accounts Receivables Listing" means a list, by invoice number, of all
Receivables in respect of the Contracts entered into with Designated Account
Debtors which are shown on Exide Funding's or each Originator's general ledger
as outstanding as at (but excluding) each relevant Reference Date including the
information specified in Clause 4(D) together with such other information
concerning each Receivables, and in such format, as the Operating Agent may
specify.
"Daily Purchase" means the transfer of Receivables listed in a Daily Accounts
Receivable Listing delivered to the Operating Agent on each Daily Purchase Date
on which such transfer takes place (including for the avoidance of doubt any
Settlement Date).
"Daily Purchase Date" means each Programme Business Day on which a Daily
Purchase takes place, occurring before the Termination Date on which there is a
Purchase of Receivables as contemplated by this Agreement.
"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:
(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.
"Deed of Payment Allocation and Cross-Indemnity" has the meaning set out in
Clause 10(F).
"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
-4-
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 relevant
Originator'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 of the Receivables Subrogation Agreement) unless
the Operating Agent has advised the Offer Agent (on behalf of the Exide Funding)
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 Originators) and the Operating Agent, provided
however that if such day is not a Programme Business Day, the applicable
Determination Date shall be the next succeeding Programme Business Day).
"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 an Originator 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 Exide Funding or an Originator
which reduces the amount payable by the Designated Account Debtor on the related
Purchased 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
each Originator 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 Outstanding Balance of
Eligible Receivables (whether or not they are Paid Receivables) (as such term is
used in each
-5-
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 Receivable (as defined in and aggregated among all
Origination Agreements)
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 Dilution Ratios during
such twelve month period.
"Discount" means with respect to all Receivables transferred to the Buyer during
a Reference Period and all Receivables transferred pursuant to a Funded Purchase
on the Settlement Date following immediately the end of such Reference Period
the sum of applicable Yield, the applicable Country's Proportionate Share of
Programme Costs,
-6-
applicable Accruals and Euro equivalent of the sums then required to bring
applicable Reserves 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 of the following events to occur:
(1) Exide Funding 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) Business Days after the earlier of Exide Funding
becoming aware of such default and the receipt by Exide Funding or Exide
Europe of written notice by the Operating Agent requiring the same to be
remedied;
(2) subject to Clause 12(C), Exide Funding, 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 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 (5) Business Days of the
earlier of Exide Funding, Exide Europe or the Offer Agent (if an Affiliate
of Exide Technologies other than Exide Europe) becoming aware of such
default and receipt by Exide Funding, 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 Exide
Funding satisfies its obligations pursuant to Clause 5(D) within such five
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 Exide Funding,
Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies
other than Exide Europe);
(4) Exide Funding, Exide Europe 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 Exide Funding becomes unable to pay its debts, or is deemed unable to
pay its debts within the meaning of section 123 of the Insolvency Xxx 0000
other than
-7-
section 123(1) thereof (as that section may be amended, varied or
re-enacted 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 laws), 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 100% of each class of the outstanding capital stock of Exide Funding or
a minimum of 80% of each class of the outstanding capital stock of any
Originator;
(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 transfer of Eligible Receivables pursuant to this Agreement ceases to
create an effective and valid transfer to the Onward Buyer of any and all
of Exide Funding's rights, claims, actions and Security Interests under any
of its Receivables;
(8) proceedings are initiated against Exide Funding, Exide Europe or the Offer
Agent (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 Exide Funding, Exide
Europe 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 Exide Funding, Exide
Europe 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 Exide Funding, Exide Europe 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 Exide Funding, Exide Europe 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 Exide Funding, Exide Europe 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 Exide Funding, Exide Europe or (if an
-8-
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 Exide Funding, Exide Europe 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 15%;
(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%;
(15) for any three month period, the average Programme Loss to Liquidation
Ratio exceeds 0.5%;
(16) any amounts owing under the U.S. 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;
(17) an Event of Default (as that term is defined under the Facilities
Agreement) occurs;
(18) Exide Funding fails to hold the Cash Collateral Reserve as contemplated by
the Limited Recourse Loan Agreement;
(19) if as of any Settlement Date, Exide Funding was entitled to draw down an
amount under the Limited Recourse Loan Agreement and, having made the
appropriate request to the Limited Recourse Loan Provider, the Limited
Recourse Loan Provider fails to advance such amount free and clear of any
Adverse Claims;
(20) a Programme Amortisation Event (as such term is defined in any Origination
Agreement) occurs; or
(21) an Early Amortisation Event (as such term is defined under the Receivables
Subrogation 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
-9-
by the Offer Agent (on behalf of Exide Funding) and the Operating Agent) which
is a Programme Business Day.
"Eligible Receivable" means a Receivable:
(1) which satisfies the applicable criteria for an Eligible Receivable under
the Receivables Subrogation Agreement;
(2) which is not a Defaulted Receivable at the relevant Purchase Date;
(3) which has not been, in part or in whole, charged, pledged, assigned
(whether outright or by way of security, for example, under the xxx
Xxxxxx), discounted, subrogated, seized, attached, novated, transferred,
disposed of or dealt with in any way and are free and clear of any liens,
mortgages, hypotheque, nantissement, gage, cession de creance a titre de
garantie or other encumbrances exercisable against the relevant Designated
Account Debtors by any party; and if represented by any bills of exchange
(traites, billets a ordre) or effets de commerce which has not been
discounted (escompte);
(4) 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 Paid Receivables (as such term is
used in each applicable Origination Agreements) owing by the same
Designated Account Debtor or any of its Affiliates under all Origination
Agreements, does not exceed the Concentration Amount;
(5) which is denominated and payable only in Approved Currency;
(6) which (A) is freely transferable (or if not assignable without the consent
of the Designated Account Debtor, such consent has been obtained to the
satisfaction of the Operating Agent prior to the delivery of the relevant
Quittance Subrogative) and (B) is not subject to any Adverse Claim or
dispute, set off, counterclaim or defence whatsoever;
(7) which is not subject to withholding taxes on payments from the Designated
Account Debtors in respect thereof; and
(8) the Designated Account Debtor of which has in respect of Paid Receivables
(other than Defaulted Receivables) falling due for payment on or after 31
August 2002, paid in full, the most recent Paid Receivable owing by it
directly to the credit of the Exide 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 1 hereto,
duly executed by Exide Europe.
-10-
"Euro" means the legal currency unit of France.
"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 Funding Non-Transaction Account" means the account numbered 0000000 (Sort
Code 18-50-08) in the name of Exide Funding established with Citibank, London
branch, or such other account at such branch of such bank as Exide Funding may
from time to time specify by written notice to Citibank, London branch with a
copy to the Operating Agent.
"Exide Group" means Exide Technologies and all of its Subsidiaries.
"Exide Technologies" means Exide Technologies, a Delaware corporation.
"Facilities Agreement" means the agreement entered into on or about the date
hereof among, inter alia, the Buyer and the Lenders.
"Facility" means the commitment of the Buyer, to purchase Receivables from time
to time pursuant to the terms of this Agreement.
"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 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 Exide Funding) as a result of the event specified in Clause 7.1 of
the Facilities Agreement.
"Fees Letter" means the fee letters dated as of the date hereof between, inter
alia, 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 the
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 Exide Funding after any redetermination
of the level of the Foreign Currency Reserve, the Operating Agent agrees to
provide Exide Funding with information relating to the basis of such
redetermination).
"Funded Purchase" means the transfer of Receivables listed in an Account
Receivable Listing delivered to the Operating Agent on a Determination Date.
-11-
"German Excess Loss Reserve" means the positive difference (if any) between (i)
the aggregate of the German Sellers' Proportionate Share (as such terms are
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 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 (as the case may be) 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
(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 Agreement.
"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 Business
Day, the applicable Interest Period shall end on the next succeeding Programme
Business Day.
"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
"Lender" thereunder.
-12-
"Letter of Offer" means either a Daily Letter of Offer or a Settlement Letter of
Offer as these terms are defined in Clause 4(A) and (D).
"Letter of Undertaking" means the Letter of Undertaking given by Exide Europe
substantially in the form set out in Schedule 2.
"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.
"Limited Recourse Loan Agreement" means a limited recourse loan agreement
entered into between, inter alia, Exide Funding, the Operating Agent and the
lender named therein and identified as such by the Operating Agent's execution
thereof, and any other limited recourse loan agreement entered into for a
similar purpose to that set out therein.
"Limited Recourse Loan Provider" means the lender under the Limited Recourse
Loan Agreement.
"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.
"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 Exide Funding 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
aggregate among all the Originator Agreements which has occurred in the 12
months immediately preceding such date.
"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.
-13-
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 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 Exide Funding or each Originator
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.
"Offer Date" means, initially, the Initial Offer Date and, thereafter, each
Daily Purchase Date in respect of Daily Purchases or each Determination Date in
respect of Funded Purchases.
"Onward Buyer Account" means each account in the name of the Buyer with
Citibank, the details of which are set out in Schedule 10, or (with the prior
written consent of the Operating Agent) such other account at such bank as the
Buyer may utilise for the purpose of this Agreement and designated as a Onward
Buyer Account.
"Origination Agreement" means as of any time each agreement 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 France, (a) this Agreement, and (b) the Receivables
Subrogation Agreement, (ii) for the United Kingdom, the Receivables Sale
Agreement dated as of the date hereof between CMP Batteries Limited, Exide
(Dagenham) Limited, Fulmen (U.K.) Limited and Deta UK Limited (the "U.K.
Sellers"), the Offer Agent, the Buyer and the Operating Agent (the "U.K. RSA"),
(iii) for Spain, the Receivables Sale Agreement dated as of the date hereof
between Sociedad Espanola del Acumulador Tudor, S.A. and 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.p.A (the
"Italian Seller"), Archimede Securitisation s.r.l., the Offer Agent and the
-14-
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, the Offer
Agent 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, Xxxxx Batterie AG, 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 CEAC, Compagnie Europeenne d'Accumulateurs S.A.S. and
any Additional Originator (as this term is defined in the Receivables
Subrogation Agreement and "Originator" means one of the Originators).
