EXHIBIT 10.23
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CONFORMED COPY
RECEIVABLES SALE AGREEMENT
dated 3 June 1997
CMP BATTERIES LIMITED
EXIDE (DAGENHAM) LIMITED
FULMEN (U.K). LIMITED
and
B.I.G. BATTERIES LIMITED
collectively, as Seller
EXIDE EUROPE FUNDING LTD
as Buyer
CITIBANK, N.A.
as Operating Agent
Xxxxxxxx Chance
London
CLAUSES PAGE NOS.
1. DEFINITIONS AND CONSTRUCTION................................... 1
2. FACILITY....................................................... 22
3. CONDITIONS PRECEDENT........................................... 22
4. PURCHASES...................................................... 24
5. COLLECTIONS AND SETTLEMENT..................................... 25
6. FEES, COSTS AND STAMP DUTY..................................... 28
7. PAYMENTS AND COMPUTATIONS, ETC................................. 31
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER................... 32
9. AFFIRMATIVE COVENANTS OF THE SELLER............................ 36
10. NEGATIVE COVENANTS OF THE SELLER............................... 38
11. REPORTING REQUIREMENTS OF THE SELLER........................... 40
12. COLLECTION AGENT, COLLECTIONS AND BUYER ACCOUNT................ 42
13. PROTECTION OF THE BUYER'S RIGHTS............................... 45
14. RESPONSIBILITIES OF THE SELLER................................. 46
15. AGENCY AND INDEMNITIES......................................... 49
16. AMENDMENTS, ETC................................................ 52
17. NOTICES........................................................ 52
18. NO WAIVER: REMEDIES............................................ 53
19. BINDING EFFECT: ASSIGNABILITY.................................. 53
20. TERMINATION.................................................... 55
21. NO PROCEEDINGS................................................. 55
22. EXECUTION IN COUNTERPARTS: SEVERABILITY........................ 56
23. CONFIDENTIALITY................................................ 56
24. GOVERNING LAW AND JURISDICTION................................. 56
SCHEDULE 1......................................................... 58
Offices of the Seller.......................................... 58
SCHEDULE 2......................................................... 59
Form of Admission of Additional Seller......................... 59
SCHEDULE 3......................................................... 62
Form of Settlement Statement................................... 62
SCHEDULE 4......................................................... 63
Form of Summary Report......................................... 63
SCHEDULE 5......................................................... 64
Initial Conditions Precedent................................... 64
SCHEDULE 6......................................................... 66
Form of Notice of Sale......................................... 66
SCHEDULE 7......................................................... 67
Form of Contract............................................... 67
SCHEDULE 8 - Part 1................................................ 68
Information to be Provided to Exide Europe..................... 68
SCHEDULE 8 - Part 2................................................ 69
Form of Monthly Summary........................................ 69
THIS RECEIVABLES SALE AGREEMENT, dated 3 June 1997, is made among:
(1) CMP BATTERIES LIMITED, a company with its registered office at X.X. Xxx 0;
Xxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxx XX0 0XX ("CMP");
(2) FULMEN (U.K.) LIMITED, a company with its registered office at Xxxxxx Xxxxx,
Xxxxxxx Xxxx, Xxxxxxxxx XXx0 0XX ("Fulmen");
(3) EXIDE (DAGENHAM) LIMITED, a company with its registered office at Xxxxxxxx
Xxxx, Xxxxxxxx, Xxxxx XX0 0XX ("Exide Dagenham");
(4) B.I.G. BATTERIES LIMITED, a company with its registered office at Xxxxxxxx
Xxx, Xxxxxxxx, Xxxxx XX00 lUF ("BIG");
(all of the above parties are collectively referred to as the "Seller", or
where the context requires, are also individually referred to as a
"Seller");
(5) EXIDE EUROPE FUNDING LTD, a company with its registered office at 00
Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the "Buyer");
and
(6) CITIBANK, N.A., a United States national banking association acting through
its London branch at 000 Xxxxxx, Xxxxxx XX0X 0XX (the "Operating Agent").
Preliminary Statements
A. 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; and
B. 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, in particular, Clause 4(G).
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
In this Agreement (including the Preliminary Statements):
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(A) Accounting Terms: All accounting terms not specifically defined in this
Agreement shall be construed in accordance with generally accepted
accounting principles as in effect on the date hereof in England and Wales.
(B) Defined Terms: The following terms shall have the meanings indicated:
"Account Debtor" means a Person obliged to make payment(s) pursuant to a
Contract.
"Accounts Receivable Listing" means a list, by invoice number, of all of the
Contracts which are shown on the Seller's general ledger as outstanding at the
time the list is compiled 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 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 Purchased Receivables have been reduced by virtue of any prompt payment
discounts, accruals for volume rebates, warranty claims by the applicable
Account Debtor(s), and other credit notes (including, without limitation, credit
notes issued to Account Debtors as a result of disputes, claims and invoicing
errors by the Seller).
"Advance Payment" means, at any time, the aggregate amount of any withdrawals
from the Buyer Account made by the Seller under Clause 12(C) to the extent they
are outstanding and not repaid.
"Adverse Claim" means any claim of ownership, lien, security interest, mortgage,
charge, or encumbrance, or other right or claim of any Person.
"Admission of Additional Seller" means an agreement substantially in the form
set out in Schedule 2.
"Affiliate" when used with respect to a Person means any other Person
controlling, controlled by or under common control with that Person and includes
a Subsidiary (as defined below) or a Holding Company (as defined in Section 736
of the Companies Act 1985) of that Person and any other Subsidiary of that
Holding Company; provided however, that except in respect of paragraph (2) of
the definition of "Eligible Receivable" and Clause 6(A), Persons which are not
part of the Exide Group shall not be considered to be Affiliates of any Person
which is part of the Exide Group.
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"Approved Jurisdiction" means each of (i) England, Wales, Scotland or Northern
Ireland or (ii) France, Italy, Germany, Spain, The Netherlands or Belgium, or
(iii) another jurisdiction in respect of which the Seller has obtained as
security from the applicable 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 (which
assignment shall include full notice to the applicable bank issuing the letter
of credit), requiring payment to be made directly to the Operating Agent.
"Available Collections" means, at any time, an amount equal to all Collections
credited to the Buyer Account in respect of Purchased Receivables less all
accrued Yield and Programme Costs (whether or not incurred or paid by the Buyer)
together with any other amounts owing to the Buyer or the Operating Agent under
this Agreement.
"Bank Facility Rate" means either: (a) in the event that either Eureka shall not
at any time, fund its purchase under the RPA with the issuance of commercial
paper, or purchases are being made under the PPA, due solely to an Early
Amortisation Event, a per annum rate equal to Dollar LIBOR plus 1.75% and
applicable reserve asset costs for a five year facility (as certified by the
Operating Agent), or (b) in the event that Eureka shall not at any time fund its
purchase under the RPA with the issuance of commercial paper or purchases are
being made under the PPA, for any reason other than due to an Early Amortisation
Event, a per annum rate equal to Dollar LIBOR plus 0.125% and applicable reserve
asset costs for a five year facility (as certified by the Operating Agent).
"Base Rate" means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, New York,
from time to time, as Citibank's base rate:
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there is no nearest 1/16
of 1%, to the next higher 1/16 of 1 %) of (i) 1/2 of 1% per annum, plus (ii)
the rate obtained by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 360 days)
being determined weekly on each Monday (or, if such day is not a Programme
Business Day, on the next succeeding Programme Business Day) for the three-
week period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit
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dealers to and published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of quotations for
such rates received by Citibank from three New York certificate of deposit
dealers of recognised standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily percentages specified during
such three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities) three-month Dollar non-
personal time deposits in the United States, plus (iii) the average during
such three-week period of the annual assessment rates estimated by Citibank
for determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for insuring
Dollar deposits of Citibank in the United States; and
(c) 1/2 of one per cent per annum above the Federal Funds Rate.
"Buyer Account" means the account in the name of the Buyer with the Collection
Account Bank designated as such by the Buyer, or such other account at such bank
as the Buyer may utilise for the purposes of this Agreement and designate as the
Buyer Account.
