EXHIBIT 10.14
EXECUTION COPY
24 May 2002
EXIDE ITALIA S.r.l.
as Seller
ARCHIMEDE SECURITISATION S.r.l.
(acting through its London branch)
as Buyer
EXIDE HOLDING EUROPE
as Offer Agent
CITIBANK, N.A.
(acting through its London branch)
as Operating Agent
and
CITIBANK, N.A.
(acting through its Milan branch)
as Allocation Agent
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AMENDED AND RESTATED RECEIVABLES SALE
AGREEMENT
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1. DEFINITIONS AND CONSTRUCTION .......................................................... 3
2. SCOPE OF THE AGREEMENT ................................................................ 23
3. CONDITIONS PRECEDENT .................................................................. 23
4. PURCHASES ............................................................................. 26
5. COLLECTIONS AND SETTLEMENT ............................................................ 30
6. FEES, COSTS AND DUTIES ................................................................ 33
7. PAYMENTS AND COMPUTATIONS, ETC. ....................................................... 34
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER .......................................... 35
9. AFFIRMATIVE COVENANTS OF THE SELLER ................................................... 38
10. NEGATIVE COVENANTS OF THE SELLER AND EXIDE EUROPE ..................................... 40
11. REPORTING REQUIREMENTS OF THE SELLER .................................................. 41
12. SERVICER, ALLOCATION AGENT, COLLECTIONS AND BUYER ACCOUNT ............................. 43
13. PROTECTION OF THE BUYER'S RIGHTS ...................................................... 47
14. RESPONSIBILITIES OF THE SELLER ........................................................ 48
15. AGENCY AND INDEMNITIES ................................................................ 50
16. AMENDMENTS, ETC. ...................................................................... 52
17. NOTICES ............................................................................... 53
18. NO WAIVER: REMEDIES ................................................................... 53
19. BINDING EFFECT: ASSIGNABILITY ......................................................... 53
20. FURTHER ASSURANCE - RESTRUCTURING ..................................................... 55
21. TERMINATION ........................................................................... 55
22. NO PROCEEDINGS ........................................................................ 56
23. EXECUTION IN COUNTERPARTS: SEVERABILITY ............................................... 56
24. CONFIDENTIALITY ....................................................................... 56
25. GOVERNING LAW AND JURISDICTION ........................................................ 57
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THIS AGREEMENT is made on or about the ______ day of May 2002
BETWEEN
(1) Exide Italia S.r.l., a company incorporated in Italy, quota capital of
(Euro)26,000,000 fully paid up having its registered office at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇/▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇), ▇▇▇▇▇, registered with the
Bergamo Register of Companies under No. 09178790151 (the "Seller");
(2) Exide Holding Europe, a French Societe Anonyme, with its registered office
at ▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ (the
"Offer Agent");
(3) Archimede Securitisation S.r.l., a corporation incorporated under the laws
of Italy, registered with the Elenco Speciale held by the Bank of Italy
pursuant to Article 107 of Legislative Decree No.385 of 1 September 1993
under No. 481 acting through its branch at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, as
buyer (the "Buyer");
(4) Citibank, N.A., a banking corporation incorporated under the laws of the
State of New York, acting through its branch at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, as administrator (the "Operating Agent"); and
(5) Citibank, N.A., a banking corporation incorporated under the laws of the
State of New York, acting through its Italian branch at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as allocation agent (the "Allocation Agent").
Preliminary Statements
(A) The Seller desires to sell, from time to time, all of its rights and title
to and interest in certain of its Receivables, and the Buyer desires to
purchase, from time to time, such Receivables from the Seller on or after
the Effective Date, pursuant to the provisions of Law No. 52 of 21
September 1991;
(B) the Seller and the Buyer have agreed, upon the terms and pursuant to the
conditions of this Agreement, that the Offer Agent shall from time to time
for and on behalf of the Seller offer to assign Receivables arising, from
time to time, from Contracts and, the Buyer will subject to the terms and
pursuant to the conditions of this Agreement, accept such offers in the
manner prescribed herein; and
(C) the Operating Agent 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 ability of the Operating Agent to delegate its obligations
pursuant to the terms of this Agreement.
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 the Republic of
Italy.
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(B) Defined Terms: The following terms shall have the meanings indicated:
"Acceptance Fee" has the meaning ascribed to that term in Clause 4(B).
"Account Debtor" means a Person obliged to make payment(s) pursuant to a
Contract.
"Accounts Receivable Listing" means a list, by invoice number, of all of the
Contracts entered into with Designated Account Debtors which are shown on the
Seller's general ledger as outstanding as at (but excluding) each relevant
Reference Date, the information specified in Clause 4(E) together with such
other information concerning each Contract, and in such format, as the Operating
Agent may specify.
"Accounts Receivable Trial Balance" means the Seller's accounts receivable trial
balance computer printout, containing a list of Designated Account Debtors
together with the aged Outstanding Balance of the Receivables.
"Accruals" means, as of any time, the aggregate amount by which the face value
of Eligible Receivables which are Paid Receivables have been reduced by virtue
of any prompt payment discounts, accruals for volume rebates, warranty claims by
the applicable Designated Account Debtor(s), and other credit notes (including,
without limitation, credit notes issued to Designated Account Debtors as a
result of disputes, claims and invoicing errors by the Seller).
"Additional Designated Account Debtor" means an Account Debtor designated by the
Seller as a Designated Account Debtor pursuant to Clause 4(A)(2).
"Additional Seller" means any member of the Exide Group which becomes party to
this Agreement in accordance with Clause 19(D).
"Admission of Additional Seller" means an agreement substantially in the form
set out in Schedule 2.
"Advance Payment" means, at any time, the aggregate amount of any withdrawals
from the Buyer Collection Account and made by the Seller under Clause 12(D) to
the extent they are outstanding and not repaid.
"Adverse Claim" means any claim of ownership, lien, security interest, mortgage,
charge, or encumbrance, or other right or claim of any Person.
"Affiliate" when used with respect to a Person, means a Subsidiary of that
Person or a Holding Company of that Person or any other Subsidiary Holding
Company.
"Allocation Agent" means Citibank, N.A., Milan branch.
"Approved Currency" means, on the date hereof, Euro and, thereafter, with the
prior written consent of the Operating Agent and in addition to Euro, Sterling
and Dollars.
"Approved Jurisdiction" means each (i) jurisdiction in the European Union, or
(iii) any other jurisdiction in respect of which the Seller has obtained as
security from the applicable Designated Account Debtor a clear and unconditional
demand letter of credit (governed by the Uniform Customs and Practice for
Documentary Credits) from a bank whose short-term debt is rated at least A-1 and
P-1 by the Rating Agencies, the term of which is in form and substance
satisfactory to the Operating Agent (acting reasonably) and the conditions of
which are in form and substance satisfactory to the Operating Agent (acting
reasonably), and which letter of credit has been fully assigned to the Operating
Agent on behalf of the Buyer (which
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assignment shall include full notice to the applicable bank issuing the letter
of credit), requiring payment to be made directly to the Operating Agent on
behalf of the Buyer.
"Buyer Account" means the account in the name of the Buyer with Citibank, N.A.,
Milan branch designated as such by the Buyer, or (with the prior written consent
of the Operating Agent) such other account at such bank as the Buyer may utilise
for the purposes of this Agreement and designate as the Buyer Account.
"Buyer Collection Account" means the collection account in the name of the Buyer
operated pursuant to the Collection Account Bank Mandate and referred to in
Clause 8 (Q) (b) hereunder or such other account or accounts with the Collection
Account Bank as may, with the prior written consent of the Operating Agent, be
utilised for the purposes of this Agreement.
"Buyer Entitlement" means, at any time, in respect of the total amount standing
to the credit of the Buyer Collection Account, the portion thereof attributable
to or representing Collections together with interest credited by the Collection
Account Bank to such portion.
"Capital" equals, at any time, the Euro Equivalent of the Seller's Proportionate
Share of Programme Capital.
"Citibank" means Citibank, N.A., a national banking association under the laws
of the United States of America.
"Collection Account Bank" means in respect of each Seller, such bank and branch
at which a Buyer Collection Account is, with the prior written consent of the
Operating Agent, maintained from time to time and operated pursuant to the
Collection Account Bank Mandate.
"Collection Account Bank Mandate" means the resolutions, instructions and
signature authorities given by the Servicer to the Collection Account Bank in
form and substance satisfactory to the Operating Agent.
"Collections" means, with respect to any Purchased Receivable, all cash
collections received and other cash proceeds of that Purchased Receivable
(excluding any cash proceeds arising under any transaction as referred to in
Clause 19(C)) and of any Related Security with respect to that Purchased
Receivable received.
"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 Euro 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 a 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).
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"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 Seller) between the Seller and an Account
Debtor pursuant to which such Account Debtor is obliged to pay for goods or
services sold or provided by the Seller (including any value added tax in
respect thereof) from time to time.
"Credit and Collection Policy" means the Seller's policies, practices and
procedures relating to Contracts and Receivables in form and content
satisfactory to the Operating Agent in accordance with paragraph (k) of Schedule
5 as modified from time to time with the consent of the Operating Agent.
"Currency Exchange Agreement" means the spot currency agreement and the forward
currency agreement to be entered into on or prior to the Effective Date by the
Buyer and a counterparty rated at least A-1 and P-1 or its equivalent by the
Rating Agencies (the "Swap Counterparty") to exchange, respectively, the amount
in Euro 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 Euro.
"Currency Exchange Costs" means the costs payable by the Buyer to the
counterparty under the Currency Exchange Agreement (expressed as a percentage of
Capital).
"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.
"Deemed Settlement Date" means a date which would have been a Settlement Date
were it not to fall during a Specific 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 121 days past due during such month to (ii) aggregate
sales giving rise to Receivables that were generated during the calendar month
immediately preceding the commencement of the Loss Horizon preceding such date.
"Defaulted Receivable" means an Eligible Receivable which is a Paid Receivable
and:
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(1) which, after the original due date, remains unpaid in whole or in part for
more than 90 days;
(2) in respect of which the Designated Account Debtor has taken any action, or
suffered any event to occur, of the type described in Clause 11(D)(2); or
(3) which has been, or should be, written off or provided for in the Seller's
books as uncollectible in accordance with the Credit and Collection Policy.
"Designated Account Debtor" means, at any time, all Account Debtors (other than
those designated in Schedule 10) unless the Operating Agent has advised the
Offer Agent (on behalf of the Seller) 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 day as may be agreed from time to time between the
Offer Agent (on behalf of the Seller) and the Operating Agent); provided
however, if such day is not a Programme Business Day, the applicable
Determination Date shall be the next succeeding Programme Business Day.
"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 the Seller to deliver
any goods or services or otherwise to perform under the underlying Contract or
invoice, or (ii) any change in the terms of or cancellation of any Contract or
invoice or any other adjustment by the Seller which reduces the amount payable
by the Designated Account Debtor on the related Paid Receivable or (iii) any
set-off in respect of any claim by the Designated Account Debtor on the related
Eligible Receivable which is a Paid Receivable or (b) subject to any specific
dispute, offset, counterclaim or defence whatsoever (except the discharge in
bankruptcy of the Designated Account Debtor thereof);
"Dilution Horizon" means, at any time, the estimated weighted average period in
days between the issuance of invoices and the related credit note, if any, by
the Programme Seller, as such period is calculated by the Operating Agent from
time to time.
"Dilution Horizon Ratio" equals the higher of (a) the Euro Equivalent of total
sales giving rise to Programme Receivables for the Programme Seller for the past
Dilution Horizon divided by the Euro Equivalent of the outstanding balance of
Eligible Receivables (whether or not they are Paid Receivables, as that term is
used in each applicable Origination Agreement) aggregated among all Origination
Agreements as of the end of the most recent month and (b) 0.5.
"Dilution Ratio" as of any date, is equal to the ratio (expressed as a
percentage) for the most recently ended month of (i) the aggregate amount of
Receivables that become Diluted Receivables during each such month to (ii) the
aggregate sales giving rise to Receivables that were originated during the
preceding month.
"Dilution Reserve" means as of any Settlement Date:
(PER minus DefR) x max [DYN, FLOOR]
where:
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DYN = [(SF2 x ED) + DVF] x DHR
FLOOR = ED x DHR
Provided that the Dilution Reserve shall never be less than the amount such
that, when aggregated to the floor applicable to the Loss Reserve, is equal to
the Euro Equivalent of Dollars 15,000,000
where:
PER = The aggregate amount of the Programme Eligible Receivables
DefR = The aggregate amount of Programme Eligible Receivables that are
Defaulted Receivables (as defined in and aggregated among all Origination
Agreements)
SF2 = Stress Factor 2 = 2.25
ED = The average Programme Dilution Ratio during the preceding 12 months
DVF = Dilution Volatility Factor
DHR = Dilution Horizon Ratio
"Dilution Volatility Factor" means as of any date, a percentage equal to
the product of (i) the amount by which (A) the highest two month average
Programme Dilution Ratio during the most recently ended twelve month period
exceeds (B) the average of the Programme Dilution Ratios during such twelve
month period and (ii) (A) the highest two month average Programme Dilution Ratio
during such twelve month period divided by (B) the average of the Programme
Dilution Ratios during such twelve month period.
"Directors' Certificate" means a certificate in the form attached as Schedule
12.
"Discount" means with respect to (i) Existing Receivables, the subject of a
Letter of Offer or (ii) Purchased Receivables (which were Future Receivables at
the time of their Purchase) having come into existence during the relevant
Reference Period, on the relevant Settlement Date, the amount agreed from time
to time between the Seller and the Operating Agent on behalf of the Buyer and
which reflects the cost of funding and the Programme Costs from time to time
applicable to the Buyer, applicable Accruals, applicable Reserves and, in
addition, the fact that the credit risk on the Purchased Receivables are borne
by the Buyer without recourse against the Seller (cessione pro-soluto).
"Dollar Equivalent" of any sum in any currency at any time means the amount of
Dollars that would be purchased under the Currency Exchange Agreement at the
Spot Rate determined for such sum as at the most recent Settlement Date.
"Dollars" and the sign "$" each mean the lawful currency of the United States of
America.
"Early Amortisation Event" means the first to occur of:
(1) the Seller or Exide Europe defaults in the payment on the due date of any
payment due and payable by it under or relating to the Relevant Documents
to which it is a party and such default continues unremedied for a period
of five (5) Local Business Days after the earlier of the Seller or Exide
Europe becoming aware of such default and the
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receipt by the Seller or Exide Europe of written notice by the Operating
Agent requiring the same to be remedied;
(2) subject to Clause 12(D), the Seller, 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 such default is not remedied to the satisfaction of the Operating Agent
within five Local Business Days of the earlier of the Seller, Exide
Europeor the Offer Agent (if an Affiliate of Exide Technologies other than
Exide Europe) becoming aware of such default and receipt by the Seller,
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 the Seller satisfies its obligations pursuant to
Clause 5(D) within such five-Local Business Day period, such default or
breach shall not be considered to be an Early Amortisation Event);
(3) an effective resolution is passed for the winding up of the Seller, Exide
Europe or the Offer Agent (if an Affiliate of Exide Technologies other than
Exide Europe);
(4) the Seller, 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 the Seller becomes unable to pay its debts, or is deemed unable to pay
its debts within the meaning of Article 5 of Royal Decree No. 267 of 16
March 1942, (or with respect to the Exide Europe or the Offer Agent (if an
Affiliate of Exide Technologies other than Exide Europe), any 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 80% of each class of the outstanding capital stock of the Seller;
(6) any Debt of a member of the Exide Europe Group in excess (in the aggregate)
of the Euro Equivalent of $5,000,000 becoming prematurely due and payable
or is placed on demand as a result of an event of default (howsoever
described) under the document relating to that Debt;
(7) any sale of Eligible Receivables pursuant to this Agreement ceases to
constitute a perfected assignment of such Eligible Receivables pursuant to
Article 5 of Law No. 52 of 21 February 1991;
(8) proceedings are initiated against the Seller, Exide Europe or the Offer
Agent (if an Affiliate of Exide Technologies other than Exide Europe) in
respect of its liquidation,
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winding-up, administration, insolvency, composition, reorganisation (other
than a reorganisation the terms of which have been approved by the
Operating Agent and where the Seller, 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 the Seller, Exide Europe or the Offer Agent (if
an Affiliate of Exide Technologies other than Exide Europe), or an
administrative or other receiver, servicer or other similar official is
appointed in relation to the Seller, Exide Europe or the Offer Agent (if an
Affiliate of Exide Technologies other than Exide Europe) or in relation to
the whole or any substantial part of the undertaking or assets of the
Seller, Exide Europe or the Offer Agent (if an Affiliate of Exide
Technologies other than Exide Europe) or an encumbrancer shall take
possession of the whole or any substantial part of the undertaking or
assets of the Seller, Exide Europe or the Offer Agent (if an Affiliate of
Exide Technologies other than Exide Europe), 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 the Seller,
Exide Europe or the Offer Agent (if an affiliate of Exide Technologies
other than Exide Europe) and in any of the foregoing cases it shall not be
discharged within 15 days;
(9) if the Seller, Exide Europe or the Offer Agent (if an affiliate of Exide
Technologies other than Exide Europe) 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 9 %;
(11) for any three month period, the average Dilution Ratio exceeds 10 %;
(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) a Programme Amortisation Event (as such term is defined in any other
Origination Agreement) occurs;
(17) any amount owing under the US DIP Facility Agreement becomes immediately
due and payable as a result of the occurrence of an Event of Default (as
that term is defined in the US DIP Facility Agreement) thereunder; and
(18) an Event of Default (as that term is defined under the Facilities
Agreement) occurs; and
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"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 days as may be
agreed by the Offer Agent (on behalf of the Seller) and the Operating Agent)
which is a Programme Business Day.
"Eligible Account Debtor" means, at any time, the Account Debtors agreed and
approved by and between the Seller and the Operating Agent (unless the Operating
Agent has advised the Seller that an Account Debtor shall not be considered an
Eligible Account Debtor) including:
(1) Account Debtors whose Receivables are collected by the Collection Account
Bank in accordance with the Collection Account Bank Mandate;
(2) Account Debtors which are corporate bodies/entities being (according to the
address specified in the related invoice) resident of an Approved
Jurisdiction;
(3) Account Debtors which are not Affiliates of any party to this Agreement;
(4) Account Debtors to which no delivery or shipment has been cancelled or
suspended for credit reasons and no credit line or accommodation has been
cancelled or suspended for credit reasons, in either case at any time in
the 2 years preceding the date that the invoice relating thereto is
despatched; and
(5) Account Debtors which are not government agencies or local authorities
unless considered separate corporate entities under applicable law that are
owned, directly or indirectly by a government agency or local authority.