"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 the applicable Originator's books as
uncollectible in accordance with the Credit and Collection Policy shall be
deemed to be zero).
"Paid Receivable" means a Receivable (whether or not an Eligible Receivable)
purchased or purported to be purchased by the Buyer under this Agreement.
"Person" means an individual, partnership, company, body corporate, corporation,
trust, unincorporated association, joint venture, government, or governmental
body or agency or other entity.
"Programme" means the revolving sale of trade receivables originated by certain
Subsidiaries of Exide Europe and the funding of such revolving sale pursuant to
the funding arrangements established in relation to the Receivables Subrogation
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 of
"Early Amortisation Event" hereunder;
"Programme Costs" comprise (i) the Facility Fee and (ii) all other fees as 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
-15-
which are Paid Receivables and which are to become Paid Receivables (as such
term is defined in each Origination Agreement) on such Settlement Date.
"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), 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, in respect of Exide Funding, the
result of the formula: the Dollar Equivalent of all Eligible Receivables which
are Paid Receivables from Exide Funding, divided by the Dollar Equivalent of all
Eligible Receivables which are Paid Receivables;
"Purchase" means a purchase or purported purchase by the Buyer of a Group of
Receivables from Exide Funding pursuant to this Agreement.
"Purchase Date" means each Programme Business Day on which a Daily Purchase
takes place, and each Settlement Date on which a Funded Purchase takes place, in
both cases, occurring before the Termination Date on which there is a Purchase
of Receivables as contemplated by this Agreement.
"Purchase Price" means, either, as the case may be a Receivables Funded Purchase
Price or a Receivables Daily Purchase Price.
"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 calendar month following the calendar month of
the immediately preceding Quarterly Settlement Date;
"Rating Agencies" means Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies Inc. and Xxxxx'x 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 each Originator 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.
-16-
"Receivables Daily Purchase Price" in respect of Receivables comprised in a
Group of Receivables purchased on a Daily Purchase Date an amount in Euro equal
to the Outstanding Balance of such Receivables less the Discount as determined
on the Settlement Date following immediately the end of the Reference Period in
which falls the Daily Purchase.
"Receivables Funded Purchase Price" means, in respect of a Group of Receivables
purchase on a Settlement Date pursuant to a Funded Purchase, an amount equal to
the Outstanding Balance of the Receivables proposed for transfer as at the
proposed Purchase Date less the Discount, as calculated by the Operating Agent
on such date.
"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 on such date.
"Reference Date" means each Friday or any other day as may be agreed from time
to time between the Offer Agent (on behalf of Exide Funding) and the Operating
Agent).
"Related Security" means with respect to any Receivable all of Exide Funding's
and each Originator'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 Paid Receivables is
reduced to zero.
"Relevant Documents" means this Agreement, the Receivables Subrogation
Agreement, the CEAC Collection Account Bank Mandate, Exide Collection Account
Bank Mandate, Exide Funding Master Account Bank Mandate, CEAC Purchase Account
Bank Mandate, CEAC Non-Transaction Account Bank Mandate, the Exide Collection
Account Bank Mandate, the Commitment Letter, the Accord xx Xxxx-Especes, the
Limited Recourse Loan Agreement, the Amended Cash Collateral Reserve Agreement,
the Letter of Undertaking and the Fees Letter.
"Reserves" means as of any date, the Dollar Equivalent of the 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.
"Screen Rate" means the British Bankers' Association Settlement Rate for one
week Dollar displayed on the appropriate page of Telerate Screen. If the agreed
page is
-17-
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.
"Servicer" means at any time the Person then authorised pursuant to this
Agreement to service, administer and collect Paid 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 Exide Funding) 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.
"Specified Bank Holiday Period" means the relevant calendar week:
(a) in which the 25th of December falls;
(b) in which Easter falls; and
(c) in which the 15th of August falls.
"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 9, 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
Date (such amount to be notified by the Operating Agent to the Offer Agent
on the Determination Date immediately preceding such Settlement Date),
-18-
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) as a reserve to cover the estimated 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).
"Spot Rate" means, as of any Purchase Date, the spot rate utilised under the
Currency Exchange Agreement, as determined for such Purchase Date.
"Subsidiary" means in relation to a company or corporation, a company or
corporation:
(i) which is controlled, directly or indirectly, by the first-mentioned
company or corporation; or
(ii) more than half the issued share capital of which is owned, directly or
indirectly, by the first-mentioned company or corporation; or
(iii) 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.
"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 Exide Funding to the Operating Agent pursuant to Clause 11(F).
Unless otherwise requested by the Operating Agent, such Summary Report shall
include, in computer-readable form, the reporting file generated by Enigma in
respect of Paid Receivables.
"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 in the name of Exide
Funding with Citibank, N.A. London Branch and utilised for the purposes set out
in Clause 12(C), under the account number 00000000.
-19-
"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.
"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, Xxxxxxx Xxxxx Xxxxxx 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
(as defined in the related Origination Agreements), calculated on the basis of
the formula: (original stated payment term of each invoice x amount of such
invoice)/invoice amount
"Withdrawal" has the meaning given to such term in the Receivables Subrogation
Agreement.
"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 365 times the number of days elapsed in the relevant
Interest Period.
"Yield Rate" means the percentage rate per annum which is the aggregate of the
applicable (i) Margin, (ii) LIBOR and (iii) Mandatory Cost 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.
-20-
(C) This Agreement: Any reference to "this Agreement" or any other agreement or
document shall, unless the context otherwise requires, include this
Agreement 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 Agreement or, as the case may be, that
other agreement or document. Any reference to Clauses or paragraphs in this
Agreement is, subject to any contrary indication, a reference to a Clause
or paragraph in this Agreement.
(D) Origination Agreement: All references in this Agreement to terms defined in
the Receivables Subrogation Agreement where the same defined term is not
used in any applicable Origination Agreement, be deemed to refer to the
equivalent term in such Receivables Subrogation Agreement(s).
(E) Headings: Headings shall be ignored in construing this Agreement.
(F) Time: Save where the contrary is indicated, any reference in this Agreement
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 Agreement and all
documents delivered pursuant to the terms of this Agreement, subject to the
prior waiver of such timing by the affected party.
(H) Third Party Rights: A person who is not party to this Agreement will have
no rights under the Contracts (Rights of Third Parties) Xxx 0000 or
otherwise to enforce any terms of this Agreement.
(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 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 Agreement, Exide Funding shall
offer to the Buyer and the Buyer shall, subject in both cases, to the
condition of this Agreement (including for the avoidance of doubt, Clause 3
below), purchase at a discount from Exide Funding, full title and ownership
in and to all Receivables over Designated Account Debtors.
3. CONDITIONS PRECEDENT
(A) To Initial Purchase: 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 of such Initial
Purchase the documents and information
-21-
specified in Schedule 5, each in form and substance satisfactory to the
Operating Agent.
(B) To All Funded Purchases: Each Settlement Letter of Offer relating to a
Funded Purchase (including the Initial Purchase) may only be accepted if
the following conditions precedent are satisfied or waived by the Operating
Agent:
(1) On each Settlement Date the following statements must be true and
correct (and Exide Funding will be deemed to have so certified on such
date that):
(a) the representations and warranties of Exide Funding contained in
this Agreement 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) Exide Funding has delivered (or caused to be delivered) such
directors' certificates as may be required by the Operating Agent
as to Exide Funding's solvency and each Originator's solvency
(which certificate may be signed by a director of each applicable
Originator);
(c) after the proposed Purchase the Outstanding Balance of Paid
Receivables would be at least equal to the sum of (i) aggregate
outstanding Capital and (ii) applicable 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) in respect of the Purchase of Receivables whose Designated
Account Debtors are resident in a European Union jurisdiction
other than in France, after the proposed Purchase, Capital in
respect of such Paid Receivables which are Eligible Receivables
does not exceed 15% of the Capital in respect of all Paid
Receivables;
(f) there has been no sale by Exide Funding of any of its Receivables
out of the ordinary course of its business without the prior
written consent of the Operating Agent;
(g) after the proposed Purchase, the Programme Capital would not
exceed the Facility Limit; and
(h) the conditions precedent to any subrogations of Receivables to
Exide Funding under the Subrogation Receivables Agreement have
been satisfied.
(2) On each Determination Date relating to a Settlement Date Exide Funding
shall have delivered (or caused to be delivered) to the Operating
Agent an Accounts Receivable Listing.
-22-
(3) On or prior to each Settlement Date, Exide Funding shall have complied
with all of its applicable reporting and other obligations under this
Agreement, 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 Buyer is able to obtain appropriate funds from its currency swap
counterparty under the Currency Exchange Agreement.
(6) On each Settlement Date, the Settlement Letter of Offer delivered to
the Operating Agent includes any and all Receivables, which have not
been transferred to the Buyer during the Reference Period immediately
preceding the Determination Date relating to the said Settlement Date
due to adjustment to the relevant Accounts Receivables Listings made
in accordance with Clause 4 of the Receivables Subrogation Agreement.
(7) On each Settlement Date, the Offer Agent on behalf of Exide Funding
will deliver to the Operating Agent (or as the Operating Agent may
direct) a Settlement Letter of Offer specifying the Receivables to be
offered for sale on such date.
(8) On each Settlement Date the Operating Agent shall have established the
Yield, applicable Proportionate Share of Programme Costs and
applicable Reserves required for the previous Reference Period.
(9) On or prior to each Quarterly Settlement Date, the Operating Agent has
received a Director's Certificate from each Originator.