"Buyer Entitlement" means, at any time, in respect of the total amount standing
to the credit of the 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 Sterling 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" means in respect of each party comprising the Seller, the
trust account set opposite the relevant Seller's name in Schedule 1, under the
heading "Collection Account", in each case in the name of the appropriate
Seller, established with the Collection Account Bank pursuant to the Trust
Account Bank Mandate or such other account or accounts with the Collection
Account Bank as may, with the prior written consent of the Operating Agent, be
utilised for the purposes of this Agreement and designated as a Collection
Account.
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"Collection Account Bank" means in respect of each party comprising the Seller,
such bank and branch at which the Collection Account is, with the prior written
consent of the Operating Agent, maintained from time to time.
"Collection Account Event" shall be deemed to have occurred if Exide Europe
fails to maintain a Debt Service Cover Ratio of greater than 1.10 : 1.00.
"Collection Agent" means at any time the Person then authorised pursuant to this
Agreement to service, administer and collect Purchased Receivables.
"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.
"Commitment" means the commitment of the Buyer under Clause 2 hereof.
"Concentration Amount" means as of any date, with respect to each Account
Debtor, the product of (a) the Concentration Limit applicable to such Account
Debtor and (b) the Dollar Equivalent of the Outstanding Balance of Purchased
Receivables aggregated among all Origination Agreements.
"Concentration Limit" means, in relation to the aggregate Receivables for each
Account Debtor: (a) for any single Account Debtor rated at least A-1 or P-1 or
its equivalent by the Rating Agencies, 17%; (b) for any single Account Debtor
rated A-2 or P-2 or its equivalent by the Rating Agencies, 8.5%; (c) for any
single Account Debtor rated A-3 or P-3 or its equivalent by the Rating Agencies,
5.66%; (d) for any single Account Debtor rated below A-3 or P-3 or not rated on
its short term debt, 3.4% (to the extent an Account Debtor does not have a short
term rating but has an actual or implied senior long-term debt rating, the
applicable percentage will be determined based on equivalent senior long-term
debt ratings (as determined by the Operating Agent) for the short term ratings
specified above).
"Contract" means a written agreement between the Seller and an Account Debtor
pursuant to which the 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.
"Country Limit" means the Sterling Equivalent of $32,000,000.
"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 (i) of Schedule
5 as modified from time to time with the consent of the Operating Agent.
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"Currency Exchange Agreement" means, as of any time, the Currency Exchange
Agreement (as that term is defined in the RPA or the PPA, as applicable) that
may be entered into by the Buyer from time to time in accordance with the
provisions of the RPA or PPA, as applicable.
"Custody Documents" means this Agreement or any Notice of Sale hereunder.
"Debt" means any indebtedness, present or future, actual or contingent in
respect of moneys borrowed or raised or any financial accommodation whatever
and, without limitation, shall include:
(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.
"Debt Service Cover Ratio" means the Debt Service Cover Ratio as that term is
defined and calculated pursuant to the Syndicated Facility; provided however, if
the Syndicated Facility is terminated for any reason, the definition and
calculation of Debt Service Cover Ratio for the purposes of this Agreement will
survive such termination.
"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 Purchased Receivables that were 91-120 days past due at the end of
each such month plus Purchased Receivables that were charged off (or, without
duplication, which should have been charged off) as uncollectible during each
such month which, if they had not been charged off (or, without duplication,
which should have been charged off) would have been less than 90 days past due
during such month to (ii) aggregate sales giving rise to Receivables that were
generated during the calendar month immediately preceding the commencement of
the Loss Horizon preceding such date.
"Defaulted Receivable" means a Receivable:
(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 Account Debtor has taken any action, or suffered any
event to occur, of the type described in Clause 11(D)(2); or
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(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 unless the
Operating Agent has advised 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 Tuesday; 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 Purchased 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 Account Debtor
on the related Purchased Receivable or (iii) any set-off in respect of any claim
by the Account Debtor on the related Purchased Receivable or (b) subject to any
specific dispute, offset, counterclaim or defence whatsoever (except the
discharge in bankruptcy of the Account Debtor thereof).
"Dilution Horizon" means, at any time, the estimated weighted average period in
days between the issuance of invoices and the related credit note, if any, by
the Programme Sellers, as such period is calculated by the Operating Agent from
time to time.
"Dilution Horizon Ratio" equals the higher of (a) the Dollar Equivalent of total
sales giving rise to Programme Receivables for the Programme Sellers for the
past Dilution Horizon divided by the Dollar Equivalent of the outstanding
balance of Eligible Receivables (whether or not they are Purchased Receivables)
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 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.
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during such twelve month period divided by (B) the average of the Programme
Dilution Ratios during such twelve month period.
"Discount" means with respect to a Group of Receivables on the relevant Purchase
Date the sum of applicable Yield, applicable Programme Costs, applicable
Accruals, applicable Reserves and the Stamp Duty Reserve.
"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 at the most recent Settlement Date.
"Dollars" and the sign "$" each mean the lawful currency of the United States of
America.
"Early Amortisation Event" means the first to occur of:
(1) any Originator defaults in the payment on the due date of any payment due
and payable by it under or relating to this Agreement or any of the other
Relevant Documents and such default continues unremedied for a period of
five (5) Local Business Days after the earlier of the Originator becoming
aware of such default and the receipt by the Originator of written notice
by the Operating Agent requiring the same to be remedied;
(2) subject to Clause 12(D), any Originator defaults in the performance or
observance of any of its other covenants and obligations, or breaches any
representation or warranty (other than a breach of the representation and
warranty in Clause 8(T)), under this Agreement or any of the other Relevant
Documents, which in the reasonable opinion of the Operating Agent is
materially prejudicial to the interests of the Buyer and/or Eureka and/or
the Liquidity Banks and/or the Operating Agent, and such default is not
remedied to the satisfaction of the Operating Agent within five Local
Business Days of the earlier of the Originator becoming aware of such
default and receipt by the Originator 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 Originator satisfies its
obligations pursuant to Clause 5(D) within such five Local Business Day
period, such default or breach shall not be considered to be an Early
Amortisation Event);
(3) an effective resolution is passed for the winding up of any Originator;
(4) any Originator 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, (which cessation
or threat thereof would, in the opinion of the Operating Agent be
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likely to materially and adversely affect the Originator's ability to
perform its obligations under the Relevant Documents, or any of them) or
the Originator becomes unable to pay its debts, or is deemed unable to pay
its debts within the meaning of section 123 of the Insolvency Xxx 0000
other than section 123(1)(a) thereof (as that section may be amended,
varied or re-enacted), or becomes unable to pay its debts as they fall due,
or the value of its assets falls to less than the amount of its liabilities
(taking into account for both these purposes its contingent and prospective
liabilities) or otherwise becomes insolvent;
(5) Exide Europe ceases at any time to own, directly or indirectly, a minimum
of 80% of each class of the outstanding capital stock of any Seller;
(6) Exide Europe breaches the 1:1 Debt Service Cover Ratio;
(7) any Debt of a member of the Exide Group in excess (in the aggregate) of the
Sterling 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;
(8) any sale of Eligible Receivables under this Agreement ceases to create a
valid and perfected first priority interest or security interest in such
Eligible Receivables;
(9) proceedings are initiated against the Originator in respect of its
liquidation, winding-up, administration, insolvency, composition,
reorganisation (other than a reorganisation the terms of which have been
approved by the Operating Agent and where the Originator 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 Originator, or an administrative or other
receiver, servicer or other similar official is appointed in relation to
the Originator or in relation to the whole or any substantial part of the
undertaking or assets of the Originator or an encumbrancer shall take
possession of the whole or any substantial part of the undertaking or
assets of the Originator, 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 Originator and in any of the
foregoing cases it shall not be discharged within 15 days;
(10) if the Originator 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;
(11) for any three month period, the average Default Ratio exceeds 4%;
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(12) for any three month period, the average Dilution Ratio exceeds 7%;
(13) for any three month period, the average Loss to Liquidation Ratio exceeds
0.5%;
(14) the Buyer is unable to obtain appropriate funds from its currency swap
counterparty under the Currency Exchange Agreement; or
(15) an Early Amortisation Event as that term is defined under the RPA or the
PPA, or a Programme Amortisation Event under any other Origination
Agreement.