"Eligible Receivable" means a Receivable:
(1) the Account Debtor of which is a corporate body or corporate entity which
is (according to the address specified in the related invoice) resident of
an Approved Jurisdiction;
(2) the Account Debtor of which is an Eligible Account Debtor and is not an
Affiliate of any party to this Agreement;
(3) the Account Debtor of which is not the Account Debtor of any Defaulted
Receivables the aggregate Outstanding Balance of which equals or exceeds
10% of the aggregate Outstanding Balance of all Receivables of such Account
Debtor;
(4) in respect of the Account Debtor of which no delivery or shipment has been
cancelled or suspended for credit reasons and no credit line or
accommodation has been cancelled or suspended for credit reasons, in either
case at any time in the 2 years preceding the date that the invoice
relating thereto is despatched;
(5) which is not a Defaulted Receivable (i) at the date of Purchase (in respect
of Existing Receivables) and (ii) at the date on which such Receivables
becomes a Paid Receivable (in respect of Future Receivables);
(6) which, according to the Contract related thereto, is required to be paid in
full on a date which falls (i) not earlier than the Purchase Date (in
respect of Existing Receivables)
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and not earlier than the date on which such Receivables becomes a Paid
Receivable (in respect of Future Receivables) and (ii) within 180 days
after the earlier of the original billing date and the date that the
invoice relating thereto is despatched;
(7) the Euro Equivalent of the Outstanding Balance of which, when added to the
Euro Equivalent of the Outstanding Balance (as that term is defined under
each Origination Agreement) of all other Paid Receivables (as such term is
used in each applicable Origination Agreement) owing by the same Account
Debtor or any of its Affiliates under all Origination Agreements, does not
exceed the Concentration Amount;
(8) which is denominated and payable only in Approved Currency;
(9) which (A) arises under a form of Contract set out in Schedule 7 (or which
otherwise has been duly authorised by the Operating Agent), which is stated
to be, and is, governed (for the purposes of the conflict of laws
principles of the Approved Jurisdiction in question) by Italian law and
which, together with such Receivable, is in full force and effect and
constitutes the legal, valid, binding and enforceable obligation of the
Account Debtor, (B) is freely assignable (or if not assignable without the
consent of the Account Debtor, such consent has been obtained to the
satisfaction of the Operating Agent) and (C) is not subject to any Adverse
Claim or dispute, set off, counterclaim or defence whatsoever;
(10) which, together with the Contract related thereto, does not contravene in
any material respect any applicable laws, rules or regulations and with
respect to which the Seller is not in violation of any such law, rule or
regulation in any material respect;
(11) which (A) satisfies all applicable requirements of the Credit and
Collection Policy and (B) complies with such other criteria and
requirements (other than those relating to the collectibility of such
Receivable) as the Operating Agent may from time to time specify to the
Seller and which are based on a criterion or requirement of any one or more
of the Rating Agencies;
(12) which is not an interest bearing receivable;
(13) which represents all or part of the sales price in respect of the supply of
goods or services in the Approved Jurisdiction in question; (14) the
Account Debtor of which is not a government agency or local authority
unless, the Account Debtor of which is considered a separate corporate
entity under applicable law that is owned, directly or indirectly by a
government agency or local authority;
(15) which has not been prepaid in whole or in part;
(16) for which all goods and services to which it relates have been delivered
and performed, and all requirements of such Contract concerning the nature,
amount, quality, condition or delivery of the goods or services, or upon
which payment of such Receivable may be dependent, have been fulfilled in
all material respects;
-12-
(17) the Account Debtor of which has in respect of Purchased Receivables (other
than Defaulted Receivables) falling due for payment on or after 31 August
2002, paid in full the most recent Purchased Receivable owing by it
directly to the credit of the Buyer Collection Account (subject to the
provisions of the Collection Account Bank Mandate);
(18) whose amount appearing in the corresponding invoice is an amount including
the value added tax (VAT) payable thereon.
"Enigma" means the proprietary computer software furnished by Citibank pursuant
to the Enigma Licence Agreement, as such computer software may be modified,
updated or replaced by Citibank from time to time.
"Enigma Licence Agreement" means an agreement in the form of Schedule 12 hereto,
duly executed by the Offer Agent.
"Euro" means the single currency unit of the Participating Member States.
"Euro Equivalent" of any sum and at any time means the amount of Euro that would
be purchased under the Currency Exchange Agreement at the Spot Rate determined
for such sum at such time.
"Exide Europe" means Exide Holding Europe S.A., a French societe anonyme.
"Exide Europe Group" means Exide Europe and all of its Subsidiaries.
"Exide Group" means Exide Technologies and all of its Subsidiaries.
"Exide Technologies" means Exide Technologies, a Delaware Corporation.
"Existing Receivables" means all Receivables which are specified by (or on
behalf of) the Seller (i) in the Initial Letter of Offer as being in existence
in respect of Designated Account Debtors as at the Initial Reference Date and
(ii) in any subsequent Letter of Offer, as being in existence in respect of
Additional Designated Account Debtors as at the Reference Date immediately
preceding the Offer Date in respect of such Letter of Offer.
"Existing Receivables Purchase Price" means, on any Purchase Date, in respect of
Existing Receivables comprised in a Group of Receivables, an amount in Euro
equal to the Outstanding Balance of those of the Receivables which are Eligible
Receivables as at the Reference Date immediately preceding the relevant Offer
Date less the Discount applicable on the Purchase Date immediately succeeding
such Offer Date, as calculated by the Operating Agent.
"Facilities Agreement" means the agreement entered into on or about the date
hereof between, inter alios, Batteries Funding Limited and the Lenders.
"Facility Fee" means 0.50 % per annum of the positive difference between (i) the
Facility Limit and (ii) Programme Capital (as such fee is calculated monthly in
arrears and applied on each Settlement Date).
"Facility Limit" means Dollars 177,500,000, as such amount may be reduced from
time to time upon notice given by the Operating Agent (on behalf of the Seller)
as a result of the event specified in Clause 7.1 of the Facilities Agreement.
-13-
"Fees Letter" means the fees letters dated as of the date hereof, between Exide
Europe and the Operating Agent in respect of the calculation and payment of
certain fees.
"Foreign Currency Reserve" as of any Settlement Date will equal 5% of Programme
Capital on such Settlement Date, or such other amount as determined by the
Operating Agent (and notified in writing to the Offer Agent), acting reasonably
(upon the written request of a Seller after any redetermination of the level of
the Foreign Currency Reserve, the Operating Agent agrees to provide the Seller
with information relating to the basis of such redetermination).
"Future Receivables" means all Receivables owing by a Designated Account Debtor
which are not Existing Receivables and which are or will be generated pursuant
to Contracts entered into not later than 24 months after the relevant Purchase
Date.
"Future Receivables Purchase Price" means, on any Settlement Date, in respect of
Future Receivables comprised in a Group of Receivables which have come into
existence during any Reference Period, an amount in Euro equal to the
Outstanding Balance of those of the Receivables which are Eligible Receivables
as at the Reference Date immediately preceding such Settlement Date less the
Discount applicable on such Settlement Date, as calculated by the Operating
Agent.
"German Excess Loss Reserve" means the positive difference (if any) between (i)
the aggregate of the German Sellers' Proportionate Share (as such term is
defined under the German RSA) of the Loss Reserve and (ii) an amount equal to 9%
of the Outstanding Balance of Paid Receivables which are Eligible Receivables
(as each such term is defined in the German RSA) under the German RSA.
"Group of Receivables" means, at any time, all Receivables purchased or to be
purchased by the Buyer on a Purchase Date or, as appropriate, the Group of
Receivables specified in a Letter of Offer.
"Guarantee" means any guarantee, indemnity, letter of credit or any other
obligation or irrevocable offer (whatever called and of whatever nature):
(19) to pay or to purchase;
(20) 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;
(21) to indemnify against the consequences of default in the payment of; or
(22) 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.
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"Initial Reference Date" means 24 May 2002.
"Interest Period" means initially, the period commencing on (and including) the
Effective Date and ending on (but excluding) the following Settlement Date, and
thereafter, each period beginning on (and including) the day following the last
day of the immediately preceding Interest Period and ending on (but excluding)
the following Settlement Date; provided however, if such day is not a Programme
Business Day, the applicable Interest Period shall end on the next succeeding
Programme Business Day.
"Lenders" means any Bank, financial institution, trust, fund or other entity
which is or may from time to time become a party to the Facilities Agreement as
a "Lender" thereunder.
"Letter of Offer" has the meaning assigned to that term in Clause 4(A).
"Letter of Undertaking" means the Letter of Undertaking given by Exide Europe
substantially in the form set out in Schedule 9 to this Agreement.
"LIBOR" means (a) the applicable Screen Rate or (b) (if no Screen Rate is
available one week Dollar) 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 timeon the Quotation Day for the offering of deposits in Dollar
comparable to the Interest Period.
"Loan" means any loan to be made to the Buyer by the Lenders pursuant to the
Facilities Agreement or, when made, the principal amount outstanding thereof.
"Local Business Day" means any day (other than a Saturday or Sunday) on which
banks and foreign exchange markets are open for business in Milan. Where an
obligation is expressed in this Agreement to be performed on a Local Business
Day and such Local Business Day is not also a Programme Business Day, the
applicable Local Business Day shall be the immediately-preceding Local Business
Day which is also a Programme Business Day.
"Loss Horizon" equals the sum of 90 days plus the Weighted Average Term
calculated among all Origination Agreements as of the Settlement Date.
"Loss Horizon Ratio" equals the total sales giving rise to Programme Receivables
for the Programme Seller for the Loss Horizon divided by the outstanding balance
of Programme Receivables as of the end of the most recent month.
"Loss Ratio" as of any date equals the highest 3 month average Default Ratio
aggregated among all Origination Agreements which has occurred in the 12 months
immediately preceding such date.
"Loss 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
-15-
Provided that the Loss Reserve shall never be less than an amount such that,
when aggregated to the floor applicable to the Dilution Reserve is equal to the
Euro Equivalent of Dollars 15,000,000
where:
PER = The aggregate amount of Programme Eligible Receivables
DefR = the aggregate amount of Programme Eligible Receivables that are Defaulted
Receivables (as defined in and aggregated among all Origination Agreements)
SF1 = Stress Factor One = 2.25
LHR = Loss Horizon Ratio
CF = Concentration Floor = 17%
LR = Loss Ratio
"Loss to Liquidation Ratio" as of any date, is equal to the ratio (expressed as
a percentage) of (i) the Euro Equivalent of the aggregate outstanding balance of
all Receivables that were written off by the Seller 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 Euro 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
Determination Date.
"Onward Buyer" means Batteries Funding Limited.
"Onward Sale Agreement" means the Onward Sale Agreement dated the same date
hereof and made between the Buyer and the Onward Buyer.
"Origination Agreement" means as of any time each agreement, including this
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 the United
Kingdom, the Receivables Sale Agreement dated 3 June 1997 (as amended on the
date hereof) between CMP Batteries Limited, Deta UK Limited, Fulmen (U.K.)
Limited and B.I.G. Batteries Limited (the "UK Sellers"), Exide Funding as Buyer
and Citibank as Operating Agent, (ii) for France, (a) the Receivables
Subrogation Agreement dated 6 June 1997 (as amended on the date hereof) between
CEAC Compagnie Europeenne d'Accumulateurs S.A.S. (the "French Seller"), Exide
Europe Funding Ltd., the Offer Agent and the Operating Agent (the "French RSA")
and (b) the Onward Receivables Sale Agreement dated as of the date hereof
between Exide Europe Funding Ltd., the Buyer, the Offer Agent and the Operating
Agent (the "French ORSA"), (iii) for Spain, the Receivables Sale Agreement dated
as of the date hereof between Sociedad Espanola del Acumulador Tudor, S.A.,
Fulmen Iberica, S.L. (the "Spanish Seller"), the Buyer, the Offer Agent and the
Operating Agent (the "Spanish RSA"), (iv) for Italy, (a) this Agreement and (b)
the Onward
-16-
Sale Agreement dated as of the date hereof between Archimede Securitisation
S.r.l., the Buyer and the Operating Agent (the "Italian OSA"), and (v) for
Germany, the German Receivables Sale Agreement dated as of the date hereof
between Exide Automotive Batterie GmbH, Deutsche Exide GmbH, Deutsche Exide
Standby GmbH (the "German Sellers"), the Buyer, the Offer Agent and the
Operating Agent (the "German RSA").
"Outstanding Balance" of any Receivable at any time means the then unpaid face
amount thereof (including VAT) (except for purposes of determining the Default
Ratio, where the unpaid face amount of any Paid Receivable which has been, or
would be, written off or provided for in a Seller's books as uncollectible in
accordance with the Credit and Collection Policy shall be deemed to be zero).
"Paid Receivables" means all Purchased Receivables the Existing Receivables
Purchase Price (in respect of Existing Receivables) and Future Receivables
Purchase Price (in respect of Future Receivables) of which have been paid by the
Buyer pursuant to the provisions of this Agreement.
"Payment Notification Date" means 31 July 2002
"Person" means an individual, partnership, company, body corporate, corporation,
trust, unincorporated association, joint venture, government, or governmental
body or agency or other entity.
"Programme" means the revolving sale of trade receivables originated by Exide
and certain Subsidiaries of Exide Europe and the funding of such revolving sale
pursuant to the funding arrangements established in relation to each Origination
Agreement.
"Programme Amortisation Event" means any Early Amortisation Event under any
other Origination Agreement other than an Early Amortisation Event of the type
described in paragraphs (5), (7), (10), (11) or (12) of the definition of "Early
Amortisation Event".
"Programme Business Day" means any day (other than a Saturday or Sunday) on
which banks are open for business in New York, London, Dublin, Paris, Frankfurt
am Main, Milan and Madrid and which is a TARGET Day.
"Programme Capital" equals, at any time, total Capital aggregated among all
Origination Agreements.
"Programme Costs" means (i) the Facility Fee and (ii) and all other fees set out
in the Fees Letter.
"Programme Default Ratio" as of any date, is equal to the weighted average of
the Default Ratios calculated among all Origination Agreements.
"Programme Dilution Ratio" as of any date, is equal to the weighted average of
the Dilution Ratios calculated among all Origination Agreements.
"Programme Eligible Receivables" means, on any Settlement Date, the aggregate
Euro Equivalent of the Outstanding Balance of Eligible Receivables (as that term
is defined in each Origination Agreement), aggregated among all Origination
Agreements which are Paid Receivables and which are to become Paid Receivables
(as such term is defined in each Origination Agreement) on such Settlement Date,
aggregated among all Origination Agreements.
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"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 Agreement.
"Programme Reserves" means the Reserves aggregated among all Origination
Agreements.
"Programme Seller" means, collectively, all of the Affiliates of Exide Europe
designated as Seller or Originator pursuant to all of the Origination
Agreements.
"Proportionate Share" equals, at any time:
(a) in respect of a Seller, the result of the formula: the Dollar Equivalent of
all Eligible Receivables which are Paid Receivables from such Seller,
divided by the Dollar Equivalent of all Eligible Receivables which are Paid
Receivables;
(b) in respect of the Country, the result of the formula: the Dollar Equivalent
of all Eligible Receivables which are Paid Receivables in the Country,
divided by the Dollar Equivalent of all Eligible Receivables which are Paid
Receivables (as such term is used in each Origination Agreement),
aggregated among all Origination Agreements.
"Purchase" means a purchase or purported purchase by the Buyer of a Group of
Receivables from a Seller pursuant to the acceptance of an offer in accordance
with this Agreement and substantially in the form of Schedule 6, Part 3.
"Purchase Date" means the Effective Date and each Settlement Date and Additional
Settlement Date after the Effective Date occurring before the Termination Date
on which there is a Purchase of Receivables by the Buyer as contemplated by this
Agreement.
"Purchased Receivable" means a Receivable (whether an Eligible Receivable or a
Permitted Ineligible Receivable) purchased or purported to be purchased by the
Buyer pursuant to the acceptance of an offer in accordance with this Agreement.
"Quarterly Settlement Date" means, initially, the first Settlement Date falling
in September 2002 and, thereafter, until the Termination Date, the first
Settlement Date falling in the third calendar month following the calendar month
of the immediately preceding Quarterly Settlement Date.
"Quotation Day" means, in relation to any Interest Period, two Business Days
before the first day of that period unless market practice differs in the London
interbank market for Dollar, in which case the Quotation Day for that currency
will be determined by the Operating Agent in accordance with market practice in
the London interbank market (and if quotations would normally be given by
leading banks in the London interbank market on more than one day, the Quotation
Day will be the last of those days).
"Rating Agencies" means Standard & Poor's Ratings Group, a division of the
McGraw Hill Companies Inc. and ▇▇▇▇▇'▇ Investors Service, Inc.
"Receivable" means the indebtedness (including VAT) owed or which will become
owed by any Designated Account Debtor under a Contract arising from a sale or
contract of sale of merchandise or provision or contract of provision of
services by a Seller and representing part or all of the sale price of such
merchandise or services and includes the right to payment of
-18-
any interest or finance charges and other obligations of such Designated Account
Debtor with respect thereto.
"Reference Banks" means the principal London offices of Citibank, N.A., Barclays
Bank PLC and The Royal Bank of Scotland plc or such other banks as may be
determined by the Operating Agent.
"Reference Date" means each Friday or any other later date (as may be agreed
from time to time between the Offer Agent (on behalf of the Seller) and the
Operating Agent) falling immediately prior to the next succeeding Determination
Date.
"Reference Period" means, initially, the period beginning on (and including) the
Initial Reference Date and ending on (but excluding) the next following
Reference Date and thereafter, each period from (and including) a Reference Date
to (but excluding) the next following Reference Date.
"Related Security" means with respect to any Receivable all of the Seller's
interest in any goods and work in progress (including returned or repossessed
goods and work in progress) relating to the sale creating such Receivable, and
all insurance policies, security, deposits, guarantees, indemnities, letters of
credit, bills of exchange, cheques, other negotiable instruments, warranties,
retention of title and other agreements and arrangements not created or made by
the Buyer supporting or securing payment of such Receivable.
"Relevant Date" means the earlier of:
(c) the date on which all Capital of all Groups of Receivables is reduced to
zero; and
(d) the date on which the Outstanding Balance of all Eligible Receivables which
are Paid Receivables is reduced to zero.
"Relevant Documents" means this Agreement, the Letter of Undertaking, the
Collection Account Bank Mandate and the Fees Letter.
"Reserves" means as of any date, the Euro Equivalent of the Country's
Proportionate Share of the sum of the Loss Reserve, the German Excess Loss
Reserve, the Dilution Reserve, the Special Dilution Reserve, the Yield Reserve
and the Foreign Currency Reserve.
"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 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.
"Seller" means Exide Italia S.r.l. and any Additional Seller made party to this
Agreement in accordance with Clause 18(D).