(C) To All Daily Purchases: Each Daily Letter of Offer relating to a Daily
Purchase may only be accepted if subject to the following conditions
precedent are satisfied or waived by the Operating Agent:
(1) On each Daily Purchase Date the following statements must be true and
correct (and Exide Funding will be deemed to have so certified on such
date that):
(a) the representations and warranties of Exide Funding contained in
this Agreement are true and correct on and as of such day as
though made on such day and by reference to the then existing
circumstances;
-23-
(b) Exide Funding has delivered (or caused to be delivered) such
directors' certificates as may be required by the Operating Agent
as to Exide Funding's solvency and each Originator's solvency
(which certificate may be signed by a director of each applicable
Originator);
(c) there has been no Early Amortisation Event which has not been
waived by the Operating Agent in writing;
(d) in respect of the Purchase of Receivables whose Designated
Account Debtors are resident in a European Union jurisdiction
other than in France, after the proposed Purchase, Capital in
respect of such Paid Receivables which are Eligible Receivables
does not exceed 15% of the Capital in respect of all Paid
Receivables;
(e) there has been no sale by Exide Funding of any of its Receivables
out of the ordinary course of its business without the prior
written consent of the Operating Agent;
(f) the conditions precedent to any subrogations of Receivables to
Exide Funding under the Subrogation Receivables Agreement have
been satisfied.
(2) On or prior to each Daily Purchase Date Exide Funding shall have
delivered (or caused to be delivered) to the Operating Agent a Daily
Accounts Receivable Listing.
(3) On or prior to each Daily Purchase Date Exide Funding shall have
complied with all of its applicable reporting and other obligations
under this Agreement, unless any such failure to comply has been
waived by the Operating Agent in respect of such Daily Purchase Date.
(4) The Operating Agent has received such other approvals, legal opinions
or documents as the Operating Agent may reasonably request.
(5) On each Daily Purchase Date, the Receivables Daily Purchase Price for
the Group of Receivables proposed for Sale on such date does not
exceed the Available Reinvestment Funds (as this is defined in Clause
4 of the Receivables Subrogation Agreement) on opening of business on
the relevant Daily Purchase Date.
(6) On each Daily Purchase Date, the Offer Agent on behalf of Exide
Funding will deliver to the Operating Agent (or as the Operating Agent
may direct) a Daily Letter of Offer specifying the Receivables to be
offered for sale on such date.
-24-
4. PURCHASES
(A) Making Daily Purchases: On each Daily Purchase Date, the Offer Agent on
behalf of Exide Funding will, by 11:00 a.m., London time, 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 the Operating
Agent by ordinary post on the date it is delivered by facsimile)
substantially in the form of Schedule 6, Part 2 ("Daily Letter of Offer")
identifying (inter alia) the Purchase Date, the Receivables to be sold, the
then Outstanding Balance of Receivables (if any).
(B) Offer and Acceptance relating to a Daily Purchase: The delivery of the
Daily Letter of Offer by facsimile shall be irrevocable and will constitute
an offer to sell to the Buyer each of the Receivables and the Related
Security with respect thereto, designated pursuant to Clause 4(D). The
Buyer will accept the Daily Letter of Offer with respect to all the
Receivables referred to in the Daily Letter of Offer by verbal acceptance
of the offer followed by payment of the Receivable Daily Purchase Price on
the Settlement Date following immediately the end of the Reference Period
in which falls the Daily Purchase Date on which the Group of Receivables
has been assigned. Such method of acceptance will constitute:
(1) acceptance of the 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, provided that such transfer shall occur immediately after
Exide Funding has acquired title and ownership in and to those
Receivables and the Related Security with respect to those Receivables
pursuant to the Receivables Subrogation Agreement; and
(3) an undertaking by the Buyer to pay the Receivable Daily Purchase Price
pursuant to Clause 4(C) below on the Settlement Date following
immediately the end of the Reference Period in which falls the Daily
Purchase Date on which falls the Group of Receivables has been
assigned.
Following such acceptance, in accordance with this Clause 4(B), Exide
Funding shall not concern itself as to whether the Buyer has received
instructions from the Operating Agent in relation to such acceptance.
(C) Covenant for Payment in respect of Receivables which are purchased pursuant
to a Daily Purchase: When the Buyer accepts a Daily Letter of Offer, in
consideration of the sale and assignment by Exide Funding of Receivables
pursuant to a Daily Purchase (which Receivables have been automatically
assigned in equity pursuant to Clause 4(B) above), the Buyer shall (subject
to the conditions set out in Clause 3 above), on each Settlement Date
falling at the end of the Reference Period during which such Group of
Receivables has been purchased and if such Daily Purchase Date is a
Settlement Date on such Settlement Date, first, notify the Offer Agent on
behalf of Exide Funding of the Receivables Daily Purchase Price (the
computation of the Receivables Daily Purchase Price by the Operating Agent
shall, in the absence of manifest error, be
-25-
deemed to be conclusive) and, secondly, pay in full the Receivables Daily
Purchase Price (as calculated by the Operating Agent) in respect of such
Group of Receivables to the account specified in Clause 7(C).
(D) Making Funded Purchases: On each Determination Date immediately preceding a
Settlement Date, the Operating Agent (on behalf of the Buyer) shall, in
respect of any Group of Receivables which the Offer Agent on behalf of
Exide Funding has notified the Operating Agent that Exide Funding proposes
to offer to sell, notify the Offer Agent on behalf of Exide Funding of the
Receivables Funded Purchase Price of such Group of Receivables. The Offer
Agent on behalf of Exide Funding will, by 11:00 a.m., London time, on the
Settlement 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 the Operating Agent by ordinary post on the date it is delivered
by facsimile) substantially in the form of Schedule 6, Part 1 ("Settlement
Letter of Offer") identifying (inter alia) the Settlement Date, the
Receivables to be sold, the then Outstanding Balance of Receivables (if
any). The computation of the Receivables Funded Purchase Price by the
Operating Agent shall, in the absence of manifest error, be deemed to be
conclusive.
(E) Offer and Acceptance relating to a Funded Purchase: The delivery of the
Settlement Letter of Offer by facsimile on a Determination Date shall be
irrevocable and will constitute an offer to sell to the Buyer each of the
Receivables and the Related Security with respect thereto, designated
pursuant to Clause 4(D), for the Receivables Funded Purchase Price as set
out in the Settlement Letter of Offer. The Buyer may, at its discretion,
accept such Settlement Letter of Offer with respect to all the Receivables
referred to in such Settlement Letter of Offer by either (i) payment in
full of the Receivables Funded Purchase Price or (ii) verbal acceptance of
the offer followed as soon as practicable on such date, in accordance with
Clause 4(F) below, by payment in full of the Receivables Funded Purchase
Price. Either method of acceptance will constitute:
(1) acceptance of the 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, provided that such transfer shall occur immediately after
Exide Funding has acquired title and ownership in and to those
Receivables and the Related Security with respect to those Receivables
pursuant to the Receivables Subrogation Agreement.
Following such acceptance in accordance with this Clause 4(E), Exide
Funding shall not concern itself as to whether the Buyer has received
instructions from the Operating Agent in relation to such acceptance.
(F) Receivables Funded Purchase Price: The Buyer shall pay in full the
Receivables Funded Purchase Price on the Settlement Date to Exide Funding's
account specified in Clause 7(C).
-26-
(G) Determination of Purchased Receivables: No later than 11:00 a.m. on the
Initial Offer Date and thereafter on each Daily Purchase Date and on each
Determination Date immediately preceding a Settlement Date, the Offer
Agent, on behalf of Exide Funding, will deliver to the Operating Agent (or
as the Operating Agent may direct) the Daily Accounts Receivable Listing or
the Accounts Receivable Listing generated in relation to such Daily
Purchase Date or Settlement Date (as applicable) specifying, inter alios:
(1) on the Initial Offer Date:
(i) each Designated Account Debtor; and
(ii) each Receivable which may be the subject of the Settlement
Letter of Offer to be delivered by the Offer Agent on the
immediately following Purchase date;
(iii) each such Receivable which is an Eligible Receivable; and
(iv) the Outstanding Balance of each Receivable which is an Eligible
Receivable as at (but excluding) the Initial Reference Date and
the Originator thereof;
(2) on each Daily Purchase Date:
(i) each Additional Designated Account Debtor;
(ii) each Receivable which may be the subject of the Daily Letter of
Offer to be delivered by the Offer Agent on such date; and
(iii) each such Receivable which is an Eligible Receivable; and
(iv) the Outstanding Balance of such Receivables as at such
Subrogation Date;
(3) on each subsequent Determination Date:
(i) the relevant Reference Date;
(ii) each Receivable which is the subject of the Settlement Letter of
Offer to be delivered by the Offer Agent on the immediately
following Settlement Date;
(iii) each of such Receivables which is an Eligible Receivable; and
(iv) the Outstanding Balance of such Receivables which are Eligible
Receivables as at (but excluding) the Reference Date immediately
preceding such Determination Date.
(H) Records: On or prior to each Daily Purchase Date and Determination Date,
the Offer Agent on behalf of Exide Funding will at Exide Funding's expense
deliver to the
-27-
Operating Agent (or as the Operating Agent may direct) the Accounts
Receivable Trial Balance generated on or in relation to such Daily Purchase
Date or Settlement Date, identifying the Receivables designated pursuant to
Clause 4(G).
(I) Perfection: Subject to Clause 13, each of Exide Funding, the Offer Agent
and the Buyer will take all such steps and comply with all such formalities
as may be required to perfect or more fully to evidence or secure title to
the Receivables assigned (or purported to be assigned) pursuant to Clause
4.
(J) Delegation of Powers of Operating Agent: The Operating Agent hereby
delegates to the Offer Agent and to Exide Funding all of its obligations
under this Clause 4, which delegation the Offer Agent and Exide Funding
irrevocably accepts. The Offer Agent on behalf of Exide Funding 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.
While Exide Funding continues to have delegated powers pursuant to this
Clause 4(J), it may sub-delegate such obligations to the Originator to
which the Operating Agent has delegated its obligations under the
Receivables Subrogation Agreement; provided that any such sub-delegation
shall immediately be deemed to be revoked at the time that the Operating
Agent revokes its delegation under the Receivables Subrogation Agreement to
such Originator.