"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 which is a Programme Business
Day.
"Eligible Receivable" means a Receivable:
(1) the Account Debtor of which is a corporate body/entity which is (according
to the address specified in the related invoice) resident of an Approved
Jurisdiction;
(2) the Account Debtor of which is a Designated Account Debtor and is not an
Affiliate of any party to this 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 at the date of Purchase;
(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 and (ii)
within 90 days in respect of CMP or 120 days in respect of Fulmen, BIG and
Exide Dagenham, after the earlier of the original billing date and the date
that the invoice relating thereto is despatched;
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(7) the Dollar Equivalent of the Outstanding Balance of which, when added to
the Dollar Equivalent of the Outstanding Balance (as that term is defined
under each Origination Agreement) of all other Purchased Receivables 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 Sterling;
(9) which (A) arises, under a form of Contract set out in Schedule 7 (or which
otherwise has been duly authorised by the Operating Agent), which is stated
to be, and is, governed (for the purposes of the conflict of laws
principles of the Approved Jurisdiction in question) by English law and
which, together with such Receivable, is in full force and effect and
constitutes the legal, valid, binding and enforceable obligation of the
Account Debtor, (B) is freely assignable (or if not assignable without the
consent of the Account Debtor, such consent has been obtained to the
satisfaction of the Operating Agent) and (C) is not subject to any Adverse
Claim or dispute, set off, counterclaim or defence whatsoever;
(10) which, together with the Contract related thereto, does not contravene in
any material respect any applicable laws, rules or regulations and with
respect to which the Seller is not in violation of any such law, rule or
regulation in any material respect;
(11) which (A) satisfies all applicable requirements of the Credit and
Collection Policy and (B) complies with such other criteria and
requirements (other than those relating to the collectability of such
Receivable) as the Operating Agent may from time to time specify to the
Seller and which are based on a criterion or requirement of any one or more
of the Rating Agencies;
(12) which is not subject to withholding taxes on payments from the Account
Debtors in respect thereof;
(13) which represents all or part of the sales price in respect of the supply of
goods or services in the Approved Jurisdiction in question;
(14) the Account Debtor of which is not a government agency or local authority
unless, the Account Debtor of which is considered a separate corporate
entity under applicable law that is owned, directly or indirectly by a
government agency or local authority;
(15) which has not been prepaid in whole or in part; and
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(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.
"Eureka" means Eureka Securitisation, Plc, a company incorporated under the laws
of England and Wales.
"Exide Europe" means Exide Holding Europe, a French societe anonyme.
"Exide Group" means Exide Europe and all of its Subsidiaries.
"Facility Fee" means the Seller's Proportionate Share of 0.30% per annum of the
Facility Limit calculated monthly in arrears and applied on each Settlement
Date.
"Facility Limit" means $175,000,000.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Programme Business Day, for the next preceding Programme Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Programme Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognised standing selected by it.
"Fees Letter" means the Fees Agreement dated as of the date hereof, between,
inter alia, the Originator, Exide Funding, Exide Europe and the Operating Agent
in respect of the calculation and payment of certain fees.
"Final Payment Date" means the date on which payment is made by the Operating
Agent to the Seller pursuant to Clause 5(C).
"Foreign Currency Reserve" as of any Settlement Date will equal 5.5% of the Loss
and Dilution Reserve for such Settlement Date, or such other amount as
determined by the Operating Agent (and notified in writing to the Seller),
acting reasonably (upon the written request of the 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).
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"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 Notice of Sale.
"Guarantee" means any guarantee, indemnity, letter of credit or any other
obligation or irrevocable offer (whatever called and of whatever nature):
(1) to pay or to purchase;
(2) to provide funds (whether by the advance of money, the purchase of or
subscription for shares or other securities, the purchase of assets, rights
or services, or otherwise) for the payment or discharge of;
(3) to indemnify against the consequences of default in the payment of; or
(4) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend, distribution,
capital or premium on shares, stock or other interests, or the insolvency or
financial condition of another person.
"Initial Purchase" means the first Purchase completed under this Agreement.
"Interest Period" means initially, the period commencing on the Effective Date
and ending on the following Settlement Date, and thereafter, each period
beginning on the day following the last day of the immediately preceding
Interest Period and ending on 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.
"Letter of Undertaking" means the Letter of Undertaking given by Exide Europe
substantially in the form set out in Schedule 2 to the RPA.
"LIBOR" means the rate per month determined by the Operating Agent to be equal
to the arithmetic mean (rounded upwards, if not already such a multiple, to the
nearest whole multiple of one-sixteenth of one per cent) of the offered
quotations for Dollars which appear on page 3750 of the Telerate screen or, if
such page or service shall cease to be available, such other page or such other
service (as the case may be) as the Operating Agent may select. If less than two
quotations for the relevant rate and the relevant period are displayed and the
Operating Agent has not selected an alternative service on which two or more
such quotations are displayed "LIBOR" shall mean the Base Rate.
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"Liquidity Bank" means any financial institution which may from time to time
become a party to the PPA as a Liquidity Bank thereunder.
"Local Business Day" means any day (other than a Saturday or Sunday) on which
banks and foreign exchange markets are open for business in London. Where an
obligation is expressed in this 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 and Dilution Reserve" as of any Settlement Date will equal:
[C + YR] x [max(DYN,FLOOR)/1-(max(DYN,FLOOR))]
where:
DYN = [(SF2 x ED) + DVF] x DHR + (SF1 x LR x LHR)
FLOOR = CF + (ED x DHR), with a minimum amount of $12,000,000
where:
C = Programme Capital
YR = Seller's Proportionate Share of Yield Reserve
SF1 = Stress Factor One = 2.25
SF2 = Stress Factor Two = 2.25
ED = Average Programme Dilution Ratio during the preceding 12 months
DVF = Dilution Volatility Factor
DHR = Dilution Horizon Ratio
LHR = Loss Horizon Ratio
CF = Concentration Floor = 17%
LR = Loss Ratio
"Loss Horizon" equals the sum of 90 days plus the Weighted Average Term
calculated among all Origination Agreements as of the Settlement Date.
"Loss Horizon Ratio" equals the total sales giving rise to Programme Receivables
for the Programme Sellers for the Loss Horizon divided by the outstanding
balance of Programme Receivables as of the end of the most recent month.
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"Loss Ratio" as of any date equals the highest 3 month average Default Ratio
aggregated among all Origination Agreements which has occurred in the 12 months
immediately preceding such date.
"Loss to Liquidation Ratio" as of any date, is equal to the ratio (expressed as
a percentage) of (i) the Dollar Equivalent of the aggregate outstanding balance
of all Receivables that were written off by the 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 Dollar Equivalent of the
total Diluted Receivables during such twelve month period.
"Net Receivable Balance" means at any time the excess of (i) the Dollar
Equivalent of the aggregate Outstanding Balance of Eligible Receivables (whether
or not they are Purchased Receivables) over (ii) the sum of the
Overconcentration Amount at such time, plus the aggregate Unapplied Cash at such
time.
"Notice of Sale" has the meaning assigned to that term in Clause 4(A).
"Onward Sale Fee" means 0.01% per annum on the average outstanding Capital
calculated monthly in arrears and applied on each Settlement Date.