"Seller Collection Account" means each dedicated collection account opened in
the name of the relevant Seller and operated pursuant to the Collection Account
Bank Mandate and referred to in Clause 8 (Q) (a) hereunder.
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"Seller Entitlement" means, at any time, in respect of the total amount standing
to the credit of the Collection Account together with interest thereon, the
portion thereof which is not attributable to or representing Collections.
"Seller Original Account" means the account in the name of the Seller,
established with the Collection Account Bank designated as such by the Seller,
or such other account at such branch of such bank as the Seller may from time to
time specify by written notice to the Collection Account Bank with a copy to the
Operating Agent.
"Servicer" means at any time the Person then authorised pursuant to this
Agreement to service, administer and collect Purchased Receivables.
"Settlement Date" means initially, the Effective Date and thereafter, each
Thursday (or such other day as may be agreed from time to time between the Offer
Agent (on behalf of the Seller) 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, in Euro,
(amongst other things) the amount of Receivables purchased by the Buyer during
the last Settlement Period.
"Special Dilution Reserve" means:
(a) on each Settlement Date other than that falling immediately prior to a
Deemed Settlement Date, an amount equal to the percentage, set opposite
such Settlement Date in Schedule 15, 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
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),
provided however that the Special Dilution Reserve determined in paragraph (a)
or (b) above may be adjusted from time to time by the Operating Agent (acting
reasonably) on the basis of actual excess of Collections received over the
Receivables generated based on recent history of Collections' and Receivables'
generation and any expected change in the sales pattern of the 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).
-20-
"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.
"Spot Rate" means, as of any Settlement Date, the spot rate utilised under the
Currency Exchange Agreement, as determined for such Settlement Date.
"Subsidiary" means, in respect of any Person (the "first Person") at any
particular time, any other Person (the "second Person"):
(a) whose majority of votes in ordinary shareholders' meetings of the second
Person is held by the first Person, or
(b) in which the first Person holds a sufficient number of votes giving the
first Person a dominant influence in ordinary shareholders' meetings of the
second Person, or
(c) which are under the dominant influence of the first Person by virtue of
certain contractual relationships between the first Person and the second
Person,
pursuant to the provisions of Article 2359 of the Italian Civil Code, or, where
the context so requires, any equivalent concept under the laws of the relevant
jurisdiction.
"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 the Seller to the Operating Agent pursuant to Clause 11(F).
"Summary Report Date" means each Determination Date or such other dates as the
Operating Agent may request.
"TARGET" means the Trans-European Automated Real-time Gross Settlement Express
Transfer Payment System.
"TARGET Day" means any day on which TARGET is open for the settlement of
payments in Euro.
"Temporary Adjustment Account" means the sub-account held by the Buyer with
Citibank, N.A., London branch, denominated in Euro and utilised for the purposes
set out in Clause 12(E) under the account number ▇▇▇▇▇▇▇▇.
"Termination Date" means the earliest to occur of (i) 15 February 2004, (ii) an
Early Amortisation Event, and (iii) 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 the Paid Receivables (aggregated among the 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
Euro Equivalent of the aggregate outstanding balance of Paid Receivables as of
the last day of each such month.
-21-
"US DIP Facility Agreement" means the $250,000,000 secured superior priority
debtor in possession credit agreement entered into on 15 April 2002 between
Exide Technologies and certain of its Subsidiaries as debtors and
debtors-in-possession, Citicorp USA, Inc. as Administrative Agent, Collateral
Monitoring Agent and Arranger, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. as Sole Book Manager
and Lead Manager and the lenders and issuers from time to time party thereto.
"US DIP Facility Termination Date" has the meaning given to "Scheduled
Termination Date" in the US DIP Facility Agreement.
"Weighted Average Term" means the weighted average term of all Paid Receivables,
calculated on the basis of the formula: (original stated payment term of each
invoice x amount of such invoice) / invoice amount.
"Yield Rate" means the percentage rate per annum which is the aggregate of the
applicable (i) Margin, (ii) LIBOR and (iii) the Mandatory Costs Rate (if any).
"Yield Reserve" means, as of any Settlement Date, an amount equal to the sum of
(a) the product of (i) the Programme Eligible Receivables less the Defaulted
Receivables (aggregated among all Origination Agreements) and (ii) the Yield
Reserve Rate and (b) the product of (i) the Dollar Equivalent of the Outstanding
Balance of all Paid Receivables (as aggregated among all Origination Agreements)
and (ii) 0.75% (substitute servicer reserve).
"Yield Reserve Rate" means as of any Settlement Date, the product of (1) two
times the Turnover Rate for such date and (2) the sum of (a) 1 month LIBOR times
1.5 plus the Margin plus the Mandatory Costs Rate (if applicable); (b) the
Currency Exchange Costs; (c) the Facility Fee; and (d) the other fees set out in
the Fees Letter.
(D) 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.
(E) Origination Agreements: All references in this Agreement to terms defined
in the Origination Agreements or to amounts which are aggregated among all
Origination Agreements, shall, unless the contrary is indicated, be deemed
to refer to the equivalent concepts in the Origination Agreements where the
same defined term is not used.
(F) Headings: Headings shall be ignored in construing this Agreement.
(G) 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.
-22-
(H) 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.
(I) Limited Recourse Provision under the Facilities Agreement and the Currency
Exchange Agreement: Any amount payable hereunder by reference to amounts
payable by the Onward Buyer under the Facilities Agreement and the Currency
Exchange Agreement shall be due and payable irrespective of whether the
Onward 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. SCOPE OF THE AGREEMENT
On the terms and conditions set out in this Agreement, the Buyer commits,
(subject to the conditions precedent set out in Clause 3) until the
Termination Date, to purchase at a discount from the Seller full title and
ownership in and to certain Receivables arising under Contracts by
acceptance of a Letter of Offer in accordance with the terms of this
Agreement.
3. CONDITIONS PRECEDENT
(A) To Initial Purchase: The Initial Purchase is subject to the condition
precedent that the Operating Agent receives on or before the date of such
Initial Purchase the documents and information specified in Schedule 5,
each in form and substance satisfactory to the Operating Agent.
(B) To All Purchases (including the Initial Purchase): Each Purchase (including
the Initial Purchase) is subject to the further following conditions
precedent:
(1) on each Determination Date immediately prior to each proposed Purchase
Date which is a Settlement Date and on each Purchase Date which is an
Additional Settlement Date, the Offer Agent has delivered by
electronic mail or facsimile to the Operating Agent each Accounts
Receivables Trial Balance to be entered into Enigma and, as soon as
practicable thereafter but before 10.00 a.m. Rome time on the relevant
Determination Date, the relevant Accounts Receivables Listing; and
(2) on each Purchase Date the following statements must be true and
correct (and the Seller will be deemed to have so certified on such
date that):
(a) the representations and warranties of the Seller 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) the Seller has delivered such certificate as may be required by
the Operating Agent as to the Seller's solvency;
(c) after the proposed Purchase the Outstanding Balance of Paid
Receivables which are Eligible Receivables would be at least
equal to the sum of (i)
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (▇▇) applicable Accruals and (iii)
Reserves in relation to outstanding Capital;
(d) there has been no Early Amortisation Event which has not been
waived by the Operating Agent in writing;
(e) there has been no sale by the Seller of any of its Receivables
out of the ordinary course of its business without the prior
written consent of the Operating Agent;
(f) in respect of the Purchase of Receivables whose Designated
Account Debtors are resident in a European Union jurisdiction
other than the Republic of Italy, after the proposed Purchase,
the Capital in respect of such Purchased Receivables which are
Paid Receivables and Eligible Receivables does not exceed 15% of
the Capital in respect of all Paid Receivables which are Eligible
Receivables; and
(g) after the proposed Purchase, the Programme Capital would not
exceed the Facility Limit.
(3) On or prior to each Settlement Date the Seller shall have complied
with all of its 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 appointment of the Offer Agent by the Seller is in full force and
effect and has not been revoked or otherwise terminated.
(6) On or prior to each Quarterly Settlement Date, the Operating Agent has
received a Directors' Certificate from the Seller.
(7) The Buyer is able to obtain appropriate funds from its currency swap
counterparty under the Currency Exchange Agreement.
(C) To All Payments of Future Receivables Purchase Price: The payment by the
Buyer of the Future Receivables Purchase Price in respect of Purchased
Receivables on each Settlement Date in the manner contemplated in Clause 4
(D) is subject to the fulfilment of the following conditions precedent on
the relevant Settlement Date:
(1) on each Determination Date immediately prior to each proposed
Settlement Date, the Offer Agent has delivered by electronic mail or
facsimile to the Operating Agent each Accounts Receivables Trial
Balance to be entered into Enigma and, as soon as practicable
thereafter but before 11.00 a.m. London time on the relevant
Determination Date, the relevant Accounts Receivables Listing.
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(2) after the payment of the Future Receivables Purchase Price, the
Outstanding Balance of Paid Receivables which are Eligible Receivables
would be at least equal to the sum of (i) aggregate outstanding
Capital, (ii) applicable Accruals and (iii) Reserves in relation to
outstanding Capital;
(3) there has been no Early Amortisation Event which has not been waived
by the Operating Agent in writing;
(4) in respect of the payment for a Future Receivables Purchase Price of
Receivables whose Designated Account Debtors are resident in a
European Union jurisdiction other than in the Republic of Italy, after
the proposed payment, Capital in respect of Paid Receivables which are
Eligible Receivables does not exceed 15% of the Capital in respect of
all Paid Receivables which are Eligible Receivables;
(5) after the payment of the Future Receivables Purchase Price, Programme
Capital would not exceed the Facility Limit; and
(6) the appointment of the Offer Agent by the Seller is in full force and
effect and has not been revoked or otherwise terminated.
(7) the Buyer is able to obtain appropriate funds from its currency swap
counterparty under the Currency Exchange Agreement
(D) To any Purchase and any payment for Future Receivables from the Payment
Notification Date: Any purchase of Receivables and payment for Future
Receivables from the Payment Notification Date is, in addition to the
conditions set out in Clause 3(B) and 3(C) subject to the following
condition precedent on the relevant Settlement Date that the Seller has
provided evidence to the Operating Agent that it has given to each
Designated Account Debtor by way of registered letter notice of assignment
and instructions in the form set out in Schedule 11 Part 1 to make all the
payments in respect of Receivables to the credit of the Buyer Collection
Account and that similar instructions to this effect in the form set out in
Schedule 11 Part 2 have been inserted in each of the invoices to be
addressed to such Designated Account Debtors.
(E) New Forms of Contract: The Operating Agent shall, as soon as reasonably
practicable after submission to it of a form of Contract other than the
form set out in Schedule 7, notify the Seller as to whether it approves of
the form for the purposes of paragraph (9) of the definition of "Eligible
Receivable", such approval not to be unreasonably withheld. In considering
whether to approve such other form of Contract, the Operating Agent may, as
a condition of considering whether to give its approval, take such legal
advice as it deems appropriate including, without limitation, legal advice,
and all related costs, charges, and expenses (including without limitation
reasonable legal fees, disbursements and VAT thereon) shall be for the
account of the Seller.
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4. PURCHASES
(A) Making Offers: The Offer Agent shall, on behalf of the Seller, by 11:00
a.m., London time:
(1) On the Initial Offer Date, deliver to the Operating Agent, acting on
behalf of the Buyer, a Letter of Offer by facsimile (and shall send
the original Letter of Offer to an Operating Agent's office outside
the Republic of Italy (as the Operating Agent may direct the Offer
Agent from time to time) by ordinary post on the day it is delivered
by facsimile) substantially in the form of Schedule 6 Part 1 (a
"Letter of Offer") in respect of the assignment of:
(a) all Existing Receivables (if any) specified in such Letter of
Offer as in existence as at (but excluding) the Initial Reference
Date relating to each Designated Account Debtor on the Initial
Offer Date;
(b) all Future Receivables (if any) in respect of a Designated
Account Debtor on the Initial Offer Date which are not specified
in the Letter of Offer and which have come or will come into
existence from (and including) the Initial Reference Date to (but
excluding) the Effective Date; and
(c) all Future Receivables (if any) in respect of a Designated
Account Debtor which will come into existence from (and
including) the Effective Date to (but excluding) the next
Settlement Date,
such Initial Letter of Offer to specify (i) the proposed Purchase Date
of the Receivables in respect of which such Initial Letter of Offer is
delivered, (ii) the then Outstanding Balance of the Receivables (if
any) set out in (a) above and the Existing Receivables Purchase Price
with respect thereto, as computed by the Operating Agent. The
computation of the Existing Receivables Purchase Price by the
Operating Agent shall, in the absence of manifest error, be deemed to
be conclusive.
(2) On any Offer Date subsequent to the Initial Offer Date and falling
prior to the Termination Date, nominate (unless otherwise agreed by
the Operating Agent) any new Account Debtor to be a Designated Account
Debtor (an " Additional Designated Account Debtor").
(3) On any Offer Date subsequent to the Initial Offer Date, deliver to the
Operating Agent, acting on behalf of the Buyer, a Letter of Offer by
facsimile (and shall send the original Letter of Offer to an Operating
Agent's office outside the Republic of Italy (as the Operating Agent
may direct the Offer Agent from time to time)) by ordinary post on the
day it is delivered by facsimile) substantially in the form of
Schedule 6 Part 2 in respect of the assignment of:
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(a) all Future Receivables (if any) in respect of each Designated
Account Debtor (including, for the avoidance of doubt, each
Additional Designated Account Debtor) which will come into
existence during the immediately succeeding Settlement Period;
and
(b) in relation to each Additional Designated Account Debtor on such
Offer Date:
(i) all Existing Receivables (if any) in respect of such
Additional Designated Account Debtor specified in such
Letter of Offer as in existence as at (but excluding) the
immediately preceding Reference Date; and
(ii) all Future Receivables (if any) in respect of an Additional
Designated Account Debtor which are not specified in the
Letter of Offer and which have come or will come into
existence from (and including) the Reference Date
immediately preceding such Offer Date to (but excluding) the
immediately succeeding Settlement Date,
such Letter of Offer to specify (i) the proposed Purchase Date of the
Receivables in respect of which such Letter of Offer is delivered and
(ii) the then Outstanding Balance of the Existing Receivables (if any)
set out in (b)(i) above and the Existing Receivables Purchase Price
with respect thereto. The Operating Agent shall compute the Existing
Receivables Purchase Price in accordance with this Agreement and the
computation of the Existing Receivables Purchase Price by the
Operating Agent shall, in the absence of manifest error, be deemed to
be conclusive.
(B) Offer and Acceptance: The delivery of the Letter of Offer by facsimile
shall be irrevocable and will constitute an offer by each relevant Seller
to sell (by way of assignment) to the Buyer absolutely and without recourse
against the Seller in case of non-payment by the relevant Debtors
("cessione pro-soluto") each of (i) the Existing Receivables (if any)
designated pursuant to Clause 4(E) and the Related Security with respect
thereto for the Existing Receivables Purchase Price applicable to such
Existing Receivables as set out in the Letter of Offer and (ii) the Future
Receivables (if any) designated pursuant to Clause 4(E) and the Related
Security with respect thereto for an amount of (Euro)15 in cash (the
"Acceptance Fee") plus the Future Receivables Purchase Price in accordance
with Clause 4(D) of this Agreement. The Buyer subject to the satisfaction
of the conditions precedent as set out in Clause 3 above, will accept a
Letter of Offer with respect to both (i) all Existing Receivables referred
to in such Letter of Offer and (ii) all Future Receivables referred to in
such Letter of Offer by payment in full of the Existing Receivables
Purchase Price relating to such Existing Receivables and the Acceptance Fee
(which Acceptance Fee must be paid in cash) to the account referred to and
in accordance with Clause 4(C).
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Payment of the Existing Receivables Purchase Price in respect of the
Existing Receivables referred to in such Letter of Offer will constitute:
(1) acceptance of the offer in respect of the Existing Receivables
referred to in such Letter of Offer; and
(2) the transfer to the Buyer of title and ownership in and to those
Receivables and the Related Security with respect to those
Receivables, and
Payment of the Acceptance Fee in respect of Future Receivables referred to
in such Letter of Offer will constitute:
(1) acceptance of the offer in respect of the Future Receivables referred
to in such Letter of Offer; and
(2) the transfer to the Buyer of title and ownership in and to those
Receivables and the Related Security with respect to those Receivables
and
(3) an undertaking by the Buyer to pay the Future Receivables Purchase
Price pursuant to Clause 4(D) of this Agreement.
(C) Method of Payment in relation to acceptance of a Letter of Offer: The Buyer
will make payment in full of the Existing Receivables Purchase Price in
respect of Existing Receivables (if any) referred to in such Letter of
Offer and the Acceptance Fee in respect of Future Receivables referred to
in such Letter of Offer on the immediately succeeding proposed Purchase
Date in the currency and funds specified in Clause 7(B) and (subject to the
provisions of Clause 12(D) in respect of the Existing Receivables Purchase
Price in relation to Existing Receivables offered on any Offer Date other
than the Initial Offer Date) to the account specified in Clause 7(C). Upon
any such payment being made by the Buyer, the Buyer shall procure that the
bank where the payment is credited issues a formal receipt bearing an
undisputable date (data certa, pursuant to Article 2704 of the Italian
Civil Code).
(D) Covenant for Payment in respect of Purchased Receivables which are Future
Receivables: In consideration of the sale and assignment by the relevant
Seller of Future Receivables, the Buyer shall (subject to the conditions
set out in Clause 3 (C)), on each Settlement Date, pay in full the Future
Receivables Purchase Price (as calculated by the Operating Agent in
accordance with this Agreement) in respect of Future Receivables having
come into existence during the Reference Period immediately preceding such
Settlement Date in the currency and funds specified in Clause 7(B) and
(subject to the provisions of Clause 12(D)) to the account specified in
Clause 7(C). The computation of the Future Receivables Purchase Price by
the Operating Agent shall, in the absence of manifest error, be deemed to
be conclusive.
(E) Determination of Receivables: No later than 11: 00 a.m. on the Initial
Offer Date and thereafter on each Determination Date immediately preceding
a Settlement Date, the Offer Agent will, on behalf of the Seller, deliver
to the Operating Agent (or as the
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Operating Agent may direct) the Accounts Receivables Listing generated in
relation to such Settlement Date specifying, inter alia:
(1) on the Initial Offer Date:
(i) the Initial Reference Date;
(ii) each Designated Account Debtor;
(iii) each Existing Receivable which is the subject of the Letter of Offer
delivered on the Initial Offer Date and the Seller thereof;
(iv) each of such Existing Receivables which is an Eligible Receivable;
(v) the Outstanding Balance of such Existing Receivables which are
Eligible Receivables as at (but excluding) the Initial Reference
Date and the Seller thereof; and
(vi) the Seller of the Future Receivables referred to in the Letter of
Offer delivered on the Initial Offer Date.