5. COLLECTIONS AND SETTLEMENT
(A) Collection of Receivables: (1) Prior to an Early Amortisation Event on each
day the Servicer shall as described in Clause 12(B) set aside and hold in
trust for the Buyer all Collections of Paid Receivables on such day,
provided that the Servicer can advance Withdrawals, acting for itself and
not as trustee, and (2) the Operating Agent shall issue a Settlement
Statement to Exide Funding within two 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;
(b) Yield and Programme Costs in respect of the Capital as at the
forthcoming Settlement Date;
(c) the Reserves and the Programme Reserves required in respect of
that Settlement Period commencing on the next following
Settlement Date; and
(d) Proportionate Share of the applicable Reserves.
-28-
(2) On each Settlement Date the Operating Agent shall cause to be paid
from the Onward Buyer Account:
(a) to the Buyer, Yield and Programme Costs in respect of the
Interest Period ending on that Settlement Date, provided that
such amounts have not been paid otherwise;
(b) to Exide Funding, the Receivables Funded Purchase Price and the
aggregate Receivables Daily Purchase Price (as the case may be)
in respect of all Paid Receivables;
(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)(1)(c); and
(d) to Exide Funding, all Collections standing to the credit of the
Onward Buyer Account after payment of the amounts set forth in
(a) (if applicable), (b) and (c) above by way of deferred
purchase price for the Paid Receivables.
(3) On each Settlement Date, the Operating Agent shall calculate the
Reserves required in respect of that Settlement Period commencing on
that 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 Paid Receivables:
(1) On each Settlement Date the Operating Agent shall cause to be paid
from the Onward Buyer Account to the Buyer all amounts standing to the
credit of the Onward Buyer Account.
(2) When the Operating Agent notifies the Servicer that Capital has been
reduced to zero and all Yield, Programme Costs and other fees due
under this Agreement (including the fees payable under the Fees
Letter) have been paid in full, then an amount equal to any future
Collections on Receivables shall be remitted by the Buyer to Exide
Funding by way of deferred purchase price for all of the Paid
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 Originator or Exide Funding 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
-29-
Debtor thereof against the Originator, Exide Funding 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), Exide Funding 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 Onward 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, Exide Funding 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 Onward Buyer Account an amount equal to such deemed
Collection by way of indemnity.
(3) If any Purchased Receivable express to be an Eligible Receivables in
an Account Receivables Listing at the time of Purchase, on the date
such fact becomes known to Exide Funding, Exide Funding will be deemed
to have received a Collection of such Purchased Receivable equal to
its original Outstanding Balance less any Collections previously
received with respect thereto and shall credit to the Onward 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 Paid
Receivable pursuant to Clause 5(D)(1),(2) or (3) above, the Buyer
shall receive any further Collections in respect of such Paid
Receivable, the Buyer shall (provided no Termination Date has yet
occurred) pay to Exide Funding 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 an Originator or Exide Funding
and any credits, in respect of defective, rejected, repossessed or returned
goods or other non cash items of a Designated Account Debtor will, except
as otherwise specified in writing by such Designated Account Debtor or
otherwise required by contract or law and unless otherwise instructed by
the Operating Agent, be applied as a Collection of Paid Receivables of such
Designated Account Debtor, in the order of the age of such Paid
Receivables, starting with the oldest such Paid 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.
6. FEES, COSTS AND TAXES
(A) Servicer Fees: Until the later of the Termination Date and the Relevant
Date, for any period during which Exide Funding or an Affiliate of Exide
Funding is not the
-30-
Servicer, Exide Funding will pay the Buyer, upon the demand of the
Operating Agent, a servicing fee as determined by the Operating Agent but
not exceeding 110% of the fees, costs and expenses, plus value added tax
(if applicable), charged by the substitute Servicer incurred in performing
such function.
(B) Costs and Expenses: Exide Funding agrees to pay on demand of the Operating
Agent all reasonable costs and expenses incurred by the Buyer or the
Operating Agent in connection with the preparation, execution and delivery
of this Agreement and the other documents to be delivered pursuant to this
Agreement or in connection therewith, such costs and expenses to include,
without limitation, the reasonable fees 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 Agreement, and
all costs and expenses, if any (including legal fees and expenses plus VAT
thereon), in connection with the enforcement of this Agreement, the other
documents to be delivered pursuant to this Agreement or in connection
therewith and the Paid Receivables. The Buyer and the Operating Agent agree
to take reasonable steps, consistent with the protection of their
respective interests under this Agreement, to mitigate their costs and
expenses in connection with the enforcement of this Agreement, the other
documents to be delivered pursuant to this Agreement and the Paid
Receivables.
(C) Duties and Taxes: In addition, Exide Funding 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 this Agreement or any Purchases, assignment or reassignment of
Receivables under or pursuant to this Agreement, or the other documents to
be delivered under this Agreement or in any way connected with any
transaction contemplated by this Agreement. Exide Funding 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) 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.
(E) Computation of Time Periods: Unless otherwise stated in this Agreement, 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 Exide Funding and/or
the Servicer
-31-
under this Agreement 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 Exide Funding under this Agreement 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 Agreement
shall be paid in the currency specified herein and the Purchase Price
amounts payable by the Buyer under this Agreement shall be paid in the
currency of the Paid Receivables.
(C) Accounts: Any amounts payable under this Agreement shall be remitted to the
following accounts:
(1) if to Exide Funding, Exide Funding Non-Transaction Account;
(2) if to the Buyer to the relevant Buyer Account; or
(3) if to the Operating Agent for its own account, Account No. 0000000
(Sort Code 18-50-08) with Citibank, 000 Xxxxxx, Xxxxxx XX0X 0XX.
(D) Grossing Up: To the fullest extent permitted by law, Exide Funding (in each
of its capacities under the Relevant Documents) will make all payments
under this Agreement regardless of any defence or counterclaim. Further, if
Exide Funding (in any of its capacities under the Relevant Documents) is
compelled by law to make any deductions or withholdings from any payments
pursuant to this Agreement including, without limitation, payments in
respect of Receivables or Collections, Exide Funding will 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. Exide Funding 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 Exide Funding
or the 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 Exide Funding and/or
the Servicer under this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF EXIDE FUNDING AND EXIDE EUROPE
Exide Funding (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, as of the
Effective Date, as follows:
-32-
(A) Incorporation: Exide Funding and Exide Europe are companies duly
incorporated and validly existing under the laws of their respective
jurisdictions of incorporation or organisation.
(B) Exide Funding Power and Authority: Exide Funding 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 this Agreement, and the transactions contemplated by this Agreement.
(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 Exide Funding and
Exide Europe of the Relevant Documents to which it is a party and all other
instruments and documents to be delivered pursuant to this Agreement and
all transactions contemplated by the Relevant Documents to which it is a
party:
(1) do not contravene (a) Exide Funding's or Exide Europe's memorandum or
articles of association (or analogous constitutive documents), (b) any
law, rule or regulation applicable to Exide Funding or Exide Europe,
(c) any material contractual restriction contained in any agreement or
instrument binding on or affecting Exide Funding or its assets or
Exide Europe or Exide Europe's assets, or (d) any order, writ,
judgment, award, injunction or decree binding on or affecting Exide
Funding, Exide Europe or any of Exide Funding's 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
Exide Funding'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
Europe 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 Exide Funding 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.
-33-
(F) Obligations Binding: (1) Each of the Relevant Documents to which it is a
party constitutes the legal, valid, binding and enforceable obligation of
Exide Funding.
(G) Accounts: The most recent audited annual accounts of each Originator, Exide
Funding (if any) 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 Originator and its consolidated Subsidiaries (if any),
Exide Funding and Exide Europe as at that date and the results of the
operations of such Originator, those subsidiaries, Exide Funding and Exide
Europe for the period ended on that date, all in accordance with generally
accepted accounting principles consistently applied.
(H) No Material Adverse Change to Exide Funding: Since the date of its
incorporation, there has been no change in the business or financial
condition of Exide Funding which may materially adversely affect the
ability of Exide Funding to perform its obligations under this Agreement.
(I) No Material Adverse Change to Exide Europe Group: Since the date of this
Agreement, there has been no change in the business or financial condition
of the Exide Europe Group which is reasonably likely to materially
adversely affect the ability of Exide Europe to perform its obligations
under the relevant Document to which it is a party.
(J) No Litigation: There are no actions, suits or proceedings current or
pending, or to the knowledge of Exide Funding threatened, against or
affecting Exide Europe, any Originator, Exide Funding or their Subsidiaries
(if any), or any of their respective 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 Exide Europe, any
Originator, Exide Funding or Exide Europe and their Subsidiaries taken as a
whole or materially adversely affect the ability of Exide Funding to
perform its obligations under the relevant Documents to which it is a
party.
(K) No Immunity: In any proceedings taken in Jersey in relation to this
Agreement or any such subrogation, Exide Funding will not be entitled to
claim for itself or any of its assets immunity from suit, execution or
other legal process.
(L) No Default: Neither Exide Funding nor 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 Exide Funding, Exide
Europe or any of its subsidiaries and would not materially adversely affect
the ability of Exide Funding, Exide Europe or any of its subsidiaries to
perform its obligations under the relevant Documents to which it is a
party.
(M) No Adverse Claim: Each Receivable will, together with the Contract related
thereto, at all times be owned by Exide Funding free and clear of any
Adverse Claim except as provided in this Agreement, and upon each Purchase
the Buyer will acquire full equitable and beneficial title and ownership to
and of each Purchased Receivable, the
-34-
Collections and the Related Security then existing or thereafter arising
free and clear of any Adverse Claim except as provided in this Agreement.
(N) 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.
(O) 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 Exide
Funding (in any of its capacities under the Relevant Documents) or Exide
Europe to the Operating Agent 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 (except that this
representation and warranty shall be deemed not to have been breached to
the extent that any such inaccuracy or material misstatement or omission is
attributable directly, solely and exclusively to a demonstrable defect in
Enigma).
(P) Place of Business: The registered office of Exide Funding is located at 00
Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands or at such
other location(s) approved by the Operating Agent (such approval not to be
unreasonably withheld or delayed).