"Origination Agreement" means as of any time each agreement whereby a member of
the Exide Group sells trade receivables originated in the ordinary course of
business of such member company and which has been designated from time to time
as such by the Operating Agent. Until and unless a designation has been made by
the Operating Agent to the contrary, the Origination Agreements shall consist of
(i) for the United Kingdom, this Agreement, (ii) for France, the Receivables
Subrogation Agreement dated as of the date hereof between CEAC, Compagnie
Europeenne d'Accumulateurs S.A. and Batterie Xxxxx as Originators, Exide Funding
as Receivables Purchaser and Citibank as Operating Agent, (iii) for Spain, the
Receivables Sale Agreement dated as of the date hereof between Sociedad Espanola
del Acumulador Tudor, S.A. as Seller, Exide Funding as Buyer, Tudor Collections
Ltd as Agent and Citibank as Operating Agent, (iv) for Italy, (a) the
Receivables Purchase Agreement dated as of the date hereof between Societa
Industriale Accumulatori s.r.l. and Compagnia Generale Accumulatori S.p.A. as
Seller, Archimede Securitisation s.r.l. as Buyer, Citibank (London branch) as
Operating Agent and Citibank (Milan branch) as Allocation Agent, and (b) the
Onward Sale Agreement dated as of the date hereof between Archimede
Securitisation s.r.l. as onward seller, Exide Funding as onward buyer and
Citibank as Operating Agent, and (v) for Germany, the German Receivables Sale
Agreement dated as of the date hereof between Accumulatorenfabrik Sonnenschein
GmbH, Exide Automotive Batterie GmbH and Xxxxx Batterie AG as Sellers, Exide
Funding as Buyer and Citibank as Operating Agent.
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"Originator" means each of CMP, Fulmen, Exide Dagenham and BIG, in its capacity
as Seller or Collection Agent, as the context may require.
"Outstanding Balance" of any Receivable at any time means the then unpaid face
amount thereof (including VAT) (except for purposes of determining the Default
Ratio, where the unpaid face amount of any Purchased Receivable which has been,
or would be, written off or provided for in the Seller's books as uncollectible
in accordance with the Credit and Collection Policy shall be deemed to be zero).
"Overconcentration Amount" means at any time the Dollar Equivalent of the sum of
the amounts, if any, by which the Outstanding Balance of Receivables owing by
each Account Debtor on such date exceeds the Concentration Amount applicable to
such Account Debtor.
"Person" means an individual, partnership, company, body corporate, corporation,
trust, unincorporated association, joint venture, government, or governmental
body or agency or other entity.
"PPA" means the Parallel Purchase Agreement dated as of the date hereof between
the Buyer, the Liquidity Banks (as defined therein) and the Operating Agent.
"Programme" means the revolving sale of trade receivables originated by Exide
Holdings Europe S.A. and certain of its subsidiaries and the funding of such
revolving sale pursuant to the funding arrangements established in relation to
each Origination Agreement.
"Programme Amortisation Event" means an Early Amortisation Event of the type
described in paragraphs (1), (2), (3), (4), (6), (7), (9), (10) or (15) of the
definition of "Early Amortisation Event".
"Programme Business Day" means any day (other than a Saturday or Sunday) on
which banks and foreign exchange markets are open for business in London, Paris
and New York. Where an obligation is expressed in this Agreement to be performed
on a Programme Business Day and such Programme Business Day is not also a Local
Business Day, such obligation shall be performed on the immediately preceding
Local Business Day which is also a Programme Business Day.
"Programme Capital" equals, at any time, total Capital as defined and calculated
pursuant to the RPA or the PPA, as applicable.
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"Programme Costs" comprise (a) the Onward Sale Fee and (b) the Seller's
Proportionate Share of (i) the Facility Fee, (ii) the Investor Fee as defined in
the Fees Letter and (iii) the Programme Fee as defined in the Fees Letter.
"Programme Dilution Ratio" as of any date, is equal to the aggregate of the
Dilution Ratios calculated among all Origination Agreements.
"Programme Receivables" means the aggregate Dollar Equivalent of Receivables (as
that term is defined in each Origination Agreement), aggregated among all
Origination Agreements.
"Programme Sellers" means, collectively, all of the Affiliates of Exide Europe
designated as Sellers or Originators pursuant to all of the Origination
Agreements.
"Proportionate Share" equals, at any time, in respect of the Seller or any party
comprising the Seller, the result of the formula: the Dollar Equivalent of all
Purchased Receivables from the Seller (or such party, as applicable), divided by
the Dollar Equivalent of all Purchased Receivables and Subrogated Receivables
(as these terms are used in each applicable Origination Agreement), aggregated
among all Origination Agreements.
"Purchase" means a purchase or purported purchase by the Buyer of a Group of
Receivables from the Seller pursuant to this Agreement.
"Purchase Date" means the Effective Date and each Settlement Date after the
Effective Date occurring before the Termination Date on which there is a
Purchase of Receivables by the Buyer as contemplated by this Agreement.
"Purchase Price" means, in respect of a Group of Receivables, an amount in
Sterling equal to the Outstanding Balance of the Group of Receivables as at the
proposed Purchase Date less the Discount, as calculated by the Operating Agent.
"Purchased Receivable" means a Receivable (whether or not an Eligible
Receivable) purchased or purported to be purchased by the Buyer under this
Agreement.
"Rating Agencies" means Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies Inc. and Xxxxx'x Investors Service, Inc.
"Receivable" means the indebtedness of any Account Debtor under a Contract
arising from a sale or contract of sale of merchandise or provision or contract
of provision of services by the Seller and representing part or all of the sale
price of such merchandise or services and includes the right to
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payment of any interest or finance charges and other obligations of such Account
Debtor with respect thereto.
"Related Security" means with respect to any Receivable all of the Seller's
interest in any goods and work in progress (including returned or repossessed
goods and work in progress) relating to the sale creating such Receivable, and
all insurance policies, security, deposits, guarantees, indemnities, letters of
credit, bills of exchange, cheques, other negotiable instruments, warranties,
retention of title and other agreements and arrangements not created or made by
the Buyer supporting or securing payment of such Receivable.
"Relevant Date" means the earlier of:
(1) the date on which all Capital of all Groups of Receivables is reduced to
zero; and
(2) the date on which the Outstanding Balance of all Purchased Receivables is
reduced to zero.
"Relevant Documents" means this Agreement, the Trust Account Bank Mandate and
the Fees Letter.
"Reserves" means as of any date the Seller's Proportionate Share of the sum of
the Loss and Dilution Reserve, the Yield Reserve and the Foreign Currency
Reserve.
"RPA" means the Receivables Purchase Agreement dated as of the date hereof
between the Buyer, Eureka and the Operating Agent.
"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, collectively, CMP, Fulmen, Exide Dagenham and BIG and any
Additional Seller made party to this Agreement in accordance with Clause 19(D),
provided that, for the avoidance of doubt, all covenants, indemnities,
representations and warranties given or made by any party comprising the Seller
pursuant to this Agreement (whether in its capacity as Seller or as Collection
Agent) shall be deemed to be given or made jointly and severally by it and the
other parties comprising the Seller, and vice versa. Where the context requires,
each such party individually shall also be considered to be a "Seller".
"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.
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"Seller Non-Transaction Account" means in respect of each party comprising the
Seller, the account set opposite the relevant Seller's name in Schedule 1, under
the heading "Seller Non-Transaction Account", in each case in the name of the
appropriate Seller, established with the Collection Account Bank, or such other
account at such branch of such bank as the Seller may from time to time specify
by written notice to the Collection Account Bank with a copy to the Operating
Agent.
"Settlement Date" means initially, the Effective Date and thereafter, each
following Thursday; provided however, if such day is not a Programme Business
Day which is also a Local Business Day under the Origination Agreement for
Italy, the Settlement Date for such week shall be the next succeeding Programme
Business Day which is also a Local Business Day under the Origination Agreement
for Italy.
"Settlement Period" means any period beginning on (and including) a Settlement
Date and ending on (but excluding) the next following Settlement Date.
"Settlement Statement" means a statement, as of any Settlement Date, prepared by
the Operating Agent substantially in the form of Schedule 3 showing (amongst
other things) the amount of Receivables purchased by the Buyer during the last
Settlement Period.
"Spot Rate" means, as of any Settlement Date, the spot rate utilised for the
Currency Exchange Agreement as determined for such Settlement Date.
"Stamp Duty" means any stamp duty, stamp duty reserve tax, registration or other
transaction or documentary tax (including without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same).
"Stamp Duty Account" means the account kept pursuant to Clause 6(D).
"Stamp Duty Reserve" as of any time means 1% of the value of the Outstanding
Balance of Purchased Receivables (or such greater or lesser amount that may be
required under then-applicable United Kingdom stamp duty legislation).
"Sterling" and the sign "POUND" each mean the lawful currency of the United
Kingdom.