(2) on each subsequent Determination Date:
(vii) the relevant Reference Date;
(viii) each Additional Designated Account Debtor (if any) the Existing
Receivables of which are subject of a Letter of Offer on such
Determination Date;
(ix) each Existing Receivable from such Additional Designated Account
Debtor which are the subject of a Letter of Offer on such
Determination Date and the Seller thereof;
(x) each of such Existing Receivables which is an Eligible Receivable;
(xi) the Outstanding Balance of such Existing Receivables which are
Eligible Receivables as at (but excluding) the immediately preceding
Reference Date and the Seller thereof;
(xii) each Purchased Receivable which is a Future Receivable which has
come into existence during the Reference Period immediately
preceding such Determination Date and the Seller thereof;
(xiii) each of such Purchased Receivables set out in (v) above which is an
Eligible Receivable as at (but excluding) the Reference Date
immediately preceding such Determination Date;
(xiv) the Outstanding Balance of such Purchased Receivables which are
Eligible Receivables as at the Reference Date immediately preceding
such Determination Date and the Seller thereof; and
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(xv) the Seller of the Future Receivables referred to in any Letter of
Offer delivered on such Determination Date.
(F) Perfection: The Seller, the Offer Agent and the Buyer will take all such
steps and comply with all such formalities required under Article 5 of Law
No.52 of 21 February 1991 to perfect or more fully to evidence or secure
title to the Receivables assigned (or purported to be assigned) pursuant to
this Clause 4.
(G) Delegation of Powers of Operating Agent: The Operating Agent hereby
delegates to the Offer Agent and the Seller its obligation to compute the
Existing Receivables Purchase Price and the Future Receivables Purchase
Price under this Clause 4, which delegation is irrevocably accepted by the
Offer Agent and the Seller. The Offer Agent shall notify the Operating
Agent of all calculations made by it under this Clause 4. The Operating
Agent may revoke this delegation in writing at any time.
(H) Appointment of Offer Agent:
(a) Exide Europe is hereby appointed by the Seller as Offer Agent to make
offers to the Buyer on behalf of the Seller pursuant to the terms
hereof and perform all the related functions and Exide Europe hereby
accepts such appointment as Offer Agent on the terms and subject to
the conditions of this Agreement;
(b) the Seller agrees that the Buyer and the Operating Agent shall be
entitled to assume without further enquiry that performance by the
Offer Agent purportedly on behalf of the Seller is duly authorised and
undertaken on behalf of the Seller; and
(c) Exide Europe may not resign its appointment as Offer Agent without the
consent of the Operating Agent on behalf of the Buyer.
5. COLLECTIONS AND SETTLEMENT
(A) Collection of Receivables:
(1) Prior to an Early Amortisation Event, the Servicer shall:
(a) on each Local Business Day prior to the Payment Notification
Date, deposit and cause the Collection Account Bank to deposit
all Collections of Purchased Receivables to the Buyer Collection
Account pursuant to the Collection Account Bank Mandate;
(b) on each Local Business Day from the Payment Notification Date,
deposit and instruct each Designated Account Debtor to deposit
all Collections of Purchased Receivables to the Buyer Collection
Account; and
(c) on each Settlement Date (subject to Clause 12(D)) transfer all
Collections received since the last Settlement Date to the Buyer
Collection Account.
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(2) upon demand of the Operating Agent the Servicer shall set aside and
hold in trust for the Buyer all Collections received by it and
immediately deposit such Collections to the Buyer Collection Account;
and
(3) the Operating Agent shall issue a Settlement Statement to the Offer
Agent (on behalf of the Seller) within two Programme Business Days
after each Settlement Date in relation to the Settlement Period which
ended on that Settlement Date.
(B) Settlement Procedures prior to Termination Date: Prior to the Termination
Date the procedures described in this Clause 5(B) will be applicable:
(1) On each Determination Date the Operating Agent shall calculate:
(d) Capital as at the forthcoming Settlement Date; and
(e) Yield and Programme Costs in respect of the Capital as at the
forthcoming Settlement Date.
(2) On each Settlement Date the Operating Agent shall cause to be paid
from the Buyer Account in the following order of priority:
(a) to the Buyer, Yield and the Country's Proportionate Share of
Programme Costs in respect of the Interest Period ending on that
Settlement Date;
(b) to the Seller and the Additional Seller, (if any), (i) (on the
date of the Initial Purchase) the Existing Receivables Purchase
Price for the Existing Receivables offered for Purchase on the
Initial Offer Date and the Acceptance Fee in respect of all
Future Receivables offered for Purchase on such Initial Offer
Date and (ii) (on any Settlement Date thereafter) the Acceptance
Fee for all Future Receivables offered for Purchase on the
immediately preceding Offer Date and, to the extent such amounts
are not satisfied by way of set-off pursuant to Clause 12 (C),
the Existing Purchase Price for all Existing Receivables (if any)
offered for Purchase on the immediately preceding Offer Date and
the Future Receivables Purchase Price for all Purchased
Receivables (which were Future Receivables) which have come into
existence during the immediately preceding Reference Period;
(c) to the Buyer, such amounts as determined by the Operating Agent
as are required to repay Programme Capital and result in the
Programme Reserves being equal to the amount calculated pursuant
to Clause 5(B)(3); and
(d) to the Seller and the Additional Seller, if any, its
Proportionate Share of all amounts standing to the credit of the
Buyer Account after payment of
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the amounts set forth in (a), (b) and (c) above, by way of
deferred purchase price for the Purchased Receivables.
(3) On each Determination Date, the Operating Agent shall calculate the
Reserves and the Programme Reserves required in respect of that
Settlement Period commencing on the next following Settlement Date.
(C) Settlement Procedures after Termination Date: On the Termination Date and
each day thereafter, the procedures described in this Clause 5(C) will be
applicable for all Purchased Receivables:
(1) On each Settlement Date, the Operating Agent shall cause to be paid
from the Buyer Account to the Buyer all amounts standing to the credit
of the Buyer Account.
(2) When the Operating Agent notifies each Seller that the Programme
Capital has been reduced to zero and all Yield (as aggregated among
all Origination Agreements), Programme Costs and other fees due under
this Agreement (including the fees payable under the Fees Letter) have
been paid, then an amount equal to the Seller's Proportionate Share,
any future Collections on Purchased Receivables shall be remitted by
the Buyer to each Seller by way of deferred purchase price for all of
the Purchased Receivables.
(D) Adjustments and Allowances:
(1) If on any day the Outstanding Balance of any Paid Receivable is either
(a) reduced or adjusted as a result of any defective, rejected,
repossessed or returned goods or services or any cash discount
(whether commercial, financial or otherwise), rebate or other
adjustment made by the Seller or any other Person, or (b) reduced or
cancelled as a result of a set off or by agreement in respect of any
claim by the Designated Account Debtor thereof against the Seller or
any other Person (whether such claim arises out of the same or another
transaction) (including without limitation any change in the due date
for payment of any Paid Receivable otherwise than with the prior
consent of the Operating Agent), such Seller will be deemed to have
received on such day a Collection of such Paid Receivable in the
amount of such reduction, adjustment or cancellation and shall credit
such amount to the Buyer Account by way of indemnity.
(2) If on any day any of the representations or warranties in Clause 8 is
no longer true with respect to a Paid Receivable, the relevant Seller
will be deemed to have received on such day a Collection of such Paid
Receivable equal to its original Outstanding Balance less any
Collections previously received with respect thereto and shall credit
to the Buyer Account an amount equal to such deemed Collection by way
of indemnity.
(3) If any Existing Receivable expressed to be an Eligible Receivable in
the relevant Accounts Receivables Listing was not an Eligible
Receivable at the
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time of Purchase or any Future Receivable expressed to be an Eligible
Receivable in the relevant Accounts Receivables Listing was not an
Eligible Receivables on the Settlement Date on which the Future
Receivable Purchase Price was paid in respect of such Future
Receivable, on the date such fact becomes known to the Seller, the
Seller will be deemed to have received a Collection of such Paid
Receivable equal to its original Outstanding Balance less any
Collections previously received with respect thereto and shall credit
to the Buyer Account an amount equal to such deemed Collection by way
of indemnity.
(4) If, following any payment in respect of a deemed Collection of a
Purchased Receivable pursuant to Clause 5(D)(2) and 5(D)(3) above, the
Buyer shall receive any further Collections in respect of such
Purchased Receivable, the Buyer shall (provided the Termination Date
has not yet occurred) pay to the Seller an amount or amounts equal to
such further Collections by way of repayment of indemnity.
(E) Application of Collections: Any payment by a Designated Account Debtor in
respect of any indebtedness owed by it to the Seller 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 of Purchased Receivables of such
Designated Account Debtor, in the order of the age of such Purchased
Receivables, starting with the oldest such Purchased Receivables, to the
extent of any amounts then due and payable thereunder before being applied
to or in respect of any other indebtedness of such Designated Account
Debtor.
6. FEES, COSTS AND DUTIES
(A) Servicer Fees: Until the later of the Termination Date and the Relevant
Date, for any period during which the Seller or an Affiliate of the Seller
is not the Servicer (or a Sub-Servicer), the Seller will pay the Buyer,
upon its demand, a servicing fee as determined by the Operating Agent, not
exceeding 110% of the fees, costs and expenses, plus value added tax (if
applicable), charged by the substitute Servicer in performing such
function.
(B) Costs and Expenses: The Seller agrees to pay on demand of the Operating
Agent all reasonable costs and expenses incurred by the Operating Agent in
connection with the preparation, execution and delivery of the Relevant
Documents and the other documents to be delivered pursuant to the Relevant
Documents or in connection therewith, such costs and expenses to include,
without limitation, the reasonable fees 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 the Relevant
Documents, and all costs and expenses, if any (including legal fees and
expenses plus VAT thereon), in connection with the enforcement of the
Relevant Documents, the
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other documents to be delivered pursuant to the Relevant Documents or in
connection therewith and the Purchased Receivables.
(C) Duties and Taxes: In addition, the Seller will pay on demand of the
Operating Agent any sales, excise, registration and other taxes, duties and
fees payable in connection with the execution, delivery, filing or
recording of the Relevant Documents or the purchase, assignment or
reassignment of Receivables under or pursuant to the Relevant Documents, or
the other documents to be delivered under the Relevant Documents or in any
way connected with any transaction contemplated by the Relevant Documents.
The Seller agrees to indemnify the Operating Agent and the Buyer on demand
of the Operating Agent against any liabilities with respect to or resulting
from any delay in paying or omission to pay any such taxes, duties or fees.
(D) Computations: All computations of interest and fees shall be made on the
basis of a year of 360 days 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 the Seller and/or
the Servicer 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 the Seller and/or the Servicer under this
Agreement to the Operating Agent for its own account or for the account of
the Buyer shall be paid in Euro 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 Existing
Receivables Purchase Price and Future Receivables Purchase Price amounts
payable by the Buyer under this Agreement shall be paid in the currency of
the Purchased Receivables.
(C) Accounts: Any amounts payable under this Agreement shall be remitted to the
following accounts:
(1) if to the Seller, the relevant Seller Original Account;
(2) if to the Buyer, to the Buyer Account; and
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(3) if to the Operating Agent for its own account, Account No. 83267 (Sort
Code 18-50-08) with Citibank, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
(D) Grossing Up: To the fullest extent permitted by law, the Seller (in each of
its capacities under the Relevant Documents) will make all payments under
this Agreement regardless of any defence or counterclaim. Further, if the
Seller, (in any its capacities under the Relevant Documents) is compelled
by law to make any deductions or withholdings from any payments pursuant to
the Relevant Documents, including, without limitation, payments in respect
of Receivables or Collections, the Seller 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. The Seller
will provide the Operating Agent with evidence satisfactory to the
Operating Agent that it has paid such deductions or withholdings.
(E) Appropriation of Payments: Regardless of any appropriation by the Seller 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 the Seller and/or the
Servicer under this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND EXIDE EUROPE
Each of the Seller and Exide Europe represents and warrants to the Buyer and the
Operating Agent, in each case in relation to matters relating to itself as of
the Effective Date, as follows:
(A) Incorporation: The Seller and Exide Europe is a company duly incorporated
and validly existing under the laws of its jurisdiction of incorporation or
organisation.
(B) Seller Power and Authority: The Seller has full power and authority to
effect, and has taken all necessary action to authorise, the execution,
delivery and performance by it of the Relevant Documents to which it is a
party and all other instruments and documents to be delivered under the
Relevant Documents to which it is a party, and the transactions
contemplated by the Relevant Documents to which it is a party.
(C) Exide Europe Power and Authority: Exide Europe has full power and authority
to effect, and has taken all necessary action to authorise, the execution,
delivery and performance by it of the Relevant Documents to which it is a
party and all other instruments or documents to be delivered under the
Relevant Documents to which it is a party, and the transactions
contemplated by the Relevant Documents to which it is a party.
(D) Non-Violation: The execution, delivery and performance by the Seller and
Exide Europe of the Relevant Documents to which it is a party and all other
instruments and documents to be delivered pursuant to the Relevant
Documents to which it is a party and all transactions contemplated by the
Relevant Documents to which it is a party:
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(1) do not contravene (a) the Seller's or Exide Europe's memorandum
or articles of association (or analogous constitutive documents),
(b) any law, rule or regulation applicable to the Seller or Exide
Europe, (c) any material contractual restriction contained in any
agreement or instrument binding on or affecting the Seller or its
assets or Exide Europe or Exide Europe's assets, or (d) any
order, writ, judgment, award, injunction or decree binding on or
affecting the Seller, Exide Europe or any of the Seller's assets
or Exide Europe or Exide Europe's assets;
(2) do not result in or require the creation of any lien, security
interest or other charge or encumbrance upon or with respect to
the Seller or, to the best of its knowledge, 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 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 the Seller or
by 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 the Relevant Documents to which it is a party.
(F) Obligations Binding: Each of the Relevant Documents to which it is a
party constitutes the legal, valid, binding and enforceable obligation
of the Seller and Exide Europe.
(G) Accounts: The most recent audited annual accounts of the Seller and
Exide Europe, copies of which have been furnished to the Operating
Agent, present a true and fair view of the financial condition of the
Seller and its consolidated Subsidiaries (if any) or Exide Europe and
its consolidated Subsidiaries (if any), as applicable, as at that date
and the results of the operations of the Seller and those
Subsidiaries, or Exide Europe and those Subsidiaries, as applicable,
for the period ended on that date, all in accordance with generally
accepted accounting principles consistently applied in each of the
Seller's or Exide Europe's jurisdiction of incorporation.
(H) No Material Adverse Change to Seller: Since the date of this
Agreement, there has been no change in the business or financial
condition of the Seller which may materially adversely affect the
ability of the Seller to perform its obligations under the Relevant
Documents.
(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 may materially adversely
affect the ability of Exide Europe to perform its obligations under
the Relevant Documents to which it is a party.
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(J) No Litigation: There are no actions, suits or proceedings current or
pending, or to the knowledge of the Seller threatened, against or
affecting the Seller or its Subsidiaries (if any) or any of their
respective assets, or Exide Europe or Exide Europe's assets, in any
court, or before any arbitrator of any kind, or before or by any
governmental body, which may materially adversely affect the financial
condition of the Seller and its Subsidiaries taken as a whole or Exide
Europe, or materially adversely affect the ability of the Seller or
Exide Europe to perform its obligations under the Relevant Documents
to which it is a party.
(K) No Default: Neither the Seller nor Exide Europe or any of its
Subsidiaries is in default with respect to any order of any court,
arbitrator or governmental body, excluding defaults with respect to
orders of governmental agencies which are not material to the business
or operations of the Seller, Exide Europe or any of its Subsidiaries
and would not materially adversely affect the ability of the Seller,
Exide Europe or any of its Subsidiaries to perform its obligations
under the Relevant Documents to which it is a party.
(L) No Adverse Claim: Each Receivable will, together with the Contract
related thereto, at all times be owned by the Seller free and clear of
any Adverse Claim, and upon each Purchase the Buyer will acquire full
equitable and beneficial title and ownership to and of such
Receivable, the Collections and the Related Security then existing or
thereafter arising free and clear of any Adverse Claim.
(M) Performance of Contracts: All goods and services to which each
Purchased Receivable relates have been delivered and performed, and
all requirements of such Contract concerning the nature, amount,
quality, condition or delivery of the goods or services, or upon which
payment of the Purchased Receivable may be dependent, have been
fulfilled in all material respects.
(N) Information: None of the information and reports (including but not
limited to each portfolio profile and each Summary Report) furnished
or to be furnished (whether by way of computerised data or otherwise)
by the Seller (in any of its capacities under the Relevant Documents)
or Exide Europe, to the Operating Agent or Exide Europe, as
applicable, is inaccurate in any material respect (except as otherwise
disclosed to the Operating Agent at the time of delivery) as of the
date so furnished, or contains any material misstatement of fact or
omits to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
(O) Place of Business: The principal place of business and registered
office of the Seller is as set forth in Schedule 1 or at such other
location(s) approved by the Operating Agent (such approval not to be
unreasonably withheld or delayed).
(P) Location of Books: The offices where the Seller keeps all its books,
records and documents evidencing Receivables or the related Contracts
are at the locations set forth in Schedule 1 or at such other
location(s) approved by the Operating Agent (such approval not to be
unreasonably withheld or delayed).
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(Q) Location of Bank Accounts: The bank accounts to which the Seller has
directed the Designated Account Debtor to remit payments for the
Receivables are (a) prior to the Payment Notification Date, the Seller
Collection Account (subject to the provisions of the Collection
Account Bank Mandate) and (b) on and following the Payment
Notification Date, the Buyer Collection Account (or, in each case,
such other account(s) at such location(s) as may have been previously
approved by the Operating Agent and in relation to each of which (in
relation to a Buyer Collection Account) a Collection Account Bank
Mandate has been duly executed by the Seller (in such capacity and in
its capacity as Sub-Servicer) and delivered to the Operating Agent)
and in respect of which the relevant bank has agreed not to exercise
any right of set-off, net-off, combination or consolidation of
accounts or counterclaim whatsoever (such agreement being given, in
respect of the Buyer Collection Account, only in respect of the Buyer
Entitlement).
(R) No Winding-Up: No step has been taken or is intended by the Seller,
Exide Europe or to the best of such Seller's or Exide Europe's
knowledge by any other Person for the Seller's or Exide Europe's
winding-up, liquidation, dissolution, administration, merger or
consolidation or for the appointment of a receiver or administrator of
the Seller or Exide Europe on all or any of its assets.
(S) No Breach: There has been no breach by the Seller of any of its
obligations under the Relevant Documents to which it is a party or by
Exide Europe of any of its obligations under the Letter of
Undertaking.