(Q) Eligibility: Each Receivable, designated as an Eligible Receivables in a
Letter of Offer, is an Eligible Receivable.
(R) Location of Books: The offices where Exide Funding keeps all its books,
records and documents evidencing Receivables or the related Contracts are
located at 0-0 Xxxxx xxx Xxxxxxx Xxxxxxxx, 00000 Xxxxxxxxxxxxx Xxxxx-Xxxxxx
or at such other location(s) approved by the Operating Agent (such approval
not to be unreasonably withheld or delayed).
(S) No Winding-Up: No step has been taken or is intended by Exide Funding or,
so far as it is aware, by any other Person for Exide Funding's winding-up,
liquidation, dissolution, administration, merger or consolidation or for
the appointment of a receiver or administrator of Exide Funding or all or
any of its assets.
(T) No Breach: There has been no breach by Exide Funding or (to the best of its
knowledge) by any Originator of any of its obligations or any of its
representations or warranties under any of the Relevant Documents or by
Exide Europe of any of its obligations under the Letter of Undertaking.
(U) Paid Receivables: Each Receivable referred to in each Letter of Offer is
owed by a Designated Account Debtor and is a Receivable.
-35-
(V) Exide Europe Group: Each of the Originators, the UK Sellers, the German
Sellers, the Italian Seller, the Spanish Seller and the Seller (and each
entity acceding as a "Seller" to any Origination Agreement) is a member of
the Exide Europe Group.
(W) 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.
(X) Exide Funding further represents and warrants that the representations and
warranties in this Clause 8 shall be true and correct on and as of each
Purchase Date as though made on each such date and by reference to the
then-existing circumstances. For the purposes of this Clause 8, it is
acknowledged by the Buyer and the Operating Agent that in respect of
representations and warranties given by Exide Funding in relation to the
Receivables, the Contracts and its Affiliates, Exide Funding is relying
solely upon representations and warranties given to it under the
Receivables Subrogation Agreement without any obligation on its part to
conduct any investigation or otherwise into the accuracy or otherwise
thereof.
9. AFFIRMATIVE COVENANTS OF EXIDE FUNDING
Until the later of the Termination Date and the Relevant Date, Exide
Funding will in each of its capacity under the Relevant Documents, unless
the Operating Agent otherwise consents:
(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 Exide Funding during
normal office hours and examine and make and take away copies of all books,
records and documents relating to the Receivables and in respect of 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).
-36-
(E) Performance of Contracts: Procure that each Originator will timely and
fully perform and comply with all material provisions, covenants and
other promises required to be observed by such Originator under the
Contracts relating to the Paid Receivables.
(F) Priority: Ensure that at all times the claims against it under this
Agreement 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: Procure that each Originator will comply
in all material respects with such Originator's Credit and Collection
Policy with respect to each Receivable purchased or to be offered for
purchase pursuant to this Agreement and the related Contract.
(H) Collections: If Exide Funding 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 Agreement, and (2)
remit any Collections on Paid Receivables to the Servicer within one
Business Day after the receipt or deemed receipt thereof.
(I) Bank Accounts: Pay or cause to be paid all Collections of Receivables
directly into the bank account or accounts referred to in the
Receivables Subrogation Agreement or such other account(s) as may
approved by the Operating Agent.
(J) Receivables Subrogation Agreement: Exercise or cause to be exercised its
rights in relation to any breach by any Originator of its obligations,
Representations and Warranties under the Receivables Subrogation
Agreement (provided that Exide Funding has sufficient funds to exercise
such rights).
10. NEGATIVE COVENANTS OF EXIDE FUNDING
Until the later of the Termination Date and the Relevant Date, neither
Exide Funding (in each of its capacities under the Relevant Documents)
nor (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 Agreement
or the related Contract, or assign any right to receive income in
respect thereof.
(B) No Transfer of Business: Except as expressly provided for in this
Agreement, transfer any of its assets and undertaking to any Person
including, without limitation, any member of the Exide Group, without
the prior written consent of the Operating Agent, such consent not to be
unreasonably withheld.
(C) No Security Interest over Receivables and Contracts: create or permit to
subsist any Security Interest on any of its Receivables.
-37-
(D) No Amendment to Receivables: Extend, amend or otherwise modify the terms of
any Paid 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 Paid 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 Agreement or
the enforcement of any related Contract against the related Designated
Account Debtor or any relevant Person the operation of this Agreement
without the prior written consent of the Operating Agent.
(F) Cross Indemnity: amend or otherwise change the Deed of Payment Allocation
and Cross-Indemnity dated on or about the Effective Date between Exide
Europe and the Originator, 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.
(G) Carrying on Business: Except as expressly contemplated in this Agreement or
the Relevant Documents:
(1) carry on any business or engage in any activity other than as seller
or servicer under this Agreement, Buyer under the Receivables
Subrogation Agreement or Borrower under the Limited Recourse Loan
Agreement;
(2) pay dividends or make other distributions except as required and to
the extent required by applicable law;
(3) consolidate or merge with any other Person without the prior written
consent of the Operating Agent;
(4) have any employees or premises or have any Subsidiary;
(5) have an interest in any bank account; or
(6) incur any Debt other than under the Limited Recourse Loan Agreement
or give any guarantee in respect of any obligation of any Person, or
create or permit to subsist any mortgage, pledge, lien (unless
arising by operation of law) or charge upon the whole or any part of
its assets, present or future or its undertaking.
11. REPORTING REQUIREMENTS OF EXIDE FUNDING
Until the later of the Termination Date and the Relevant Date, Exide
Funding will, unless the Operating Agent otherwise consents, furnish to
the Operating Agent (or cause to be furnished to the Operating Agent),
except so far as the Operating Agent has
-38-
already been provided with the same information under the Receivables
Subrogation Agreement:
(A) Annual Accounts of Exide Funding: As soon as available and in any event
within 180 days after the end of each of Exide Funding's financial years, a
copy of Exide Funding's audited annual accounts (if they are required and
prepared under applicable law) 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.
(C) Other Financial Information: Upon request of the Operating Agent, such
financial information, accounts and records 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 an authorised representative or attorney of Exide Funding
setting out details of that event and the action which Exide Funding
proposes to take with respect to that event:
(1) 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 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
Exide Funding 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 Exide Funding (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 Exide Funding or a
receiver, administrative receiver or manager is
-39-
appointed over any part of the assets or undertaking of 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) Exide Funding 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) Originator Reports: Promptly after receipt thereof, a copy of all notices
or reports which Exide Funding has received from each Originator pursuant
to the Receivables Subrogation Agreement.
(F) Summary Report: Promptly, from time to time, such other information,
documents, records or reports (including any computerised records generated
by Enigma) respecting the Receivables or the condition or operations,
financial or otherwise, of Exide Funding or any member of the Exide Europe
Group, as the 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 a.m., London time, on each Summary Report Date, a
Summary Report (with, among other things, the information necessary to
determine the Default Ratio).
(G) 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), Exide Funding shall cause to be delivered to the
Operating Agent a current list of all Designated Account Debtors in respect
of Paid Receivables and the addresses of such Designated Account Debtors.
12. SERVICER, COLLECTIONS AND THE Onward 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 Agreement. The Servicer hereby delegates to Exide Funding in
respect of the Paid Receivables its duties and obligations of Servicer and
Exide Funding (the "Sub-Servicer") hereby agrees to perform the duties and
obligations of the Servicer pursuant to the terms of this Agreement in
relation to the Paid Receivables. The delegation hereby granted to the
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 Exide Funding is acting
as Sub-Servicer pursuant to the terms of this Agreement, (i) it shall
perform the duties and obligations of the Servicer in respect of the Paid
Receivables and (ii) all duties, obligations and indemnities expressed to
be those of a "Servicer"
-40-
pursuant to Clause 5 and this Clause 12 shall be regarded for all purposes
as those of the Sub-Servicer. The Servicer shall not be liable for the
performance of the duties and obligations of the Sub-Servicer under this
Agreement and the 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 Agreement. The Sub-Servicer may, with the prior
consent of the Operating Agent, subcontract with the Originators for the
Receivables they have originated or with any other Person authorised to
act as servicer on behalf of third parties in France for servicing,
administering or collecting the Paid 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
subcontracted 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 the Sub-Servicer under this Agreement. 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 Agreement.
(B) Duties of Servicer: Subject always to the provisions of the Receivables
Subrogation Agreement, the Servicer appointed under this Agreement:
(1) will take or cause to be taken all such actions as may be
necessary or advisable to collect each relevant Paid Receivable, all
in accordance with the laws, rules and regulations applicable in
France, with reasonable care and diligence, and in accordance with
the Credit and Collection Policy and the instructions of the
Operating Agent. Each of Exide Funding and the Buyer hereby appoints
the Servicer as its agent to enforce its respective rights and
interests in and under the Paid Receivables, the Related Security and
the Contracts;
(2) subject to any Withdrawals made pursuant to Clause 12(C) of the
Receivables Subrogation Agreement, will deposit in the Onward Buyer
Account for the account of the Buyer all Collections of Paid
Receivables received by the Servicer in accordance with this
Agreement or the Receivables Subrogation Agreement;
(3) will deposit in the Onward Buyer Account all repayments of
Withdrawals, which are not used to acquire Receivables under the
Receivables Subrogation Agreement. The Parties hereto agree that such
obligation will be extinguished by a direct payment of an Originator
into the Onward Buyer Account.