"Sterling Equivalent" of any sum and at any time means the amount of Sterling
that would be purchased under the Currency Exchange Agreement at the Spot Rate
for such sum at such time.
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"Subsidiary" means:
(a) a subsidiary within the meaning of Section 736 of the Companies Xxx 0000, as
amended by Section 144 of the Companies Xxx 0000; and
(b) unless the context otherwise requires, a subsidiary undertaking within the
meaning of Section 21 of the Companies Xxx 0000.
"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.
"Syndicated Facility" means the FF 2,569,000,000 Facilities Agreement dated 30th
November 1995 between Compagnie Europeenne d'Accumulateurs S.A., Euro Exide
Corporation Limited, Exide Holding Europe and Sociedad Espanola del Acumulador
Xxxxx X.X. as the Lead Borrowers, Bankers Trust International Plc. as Lead
Arranger, Bankers Trust Company, Bank of America National Trust and Savings
Association, Bank of Montreal and Citibank International Plc. as Underwriters,
Bank of America International Limited, Bank of Montreal and Citibank
International Plc. as Co-Arrangers, Bankers Trust Company as Agent and Security
Agent and the Lenders described therein, as that agreement may be amended or
restated from time to time.
"Temporary Adjustment Account" means the sub-account held by the Buyer with
Citibank, N.A., London branch, denominated in Sterling and utilised for the
purposes set out in Clause 12(D), under the account number 00000000.
"Termination Date" means the earliest to occur of (1) the Programme Business Day
designated by the Seller as the Termination Date following 2 Programme Business
Days' notice to the Operating Agent, (2) the Termination Date under the RPA or
the PPA, (3) an Early Amortisation Event, and (4) 3 June 2002.
"Trust Account Bank Mandate" means an agreement in respect of each Collection
Account in form and substance satisfactory to the Operating Agent (as evidenced
by its execution thereof), as described in Clause 8(Q).
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"Turnover Rate" means, as of any Purchase Date, the average of each of the three
most recently ended months outstanding Net Receivable Balance under the RPA or
the PPA, as applicable, as of the last day of each such month, over the Dollar
Equivalent of the aggregate outstanding balance of Receivables sold by the
Sellers and Originators under all Origination Agreements during each such month.
"Unapplied Cash" means as of any date with respect to any Receivable, the
aggregate Collections which have not yet been reflected on the books and
records of the Originator as a reduction to the Dollar Equivalent of the
Outstanding Balance of such Receivable.
"Weighted Average Term" means the weighted average term of all Purchased
Receivables, calculated on the basis of the formula: E(original stated payment
term of each invoice x amount of such invoice) / Einvoice amount.
"Yield" will be calculated on the first Purchase Date and on each Settlement
Date thereafter on the basis of the outstanding Capital as at such dates times
the Yield Rate divided by 360 times the number of days elapsed in the relevant
Interest Period.
"Yield Rate" will be the cost of commercial paper notes issued by Eureka to fund
its purchase of Receivables, plus related dealer commissions and administration
costs (such administration costs not to exceed 0.03% of Capital per annum), plus
the cost of swapping Dollar proceeds of commercial paper into the currency of
the Purchased Receivables, determined by the Operating Agent and expressed as a
percentage of Capital. In the event Eureka shall not at any time, fund its
purchases under the RPA with the issuance of commercial paper, or if purchases
are being made under the PPA, the Yield Rate shall be the Bank Facility Rate.
"Yield Reserve" means as of any Settlement Date, the product of (1) two times
the Turnover Rate for such date and (2) the sum of (a) fifty-two times the Yield
for such date, divided by 12 (Yield calculated for this purpose using the higher
of the Yield Rate and the rate shown in paragraph (a) of the definition of "Bank
Facility Rate"); (b) the facility fee of 0.30% per annum of the Facility Limit
calculated monthly in arrears and applied on each Settlement Date; (c) the
Programme Fee as defined in the Fees Letter; and (d) the product of (i) the
Dollar Equivalent of the most recently ended month's outstanding Net Receivable
Balance aggregated among all Origination Agreements less the Dollar Equivalent
of Defaulted Receivables aggregated among all Origination Agreements and (ii)
0.75% (substitute collection agent reserve) the resulting figure divided by 12.
(C) This Agreement: Any reference to "this Agreement" or any other agreement or
document shall, unless the context otherwise requires, include this
Agreement or, as the case may be, that other agreement or document as from
time to time amended, supplemented or novated,
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and any document which amends, supplements or novates this Agreement or, as
the case may be, that other agreement or document. Any reference to Clauses
or paragraphs in this Agreement is, subject to any contrary indication, a
reference to a Clause or paragraph in this Agreement.
(D) Origination 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.
(E) Headings: Headings shall be ignored in construing this Agreement.
(F) Time: Save where the contrary is indicated, any reference in this Agreement
to a time of day (including opening and closing of business hours) shall be
construed as a reference to London time.
(G) Time of Essence: Time shall be of the essence in this Agreement and all
documents delivered pursuant to the terms of this Agreement, subject to the
prior waiver of such timing by the affected party.
2. FACILITY
In consideration of the covenants contained in this Agreement, the receipt and
sufficiency of which is hereby acknowledged, the Buyer hereby offers to commit
to purchase from the Seller on each Purchase Date falling on or after the
Effective Date, full equitable and beneficial title and ownership in and to
certain Receivables on the terms and conditions set out in this Agreement.
3. CONDITIONS PRECEDENT
(A) To Initial Purchase: The Initial Purchase is subject to the condition
precedent that the Operating Agent receive 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: Each Purchase (including the Initial Purchase) is subject
to the further following conditions precedent:
(1) 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):
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(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 directors' certificate as may be
required by the Operating Agent as to the Seller's solvency;
(c) after the proposed Purchase the Outstanding Balance of Purchased
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;
(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 Account Debtors
are resident in France, Italy, Germany, Spain, The Netherlands or
Belgium, after the proposed Purchase, Capital in respect of such
Purchased Receivables does not exceed 15% of the Capital in
respect of all Purchased Receivables; and
(g) after the proposed Purchase, Capital would not exceed the Country
Limit, and Programme Capital would not exceed the Facility Limit.
(2) On or prior to each Purchase Date the Seller shall have delivered to
the Operating Agent an Accounts Receivable Listing.
(3) On or prior to each Purchase 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 Purchase Date.
(4) The Commitment shall not have been cancelled.
(5) The Operating Agent has received such other approvals, legal opinions
or documents as the Operating Agent may reasonably request.
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(C) 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, advice from English,
Scottish or Northern Irish solicitors, and all related costs, charges, and
expenses (including without limitation reasonable legal fees, disbursements
and VAT thereon) shall be for the account of the Seller.
(D) The Commitment shall be cancelled:
(1) on the Termination Date; or
(2) if it becomes unlawful in any jurisdiction for the Buyer to give
effect to any of its obligations as contemplated by this Agreement to
fund or maintain the funding of any Purchase,
whichever shall first occur.
4. PURCHASES
(A) Making Purchases: The Seller shall, by 10:00 a.m., London time, on the
Determination Date immediately prior to each proposed Purchase Date,
deliver to the Buyer a Notice of Sale by facsimile (and shall send the
original Notice of Sale to the Operating Agent by ordinary post on the day
it is delivered by facsimile) substantially in the form of Schedule 6
("Notice of Sale") identifying (inter alia) the Purchase Date, the then
Outstanding Balance of Receivables (if any) and the Purchase Price for such
Receivables computed by the Operating Agent. The computation of the
Purchase Price by the Operating Agent shall, in the absence of manifest
error, be deemed to be conclusive.
(B) Sale: The delivery of the Notice of Sale by facsimile will constitute
notification to the Buyer of the Receivables and the Related Security,
designated pursuant to Clause 4(D), which the Buyer is to purchase for the
Purchase Price as set out in the Notice of Sale. The Buyer shall, subject
to the terms and conditions of this Agreement (including, for the avoidance
of doubt, Clause 3) pay in full the Purchase Price, which payment will
effect the transfer to the Buyer of full equitable and beneficial title and
ownership in and to those Receivables and the Related Security with respect
to those Receivables.