(T) Eligibility: Each (i) Existing Receivable the subject of a Letter of
Offer which is expressed to be an Eligible Receivable in the relevant
Accounts Receivables Listing is an Eligible Receivable as at the time
of Purchase and (ii) each Future Receivable the subject of a Letter of
Offer which is expressed to be an Eligible Receivable in the relevant
Accounts Receivable Listing is an Eligible Receivable as at the
Settlement Date immediately succeeding the Reference Period in which
such Future Receivable has come into existence.
(U) Exide Europe Group: The Seller, the UK Sellers, the Spanish Seller,
the French Seller, the German Sellers and Exide Funding (and each
entity acceding as a "Seller" to any Origination Agreement) is a
member of the Exide Europe Group.
(V) Aggregate Amount of Receivables: The amount of Receivables in relation
to which the purchase price to be paid within the first three months
commencing from the Initial Purchase is not less than Euro 12,700,000.
The Seller and Exide Europe further represents and warrants that the
representations and warranties in this Clause 8 shall be true and correct
on and as of each Settlement Date as though made on each such date and by
reference to the then-existing circumstances.
9. AFFIRMATIVE COVENANTS OF THE SELLER
Until the later of the Termination Date and the Relevant Date, the
Seller will, unless the Operating Agent otherwise consents:
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(A) Compliance with Law: Comply in all material respects with all
applicable laws, rules, regulations and orders binding on it, its
business and assets and all Receivables and related Contracts, except
where non-compliance would not have a material adverse effect on its
ability to perform its obligations hereunder.
(B) Maintain Existence: Preserve and maintain its corporate existence.
(C) Access: Upon reasonable prior notice, permit the Operating Agent, or
its agents or representatives, to visit the offices of the Seller
during normal office hours and examine and make and take away copies
of all books, records and documents relating to the Receivables and to
discuss matters relating to the Receivables or the Seller's
performance hereunder with any of the officers or employees of such
Seller having knowledge of such matters and co-operate in the
reconstruction of the Accounts Receivable Trial Balance pursuant to
Clause 12(B).
(D) Maintain Records: Maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate
records in the event of their destruction), and keep and maintain, all
documents, books, records and other information reasonably necessary
or advisable for the collection of all Receivables (including, without
limitation, records adequate to permit the identification on each
Purchase Date of each new Purchased Receivable and the daily
identification of all Collections of and adjustments to each existing
Purchased Receivable).
(E) Perform Contracts: Timely and fully perform and comply with all
material provisions, covenants and other promises required to be
observed by it under the Contracts relating to the Purchased
Receivables.
(F) Priority: Ensure that at all times the claims against it under this
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: Comply in all material respects with its
Credit and Collection Policy with respect to each Receivable purchased
or to be offered for purchase pursuant to this Agreement and the
related Contract.
(H) Value Added Tax: Make all relevant value added tax or other applicable
tax payments in respect of supplies of goods or services pursuant to a
Contract or which otherwise relate to Purchased Receivables, and pay
all value added tax (if any) payable in respect of any value added tax
supply made, or input value added tax suffered, by the Buyer, the
Operating Agent or any of the Operating Agent's Affiliates with
respect to supplies of goods or services by the Seller pursuant to a
Contract or which otherwise relates to Purchased Receivables.
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(I) Collections: If the Seller is not acting as sub-servicer, (1) give all
reasonable assistance (including the provision of information)
Servicer in accordance with the provisions of this Agreement, and (2)
remit any Collections on Purchased Receivables to the Servicer within
one Local Business Day after the receipt or deemed receipt thereof.
(J) Payment Instructions: (i) Instruct, no later than on the Payment
Notification Date, the Designated Account Debtors to make payments in
respect of Purchased Receivables to the Buyer Collection Account and
(ii) instruct each Additional Designated Account Debtor which has
become a Designated Debtor following the Payment Notification Date, to
make payments in respect of Purchased Receivables as of the Purchase
Date immediately succeeding the Offer Date on which the relevant
Account Debtor has become an Additional Designated Account Debtor to
the Buyer Collection Account, in each case by way of letter
(substantially in the form set out in Schedule 11) and by the
insertion of a payment instruction to this effect in each invoice
relating to a Designated Account Debtor.
(K) Bank Accounts: (i) prior to the Payment Notification Date, instruct
all Designated Account Debtors to pay all Collections into the Seller
Collection Account referred to in Clause 8(Q) (a) (subject, however,
to the provisions of the Collection Account Bank Mandate), and (ii) on
and following the Payment Notification Date, instruct all Designated
Debtors to pay all Collections into the Buyer Collection Account
referred to in Clause 8(Q) (b).
(L) Audit Costs: The Seller shall pay the fees and expenses for up to four
audits to be carried out by such accounting firm as is selected by the
Operating Agent in respect of the Receivables (the scope of which to
be determined by the Operating Agent, acting reasonably) in each
financial year of the Seller, plus the costs of one additional audit
to be conducted within 4 months after the execution of this Agreement.
Except for such additional audit, any further additional audit(s) that
may be required by the Operating Agent during any such financial year
shall be for the Operating Agent's own account.
(M) Provision of Information to Exide Europe: The Seller shall promptly
provide Exide Europe with computerised information regarding the
Purchased Receivables on the dates shown, and containing the
information set forth in Schedule 8, of its Accounts Receivables Trial
Balance and all such different or other information as the Operating
Agent may reasonably determine from time to time to properly allow
Exide Europe and/or the Operating Agent to identify all required
information in respect of Account Debtors and Receivables.
10. NEGATIVE COVENANTS OF THE SELLER AND EXIDE EUROPE
Until the later of the Termination Date and the Relevant Date, neither the
Seller and (in respect of paragraph (F) below), Exide Europe will, without
the consent of the Operating Agent:
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(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: The Seller shall not transfer all or
substantially all of its assets and undertaking to any person without
the prior written consent of the Operating Agent, such consent not to
be unreasonably withheld, unless such transfer would have no adverse
effect on the ability of the Seller to collect and sell Receivables as
contemplated by this Agreement.
(C) No Security Interest over Receivables and Contracts: (a) The Seller
shall not create or permit to subsist any Security Interest on any of
its Receivables and related Contracts.
(D) No Amendment to Receivables: Extend, amend or otherwise modify the
terms of any Purchased Receivable, or amend, modify or waive any term
or condition of any Contract related thereto, or commence or settle
any legal action to enforce collection of any Purchased Receivable
without the prior written consent of the Operating Agent.
(E) No Change to Credit and Collection Policy: Make any change in the
character of its business or in the Credit and Collection Policy,
which change would or might, in either case, materially impair the
collectability of any Receivable purchased or to be offered for
purchase under this Agreement or the enforcement of any related
Contract against the related Designated Account Debtor or any other
relevant person or the operation of this Agreement without the prior
written consent of the Operating Agent.
(F) Cross Indemnity: Neither the Seller nor Exide Europe shall amend or
otherwise change the Deed of Payment Allocation and Cross-Indemnity
dated on or about the Effective Date between Exide Europe and the
Programme Seller, except in respect of amendments or changes of a
purely technical or immaterial nature which do not affect either: (i)
the title of the Buyer to the Receivables assigned (or purported to be
assigned) pursuant to Clause 4 or (ii) the effectiveness of the
assignment (or purported assignment) pursuant to Clause 4.
11. REPORTING REQUIREMENTS OF THE SELLER AND EXIDE EUROPE
Until the later of the Termination Date and the Relevant Date, the Seller and
Exide Europe (in each case in relation to matters relating to itself)will,
unless the Operating Agent otherwise consents, furnish to the Operating Agent:
(A) Annual Accounts of Seller: As soon as available and in any event within 180
days after the end of the Seller's financial years, a copy of the Seller's
annual accounts and (if they are prepared) consolidated accounts in
conformity with generally accepted
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accounting principles in the Seller's jurisdiction of incorporation,
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 Exide Europe's financial year, 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 with respect to the Seller
or Exide Europe which are relevant to the Programme, as the Operating
Agent may from time to time reasonably request.
(D) Defaults and other Events: Forthwith on becoming aware of any of the
events described in (1), (2), or (3) below or any event which, with
the giving of notice or lapse of time or both, would constitute one of
such events, the statement of the chief financial officer or chief
accounting officer of the Seller or Exide Europe (as the case may be)
setting out details of that event and the action which the Seller or
Exide Europe (as the case may be) proposes to take with respect to
that event:
(1) the Seller or Exide Europe fails to pay any principal of or
premium or interest on any Debt in excess (in the aggregate) of
the Euro Equivalent of $5,000,000, when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt, or any other
default under any agreement or instrument relating to any Debt,
or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to
accelerate or to permit the acceleration of the maturity of such
Debt, or any such Debt shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled
required prepayment) prior to the stated maturity thereof, or any
present or future mortgage, charge or other security interest on
or over any assets of the Seller or Exide Europe becomes
enforceable;
(2) a resolution is passed or a petition is presented or an order
made for the winding up, liquidation, dissolution, merger or
consolidation of the Seller or Exide Europe (except for the
purposes of a bona fide reconstruction or amalgamation with the
consent of the Operating Agent), or a petition is presented or an
order made for the appointment of an administrator in relation to
the Seller, Exide Europe or a receiver, administrative receiver
or manager is appointed over any part of the assets or
undertaking of the Seller or Exide Europe or any event analogous,
to any of the foregoing occurs (except, in the case where a
petition is presented (i) the proceeding is frivolous or
vexatious
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and (ii) the Originator or Exide Europe is solvent and is
contesting the proceeding in good faith); or
(3) an Early Amortisation Event occurs; or
(4) an Event of Default (as such term is defined in the US DIP
Facility Agreement) occurs under the US DIP Facility Agreement
(E) Summary Report: Promptly, from time to time, such other information,
documents, records or reports respecting the Receivables or the
condition or operations, financial or otherwise, of the Seller 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).
(F) Designated Account Debtors: Within two calendar weeks after the end of
each calendar quarter (or such more frequent time as the Operating
Agent may request in writing), the Seller shall deliver to the
Operating Agent a current list of all Designated Account Debtors in
respect of Purchased Receivables and the addresses of such Designated
Account Debtors.
The obligations of the Seller to deliver reports or similar
information to the Buyer pursuant to this Agreement may be delegated
by the Seller to Exide Europe, and the performance by Exide Europe of
such obligations hereunder shall be deemed to be the performance by
the Seller of such obligations; provided however, that the Seller
shall remain liable for any non-performance of such obligations.
12. SERVICER, ALLOCATION AGENT, COLLECTIONS AND BUYER ACCOUNT
(A) Designation of Servicer: The servicing, administering and collection
of the Receivables shall be conducted by Citibank, N.A., London Branch
(the "Servicer") or such other Person so designated from time to time
pursuant to this Clause 12(A). Until the Operating Agent gives notice
to the Servicer of a designation of a new Servicer, Citibank, N.A.,
London Branch is designated as, and agrees, subject to the provisions
of this paragraph (A), to perform the duties and obligations of a
Servicer pursuant to the terms of this Agreement. The Servicer hereby
delegates to the Seller in respect of the Purchased Receivables
originated by the Seller, duties and obligations as Servicer and the
Seller (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 Purchased Receivables originated by it. 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 without a cause by the Servicer and, for so
long as a Seller 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 Purchased Receivables originated by it and
(ii) all duties, obligations and indemnities expressed to be those of
a "Servicer" pursuant to Clause 5 and Clause 12 shall be regarded for
all purposes as those of the relevant Sub-Servicer. The Servicer shall
not be liable for the
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performance of the duties and obligations of any 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 written consent of the Operating Agent, subcontract with any
other Person for servicing, administering or collecting the Purchased
Receivables; provided, however, that the Sub-Servicer (a) procures to
the Operating Agent that its sub-contractor shall not delegate the
servicing duties and obligations sub contracted to it by the
Sub-Servicer without the prior written consent of the Operating Agent
and (b) will remain liable for the performance of its duties and
obligations of 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) Designation of Allocation Agent: the Parties hereto hereby appoint
Citibank, N.A., Milan branch, as Allocation Agent for the purposes of
determining and calculating the Buyer Entitlement and the Seller
Entitlement in accordance with Clause 12(E) and pursuant to the terms
of this Agreement. The Allocation Agent hereby appointed is expressly
allowed to appoint other persons for the purposes of performing its
duties under this Clause 12.
(C) Duties of the Servicer:
The Servicer:
(1) will take or cause to be taken all such actions as may be
necessary or advisable to collect each Purchased Receivable, all
in accordance with applicable laws, rules and regulations, with
reasonable care and diligence, and in accordance with the Credit
and Collection Policy and the instructions of the Operating
Agent. The Seller and the Buyer hereby appoints the Servicer as
its agent to enforce its respective rights and interests in and
under the Purchased Receivables, the Related Security and the
Contracts;
(2) will take or cause to be taken all such actions as may be
necessary or advisable to collect each Purchased Receivables only
through the Collection Account Bank (or such banks which, by
executing and approving the Collection Account Bank Mandate,
become Collection Account Banks) no later than 30 days from the
date hereof. Alternative collection procedures within this 30-day
grace period shall be agreed in advance by the Operating Agent.
For the avoidance of doubt, any Designated Account Debtor the
Purchased Receivables of which are not collected by the
Collection Bank pursuant to the Collection Account Bank Mandate
(or in accordance with any agreed alternative collection
procedures) will be deemed a non-Eligible Account Debtor.
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(3) confirms that, in accordance with the Collection Account Bank Mandate,
the Collection Account Bank has been instructed to credit all
Collections due to be paid into the Seller Collection Account directly
into the Buyer Collection Account;
(4) confirms that, in accordance with the Collection Account Bank Mandate,
the Collection Account Bank has been instructed to make available to
the Servicer and the Allocation Agent information showing amounts
received on each Local Business Day and standing to the credit of the
Buyer Collection Account as at the close of business on that day;
(5) upon receipt of the information referred to in (4) above the
Allocation Agent shall, on behalf of the Buyer and the Seller, make
all such determinations and calculations as are necessary in order to
determine, in respect of amounts credited on the Buyer Collection
Account on each Local Business Day, the Buyer Entitlement and the
Seller Entitlement respectively in relation to the Buyer Collection
Account, and shall direct (subject to Clause 12 (D)) the Collection
Account Bank, prior to 12:00 noon on each Settlement Date, to transfer
to the Buyer Account the Buyer Entitlement;
(6) other than the transfers referred to in paragraph (5) above, Clause 5
(A) and Clause 12 (D), the Servicer shall not, without the prior
written consent of the Operating Agent, withdraw funds from the Buyer
Collection Account or direct the Collection Account Bank to make any
transfers from such Buyer Collection Account, except for withdrawals
or transfers of cleared funds standing to the credit of the Buyer
Collection Account which represent the Seller Entitlement and provided
that any such withdrawal or transfer would not cause the Buyer
Collection Account to become overdrawn;
(7) may not extend, amend, modify or waive the terms of any Purchased
Receivable or amend, modify or waive any term or condition of any
Contract related thereto where such extension, amendment, modification
or waiver would prejudicially affect such Purchased Receivable, unless
the Operating Agent shall have otherwise consented in writing. The
Seller shall deliver to the Servicer (if other than the Seller) all
documents, instruments and records which evidence or relate to the
Purchased Receivables which the Operating Agent may reasonably
request;
(8) if other than the Seller (and the Seller has ceased to be a
Sub-Servicer), will provide to the Seller all such information as the
Seller may require for purposes of the Summary Report and will as soon
as practicable following receipt pay to or to the order of the Seller
the collections of any Receivable which is not a Purchased Receivable;
(9) if other than the Seller (and the Seller has ceased to be a
Sub-Servicer), will as soon as practicable upon demand make available
or (if so demanded) deliver to the Seller all documents, instruments
and records in its possession which
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evidence or relate to Receivables of the Seller other than Purchased
Receivables, and copies of documents, instruments and records in its
possession which evidence or relate to Purchased Receivables which the
Operating Agent may reasonably request; and
(10) other than the Seller (and the Seller has ceased to be a
Sub-Servicer), and notwithstanding anything to the contrary contained
in this Agreement, will have no obligation to collect, enforce or take
any other action described in this Agreement with respect to any
Receivable that is not a Purchased Receivable other than to turn over,
make available or deliver to the Seller the collections and documents
with respect to any such Receivable as described in (8) and (9) above.
(D) Advance Payments: The Seller may, from time to time on any Local Business
Day prior to the Termination Date unless and until the Operating Agent
directs otherwise withdraw, by way of advance payment on account of such
Existing Receivables Purchase Price and Future Receivables Purchase Price
as will or may be payable to the Seller on the next following Settlement
Date, any amount or amounts standing to the credit of the Buyer Collection
Account representing Collections. Any amount so withdrawn (an "Advance
Payment") during each Reference Period shall be set off pro tanto against
the Buyer's obligation (if any) to pay Existing Receivables Purchase Price
and Future Receivables Purchase Price payable on the next following
Settlement Date and, to the extent the amount of the Advance Payments made
during such Reference Period exceeds the amount of the Existing Receivables
Purchase Price and Future Receivables Purchase Price (or, where no Existing
Receivables Purchase Price and Future Receivables Purchase Price is
payable), be refunded by the Seller in full by the transfer of cleared
funds to the Buyer Account not later than 12:00 noon on the next following
Settlement Date; provided always that any Advance Payment shall be refunded
by the Seller by the transfer of cleared funds to the Buyer Account
immediately upon the demand of the Operating Agent. The Seller shall not be
obliged to pay interest on any Advance Payment.
(E) Duties of the Allocation Agent: The Allocation Agent, on behalf of the
Seller and the Buyer, will ensure that all moneys on each Local Business
Day standing on the account of the Buyer Collection Account are made
available to the Seller, pursuant to Clause 12 (D) and subject to as
otherwise provided under this Agreement.
(F) 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 Buyer
Collection Account or Buyer Account in respect of any Settlement Period
such that the amounts due by the Seller and the Buyer pursuant to Clauses
4(B), 4(C) and 12(D) cannot be accurately determined (in the Operating
Agent's reasonable opinion), there will fall due from the Seller to the
Buyer on the Settlement Date at the end of such Settlement Period (on
account of repayment of Advance Payments) an amount equal to the
anticipated Collections in respect of such Settlement Period as determined
by the Operating Agent,
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acting reasonably. For the purposes of this Clause 12(F), it shall be
considered reasonable for the Operating Agent to anticipate that all
Collections due during such Settlement Period were received by the Servicer
during such Settlement Period. The Buyer shall deposit such amount into the
Temporary Adjustment Account. Upon the Operating Agent becoming satisfied
that a proper assessment of the amounts due by way of repayment of Advance
Payments has been made, there shall be an adjustment in accordance with
such assessment, by way of repayment from the Buyer (provided the
Termination Date has occurred) or by way of further payment by the Seller,
as required, and such adjusted sum shall be treated for all purposes under
this Agreement as the Collections received during such Settlement Period.