(4) may not extend, amend, modify or waive the terms of any Paid
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 Paid
Receivable, unless the Operating Agent shall have otherwise
-41-
consented in writing. The Seller shall deliver to the Servicer (if it
has caused to be a Sub-Servicer) all documents, instruments and
records which evidence or relate to the Paid Receivables which the
Operating Agent may reasonably request;
(5) if other than Exide Funding (and Exide Funding has ceased to be
Sub-Servicer), will provide to Exide Funding all such information as
Exide Funding may require for purposes of the Summary Report and will
as soon as practicable following receipt pay to or to the order of
Exide Funding the Collections of any Receivable which is not a Paid
Receivable;
(6) if other than Exide Funding (and Exide Funding has ceased to be
Sub-Servicer), will as soon as practicable upon demand make available
or (if so demanded) deliver to Exide Funding originals or copies of
all documents, instruments and records in its possession which
evidence or relate to Receivables of Exide Funding other than Paid
Receivables, and copies of documents, instruments and records in its
possession which evidence or relate to Paid Receivables; and
(7) if the Operating Agent or its designee, and notwithstanding anything
to the contrary contained in this Agreement, shall have no obligation
to collect, enforce or take any other action described in this
Agreement with respect to any Receivable that is not a Paid
Receivable other than to turn over, make available or deliver to
Exide Funding the Collections and documents with respect to any such
Receivable as described in (4) and (5) above.
(C) Failure to Report: If there is a failure at any time by the 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 Onward
Buyer Account in respect of any Settlement Period such that the amounts due
by Exide Funding and the Buyer pursuant to Clauses 4(B) and (C) cannot be
accurately determined (in the Operating Agent's reasonable opinion), there
will fall due from Exide Funding 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 purpose of this Clause 12(C), it shall be considered reasonable for
the Operating Agent to anticipate that all Collections due during such
Settlement Period were received by the appropriate Servicer during such
Settlement Period. Exide Funding shall deposit such amount into the
Temporary Adjustment Account for the benefit of the Buyer. 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
Exide Funding or (provided no Early Amortisation Event has occurred) by way
of further payment by the Buyer, as required, and such adjusted sum shall
be treated for all purposes under this Agreement as the Collections
received during such Settlement
-42-
Period. Provided that such failure by the Servicer does not last longer
than two consecutive Settlement Periods and the provisions of this Clause
12(C) 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 on behalf of the Buyer
(and Exide Funding following the Operating Agent's request shall) notify
the Designated Account Debtors, or any of them, of Paid Receivables of the
Buyer's ownership of the Paid Receivables and the Collections of the Paid
Receivables and direct (or cause Exide Funding or each Originator to
direct) all the Designated Account Debtors of Paid 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: Exide Funding shall, if requested by the Operating
Agent after the occurrence of an Early Amortisation Event, forthwith
execute any required documents to establish a legal assignment (or the
equivalent thereof in the relevant jurisdiction) from the relevant
Originator to Exide Funding and from Exide Funding 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 Paid 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 Exide
Funding does not generate an Accounts Receivable Trial Balance on the
Determination Date immediately preceding each Settlement Date (whether or
not it is obliged to do so), the Operating Agent will have the right to
reconstruct that Accounts Receivable Trial Balance so that a determination
of the Paid Receivables can be made, and such reconstruction will be
conclusive (in the absence of manifest error) for the purposes of
determining Paid Receivables.
(D) Operating Agent's Right to Perform: If Exide Funding fails to perform any
of its agreements or obligations under this Agreement, 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), Exide Funding irrevocably constitutes and appoints the Operating
Agent, 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 as 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 Paid Receivables, or
Related Security, including the redirection of mail and the endorsement of
drafts, cheques and other payment media, to perform any agreement or
obligation of Exide Funding under or in connection with this
-43-
Agreement, and to exercise all other remedies of Exide Funding under this
Agreement or existing at law. In furtherance of the power herein granted,
Exide Funding 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 Exide Funding. Exide Funding hereby agrees that
it shall execute the Power of Attorney set out in the form of Schedule 7
in respect of its obligations under this Clause 13(E).
14. RESPONSIBILITIES OF EXIDE FUNDING
Anything herein to the contrary notwithstanding:
(A) Perform Contracts: Exide Funding will procure that each Originator will
perform all its obligations under the Contracts related to the Paid
Receivables to the same extent as if such Paid Receivables had not been
sold pursuant to this Agreement and the exercise by either the Operating
Agent or the Buyer of its rights hereunder will not relieve any Originator
or Exide Funding from such obligations.
(B) Exoneration of the Buyer and Operating Agent: Neither the Buyer nor the
Operating Agent will have any obligation or liability with respect to any
Paid Receivables, any related Security or related Contracts, nor will the
Buyer or the Operating Agent be obliged to perform (i) any of the
obligations of Exide Funding with respect to any Paid Receivables nor (ii)
any of the obligations of any Originator with respect to any Paid
Receivables or related Contracts.
(C) Trust: Until the Operating Agent requests otherwise, and to the extent
possible under applicable law, Exide Funding will hold in trust (or if a
trust is not available under applicable law, any similar method whereby
one party may hold an item for the benefit of another) for the sole
benefit of the Buyer the Contracts and other documentary items relating to
the uncollected Paid Receivables. To the extent that the Contracts or
other documentary items also relate to Receivables that are not Paid
Receivables, Exide Funding will hold them in trust (or similar method as
aforesaid) for both the Buyer and Exide Funding to the extent of the
respective rights of the Buyer and Exide Funding therein unless possession
thereof is required by the Buyer to enforce its ownership rights. Exide
Funding will deliver such Paid Receivables, Contracts and documents to the
Operating Agent (or as it may direct), if so directed by the Operating
Agent following an Early Amortisation Event, and the Operating Agent will
make them available to Exide Funding to the extent that they contain
material or information that does not relate to Paid Receivables and to
the extent that the Buyer's interests are not thereby compromised.
(D) Marking: Exide Funding will xxxx or cause to be marked clearly and
unambiguously its ordinary business records, including without limitation
its master data processing records (if any), relating to the Paid
Receivables with a legend acceptable to the Operating Agent indicating
that such Paid Receivables are owned by the Buyer. Exide
-44-
Funding 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 perfect (except in so
far as perfection may entail notifying the Designated Account Debtors of
the Buyer's ownership of the Paid Receivables and the Collections of the
Paid Receivables, which shall only be undertaken in accordance with Clause
13(A) after an Early Amortisation Event), protect or more fully evidence
the Buyer's ownership interest in the Paid Receivables, the Collections
and the Related Security and pending such time will keep an up to date
record of all Paid Receivables. The obligations of Exide Funding pursuant
to this Clause 14(D) shall be deemed to be satisfied through the
appropriate satisfaction by the Originators under the Receivables
Subrogation Agreement of the equivalent obligation contained therein.
(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 the Sub-Servicer pursuant to Clause 12(A):
(1) Exide Funding will (or cause each Originator to), 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 Paid Receivables, and the related Contracts
and Related Security, or which are otherwise necessary or desirable
to collect such Paid 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 Paid 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. The obligations of
Exide Funding pursuant to this Clause 14(E)(1) shall be deemed to be
satisfied through the appropriate satisfaction by the Originators
under the Receivables Subrogation Agreement of the equivalent
obligations contained therein.
(2) Exide Funding authorises the Operating Agent to take any and all
steps in Exide Funding's name and on behalf of Exide Funding
necessary or desirable, in the determination of the Operating Agent,
to collect all amounts due under any and all Paid Receivables,
including, without limitation, endorsing Exide Funding's name on
cheques and other instruments representing Collections and enforcing
such Paid Receivables and the related Contracts and Related Security.
15. AGENCY AND INDEMNITIES
(A) Agency: In acting under this Agreement the Operating Agent shall have only
such duties, obligations and responsibilities as are expressly set out in
this Agreement (and
-45-
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 Exide Funding and Exide Europe: Exide Funding 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 Exide Funding 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 Agreement or the ownership of
Paid 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 Agreement) for
uncollectible Paid Receivables or for losses arising out of late
Collections. Without limiting the foregoing, Indemnified Amounts include
amounts relating to or resulting from:
(1) the transfer of an ownership interest in 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));
(2) reliance on any representation or warranty made or deemed made by
Exide Funding (in any of its capacities under the Relevant Documents)
or Exide Europe under or in connection with this Agreement, or any
other information or report delivered by Exide Funding (in any of its
capacities under the Relevant Documents) pursuant to this Agreement,
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));
(3) the failure by Exide Funding (in any of its capacities under the
Relevant Documents) or Exide Europe to comply with any term,
provision or covenant contained in this Agreement 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;
(4) the failure to vest and maintain vested in the Buyer ownership of
each Paid 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;
-46-
(5) 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;
(6) any failure of Exide Funding (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 Agreement;
(7) the Buyer, at the request or with the approval of Exide Funding,
contracting for or arranging foreign exchange transactions and/or
funding in connection with any anticipated Purchase and such Purchase
does not in fact take place as a result of Exide Funding not
delivering a Letter of Offer, the operation of Clause 3 or any other
provision of this Agreement, or the Buyer not accepting a Letter of
Offer by reason of any event described in Clause 11(D)(1), (2), (3)
and (4) or any breach by Exide Funding (in whatever capacity) of any
of its obligations under or in connection with this Agreement;
(8) 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
(9) any failure by any Originator to observe and perform its obligations
under the Receivables Subrogation Agreement.
The Operating Agent will provide Exide Funding 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).
(C) Costs Increased costs and gross-up for withholding tax under the
Facilities Agreement and the Currency Exchange Agreement: Exide Funding
hereby agrees from time to time to indemnify the Buyer for, and to pay to
it on demand of the Operating Agent, an amount equal to (i) all costs,
increased costs, indemnities, tax gross-up, tax indemnities and all other
amounts (other than interest and principal payments) which are required to
be paid by the Buyer to any party (including its successors and assigns)
to the Facilities Agreement under and in accordance with the terms of such
Facilities Agreement and (ii) all costs, indemnities, tax, tax gross-up
and
-47-
termination costs which are required to be paid by the Buyer under and in
accordance with the Currency Exchange Agreement.
(D) Judgment Currency: Subject to Clause 20, each reference in this Agreement
to a specific currency is of the essence. The obligation of Exide Funding
(in any of its capacities under the Relevant Documents) in respect of any
sum due from it to the Operating Agent or the Buyer under this Agreement
will, notwithstanding any judgment in any other currency, or any
bankruptcy or winding up by reason of insolvency or analogous event of
Exide Funding, be discharged only to the extent that on the 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 Agreement 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, Exide Funding 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), (D) or (E) shall be paid by Exide Funding to the Operating
Agent within two Business Days following the Operating Agent's demand
therefor.