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(C) Purchase Price: The Buyer shall pay in full the Purchase Price on the
Purchase Date in the currency and funds specified in Clause 7(B) to the
Seller's account specified in Clause 7(C). If, however, pursuant to Clause
12(C), there is any Advance Payment outstanding then the Buyer will remit
to the Seller only that portion of the Purchase Price that exceeds the
amount of such Advance Payment and, if the amount of the Advance Payment is
equal to or greater than the Purchase Price, the Buyer shall not be
required to remit any portion of the Purchase Price to the Seller.
(D) Determination of Purchased Receivables: On or prior to each Purchase Date
in respect of which a Notice of Sale is to be delivered, the Seller will
identify the Group of Receivables to be offered for purchase by the Buyer
on such date in such format as the Operating Agent may specify.
(E) Records: On or prior to each Purchase Date in respect of which a Notice of
Sale is to be delivered, the Seller will at the Seller's expense deliver to
the Operating Agent (or as the Operating Agent may direct) the Accounts
Receivable Trial Balance generated on or in relation to such Purchase Date,
identifying the Receivables designated pursuant to Clause 4(D).
(F) Perfection: Subject to Clause 13, each of the Seller and the Buyer will
take all such steps and comply with all such formalities as may be required
to perfect or more fully to evidence or secure title to the Receivables
assigned (or purported to be assigned) pursuant to Clause 4.
(G) Delegation of Powers of Operating Agent: The Operating Agent hereby
delegates to the Seller all of its obligations under this Clause 4, which
delegation the Seller irrevocably accepts. The Seller 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.
5. COLLECTIONS AND SETTLEMENT
(A) Collection of Receivables: (1) On each day the Collection Agent shall as
described in Clause 12(B) set aside and hold in trust for the Buyer all
Collections of Purchased Receivables on such day, and (2) the Operating
Agent shall issue a Settlement Statement to 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:
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(1) On each Purchase Date the Buyer, unless otherwise instructed by the
Operating Agent, will set off, against its obligation to pay the
Purchase Price of the Group of Receivables to be purchased by the Buyer
on such Purchase Date, the amount (if any) of any Advance Payment
withdrawn by the Seller from the Buyer Account pursuant to Clause 12(C)
and which has not been refunded as of close of business on the
Programme Business Day immediately preceding such Purchase Date.
(2) On each Determination Date the Operating Agent shall calculate:
(a) Capital as at the forthcoming Settlement Date; and
(b) Yield and Programme Costs in respect of the Capital as at the
forthcoming Settlement Date.
(3) On each Settlement Date the Operating Agent shall cause to be paid from
the Buyer Account (without prejudice to, and subject always to, the
provisions of Clause 12(C) regarding Advance Payments):
(a) to the Buyer, Yield and Programme Costs in respect of the Interest
Period ending on that Settlement Date;
(b) to the Seller, the Purchase Price (if any) in respect of Purchased
Receivables to the extent the Purchase Price is not satisfied by
way of set-off pursuant to Clauses 5(B)(1) and 12(C);
(c) to the Seller, the Proportionate Share of all sums received by the
Buyer pursuant to Clause 5(B)(3)(c) of the RPA or the PPA, as
applicable, by way of deferred purchase price for the Purchased
Receivables; and
(d) to the Buyer, all amounts standing to the credit of the Buyer
Account after payment of the amounts set forth in (a) and (b)
above.
(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 Programme Business Day, 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.
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(2) If and to the extent that the Buyer receives funds pursuant to Clause
5(C)(2) of the RPA or the PPA, as applicable, the Operating Agent shall
cause to be paid from the Buyer Account to the Seller, the Seller's
Proportionate Share of such funds, 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 Purchased 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 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 Purchased
Receivable otherwise than with the prior consent of the Operating
Agent), the Seller will be deemed to have received on such day a
Collection of such Purchased 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 Purchased Receivable, the Seller will
be deemed to have received on such day a Collection of such Purchased
Receivable equal to its original Outstanding Balance less any
Collections previously received with respect thereto and shall credit
to the Buyer Account an amount equal to such deemed Collection by way
of indemnity.
(3) If any Purchased Receivable was not an Eligible Receivable at the time
of Purchase, on the date such fact becomes known to the Seller, the
Seller will be deemed to have received a Collection of such Purchased
Receivable equal to its original Outstanding Balance less any
Collections previously received with respect thereto and shall credit
to the Buyer Account an amount equal to such deemed collection by way
of indemnity.
(4) If the Seller is not acting as the Collection Agent, it will promptly
pay to the Collection Agent the amount of any deemed Collection
pursuant to Clause 5(D)(1), (2) or (3) above by way of indemnity.
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(5) If, following any payment in respect of a deemed Collection of a
Purchased Receivable pursuant to Clause 5(D)(1), (2), (3) or (4) above,
the Buyer shall receive any further Collections in respect of such
Purchased Receivable, the Buyer shall (provided no Early Amortisation
Event has 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 an Account Debtor in respect of
any indebtedness owed by it to the Seller and any credits, defective,
rejected, repossessed or returned goods or other non cash items of an
Account Debtor will, except as otherwise specified in writing by such
Account Debtor or otherwise required by contract or law and unless otherwise
instructed by the Operating Agent, be applied as a Collection of Purchased
Receivables of such 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 Account Debtor.
6. FEES, COSTS AND STAMP DUTY
(A) Collection Agent 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 Collection Agent, the Seller will pay the Buyer, upon its
demand, a collection fee as determined by the Operating Agent, not exceeding
110% of the fees, costs and expenses, plus value added tax (if applicable),
of the substitute Collection Agent incurred 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 this Agreement
and the other documents to be delivered pursuant to this Agreement or in
connection therewith, such costs and expenses to include, without
limitation, the reasonable fees and out-of-pocket expenses of legal advisers
(plus VAT thereon) to the Buyer and the Operating Agent with respect thereto
and with respect to advising the Buyer and the Operating Agent as to their
respective rights and remedies under this Agreement, and all costs and
expenses, if any (including legal fees and expenses plus VAT thereon), in
connection with the enforcement of this Agreement, the other documents to be
delivered pursuant to this Agreement or in connection therewith and the
Purchased Receivables. The Buyer and the Operating Agent agree to take
reasonable steps, consistent with the protection of their respective
interests under this Agreement, to mitigate their costs and expenses in
connection with the enforcement of this Agreement, the other documents to be
delivered pursuant to this Agreement and the Purchased Receivables.
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(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 this Agreement or the purchase, assignment or reassignment of Receivables
under or pursuant to this Agreement, or the other documents to be delivered
under this Agreement or in any way connected with any transaction
contemplated by this Agreement. 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) Stamp Duty Reserve: As of each Settlement Date, the Buyer shall ensure that
an amount equal to the Stamp Duty Reserve is on deposit in the sub-account
with Citibank, N.A., London branch, denominated in Sterling and utilised for
such purpose under the account number 00000000 (the "Stamp Duty Account").
The Buyer covenants that it shall hold the Stamp Duty Account upon trust for
itself and the Operating Agent as beneficiaries absolutely, and that funds
standing to the credit of the Stamp Duty Account may only be used to pay
applicable stamp duty in the United Kingdom in the circumstances described
in Clauses 6(E) and (F) or to adjust the amount standing to the credit of
the Stamp Duty Account to reflect the required level of the Stamp Duty
Reserve as of each Settlement Date.
(E) Liability for Stamp Duty: The Seller agrees with the Buyer and the Operating
Agent that if the Seller (or any Affiliate) causes executed originals or
counterparts of any of the Custody Documents to be brought into the United
Kingdom, or executed originals or counterparts of any of the Custody
Documents are brought into the United Kingdom in any of the circumstances
contemplated in Clause 6(F), the Seller will pay and hold itself responsible
for and will seek no indemnity from the Buyer or the Operating Agent in
respect of Stamp Duty, provided always that the Seller shall not pay or be
responsible for any penalty or interest on late presentation arising from
any failure on the part of the Buyer or the Operating Agent to present any
executed original or counterpart of any Custody Document for stamping within
30 days after it has first been brought into the United Kingdom. Each of the
parties to this Agreement agrees that, except to the extent that the Seller
is liable to pay Stamp Duty in accordance with the foregoing, the liability
to pay Stamp Duty in respect of a Custody Document shall be borne by the
party which brings, or causes the bringing of, the executed original or
counterpart of the relevant Custody Document into the United Kingdom.