Provided that such failure by the Servicer does not last longer than two
consecutive Settlement Periods and the provisions of this Clause 12(F) are
complied with, such failure shall not by itself constitute an Early
Amortisation Event.
13. PROTECTION OF THE BUYER'S RIGHTS
(A) Notice of Assignment: The Operating Agent may at any time (and the Seller
following the Operating Agent's request shall) notify the Designated
Account Debtors, or any of them, of Purchased Receivables of the Buyer's
ownership of the Purchased Receivables and the Collections of the Purchased
Receivables and direct (or cause the Seller to direct) all the Designated
Account Debtors of Purchased Receivables, or any of them, that payment of
all amounts payable under any such Purchased Receivable be made directly to
the Operating Agent or its designee.
(B) Reconstruction of Accounts Receivable Trial Balance: If at any time the
Seller does not generate an Accounts Receivable Trial Balance on the
Determination Date immediately preceding each Settlement Date or (ii)
provide the information to Exide Europe enumerated in Clause 9(M), the
Operating Agent will have the right to reconstruct that Accounts Receivable
Trial Balance or such information so that a determination of the Purchased
Receivables can be made, and such reconstruction will be conclusive (in the
absence of manifest error) for the purposes of determining Purchased
Receivables.
(C) Operating Agent's Right to Perform: If the Seller or the Offer Agent 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.
(D) Power of Attorney: Without prejudice to the provisions of Clauses 13(A) to
(C), the Seller 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 the Operating Agent may
deem necessary or desirable in order to protect the interests of the Buyer,
the Onward Buyer, and/or the Operating Agent and/or the Lenders and/or to
perfect title to any of the Purchased Receivables, or Related Security,
including the redirection of mail and the endorsement of drafts, cheques
and other payment media, to perform any
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agreement or obligation of the Seller under or in connection with this
Agreement and/or under the Collection Account Bank Mandate(s), and to
exercise all other remedies of the Seller under this Agreement or existing
at law. In furtherance of the power herein granted, the Originator will
assist and co-operate with the Operating Agent and provide such facilities
as the Operating Agent may request, including the execution of a notarised
power of attorney in favour of the Buyer for the purposes of this Clause
13(D). The power of attorney is irrevocable and will extend to and be
binding upon the successors and assigns of the Seller. The Seller hereby
agrees that it shall execute the Power of Attorney set out in the form of
Schedule 14 in respect of its obligations under this Clause 13(D).
14. RESPONSIBILITIES OF THE SELLER
Anything herein to the contrary notwithstanding:
(A) Perform Contracts: The Seller will perform all its obligations under the
Contracts related to the Purchased Receivables to the same extent as if
such Purchased Receivables had not been sold pursuant to this Agreement and
the exercise by either the Operating Agent or the Buyer of its rights
hereunder will not relieve the Seller from such obligations.
(B) Exoneration of Buyer and Operating Agent: None of the Buyer nor the
Operating Agent will have any obligation or liability with respect to any
Purchased Receivables, any Related Security or related Contracts, nor will
the Buyer or the Operating Agent be obliged to perform any of the
obligations of the Seller thereunder.
(C) Custody: Until the Operating Agent requests otherwise, the Seller will hold
in custody for the sole benefit of the Buyer the Contracts and other
documentary items relating to the uncollected Purchased Receivables at its
address specified in this Agreement. To the extent that the Contracts or
other documentary items also relate to Receivables that are not Purchased
Receivables, the Seller will hold them in custody for both the Buyer and
itself to the extent of the respective rights of the Buyer and itself
therein unless possession thereof is required by the Buyer to enforce its
ownership rights. The Seller will deliver such Purchased Receivables,
Contracts and documents to the Operating Agent (or as it may direct), if so
directed by the Operating Agent and the Operating Agent will make them
available to the Seller to the extent that they contain material or
information that does not relate to Purchased Receivables and to the extent
that the Buyer's interests are not thereby compromised.
(D) Marking: The Seller will ▇▇▇▇ clearly and unambiguously its ordinary
business records, including without limitation its master data processing
records, relating to the Purchased Receivables with a legend acceptable to
the Operating Agent indicating that such Purchased Receivables are owned by
the Buyer. The Seller agrees that from time to time it will promptly
execute and deliver all instruments and documents, and take all further
action that the Operating Agent may reasonably request in order to perfect,
protect or more fully evidence the Buyer's ownership interest in the
Purchased
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Receivables, the Collections and the Related Security and pending such time
will keep an up to date record of all Purchased Receivables.
(E) Third Party Servicer: At any time following the designation of the Servicer
other than Citibank, N.A., London Branch or the termination of the
delegation granted to any Sub-Servicer pursuant to Clause 12(A):
(1) The Seller will, at the Operating Agent's request, (a) assemble all
the documents, instruments and other records (including, without
limitation, computer tapes and disks) which evidence the Purchased
Receivables, and the related Contracts and Related Security, or which
are otherwise necessary or desirable to collect such Purchased
Receivables, and will make the same available to the Operating Agent
at a place selected by the Operating Agent or its designee or (if so
requested) deliver the same to the Operating Agent (or as it may
direct), and (b) segregate all cash, cheques and other instruments
received by it from time to time constituting Collections of Purchased
Receivables in a manner acceptable to the Operating Agent and will,
promptly upon receipt, remit all such cash, cheques and instruments,
duly endorsed or with duly executed instruments of transfer, to the
Operating Agent or its designee.
(2) The Seller authorises the Operating Agent to take any and all steps in
the Seller's name and on behalf of the Seller necessary or desirable,
in the determination of the Operating Agent, to collect all amounts
due under any and all Purchased Receivables, including, without
limitation, endorsing the Seller's name on cheques and other
instruments representing Collections and enforcing such Purchased
Receivables and the related Contracts and Related Security.
(F) Value Added Tax: For the purpose of ensuring recoupment of any value added
tax forming part of a Purchased Receivable:
(1) all or part of which remains unpaid after the statutory period for
purposes of claiming bad debt relief has elapsed; or
(2) (without prejudice to Clause 5(D)) which or the Outstanding Balance of
which is, or would be, reduced, adjusted or cancelled by the Seller
and/or any other Person whether as a result of the matters in Clause
5(D) or for any other reason;
the Seller will use its reasonable endeavours to recover such value added
tax (or the appropriate part thereof) from the appropriate tax authorities,
as agent of the Buyer, and promptly remit it to the Buyer and, until so
remitted, will hold for the benefit of the Buyer any value added tax
recovered by the Seller in respect thereof (and any such recovery will be
and be treated as a Collection). The Seller will make such accounting
write-offs and transfers and raise such credit notes as may be necessary or
desirable for this purpose, and take all such other steps as may be
reasonably requested by the Operating Agent. In particular, the Seller
will, at the request of the Operating Agent,
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accept a re-assignment of any such Purchased Receivable (for a nil
consideration) solely for the purpose of facilitating recoupment of such
value added tax.
15. AGENCY AND INDEMNITIES
(A) Agency: In acting under this Agreement the Operating Agent shall have only
such duties, obligations and responsibilities as are expressly set out in
this Agreement (and such other duties, obligations and responsibilities as
are reasonably incidental) and acts solely as agent of the Buyer. However,
without prejudice to the generality of the foregoing, only the Operating
Agent shall be entitled to receive and retain fees and other amounts
(including indemnification under this Clause 15) payable to the Operating
Agent for its own account.
(B) Indemnities by Seller and Exide Europe: The Seller and (in relation to
matters relating to itself) Exide Europe agree to indemnify the Buyer, the
Operating Agent and their respective Affiliates and the Servicer (other
than if the Seller has ceased to be the 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 Purchased
Receivables, excluding, however, (a) such amounts resulting from gross
negligence or wilful misconduct on the part of the Person who would
otherwise be entitled to claim such indemnification or (b) recourse (except
as otherwise specifically provided in this Agreement) for uncollectible
Purchased Receivables or for losses arising out of late Collections.
Without limiting the foregoing, Indemnified Amounts include amounts
relating to or resulting from:
(1) reliance on any representation or warranty made or deemed made by the
Seller (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 the Seller (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));
(2) the failure by the Seller (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;
(3) the failure to vest and maintain vested in the Buyer ownership of each
Purchased Receivable, free and clear of any Adverse Claim whether
existing at the time of the Purchase of such Receivable or at any time
thereafter, excluding any such Adverse Claim created by the Buyer;
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(4) any dispute, claim, offset or defence (other than discharge in
bankruptcy or winding up by reason of insolvency or analogous event of
the Designated Account Debtor) of the Designated Account Debtor to the
payment of any Receivable which is, or is purported to be, a Purchased
Receivable (including, without limitation, a defence based on such
Receivable or the related Contract not being a legal, valid, binding
and enforceable obligation of such Designated Account Debtor), or any
other claim resulting from the sale of the goods or services related
to such Receivable or the furnishing or failure to furnish such goods
or services;
(5) any failure of the Seller (in any of its capacities under the Relevant
Documents) or Exide Europe, to perform its duties or obligations in
accordance with the provisions of this Agreement;
(6) the Buyer makes a request for a Loan and/or contracts for a foreign
exchange transaction to fund any anticipated Purchase following the
delivery of a Letter of Offer or to make a Future Receivables Purchase
Price payment in the manner contemplated in this Agreement and such
Purchase not taking place or such Future Receivables Purchase Price
payment not being made as a result of the operation of Clause 3 or any
other provision of this Agreement, or a sale of Receivables not being
effected in relation to a Letter of Offer or a Future Receivables
Purchase Price payment not being made by reason of any event described
in Clause 11(D)(1), (2) ,(3) or (4) or any breach by the Seller (in
whatever capacity) or Exide Europe of any of its obligations under or
in connection with this Agreement;
(7) any products liability claim, or personal injury or property damage
claim, or other similar or related claim or action of whatever sort
arising out of or in connection with goods, merchandise or services
which are the subject of any Receivable or Contract; and
(8) the payment of the Existing Receivables Purchase Price or the Future
Receivables Purchase Price of any Receivable other than an Eligible
Receivable (to the extent that such amounts have not already been
recovered by the applicable indemnified party pursuant to Clause
5(D)).
The Operating Agent will provide the Seller with a certificate or
certificates showing in reasonable detail the basis for the calculation of
Indemnified Amounts claimed under this Clause 15(B) provided, for the
avoidance of doubt, that the provision of such certificate or certificates
shall not be a condition for the making of any claim under this Clause
15(B).
(C) Costs, increased costs and gross-up for withholding tax under the
Facilities Agreement and the Currency Exchange Agreement: The Seller 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 that notified by the
Onward Buyer to the Buyer under the Onward Sale Agreement corresponding to
(i) all costs, increased costs, indemnities,
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tax, tax gross-up, tax indemnities, default interest and all other amounts
(other than interest and principal payments) which are required to be paid
by the Onward Buyer under and in accordance with the Facilities Agreement
and (ii) all costs, indemnities, tax, tax gross-up and termination costs
which are required to be paid by the Onward Buyer under and in accordance
with the Currency Exchange Agreement.
(D) Judgment Currency: Each reference in this Agreement to a specific currency
is of the essence. The obligation of the Seller (individually, or in any of
its capacities under the Relevant Documents) or Exide Europe in respect of
any sum due from it to the Operating Agent or the Buyer under this
Agreement will, notwithstanding any judgment in any other currency, or any
bankruptcy or winding up by reason of insolvency or analogous event of the
Seller or Exide Europe, be discharged only to the extent that on the Local
Business Day following receipt by the Operating Agent or the Buyer of any
sum adjudged or determined to be so due in such other currency, the
Operating Agent could in accordance with normal banking procedures purchase
the currency specified in this 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, each of the
Seller and Exide Europe agrees, as a separate obligation and
notwithstanding any such judgment, bankruptcy, winding up or analogous
event, to indemnify the Operating Agent and the Buyer against such loss.
(E) Payment: Any amounts subject to the indemnification provisions of Clause
15(B), (C) or (D) shall be paid by the Seller or Exide Europe to the
Operating Agent within two Programme Business Days following the Operating
Agent's demand therefor.
(F) After Tax Amount: In the event that any taxing authority seeks to charge to
tax any sum paid to the Buyer or the Operating Agent or any of their
respective Affiliates as a result of the indemnities or other obligations
contained herein or impose a requirement on the payer of such indemnity to
deduct tax, then the amount so payable shall be grossed up by such amount
as will ensure that after payment of the tax so charged there shall be left
a sum equal to the amount that would otherwise be payable under such
indemnity or obligation.
16. Amendments, Etc.
(A) Amendments and Waivers: No amendment or waiver of any provision of this
Agreement nor consent to any departure by the Seller therefrom shall in any
event be effective unless the same shall be in writing and signed by (1)
the Seller, the Buyer, the Operating Agent and Exide Europe with respect to
an amendment, or (2) the Seller, the Buyer, the Operating Agent or Exide
Europe, 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.
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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 (by
registered mail with return receipt requested) 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 (other than in respect of a
Letter of Offer delivered pursuant to Clause 4(A)), (i) in the case of
written notice, when delivered or on the date of receipt shown by the
return receipt if sent by registered mail, or (ii) in the case of notice by
telex, when telexed against receipt of answer back, or (iii) in the case of
notice by fax, at the time of transmission unless served on a day which is
not a Local Business Day or after 5.00 pm at the place in which the
recipient is located, in which case it will be effective at 9.00 am at the
place in which the recipient is located on the following Local Business
Day. In each case notice must be addressed as aforesaid.
18. NO WAIVER: REMEDIES
(A) No Waiver: No failure on the part of the Buyer, the Seller (in 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 (except in relation to the payment of
the Acceptance Fee) by the Seller and Exide Europe at any time after the
Seller or Exide Europe 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, in its capacity as holder of the
Citibank Account, as defined in the Account Bank Mandate, 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 the Seller against any and
all of the obligations of the Seller or Exide Europe (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) the Seller, Exide Europe and any of their successors and
permitted assignees in
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accordance with Clause 19(B); (2) the Buyer and also in relation to the
benefit, but not the burden of this Agreement, each Person to whom the
Buyer has for the time being in accordance with Clause 19(C) (2) or (3)
granted or assigned (or agreed to grant or assign) all or part of any
Purchased Receivable (or any participation or interest, whether proprietary
or contractual, in or in respect of all or part of any Purchased
Receivable) and/or all or any of its rights, benefits and interest in or
under this Agreement and their respective successors and assignees; and (3)
Citibank and its successors as Operating Agent (and the terms "Seller",
"Exide Europe", "Buyer" and "Operating Agent" shall be construed
accordingly).
(B) Seller and Exide Europe: Neither the Seller nor Exide Europe may assign any
of its rights, benefits or interest in or under this Agreement except with
the prior consent of the Operating Agent which shall not be unreasonably
withheld or delayed.
(C) The Buyer: The Buyer may assign all or part of any Purchased Receivebles
and/or all or any of its rights, benefits and interest in or under this
Agreement to Batteries Funding Limited in accordance with the Onward Sale
Agreement.
(D) Additional Sellers: The Operating Agent may, in its sole and absolute
discretion, at the request of Exide Europe, admit a member of the Exide
Group as a Seller under this Agreement (for the purposes of this Clause
19(D), such party or parties shall be referred to as the "Additional
Seller"). In addition to the discretion of the Operating Agent, the
admission the Additional Seller shall also be subject to the following
conditions precedent:
(1) the Operating Agent receives the documents and information specified
in Schedule 5 in respect of the Additional Seller, each in form and
substance satisfactory to the Operating Agent;
(2) the Additional Seller, the Seller and the Buyer have delivered to the
Operating Agent a duly completed and executed Admission of Additional
Seller in the form attached as Schedule 2 (together with confirmation
of due execution and delivery, in form and substance satisfactory to
the Operating Agent) and the Operating Agent has indicated its consent
by execution of the Admission of Additional Seller; and
(3) Exide Europe shall have confirmed in writing to the Operating Agent
that the Letter of Undertaking shall apply, on the terms stated
therein, to all of the obligations of the Additional Seller under the
Programme;
upon which time the Additional Seller shall be deemed to be a party to this
Agreement from and after the next Settlement Date subsequent to the
execution of the Admission of Additional Seller by the Operating Agent, and
the Additional Seller shall be under the same obligations towards each of
the other parties to this Agreement as if it had been an original party
hereto as the "Seller" and the " Sub-Servicer".
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20. FURTHER ASSURANCE - RESTRUCTURING
The Seller and Exide Europe hereby agrees that:
(A) in the event that it receives notice from the Operating Agent for the
purpose of amending the existing Programme on the basis that:
(1) the Receivables which are the subject of the French RSA will be first
purchased from the French Sellers by a French fonds commun de creances
(the "FCC"), such purchases to be funded by the subscription or
purchase by the Buyer of units issued by the FCC; or
(2) the Receivables which are the subject of the Italian RSA will be first
purchased by a company set up pursuant to law 130 of 30 April 1999 in
Italy (the "Law 130 Company"), such purchases to be funded by the
subscription or purchase by the Buyer of notes issued by the Law 130
Company,
upon commercial terms consistent with those applicable under the existing
Programme (save in relation to additional costs arising as a result of the
involvement of a FCC, and/or a Law 130 Company), the Seller 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 the fees, costs and expenses (including legal fees) arising as a result
of any of the events described in paragraphs (A) and (B) will be borne by
the Seller.
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 aggregated among all Originator Agreements), Programme Costs and other
fees due under this Agreement or the Fees Letter have been paid; provided,
however, that the rights and remedies with respect to any breach
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of any representation and warranty made by the Seller in or pursuant to
this Agreement, the provisions of Clause 21 and the indemnification and
payment provisions of this Agreement will be continuing and will survive
any termination of this Agreement.
22. NO PROCEEDINGS
The Seller, Exide Europe, the Offer Agent (if not Exide Europe) and the
Operating Agent each hereby agree that they will not institute against the
Buyer any bankruptcy, insolvency or similar proceeding until all amounts
owing by the Onward Buyer under the Facilities Agreement and the Currency
Exchange Agreement have been paid in full and that no recourse shall be had
for the payment of any amount owing hereunder or claims arising out of or
based upon the Relevant Documents against any member, equity holder,
employee, officer, director or affiliate of the Buyer.
23. EXECUTION IN COUNTERPARTS: SEVERABILITY
(A) Counterparts: This 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, and subject to Clause 24(B) below each of
the parties agrees to maintain the confidentiality of this Agreement in its
communications with third parties and otherwise.
(B) The provisions of Clause 24(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;
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(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 the Republic of Italy.