(F) Cash Collateral Reserve: In the event of an Early Amortisation Event of
the type described in any of paragraphs (3), (4), (8), (9) or (in respect
of insolvency events only) (20) and (21) of the definition of "Early
Amortisation Event", or in the event of an Early Amortisation Event (as
that term is defined in the Receivables Subrogation Agreement), Exide
Funding shall forthwith pay to the Operating Agent on behalf of the Buyer
the amount of the Cash Collateral Reserve by way of indemnity. The Cash
Collateral Reserve shall be applied by the Operating Agent to payment of
the following amounts in the following order:
(1) reduction of outstanding Capital and payment of all Yield, Programme
Costs and other fees due under this Agreement (including the fees due
under the Fees Letter); then
(2) to the extent that there are any remaining funds in the Cash
Collateral Reserve after payment of the sums described in paragraph
(1) above, such amount shall be remitted by the Operating Agent on
behalf of the Buyer to Exide Funding; such remittance shall only be
made once Capital is reduced to zero, and once all Yield, Programme
Costs and other fees due under this Agreement have been paid in full
and once there are no outstanding liabilities, actual or contingent,
due to the Buyer or the Operating Agent hereunder.
(G) 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
-48-
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.
(H) Assignment of Rights under Receivables Subrogation Agreements:
Notwithstanding any other provision of this Agreement, Exide Funding hereby
assigns to the Operating Agent on behalf of the Buyer, all rights and
powers which may be exercised by Exide Funding pursuant to the Receivables
Subrogation Agreement with full power of substitution in respect of
representations, warranties and indemnities. For avoidance of doubt, this
Clause shall be interpreted to provide the Operating Agent with the
benefits of such provisions without any related burdens. Except in the case
of gross negligence or wilful misconduct, the Operating Agent shall incur
no liability to Exide Funding or any Originator in connection with any such
exercise of such rights and powers, or in connection with any non-exercise
of such rights and powers, and Exide Funding agrees to indemnify the
Operating Agent in respect of any costs associated with such exercise or
non-exercise, as the case may be.
16. AMENDMENTS, ETC.
(A) Amendments and Waivers: No amendment or waiver of any provision of this
Agreement nor consent to any departure by Exide Funding therefrom shall in
any event be effective unless the same shall be in writing and signed by
(1) Exide Funding, the Buyer and the Operating Agent with respect to an
amendment, or (2) Exide Funding, 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.
(B) Entire Agreement: This Agreement contains a final and complete integration
of all prior expressions by the parties with respect to the subject matter
of this Agreement and constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement, superseding all prior
oral or written understandings.
17. NOTICES
All notices and other communications provided for under this Agreement
shall, unless otherwise stated in this Agreement, 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 Agreement 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, (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 non-Business Day or after
5.00pm at the place in which the recipient is located, in which case it
will
-49-
be effective at 9.00am at the place in which the recipient is located, on
the following 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, Exide Funding (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 Agreement 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 (and more specifically relating to
the payment of the Purchase Price) by Exide Funding at any time after Exide
Funding is in default of its obligations under this Agreement 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 Exide Funding
against any and all of the obligations of Exide Funding (in any of its
capacities under the Relevant Documents), now or hereafter existing under
this Agreement, 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).
19. BINDING EFFECT: ASSIGNABILITY
(A) Successors and Assigns: This Agreement is binding upon and enures to the
benefit of (1) Exide Funding and its successors and permitted assignees in
accordance with Clause 19(B); (2) the Buyer and 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 Paid
Receivable (or any participation or interest, whether proprietary or
contractual, in or in respect of all or part of any Paid Receivable) and/or
all or any of its rights, benefits and interest in or under this Agreement
and their respective successors and assignees; and (3) Citibank and its
successors as Operating Agent (and the terms "Exide Funding", "the Buyer"
and "Operating Agent" shall be construed accordingly).
(B) Exide Funding: Exide Funding may not assign any of its rights, benefits or
interest in or under this Agreement except with the prior consent of the
Operating Agent.
(C) The Buyer: The Buyer may grant or assign all or part of any Paid Receivable
and/or all or any of its rights, benefits and interest in or under this
Agreement to any Lender.
-50-
20. FURTHER ASSURANCE - RESTRUCTURING
Exide Funding and Exide Europe hereby agree 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 this Agreement will be first
purchased from the Originators 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 applicable
Programme (save in relation to additional costs arising as a result of the
involvement of a FCC, a Law 1/1999 Bank and/or a Law 130 Company), Exide
Funding 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 Agreement, acting in good faith,
shall co-operate with a view to restructuring this Agreement, 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 fees, costs and expenses (including legal fees) arising as a result of
any of the event described in paragraph (A) and (B) will be borne by Exide
Funding.
21. TERMINATION
This Agreement 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 has been reduced to zero and all Yield
(as aggregate among all Origination Agreements), Programme Costs and other
fees due under this Agreement or the Fees Letter have
-51-
been paid; provided, however, that the rights and remedies with respect to
any breach of any representation and warranty made by Exide Funding in or
pursuant to this Agreement, the provisions of Clause 22 and the
indemnification and payment provisions of this Agreement will be continuing
and will survive any termination of this Agreement in respect of the Paid
Receivables outstanding on the Termination Date.
22. NO PROCEEDINGS
(A) The Buyer: Exide Funding, Exide Europe and the Offer Agent (if not Exide
Europe) each hereby agree that they will not institute against the Buyer or
any of its Affiliates 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 made for the payment of any amount owing hereunder or claims
arising out of or based upon the Relevant Documents.
(B) Directors of Exide Funding: No recourse under any obligation, covenant, or
agreement of Exide Funding contained in this Agreement shall be had against
any shareholder, officer or director of Exide Funding as such, by the
enforcement of any assessment or by any proceeding, by virtue of any
statute or otherwise; it being expressly agreed and understood that this
Agreement is a corporate obligation of Exide Funding and no personal
liability shall attach to or be incurred by the shareholders, officers or
directors of Exide Funding as such, or any of them, under or by reason of
any of the obligations, covenants or agreements of such Exide Funding
contained in this Agreement, or implied therefrom, and that any and all
personal liability for breaches by such party of any of such obligations,
covenants or agreements, either at law or by statute or constitution, of
every such shareholder, officer or director is hereby expressly waived by
the other parties as a condition of and consideration for the execution of
this Agreement.
23. EXECUTION IN COUNTERPARTS: SEVERABILITY
(A) Counterparts: This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
(B) Severability: If any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations
under this Agreement, 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, each of the parties agrees to maintain the
confidentiality of this Agreement in its communications with third parties
and otherwise.
-52-
(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.
25. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement 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 Agreement,
and Exide Funding hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such courts. Exide
Funding hereby irrevocably waives, to the fullest extent it may effectively
do so, the defence of an inconvenient forum to the maintenance of such
action or proceeding. As an alternative method of service, Exide Funding
also irrevocably consents to the service of any and all process in any such
action or proceeding by the delivery of copies of such process to Exide
Funding at the address designated for notices under this Agreement. Exide
Funding agrees 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 Agreement 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).
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as a
Deed.
-53-
SCHEDULE 1
Form of 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 (i) the Receivables Subrogation Agreement (the "RSA") dated as of 6 June
1997 as amended on the date hereof between you, CEAC, Exide Funding and us, and
(ii) the Onward Receivables Sate Agreement (the "ORSA") dated as of the date
hereof between you, Batteries Funding and us (the RSA and the ORPA being
hereinafter referred to as the "Agreement") 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 Agreement. 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 Agreement.
Should Enigma fail accurately to produce information required under the
Agreement 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 Agreement, 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.
-54-
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:
-55-
SCHEDULE 2
FORM OF LETTER OF UNDERTAKING
[EXIDE HOLDING EUROPE LETTERHEAD]
Letter of Undertaking
Date: [.] May 2002
To: Batteries Funding Limited ("Batteries Funding "); and
Citibank, N.A., London Branch ("Citibank"),
Dear Sirs
1. We refer to the following agreements:
(i) the Receivables Sale Agreement dated as of the date hereof between
CMP Batteries Limited, Exide (Dagenham) Limited, Deta (U.K.)
Limited, Fulmen (U.K.) Limited, B.I.G. Batteries Limited (together
with any additional member of the Exide Group acceding to the
Receivables Sale Agreement after the date hereof, the "UK
Originators"), ourselves as Offer Agent, Batteries Funding and
Citibank, N.A. as Operating Agent;
(ii) (a) the Receivables Subrogation Agreement dated 3 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 Agreement");
(iii) the Receivables Sale Agreement dated as of the date hereof between
Sociedad Espanola del Acumulador Tudor, S.A., Fulmen Iberica S.A.
(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.n.l. and Compagnia Generale Accumulatori S.p.A. (now
Exide Italia S.p.A) (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. as the
Operating Agent and (b) the Onward Sale Agreement dated as of the
-56-
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, Xxxxx Batterie AG, 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 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 Documents) 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.
-57-
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 7 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
-58-
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 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 Citibank 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
-59-
______________________ Process Agent: [.]
EXIDE HOLDING EUROPE S.A. CMP Batteries Limited
X.X. Xxx 0
Xxxxxxx Xxxx
Xxxx Xxxxxx
Xxxxxx XX0 0XX
-60-
SCHEDULE 3
Form of Settlement Statement
-61-
SCHEDULE 4
Form of Summary Report
-62-
SCHEDULE 5
Initial Conditions Precedent
(b) A certified copy of the resolutions of the board of directors (or analogous
body) of Exide Funding approving this Agreement and the other documents to
be delivered by it and the transactions contemplated in the Relevant
Documents.
(c) Certified copies of the memorandum and articles of association of Exide
Funding.