(F) Documents not to be brought into United Kingdom: Each of the Buyer and the
Operating Agent undertakes that it shall not at any time cause or permit
executed originals or counterparts of any of the Custody Documents to be
brought into the United Kingdom, except in accordance with the provisions of
this Clause 6(F). Nothing in this Agreement shall in any way inhibit or
restrict the right of the Seller to bring any executed original or
counterpart of
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any Custody Document into the United Kingdom at any time. Notwithstanding
any other provision of this Agreement, the Buyer and the Operating Agent
shall be entitled at any time to cause or permit an executed original or
counterpart of any of the Custody Documents to be brought into the United
Kingdom:
(1) if it is required to do so for the purposes of any judicial,
arbitration, regulatory or administrative proceedings in the United
Kingdom involving marters which are the subject of the relevant Custody
Document, or if, in its reasonable opinion, it is necessary to produce
the same as evidence in any of such proceedings and either:
(a) the judge, arbitrator or other person responsible for the
determination of such proceedings has ruled that an executed
original or counterpart of any of the Custody Documents must be
brought into the United Kingdom (provided that if an appeal
against the ruling is permissible and the Seller so requests, and
on the condition that the Seller indemnifies either the Buyer or
the Operating Agent, as the case may be, to its respective
satisfaction on an after-tax basis for all costs involved in such
an appeal, the Buyer or the Operating Agent, as the case may be,
will pursue such an appeal pending which neither the Buyer nor the
Operating Agent, as the case may be, will cause an executed
original or counterpart of any of the Custody Documents to be
brought into the United Kingdom); or
(b) the rules governing the conduct of such proceedings provide that a
certified unstamped copy of the relevant Custody Document, or any
other form of evidence of the matters which are subject of such
proceedings cannot be produced as adequate evidence of the
purposes of such proceedings; or
(2) if it is required to do so for the purpose of the determination by any
tax authority or court or tribunal or its liability to taxation (other
than Stamp Duty); or
(3) if as a result of a change in applicable law or the interpretation of
such law by any court or tribunal or a change in the published practice
of any governmental authority, or in any published extra-statutory
concession, an executed original or counterpart of any of the Custody
Documents is required to be brought in to the United Kingdom or a
liability to Stamp Duty in respect thereof shall otherwise arise; or
(4) if it is at any time required by any law or the published practice of
any governmental authority, central bank, regulatory authority,
taxation authority or comparable authority; or
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(5) on the occurrence of an Early Amortisation Event,
provided however that on the occurrence of any of the events set out in
paragraphs 6(F)(1), (2) or (3) above, any relevant party, as the case may
be, shall notify the Seller and the other parties hereto forthwith giving
reasonable details of the relevant event, and shall to the extent that such
action does not materially prejudice its business or tax affairs or the
business or tax affairs of the Operating Agent and/or Eureka and/or the
Liquidity Banks, use reasonable endeavours to resist the relevant
requirement, failing which and after having used such reasonable endeavours
it shall not cause or permit such counterpart or executed original to be
brought into the United Kingdom until the expiry of five Local Business Days
after such notification to the Seller and the other parties hereto, unless
required to do so within such time. The Seller shall provide an indemnity,
on an after-tax basis, for reasonable costs or expenses incurred by either
the Buyer or the Operating Agent in resisting or determining whether it can
resist any of the events set out in paragraphs 6(F)(1), (2) and (3) above.
(G) Default Interest: The Seller shall pay to the Operating Agent or, as the
case may be, the Buyer interest (as well after as before judgment) on all
amounts not paid or repaid when due under this Agreement at 2% per annum
above the Base Rate payable on demand of the Operating Agent.
(H) Computations: All computations of interest and fees shall be made on the
basis of a year of 360 days for any currency other than Sterling and 365
days in the case of Sterling for the actual number of days (including the
first but excluding the last day) elapsed.
(I) 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
Collection Agent 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.
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(B) Currency: All amounts payable by the Seller under this Agreement to the
Operating Agent for its own account or for the account of the Buyer shall be
paid in Sterling. The Purchase Price amounts payable by the Buyer under this
Agreement shall be paid in Sterling.
(C) Accounts: Any amounts payable under this Agreement shall be remitted to the
following accounts:
(1) if to the Seller, the appropriate Seller Non-Transaction Account;
(2) if to the Buyer (otherwise than to the Buyer Account), Account No.
0000000 (Sort Code 18-50-08) with Citibank, 000 Xxxxxx, Xxxxxx XX0X
0XX; and
(3) if to the Operating Agent for its own account, Account No. 83267 (Sort
Code 18-50-08) with Citibank, 000 Xxxxxx, Xxxxxx XX0X 0XX.
(D) Grossing Up: To the fullest extent permitted by law, the Seller will make
all payments under this Agreement regardless of any defence or counterclaim.
Further, if the Seller, in its individual capacity or as Collection Agent,
is compelled by law to make any deductions or withholdings from any payments
pursuant to this Agreement, including, without limitation, payments in
respect of Receivables or Collections, 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 Collection Agent, 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 Collection Agent under this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER
Each Seller represents and warrants, as of the Effective Date, as follows:
(A) Incorporation: Each Seller and Exide Europe is a company duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation or organisation.
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(B) Seller Power and Authority: Each Seller has full power and authority to
effect, and has taken all necessary action to authorise, the execution,
delivery and performance by it of this Agreement and all other
instruments and documents to be delivered under this Agreement, and the
transactions contemplated by this Agreement.
(C) Exide Europe Power and Authority: Exide Europe has full power and
authority to effect, and has taken all necessary action to authorise,
the execution, delivery and performance by it of the Letter of
Undertaking and all other instruments or documents to be delivered
under the Letter of Undertaking, and the transactions contemplated by
the Letter of Undertaking.
(D) Non-Violation: The execution, delivery and performance by each Seller
of this Agreement and all other instruments and documents to be
delivered pursuant to this Agreement and all transactions contemplated
by this Agreement, and the execution, delivery and performance by Exide
Europe of the Letter of Undertaking and all transactions contemplated
thereby:
(1) do not contravene (a) any Seller's or Exide Europe's memorandum or
articles of association (or analogous constitutive documents), (b)
any law, rule or regulation applicable to any Seller or Exide
Europe, (c) any material contractual restriction contained in any
agreement or instrument binding on or affecting any party
comprising 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, or any of
the Seller's assets or Exide Europe or Exide Europe's assets;
(2) do not result in or require the creation of any lien, security
interest or other charge or encumbrance upon or with respect to
any of the Seller's or Exide Europe's assets or undertaking; and
(3) will not constitute a breach of, nor give rise to any actual or
potential event of default under, any Debt of any member of the
Exide Group, or under any document relating to such Debt.
(E) Consents: No consent, authorisation, approval, notice or filing is
required (or, if required, which has not been obtained on a timely
basis) for the due execution, delivery or performance by each Seller of
this Agreement or any other document to be delivered in connection with
this Agreement or for the transactions contemplated by this Agreement
or for the due execution, delivery or performance by Exide
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Europe of the Letter of Undertaking or any other document to be
delivered in connection with the Letter of Undertaking or for the
transactions contemplated by the Letter of Undertaking.
(F) Obligations Binding: (1) This Agreement constitutes the legal, valid,
binding and enforceable obligation of each Seller; and (2) the Letter
of Undertaking constitutes the legal, valid, binding and enforceable
obligation of Exide Europe.
(G) Accounts: The most recent audited annual accounts of each Seller and
Exide Europe, copies of which have been furnished to the Operating
Agent, present a true and fair view of the financial condition of the
Seller and its consolidated Subsidiaries (if any) or Exide Europe, as
applicable, as at that date and the results of the operations of the
Seller and those subsidiaries, or Exide Europe, as applicable, for the
period ended on that date, all in accordance with generally accepted
accounting principles consistently applied.