(B) Consent to Jurisdiction: The parties hereto hereby irrevocably and for the
benefit of each other submit to the jurisdiction of the courts of Milan in
any action or proceeding arising out of or relating to this Agreement, and
hereby irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in such courts. The parties hereto
hereby irrevocably waive, to the fullest extent they may effectively do so,
the defence of an inconvenient forum to the maintenance of such action or
proceeding. As an alternative method of service, the Seller, Exide Europe
and the Buyer also irrevocably consent to the service of any and all
process in any such action or proceeding by the delivery of copies of such
process to the Seller, Exide Europe or the Buyer, as applicable, at the
address designated for notices under this Agreement. The Seller, Exide
Europe and the Buyer agree that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing
shall affect the right to serve process in any other manner permitted by
law.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered.
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SCHEDULE 1
Offices of the Seller/Seller Collection Account/Seller Original Account
Seller Seller Collection Account Seller Original Account
EXIDE ITALIA S.r.l. 6462 (Sort Code ABI 01025) 7088 (Sort Code ABI 01025)
Via ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, 100/106, 6463 (Sort Code ABI 01025)
24058 ▇▇▇▇▇▇ di Lombardia
(Bergamo) (Italy)
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SCHEDULE 2
Form of Admission of Additional Seller
To: Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Copy to: Exide Holding Europe
▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
ADMISSION OF ADDITIONAL SELLER
Pursuant to the Receivables Sale Agreement dated [.] May 2002 (the "Agreement")
among inter alios, you, Archimede Securitisation S.r.l. and an Italian
Affiliates of Exide Holding Europe.
(1) Terms defined in the Agreement shall, subject to any contrary indication,
have the same meanings herein.
(2) The Additional Seller hereby requests the Operating Agent to accept this
Admission of Additional Seller pursuant to and for the purposes of Clause
18(D) of the Agreement so as to take effect in accordance with the terms
thereof.
(3) The Additional Seller confirms that it has received a copy of the Agreement
together with such other information as it has required in connection with
this transaction and that it has not relied and will not hereafter rely on
the Operating Agent to check or enquire on its behalf into the legality,
validity, effectiveness, adequacy, accuracy or completeness of any such
information and further agrees that it has not relied and will not rely on
the Operating Agent to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or nature
of Exide Europe or the Seller.
(4) The Additional Seller hereby undertakes with the Operating Agent and each
of the other parties to the Agreement that it will perform in accordance
with their terms all those obligations which by the terms of the Agreement
will be assumed by it after acceptance of this Admission of Additional
Seller by the Operating Agent and satisfaction of the conditions precedent
subject to which this Admission of Additional Seller is expressed to take
effect.
(5) The Operating Agent makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Agreement or any document relating
thereto and assumes no responsibility for the financial condition of the
Buyer or the Seller or for the performance and observance by the Buyer or
the Seller of any of their respective
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obligations under the Agreement or any document relating thereto and any
and all such conditions and warranties, whether express or implied by law
or otherwise, are hereby excluded.
(6) The Additional Seller requests that in respect of references to the parties
comprising the Seller in the Agreement, the following information be
inserted in respect of the Additional Seller:
============================================================================================
i) number of days in respect of the payment of invoices for the . days
purposes of paragraph (6) of the definition of "Eligible Receivable"
--------------------------------------------------------------------------------------------
ii) date of most recent audited annual accounts for the purposes of .
Clause 8(G)
--------------------------------------------------------------------------------------------
iii) principal place of business of Additional Seller for the .
purposes of Clause 8(O) and Schedule 1
.
--------------------------------------------------------------------------------------------
iv) Seller Collection Account for the purposes of Schedule 1 . (Sort Code .)
--------------------------------------------------------------------------------------------
iv) Seller Original Account for the purposes of Schedule 1 . (Sort Code .)
============================================================================================
This Admission of Additional Seller and the rights, benefits and obligations of
the parties hereunder is governed by and shall be construed in accordance with
Italian law.
[ADDITIONAL SELLER]
By:
Address:
Attention:
Telefax:
Telephone:
Date:
AGREED TO BY:
[RELEVANT ADDITIONAL SELLER]
CONSENTED TO THIS________DAY OF___________,___________:
Citibank, N.A., London Branch
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By:
-▇▇-
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
--------------------------------------------------------------------------------
SETTLEMENT STATEMENT
--------------------
SELLER: Exide Italy
CURRENCY: EUR
Batteries Funding - Settlement Statement as of: 23-May-02
----------------------------------------------
Next Settlement Date: 30-May-02
--------------------
PRIOR SETTLEMENT STATEMENT:
--------------------------
EUR
(1) Outstanding Balance -
(2) Reserve Accounts -
(3) Unearned Discount -
(4) Capital -
Adjustments to Prior Month Balance
----------------------------------
(5) Total Collections -
(6) Adjustments to Reserve Account -
(7) Discount Collected -
(8) Cash & Deemed Collections -
(9) New Receivables Sold -
(10) Change in Reserve -
(11) Change in Discount -
(12) Net Cash Paid (7-8) -
Ending Balance as of this Date:
------------------------------
(13) Outstanding Balance -
(14) Reserve Account -
(15) Discount -
(16) Capital -
PAYMENT OF FEES DUE ON NEXT SETTLEMENT DATE
-------------------------------------------
Purchaser Fees Due on the next Settlement Statement
above 0.0000% EUR -
Agency Fee 50.00 bp EUR -
Facility Fee 75.00 bp EUR -
Please remit funds to Batteries Funding Limited's account at
Citibank London, account number 0010123765
--------------------------------------------------------------------------------
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SCHEDULE 4
Form of Summary Report
Archimede Securitisation S.r.l.
Seller : Italy
Currency : Total Italian Lira Portfolio in EURO
Summary Report Date 02/05/19
Summary Report for period ended 02/05/18
=========================================================================
Capital Requested at next purchase ----->
Sold Portfolio Ageing by invoice due date :
Current - Due beyond 91 -----> 7.860.016,01 19,540%
Current - Due in 90 days -----> 7.662.589,99 19,049%
Current - Due in 60 days -----> 8.011.347,22 19,916%
Current - Due in 30 days -----> 9.025.400,37 22,437%
1 - 30 days Overdue -----> 3.951.042,00 9,822%
31 - 60 days Overdue -----> 2.041.436,27 5,075%
61 - 90 days Overdue -----> 970.966,33 2,414%
91 - 120 days Overdue -----> 123.959,99 0,308%
121 - 150 days Overdue -----> 127.504,42 0,317%
151 - 180 days Overdue -----> 102.402,99 0,255%
181 + days Overdue -----> 348.497,71 0,866%
------------------
Total -----> 40.225.163,30
Estimated Cash Days 1 - 30 -----> 16.691.210,08
Collections in Days 31 - 60 -----> 8.011.347,22
future periods Days 61 - 90 -----> 7.662.589,99
Days 91 + -----> 7.860.016,01
------------------
Total -----> 40.225.163,30
Collections in
current period Received by due date -----> 9.170,06
by due date : Received 30 days after due date ---> 1.769.348,05
Received 60 days after due date ---> 462.876,77
Received 90 days after due date ---> 80.123,42
Received 91+ days after due date --> 18.433,77
------------------
Total Collections -----> 2.339.952,07
Total new receivables sold this month -----> 27.354,13
Sold Credit Notes Outstanding --------> 2.303.518,75 5,416%
Credit Notes issued in last 30 days ------> 1.019.344,45 2,471%
Total Credit Notes Outstanding --------> 2.759.444,70 6,400%
Credit Notes issued in last 30 days ------> 1.128.553,70 2,721%
Total Invoices sold --------> 15.685
Total New Invoices sold --------> 0
Total delinquent receivables in sold portfolio ---> 3.714.767,71
Total delinquent receivables (Sold + Unsold) -----> 3.844.224,39
Total defaulted receivables in sold portfolio ----> 702.365,11
Total defaulted receivables (Sold + Unsold) ------> 831.821,79
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Archimede Securitisation S.r.l.
Seller : Italy
Currency : Total Italian Lira Portfolio in EURO
Summary Report Date 02/05/19
Summary Report for period ended 02/05/18
=========================================================================
Average Credit Terms (Sold Portfolio) --------> 0,000
Average Credit Terms (Total Portfolio) --------> 0,000
Weighted Credit Terms (Sold Portfolio) --------> 0,000
Weighted Credit Terms (Total Portfolio) --------> 0,000
Net invoices issued in last seven days -----> -122.363,14
Total Portfolio Ageing (Sold + Unsold) by invoice due date
Current -----> 32.558.864,55 80,683%
1 - 30 Days Overdue -----> 3.951.042,00 9,791%
31 - 60 Days Overdue -----> 2.041.436,27 5,059%
61 - 90 Days Overdue -----> 970.966,33 2,406%
91 - 120 Days Overdue -----> 119.064,38 0,295%
121 - 150 Days Overdue -----> 125.569,39 0,311%
151 - 180 Days Overdue -----> 31.074,66 0,077%
181 + Days Overdue -----> 556.113,36 1,378%
------------------
Total Receivables -----> 40.354.130,94
=========================================================================
ALL INFORMATION HEREIN IS TRUE AND ACCURATE
-------------------- --------------------
Authorised Signature Authorised Signature
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SCHEDULE 5
Initial Conditions Precedent
(a) A certified copy of the resolutions of the board of directors of the Seller
approving this Agreement and the other documents to be delivered by it and
the transactions contemplated in this Agreement.
(b) Certified copies of the memorandum and articles of association (atto
costitutivo and statuto) of the Seller.
(c) A certificate of an appropriate officer of the Seller 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 the
Seller a revised certificate meeting the requirements of this paragraph
(c)).
(d) A Collection Account Bank Mandate duly executed by the Seller, the Buyer
and Citibank in relation to the Buyer Collection Account.
(e) A favourable opinion of legal advisers to the Seller as to corporate
capacity of the Seller.
(f) 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.
(g) Letter of Undertaking from Exide Europe in a form acceptable to the
Operating Agent, plus a favourable opinion of legal advisers satisfactory
to the Operating Agent as to the execution and enforceability of the Letter
of Undertaking.
(h) A favourable opinion of legal advisers to Exide Europe as to capacity and
corporate powers of Exide Europe in such form as the Operating Agent may
reasonably require.
(i) A Directors' Certificate from the directors of the Seller in relation to
its solvency.
(j) Execution of the Relevant Documents and all documentation to be delivered
therewith.
(k) Satisfactory review by the Operating Agent of the Seller's billing and
collection operations and reporting systems and implementation of any
additional receivable tracking and reporting systems in form and substance
satisfactory to the Operating Agent.
(l) Preparation of a written Credit and Collection Policy by the Seller, in
form and substance satisfactory to the Operating Agent.
(m) The Operating Agent has received such other approvals, opinions or
documents as it may reasonably request.
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(n) A direction from Exide Europe or the Seller with regard to the payment of
Citibank's (on its own behalf), the Operating Agent's legal costs (together
with disbursements and VAT) in form and substance satisfactory to the
Operating Agent.
(o) Designation by the Buyer of the Buyer Account.
(p) Designation by the Seller of the Seller Original Account.
(q) Satisfaction of all Initial Conditions Precedent set forth in Schedule 2 to
the Facilities Agreement.
(r) Execution of the Currency Exchange Agreement.
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SCHEDULE 6
Part 1
LETTER OF OFFER
To: The Buyer (via the Operating Agent)
From: Exide Italia S.r.l.
Dated: [ ]
Dear Sirs,
We refer to the receivables sale agreement (such receivables sale agreement, as
from time to time amended or supplemented being herein called the "Receivables
Sale Agreement") dated on or about _____ May 2002 and made between, inter alios,
ourselves as Seller and yourselves as Buyer and Citibank, N.A. as Operating
Agent. We hereby offer you to sell and assign under Law No. 52 of 21 February
1992 without recourse against us in the case of non-payment by the relevant
Account Debtors (cessione pro-soluto):
(i) Existing Receivables with an Outstanding Balance of [.] (being the
Existing Receivables identified for you pursuant to Clause 4(D) of the
Agreement) on the next Settlement Date for an Existing Receivables
Purchase Price of (Euro) [.];
(ii) Future Receivables which have come and will come into existence between
(and including) the Initial Reference Date and (but excluding) the next
Settlement Date and (b) Future Receivables which will come into
existence during the next Settlement Period for an Acceptance Fee of
(Euro) 15.
The Discount computed for the Group of Receivables (which are Existing
Receivables and Eligible Receivables) the subject of this letter is [.].
We warrant that each of the representations referred to in Clause 8 of the
Receivables Sale Agreement is true on and as of the date hereof in respect of
each Receivable and that each of the representations referred to in Clause 8 of
the Receivables Sale Agreement is true on and as of the date hereof.
The provisions of the Receivables Sale Agreement will apply to this notice 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
Receivables Sale Agreement.
The offer made under this Letter constitutes an irrevocable offer by Exide
Italia S.r.l. binding upon it to assign and to sell to you the ownership,
interest in the Receivables referred to in this Letter of Offer and the Related
Security.
This Letter of Offer shall be governed by Italian Law.
Yours faithfully,
EXIDE HOLDING EUROPE,
acting on behalf of Exide Italia S.r.l.
By:
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Authorised Signatory
-68-
Yours faithfully,
____________________________
EXIDE HOLDING EUROPE,
acting on behalf of Exide Italia S.r.l.
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SCHEDULE 6
Part 2
ON ANY SUBSEQUENT OFFER DATE
To: The Buyer (via the Operating Agent)
From: Exide Italia S.r.l.
Dated: [ ]
Dear Sirs,
We refer to the receivables sale agreement (such receivables sale agreement, as
from time to time amended or supplemented being herein called the "Receivables
Sale Agreement") dated on or about _____ May 2002 and made between, inter alios,
ourselves as Seller and yourselves as Buyer and Citibank, N.A. as Operating
Agent. We hereby offer you to sell and assign under Law No. 52 of 21 February
1992 without recourse against us in the case of non-payment by the relevant
Account Debtors (cessione pro-soluto):
(i) Future Receivables which will come into existence during the next
Settlement Period for an Acceptance Fee of (euro) [15];
[in the event only of Additional Designated Account Debtors offering
Receivables for the first time:
(ii) Existing Receivables with respect to Additional Designated Account Debtors
notified to you on the date hereof with an Outstanding Balance of [.]
(being the Existing Receivables identified for you pursuant to Clause 4(D)
of the Agreement) on the next Settlement Date for an Existing Receivables
Purchase Price of (euro) [.]; and
(iii) Future Receivables with respect to Additional Designated Account Debtors
notified to you on the date hereof which have come and will come into
existence between (and including) the Initial Reference Date and (but
excluding) the next Settlement Date for the Acceptance Fee.
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.
[The Discount computed for the Group of Receivables (which are Existing
Receivables and the Eligible Receivables) the subject of this letter is [.].]
The offer made under this Letter constitutes an irrevocable offer by Exide
Italia S.r.l. binding upon it to assign and to sell to you the ownership,
interest in the Receivables referred to in this Letter of Offer and the Related
Security.
This Letter of Offer shall be governed by Italian Law.
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Yours faithfully
_______________________________________
EXIDE HOLDING EUROPE, acting on behalf of Exide Italia S.r.l.
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SCHEDULE 6- PART 3
FORM OF ACCEPTANCE
To: Exide Italia S.p.A as Seller
From: The Buyer (via the Operating Agent)
Dated: [.]
Dear Sirs,
We refer to the receivables sale agreement (such receivables sale agreement, as
from time to time amended, supplemented or novated being herein called the
"RSA") dated _____ May 2002 and made between ourselves as Buyer and yourselves
as Seller and the Servicer and Citibank, N.A. as Operating Agent.
Terms defined in the RSA shall bear the same meaning herein.
We hereby notify you of our acceptance of the Receivables pursuant to your
letter of offer dated [ ]. The Purchase Price in respect thereof was Euro
[ ] and was paid to you on [date] to the Seller Original Account.
Yours faithfully,
for and on behalf of
Archimede Securitisation S.r.l., London Branch]
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SCHEDULE 7
Form of Contract
-73-
SCHEDULE 8 - Part 1
INFORMATION TO BE PROVIDED TO EXIDE EUROPE
(1) On the last Local Business Day in each calendar week prior to each Purchase
Date:
a computerised download containing the following fields:
-number, which identifies the applicable Seller
-customer number
-customer name
-customer type
-location of customer (country)
-invoice number
-journal number
-issue date of invoice
-due date of invoice
-currency of invoice
-currency amount of invoice
-type of invoice
and other fields which may vary from applicable Seller to applicable Seller and
which are necessary for Enigma to select Eligible Receivables.
(2) On or before the third Determination Date of each calendar month, the
information requested in Part 2 of this Schedule 8 in respect of the
previous calendar month.
(3) On or before the third Determination Date of each of the calendar months of
March, June, September and December (or such more frequent time as the
Operating Agent may request in accordance with Clause 10(G) of the
Agreement):
a computerised download containing the addresses of the Account Debtors listed
in paragraph 1 above, containing the following specific information:
- full customer name
- address field 1
- address field 2
- address field 3
- town
- area code
- country of address
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AND ALL OTHER INFORMATION WHICH MIGHT BE NECESSARY FOR THE CORRECT
IDENTIFICATION BY THE OPERATING AGENT AND/OR EXIDE EUROPE OF THE ACCOUNT
DEBTOR/CUSTOMER AND INVOICE.
-75-
SCHEDULE 8 - Part 2
FORM OF MONTHLY SUMMARY
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Citibank [Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇]
CC: ▇▇▇▇▇▇ ▇▇▇▇▇▇ - Exide Europe Headquarters [Fax: ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇]
Seller: ..................................
Date Prepared: ..................................
For month: ..................................
All information relates to 3rd party domestic customers.
Total value of sales (incl. VAT): ..........................................
Total value of Write-offs in the month (overdue 90 days or less):
.......................................
Total value of Credit Notes (Disputes/Claims/invoicing errors etc, incl. VAT):
.......................................
Level of accruals for volume rebates: ......................................
Amount of credit notes issued for volume rebates in the month:
Expenses for warranty claims during the month: ............................
Prompt payment discounts paid during the month: .............................
Receivable Ageing - Month-end Ledger
============================================================
Days Past Due Amounts in Ledger Currency
============================================================
Current
------------------------------------------------------------
1 - 30
------------------------------------------------------------
31 - 60
------------------------------------------------------------
61 - 90
------------------------------------------------------------
91 - 120
------------------------------------------------------------
121 +
============================================================
We certify that all information contained in this summary is true and accurate
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[THE SELLER]
...............................................