(d) A certificate of an appropriate officer of Exide Funding certifying the
names and true signatures of the officers authorised on its behalf to sign
or, as appropriate, witness the sealing of this Agreement 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
Exide Funding a revised certificate meeting the requirements of this
paragraph (c)).
(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 satisfactory to the Operating Agent
as to the execution and enforceability of the Relevant Documents by the
appropriate members of the Exide Group, 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 advisors 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
reasonable request.
(i) A Directors' Certificate from the directors of Exide Funding and Exide
Europe in relation to the solvency of Exide Funding and a certificate from
the directors of Exide Europe in relation to the solvency of Exide Europe
in form and substance satisfactory to the Operating Agent.
(j) Execution of the Relevant Documents (as defined in each Origination
Agreement) and all documentation to be delivered therewith and satisfaction
of all initial conditions precedent to the obligation of Exide Funding to
buy from each Originator under the Receivables Subrogation Agreement.
(k) The Operating Agent has received such other approvals, opinions or
documents as it may reasonably request.
(l) An Enigma Licence Agreement substantially in the form set out in Schedule 1
duly executed by Exide Europe.
-63-
(m) A direction from Exide Europe or each Originator with regard to the payment
of Citibank's (on its own behalf), the Operating Agent's and the Buyer's
reasonable legal costs (together with disbursements and VAT) in form and
substance satisfactory to the Operating Agent.
(n) Execution of the Currency Exchange Agreement.
(o) Satisfaction of the Conditions Precedent found in Schedule 5 of the
Receivables Subrogation Agreement.
-64-
SCHEDULE 6
Form of Letter of Offer
Part 1
On Settlement Date
To: Exide Holding Europe
0-0 Xxxxx xxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxxxxxxxx Xxxxx
Xxxxxx
To: Batteries Funding Limited
West Block
International Financial Services Centre
Xxxxxx 0
Copy to: Citibank, N.A.
Citicorp Centre
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: Date:
SUBJECT TO CONTRACT
Dear Sirs,
1. We refer to an Onward Receivables Sale Agreement dated 24 May 2002 (as from
time to time amended, supplemented or novated) (the "Agreement") among,
inter alios, you, Citibank, N.A., the undersigned and Exide Europe Funding
Ltd ("Exide Funding").
2. This Letter of Offer does not record the existence of a contract on the
date hereof and Exide Funding has 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 Agreement.
3. We, on behalf of Exide Funding as beneficial owner, hereby offer to sell,
to assign and to transfer to you Receivables with an Outstanding Balance of
[.] (being the Receivables indentified for you pursuant to Clause 4(G) of
the Agreement) on the next Settlement Date for a Receivables Funded
Purchase Price calculated in accordance with the Agreement of [.].
4. The provisions of the Agreement will apply to this letter and the related
Purchase by the Buyer, and except as otherwise provided herein, capitalised
terms in this letter will have the meaning ascribed to them in the
Agreement.
-65-
5. The Discount computed for the Group of Receivables the subject of this
letter is [.].
6. The offer made under this letter constitutes an irrevocable offer by Exide
Funding, 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 Exide Funding
By:
Authorised Signatory
-66-
Part 2
On Daily Purchase Date
To: Exide Holding Europe
0-0 Xxxxx xxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxxxxxxxx Xxxxx
Xxxxxx
To: Batteries Funding Limited
West Block
International Financial Services Centre
Xxxxxx 0
Copy to: Citibank, N.A.
Citicorp Centre
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: Date:
SUBJECT TO CONTRACT
Dear Sirs,
1. We refer to an Onward Receivables Sale Agreement dated 24 May 2002 (as
from time to time amended, supplemented or novated) (the "Agreement")
among, inter alios, you, Citibank, N.A., the undersigned and Exide
Europe Funding Ltd ("Exide Funding").
2. This Letter of Offer does not record the existence of a contract on the
date hereof and Exide Funding has 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 Agreement.
3. We, on behalf of Exide Funding as beneficial owner, hereby offer to
sell, to assign and to transfer to you Receivables with an Outstanding
Balance of [.] (being the Receivables indentified for you pursuant to
Clause 4(G) of the Agreement) on the next Daily Purchase Date for a
Receivables Daily Purchase Price calculated in accordance with the
Agreement of [.].
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.
-67-
5. The offer made under this Letter of Offer constitutes an irrevocable
offer by Exide Funding, 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. This Letter of Offer shall be governed by English law.
Yours faithfully
EXIDE HOLDING EUROPE, acting on behalf of Exide Funding
By:
Authorised Signatory
-68-
SCHEDULE 7
POWER OF ATTORNEY IN FAVOUR OF CITIBANK
[.] May 2002
THIS POWER OF ATTORNEY is made on [.] May 2002 by EXIDE EUROPE FUNDING LTD., a
company whose registered office is at 22, Grenville Street, St Helier, Jersey
JEA 8PX Channel Islands (defined as "Exide Funding" herein) in favour of
CITIBANK N.A., a company whose registered office is at 000 Xxxxxx, Xxxxxx XX0X
0XX acting in its capacity as Operating Agent ("Citibank") (the "Attorney").
WHEREAS
A. Pursuant to an Onward Receivables Sale Agreement dated [.] May 2002 (as
may be from time to time amended, restated or otherwise replaced) made by
and between the Offer Agent, Exide Funding, the Buyer and Citibank, N.A.
(the "ORSA"), Exide Funding will from time to time sell to the Buyer
certain receivables evidenced by invoices rendered by the Originators
(the "Receivables").
B. Receivables and Collections so transferred and not subsequently
reacquired by Exide Funding or collected in full are referred to herein
as the "Paid Receivables".
C. Under the ORSA, Citibank is appointed as the Operating Agent of the Buyer
hereunder (if applicable), and Exide Funding has been appointed as its
Sub-Servicer under the ORSA.
D. Terms not defined herein shall have the meaning ascribed to such terms in
the ORSA.
NOW, THEREFORE, the parties agree as follows:
1. EXIDE FUNDING HEREBY APPOINTS the Attorney in respect of Paid Receivables
and their related Collections 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 Exide Funding at any time after the
occurrence of an Early Amortisation Event:
(a) to exercise its rights, powers and discretions in respect of Paid
Receivables and in respect of any other related rights (such related
benefit and other rights being the "Ancillary Rights");
(b) to execute, sign, seal and deliver any document and to do any other
act or thing which it may deem to be necessary in order to protect
the interests of the Buyer and/or the Lenders and/or the Operating
Agent, proper or expedient for
-69-
fully and effectually vesting or transferring Paid Receivables and
the Ancillary Rights in or to the Buyer 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 ORSA;
(c) to demand, xxx for and receive all moneys due or payable under or in
respect of Paid Receivables and the Ancillary Rights and pay such
moneys to the persons to whom such moneys are required to be paid
under the ORSA;
(d) upon receipt of such moneys as referred to in Clause 1(c) above or
of any part thereof to give to the payer thereof good receipts and
discharges for the same and to execute such receipts, releases,
re-assignments, retransfers, instruments and deeds as may be
requisite or advisable;
(e) to redirect mail and endorse drafts, cheques and other payment
media, to perform any agreement or obligation of Exide Funding under
or in connection with the ORSA and to exercise all other remedies of
Exide Funding under the ORSA 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. Exide Funding hereby agrees at all times hereafter to ratify and confirm
any act, matter or deed whatsoever the Attorney 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 Exide Funding and within the contemplation of this
Power of Attorney and Exide Funding shall indemnify the Attorney or any
Substitute Attorney in respect of any loss, claim, cost, expense or
liability in connection with this Power of Attorney save to the extent
that the same arises out of their negligence, wilful default or bad
faith. In furtherance of the power herein granted, Exide Funding agrees
that it will assist and co-operate with the Operating Agent and provide
such facilities as the Operating Agent may reasonably request.
3. Exide Funding declares that this Power of Attorney has been given for
security purposes and to secure continuing obligations of Exide Funding
under the ORSA and the above-mentioned transfer, and the powers hereby
created shall be irrevocable and will extend to and be binding upon the
successors and assigns of Exide Funding.
4. The Attorney hereby accepts its appointment hereunder on the terms and
subject to the conditions of this Power of Attorney and the ORSA.
5. 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.
-70-
IN WITNESS whereof this Power of Attorney has been executed on the day and year
first above written.
-71-
EXIDE EUROPE FUNDING LTD
By: [.]
Address: 00, Xxxxxxxxx Xxxxxx
St Helier
Jersey JEA 8PX
Channel Islands
The Attorney:
Citibank, N.A., London Branch as Operating Agent
By: [.]
Address: 000 Xxxxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
-72-
SCHEDULE 8
LIST OF ACCOUNT DEBTORS OTHER THAN DESIGNATED ACCOUNT DEBTORS
Fiat
-73-
SCHEDULE 9
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%
-74-
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%
Xxxxx 0, 0000 Xxxxx 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%
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.
-75-
SCHEDULE 10
ONWARD BUYER ACCOUNT
Account Number: 00000000
Currency: Sterling
Sort Code: 18-50-08
Bank: Citibank, N.A., London
Bank Swift Code: XXXXXX00
Account Number: 00000000
Currency: Euro
Sort Code: 18-50-08
Bank: Citibank, N.A., London
Bank Swift Code: XXXXXX00
-76-
EXECUTION PAGES
SELLER:
Exide Europe Funding Ltd
By:
Address: 00 Xxxxxxxxx Xxxxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
Channel Islands
Attention: Company Secretary
Telefax: x00 0000 000 000
OFFER AGENT:
Exide Holding Europe S.A.
By:
Address:
Attention:
Telefax:
BUYER:
Batteries Funding Ltd.
By:
Address: West Block
International Financial Services
Centre
Xxxxxx 0
Attention: the Directors
Telefax: + 353 1 874 30 50
-77-
OPERATING AGENT:
Citibank N.A., London Branch
By:
Address: Citicorp Centre
33 Canada Square
0/xx/ Xxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attention:
Telefax: x00 000 000 00 00
-78-