Name
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SCHEDULE 9
LETTER OF UNDERTAKING
[EXIDE HOLDING EUROPE LETTERHEAD]
Letter of Undertaking
Date: [.] May 2002
To: Archimede Securitisation S.r.l.; and
Citibank, N.A., London Branch ("Citibank") as Operating Agent and
Servicer under the Origination Agreements and Agent under the
Facilities Agreement,
Dear Sirs
(1) We refer to the following agreements:
(i) the Receivables Securitisation Deed dated as of the date hereof
between CMP Batteries Limited, Exide (Dagenham) Limited, Deta UK
Limited, Fulmen (U.K.) Limited, B.I.G. Batteries Limited (together
with any additional member of the Exide Europe Group acceding to the
Receivables Securitisation Deed after the date hereof, the "UK
Originators"), ourselves as Offer Agent, Batteries Funding and
Citibank, N.A. as Operating Agent;
(ii) (a) the Receivables Subrogation Agreement dated 6 June 1997 (as
amended on the date hereof) between Compagnie Europeenne
d'Accumulateurs S.A.S. (together with any additional member of the
Exide Europe Group acceding to the Receivables Subrogation Agreement
after the date hereof, the "French Originators"), Exide Europe
Funding Ltd. ("Exide Funding"), ourselves as Offer Agent and
Citibank, N.A. as Operating Agent and (b) the Onward Receivables
Sale Agreement dated as of the date hereof between Exide Funding,
ourselves as Offer Agent Batteries Funding and the Operating Agent
(the "French Origination Agreements");
(iii) the Receivables Sale Agreement dated as of the date hereof between
Sociedad Espanola del Acumulador Tudor, S.A., Fulmen Iberica S.L.
(together with any additional member of the Exide Europe Group
acceding to such Receivables Sale Agreement after the date hereof,
(the "Spanish Originators"), ourselves as Offer Agent, Batteries
Funding and Citibank, N.A., as Operating Agent (the "Spanish
Origination Agreement");
(iv) (a) the Receivables Purchase Agreement dated 3 June 1997 (as amended
on the date hereof and renamed as Receivables Sale Agreement)
between Societa Industriale Accumulatori S.r.l. and Compagnia
Generale Accumulatori S.p.A.(now Exide Italia S.r.l.) (together with
any additional member of the Exide Group acceding to the Receivables
Sale Agreement after the date hereof, the "Italian Originators"),
ourselves as Offer Agent, Archimede
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Securitisation S.r.l. and Citibank, N.A. as the Operating Agent and
(b) the Onward Sale Agreement dated as of the date hereof between
Archimede Securitisation S.r.l., Batteries Funding and the Operating
Agent (the "Italian Origination Agreements");
(v) the Receivables Sale Agreement dated as of the date hereof between
Exide Automotive Batterie GmbH, ▇▇▇▇▇ 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 UK Origination Agreement, the French Origination
Agreements, the Spanish Origination Agreement and the Italian
Origination Agrements, the "Origination Agreements") and
(vi) the Facilities Agreement dated the date hereof among Batteries
Funding, Citibank, N.A., London Branch as Agent and Arranger and the
lenders from time to time party to the Facilities Agreement (the
"Facilities Agreement").
(2) Unless otherwise specified in this letter, terms defined in the Origination
Agreements shall have the same meanings when used herein.
(3) Any reference in this letter to any other agreement or document shall,
unless the context otherwise requires, include that other agreement or
document as from time to time amended, supplemented or novated and any
document which amends, supplements or novates that other agreement or
document.
(4) We hereby confirm to you that the Facilities Agreement and the Origination
Agreements, all their respective terms and conditions and all related
documents, fully meet our approval.
(5) We are aware that the Facilities Agreement and the Origination Agreements
have been entered into on the condition that, inter alia, our indirect and
beneficial ownership of at least 80 % of the issued share capital of each
Originator and Exide Funding and we control each Originator and Exide
Funding. We are further aware that the Facilities Agreement and the
Origination Agreements have been entered into in reliance on this Letter of
Undertaking.
(6) We confirm that we currently own indirectly and beneficially at least 80 %
of the issued share capital of each Originator and Exide Funding and that
we control each Originator and Exide Funding and we covenant, subject to
paragraph 6 below, that we will not reduce our percentage shareholding or
alter our control of each Originator and Exide Funding (so long as Exide
Funding is a party to any Relevant Document) until the Facilities Agreement
and the Origination Agreements have been terminated and all
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obligations under the Origination Agreements to each of you have been met
by the Originators and Exide Funding.
(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 sale Receivables
under the terms of the Origination Agreement to which it is a party.
(8) We further covenant to ensure that each Originator and Exide Funding (in
each of their capacities under the Origination Agreements) at all times
duly perform and comply with all their obligations to each of you under or
in connection with the Origination Agreements and, in particular, that we
will at all times take all measures necessary or desirable to ensure that
the billing, credit and collection policies and procedures of such
Originator and Exide Funding are not changed in any way that may materially
adversely affect the interests of either of you under the Origination
Agreements. We further covenant that we will comply with our obligations in
this paragraph 8 even if any of the relevant obligations of the Originators
or Exide Funding under the Origination Agreements are determined by a court
of competent jurisdiction to be invalid or unenforceable.
(9) Without limiting our covenant in paragraph 7 above, we further covenant to
either ensure that: (i) each Originator and Exide Funding will at all times
duly perform and comply with or (ii) we will perform and comply with, on
behalf of each Originator and Exide Funding, all reporting, documentary and
calculation requirements of the Originators and Exide Funding under the
Origination Agreements and that the same are met in a timely fashion.
(10) We further covenant to provide you with immediate notice upon becoming
aware of any 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
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event is to accelerate or to permit the acceleration of the maturity
of such debt, or any such debt shall be declared to be due and payable
or required to be prepaid (other than by a regularly scheduled
required prepayment) prior to the stated maturity thereof, or any
present or future mortgage, charge or other security interest on or
over any assets of such 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 it
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 Italy. We hereby
irrevocably and for your benefit submit to the jurisdiction of the courts
of Italy 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.
Yours faithfully
_______________________
EXIDE HOLDING EUROPE S.A.
-81-
SCHEDULE 10
LIST OF ACCOUNT DEBTORS OTHER THAN DESIGNATED ACCOUNT DEBTORS
FIAT
-82-
SCHEDULE 11
PAYMENT INSTRUCTIONS
Part 1
To: [Designated Account Debtor]
Dear Sir,
(1) We refer to the payments to be made to us in relation to [relevant
Contract(s)].
(2) We hereby kindly instruct you to make all such payments, from the date
hereof, to the credit of our account [account details] with [ ] and, in
relation to payments by cheques, to the order of [ ] and remit such cheques
to [ ].
Yours sincerely
[the Seller]
Part 2
-83-
SCHEDULE 12
ENIGMA LICENCE AGREEMENT
[.] May 2002
Attention: Company Secretary and Financial Director
Enigma Licence Agreement
Dear Sirs:
In connection with the preparation of certain data required to be delivered
under the origination agreements dated (or amended) as of the date hereof
between certain of your European subsidiaries, Batteries Funding Limited,
yourselves and ourselves (together with any other origination agreement which
may be entered after the date hereof, the "Agreements") we are making available
to you certain proprietary computer software and related documentation
collectively known as "Enigma". Enigma has been developed by us, on the basis of
commercially available software which we purchased, to help manage the
securitisation of trade receivables portfolios. This letter is to confirm the
terms on which we are licensing your use of Enigma.
Acknowledging that Enigma is and shall remain the property of Citibank, N.A.,
you shall be entitled to use Enigma solely in connection with the performance of
your obligations under the Agreements. Only those of your personnel responsible
for such performance will be allowed to have access to Enigma and the use
thereof. You will keep Enigma confidential and not copy or divulge any of its
content to any third parties and shall return to us or destroy all copies of
Enigma in your possession upon the termination of the Agreements.
Should Enigma fail accurately to produce information required under the
Agreements from adequate and accurate input, we will (i) provide all assistance
you reasonably request to enable the timely production of such information using
alternative methods, (ii) immediately commence efforts to identify and correct
the cause of such failure, and (iii) should the foregoing prove unsuccessful,
co-operate fully with you in devising alternative solutions, taking into account
the actual circumstances, and in obtaining any required approval thereof from
other parties. Further, we will promptly update your version of Enigma with any
future program improvements.
Except as provided above and in the Agreements, we shall have no responsibility
whatever arising out of any Enigma failure, do not in any manner warrant or
guaranty its performance and in no event shall we have monetary liability in
connection with such failure or such performance or the consequences thereof,
your having acknowledged that our foregoing commitment of assistance and
co-operation is appropriate in the circumstances and your sole remedy.
Please acknowledge your acceptance of the foregoing in the place provided below.
Very truly yours,
▇▇▇▇▇▇▇▇, ▇.▇.,
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇
By:
Title: Vice President
Agreed and accepted
EXIDE HOLDING EUROPE
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ S.r.l.
(registered in Italy under No. 09178790151)
Registered Office: ▇▇▇▇▇▇ di Lombardia (Bg), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇/▇▇▇, ▇▇▇▇▇
[.] May 2002
SOLVENCY CERTIFICATE
We, directors of Exide Italia S.r.l. (the "Company") having duly considered the
provisions of Articles 5, 66 and 67 of the Italian Bankruptcy Law (Royal Decree
No. 267 of 16th March 1942), are of the opinion that as at the date hereof:
(a) to the best of our knowledge and belief ,the Company is able to pay its
debts as they fall due;
(b) to the best of our knowledge and belief, no resolution has been passed for
the winding-up of the Company which has been notified to the Company and:
(i) no petition had been presented for the winding-up of the Company or
for the making of an administration order in respect of the Company;
(ii) no receiver, administrative receiver, administrator or receiver and
manager had been appointed in relation to the Company; and
(iii) no order for the winding up of the Company had been made.
disregarding proceedings which are not being pursued or are discharged or
are being contested in good faith on proper grounds where not more than
thirty (30) days have expired since their commencement or which are of a
frivolous or vexatious nature;
(c) to the best of our knowledge and belief, the entering into of the
Transaction Documents by the Company and all matters in connection
therewith are being effected by the Company in good faith and in connection
with its business, and in our opinion there are reasonable grounds for
believing that the transactions contemplated by the Transaction Documents
and all related matters will benefit the Company; and
(d) to the best of our knowledge and belief, the Company, in entering into the
Transaction Documents, has not been influenced by a desire to prefer one
creditor over any other creditor of the Company.
This certificate is given by and on behalf of the Company.
-86-
________________________
________________________
-87-
SCHEDULE 14
POWER OF ATTORNEY IN FAVOUR OF CITIBANK
THIS POWER OF ATTORNEY is made on the ___ day of May 2002 by EXIDE ITALIA
S.r.l., a company with its registered office at Via ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇/▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇), ▇▇▇▇▇, share capital (Euro) 26,000,000, fully
paid up, registered with the Register of Company of Bergamo under No.
09178790151, acting in its capacity as Seller and Sub-Servicer (the "Appointor")
in favour of CITIBANK, N.A., London Branch, a company whose registered office is
at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ acting in its capacity as Operating Agent
("Citibank").
WHEREAS
(A) Pursuant to a receivables sale agreement (the "RSA") dated [.] May 2002
entered into between, inter alios, the Seller and Citibank, the Seller
shall, from time to time offer to sell to Archimede Securitisation S.r.l.
through the Offer Agent, certain receivables (the "Receivables") and
Archimede Securitisation S.r.l. shall accept an assignment of all
Receivables and Collections and Related Security for its benefit.
(B) Receivables, Collections and Related Security so acquired and not
subsequently reacquired by the Seller or collected in full are referred to
herein as the "Purchased Receivables".
(C) Under the RSA, Citibank is appointed as the Operating Agent.
(D) Terms not defined herein shall have the meaning ascribed to such terms in
the RSA.
NOW THEREFORE
1. The Appointor appoints Citibank individually and any receiver appointed
from time to time in respect of the Receivables, Collections and Related
Security to be its true and lawful agent (mandatario) 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 the Appointor after an Early Amortisation Event
has occurred:
(a) to exercise its rights, powers and discretions in respect of the
Purchased Receivables, Collections and in respect of the related
benefit of any related guarantee and any other related rights (such
related benefit and other rights being the "Ancillary Rights");
(b) to exercise all the rights, powers, remedies and discretions
exercisable by the Seller by reason of the Seller remaining for the
time being legal owner of any of the Purchased Receivables or the
Ancillary Rights;
(c) to execute, sign, seal and deliver any document and to do any other
act or thing which it may deem to be necessary to protect the
interests of Archimede Securitisation S.r.l. and/or the Lenders and/or
the Operating Agent, proper or expedient for fully and effectually
vesting or transferring the Purchased
-88-
Receivables and the Ancillary Rights in or to Archimede Securitisation
S.r.l. 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 RSA;
(d) to demand, ▇▇▇ for and receive all moneys due or payable under or in
respect of the Purchased Receivables and the Ancillary Rights and pay
such moneys to the persons to whom such moneys are required to be paid
under the RSA;
(e) to redirect mail and endorse drafts, cheques and other payments media,
to perform any agreement or obligation of the Appointor under or in
connection with the RSA and to exercise all other remedies of the
Appointor under the RSA or existing at law; and
(f) from time to time to substitute and appoint severally one or more
attorneys (the "Substitute Attorneys") for all or any of the purposes
aforesaid (including the power to authorise any person so appointed to
make further appointments).
2. The Appointor hereby agrees at all times hereafter to ratify and confirm
any act, matter or deed whatsoever Citibank or any Substitute Attorney
shall lawfully do or cause to be done under or pursuant to this Power of
Attorney to the extent that such act or acts and execution are within the
power of the Appointor and within the subject matter of this Power of
Attorney and the Appointor shall indemnify Citibank or any Substitute
Attorney in respect of any loss, claim, cost, expense or liability in
connection with this deed save to the extent that the same arises out of
this latter's gross negligence, wilful default or bad faith.
3. The Appointor declares that this Power of Attorney has been given for
security purposes and to secure continuing obligations of the Appointor
under the Agreements and the abovementioned assignments, assignations and
trusts and the powers hereby created shall be irrevocable and shall not be
affected by the bankruptcy, liquidation, receivership, the making of an
administration order or appointment of an administrative receiver or any
other equivalent event of or affecting the Appointor.
4. The laws of the Republic of Italy shall apply to this Power of Attorney and
the interpretation thereof and to all acts of Citibank or any Substitute
Attorney carried out under the terms hereof.
IN WITNESS whereof this Power of Attorney has been executed by the Appointor as
a deed the day and year first above written.
EXIDE ITALIA S.r.l.
(as Seller)
________________
By:
-89-
SCHEDULE 15
Special Dilution Reserve
*Settlement Date *Settlement Date Table Reserve
May 16, 2002 May 15, 2003 May Week 3 1.8%
May 23, 2002 May 22, 2003 May Week 4 0.1%
May 30, 2002 May 29, 2003 May Week 5 0.0%
June 7, 2002 June 5, 2003 June Week 1 0.5%
June 13, 2002 June 12, 2003 June Week 2 0.2%
June 20, 2002 June 19, 2003 June Week 3 0.0%
June 27, 2002 June 26, 2003 June Week 4 0.0%
July 5, 2002 July 3, 2003 July Week 1 0.0%
July 11, 2002 July 10, 2003 July Week 2 0.0%
July 18, 2002 July 17, 2003 July Week 3 0.4%
July 25, 2002 July 24, 2003 July Week 4 0.0%
August 1, 2002 July 31, 2003 August Week 1 0.0%
August 8, 2002 August 7, 2003 August Week 2 0.0%
August 15, 2002 August 14, 2003 August Week 3 0.0%
August 22, 2002 August 21, 2003 August Week 4 0.0%
August 29, 2002 August 28, 2003 August Week 5 2.4%
September 5, 2002 September 4, 2003 September Week 1 0.7%
September 12, 2002 September 11, 2003 September Week 2 0.0%
September 19, 2002 September 18, 2003 September Week 3 3.0%
September 26, 2002 September 25, 2003 September Week 4 0.0%
October 3, 2002 October 2, 2003 October Week 1 0.0%
October 10, 2002 October 9, 2003 October Week 2 0.0%
October 17, 2002 October 16, 2003 October Week 3 0.0%
October 24, 2002 October 23, 2003 October Week 4 1.3%
October 31, 2002 October 30, 2003 October Week 5 0.0%
November 7, 2002 November 6, 2003 November Week 1 0.0%
November 14, 2002 November 13, 2003 November Week 2 0.0%
November 21, 2002 November 20, 2003 November Week 3 0.0%
November 29, 2002 November 28, 2003 November Week 4 0.0%
December 5, 2002 December 4, 2003 December Week 1 0.0%
December 12, 2002 December 11, 2003 December Week 2 0.0%
December 19, 2002 December 18, 2003 December Week 3 0.0%
December 27, 2002 December 24, 2003 December Week 4 0.0%
January 3, 2003 January 2, 2004 January Week 1 0.0%
January 9, 2003 January 8, 2004 January Week 2 3.6%
January 16, 2003 January 15, 2004 January Week 3 2.8%
January 23, 2003 January 22, 2004 January Week 4 0.0%
January 30, 2003 January 29, 2004 January Week 5 0.0%
February 6, 2003 February 5, 2004 February Week 1 1.3%
February 13, 2003 February 12, 2004 February Week 2 2.2%
February 20, 2003 February 19, 2004 February Week 3 1.1%
February 27, 2003 February 26, 2004 February Week 4 0.0%
▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ 4, 2004 March Week 1 2.7%
March 13, 2003 March 11, 2004 March Week 2 3.3%
March 20, 2003 March 18, 2004 March Week 3 0.0%
March 27, 2003 March 25, 2004 March Week 4 0.0%
April 3, 2003 April 1, 2004 April Week 1 0.8%
April 10, 2003 April 8, 2004 April Week 2 1.9%
-90-
*Settlement Date *Settlement Date Table Reserve
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%
*Settlement Date *Settlement Date Table Reserve
* 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.
-91-
EXECUTION PAGES
SELLER:
EXIDE ITALIA S.r.l.
____________________
By:
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇/▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇)
(▇▇▇▇▇)
Attention: Chairman of the Board of Directors.
Copy to: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (39-363) 903 366
Telephone: (39-363) 9991
BUYER:
ARCHIMEDE SECURITISATION S.r.l. (acting through its London branch)
___________________________________
By:
Address: ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention:
Telefax:
Telephone:
OPERATING AGENT:
CITIBANK, N.A. (acting through its London branch)
___________________________________
By:
Address: Citicorp Centre
33 Canada Square, ▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telefax: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Telephone:
OFFER AGENT
-92-
EXIDE HOLDING EUROPE
__________________________
By:
Address: ▇-▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Cedex
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telefax: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
ALLOCATION AGENT:
CITIBANK, N.A. (acting though its Milan branch)
___________________________________
By:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Attention:
Telefax:
Telephone:
-93-