(H) No Material Adverse Change to Seller: Since (i) 31 March 1996 in the
case of BIG, CMP and Exide Dagenham, and (ii) 31 December 1994 in the
case of Fulmen, being the date of the Seller's most recent audited
annual accounts, 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 this Agreement.
(I) No Material Adverse Change to Exide Group: Since 31 March 1996, being
the date of the Exide Group's most recent audited consolidated annual
accounts, there has been no change in the business or financial
condition of the Group which is reasonably likely to materially
adversely affect the ability of Exide Europe to perform its obligations
under the Letter of Undertaking.
(J) No Litigation: There are no actions, suits or proceedings current or
pending, or to the knowledge of the Seller threatened, against or
affecting any Seller or their 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 any Seller and their Subsidiaries taken as a whole or
Exide Europe, or materially adversely affect the ability of the Seller
to perform its obligations under this Agreement or the ability of Exide
Europe to perform its obligations under the Letter of Undertaking.
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(K) No Default: No Seller nor any of their Affiliates, nor Exide Europe,
are 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 any Seller or any of their Affiliates, or Exide Europe,
and would not materially adversely affect the ability of the Seller to
perform its obligations under this Agreement or the ability of Exide
Europe to perform its obligations under the Letter of Undertaking.
(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 except as provided in this Agreement (for the purpose
of this representation and warranty in respect of BIG, the Seller is
relying upon the consent letter referred to in paragraph (n) of
Schedule 5), and upon each Purchase the Buyer will acquire full
equitable and beneficial title and ownership to and of each Purchased
Receivable, the Collections and the Related Security then existing or
thereafter arising free and clear of any Adverse Claim except as
provided in this Agreement.
(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 its individual capacity or as Collection Agent) 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).
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(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).
(Q) Location of Bank Accounts: The bank accounts to which the Seller has
directed the Account Debtors to remit payments for the Receivables are
the Collection Accounts (or 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 a Trust Account Bank Mandate has been (or
will be as of the Effective Date) duly executed by the Seller (in its
individual capacity and/or as Collection Agent) and delivered to the
Operating Agent) and in respect of which the relevant xxxx has
acknowledged the Trust Commencement (as that term is defined in the
Trust Account Bank Mandate) and has agreed, in relation to the Buyer
Entitlement, not to exercise any right of set-off, net-off, combination
or consolidation of accounts or counterclaim whatsoever.
(R) No Winding-Up: No step has been taken or is intended by any Seller or,
so far as it is aware, by any other Person for any Seller's winding-up,
liquidation, dissolution, administration, merger or consolidation or
for the appointment of a receiver or administrator of the Seller or all
or any of its assets.
(S) No Breach: There has been no breach by any Seller of any of its
obligations under the Relevant Documents or by Exide Europe of any of
its obligations under the Letter of Undertaking.
(T) Eligibility: Each Receivable the subject of a Notice of Sale is an
Eligible Receivable as at the time of Purchase.
Each Seller further represents and warrants that the representations and
warranties in this Clause 8 shall be true and correct on and as of each
Purchase Date as though made on each such date and by reference to the then-
existing circumstances.
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, and would not be reasonably likely
to 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 the Seller having
knowledge of such matters and co-operate in the reconstruction of the
Accounts Receivable Trial Balance pursuant to Clause 13(C).
(D) Maintain Records: Maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate
records in the event of their destruction), and keep and maintain, all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without
limitation, records adequate to permit the identification on each
Purchase Date of each new Purchased Receivable and the daily
identification of all Collections of and adjustments to each existing
Purchased Receivable).
(E) Perform Contracts: Timely and fully perform and comply with all
material provisions, covenants and other promises required to be
observed by it under the Contracts relating to the Purchased
Receivables.
(F) Priority: Ensure that at all times the claims against it under this
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.
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(H) Value Added Tax: Make all relevant value added tax or other applicable
tax payments in respect of supplies of goods or services pursuant to a
Contract or which otherwise relate to Purchased Receivables, and pay
all value added tax (if any) payable in respect of any value added tax
supply made, or input value added tax suffered, by the Buyer, the
Operating Agent or any of the Operating Agent's Affiliates with respect
to supplies of goods or services by the Seller pursuant to a Contract
or which otherwise relates to Purchased Receivables.
(I) Collections: If the Seller is not acting as Collection Agent, (1) give
all reasonable assistance (including the provision of information) to
any third party replacing the Seller as Collection Agent in accordance
with the provisions of this Agreement, and (2) remit any Collections on
Purchased Receivables to the Collection Agent within one Local Business
Day after the receipt or deemed receipt thereof.
(J) Bank Accounts: Pay or cause to be paid all Collections of Receivables
directly into the bank account or accounts referred to in Clause 8(Q)
or such other account(s) approved by the Operating Agent.
(K) Audit Costs: The Seller shall pay the reasonable fees and expenses for
one audit by the Operating Agent 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.
(L) 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, 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
Until the later of the Termination Date and the Relevant Date, no Seller
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: No Seller shall transfer all or substantially all
of its assets and undertaking to any person without the prior written
consent of the Operating Agent, such consent not to be unreasonably
withheld, unless such transfer would have no adverse effect on the ability
of the Seller to collect and sell Receivables as contemplated by this
Agreement.
(C) No Security Interest over Receivables: (a) The Seller shall not create or
permit to subsist any Security Interest on any of its Receivables, and (b)
If the Seller creates or permits to subsist any Security Interest on any of
its Receivables contrary to (a) above, all the obligations of the Seller
under this Agreement shall automatically and immediately be secured upon the
same assets, ranking at least pari passu with the other obligations secured
on those assets.
(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.
(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 Account Debtor or the
operation of this Agreement without the prior written consent of the
Operating Agent.
(F) Cross Indemnity: The Seller shall not amend or otherwise change the Deed of
Cross-Indemnity dated as of the date hereof between Exide Europe and the
Programme Sellers, except in respect of amendments or changes of a purely
technical or immaterial nature which do not affect either: (i) the title of
the Buyer to the Receivables assigned (or purported to be assigned) pursuant
to Clause 4 or (ii) the effectiveness of the assignment (or purported
assignment) pursuant to Clause 4.
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11. REPORTING REQUIREMENTS OF THE SELLER
Until the later of the Termination Date and the Relevant Date, the Seller
will, unless the Operating Agent otherwise consents, furnish to the
Operating Agent:
(A) Annual Accounts of Seller: As soon as available and in any event within
180 days after the end of each of 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 accounting principles,
applied on a basis consistent with that of the preceding financial
year.
(B) Annual Accounts of Exide Europe: As soon as available and in any event
within 180 days after the end of each of Exide Europe's financial
years, a copy of Exide Europe's annual accounts, prepared (as
appropriate) on a consolidated basis in conformity with generally
accepted accounting principles, applied on a basis consistent with that
of the preceding financial year, together with the report of an
internationally recognised firm of independent auditors.
(C) Other Financial Information: Upon request of the Operating Agent, such
financial information, accounts and records with respect to such Seller
or Exide Europe which are relevant to the Programme, as the Operating
Agent may from time to time reasonably request.
(D) Defaults and other Events: Forthwith on becoming aware of any of the
events described in (1), (2), (3) or (4) below or any event which, with
the giving of notice on 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 setting out details of that event and
the action which the Seller proposes to take with respect to that
event:
(1) the Seller fails to pay any principal of or premium or interest on
any Debt in excess (in the aggregate) of the Sterling 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 on 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
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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 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 (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 on a receiver, administrative receiver or
manager is appointed over any part of the assets or undertaking of the
Seller or any event analogous, to any of the foregoing occurs (except,
in the case where a petition is presented (i) the proceeding is
frivolous or vexatious and (ii) the Originator is solvent and is
contesting the proceeding in good faith);
(3) a Collection Account Event occurs; or
(4) an Early Amortisation Event occurs.
(E) Debt Service Cover Ratio: Within 45 days after the end of every Accounting
Quarter (as that term is defined under the Syndicated Facility), a report
showing the current Debt Service Cover Ratio of Exide Europe.
(F) 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 of its Affiliates,
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 am, London time, on each Summary Report Date, a Summary Report
(with, among other things, the information necessary to determine the
Default Ratio).
(G) 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 Account Debtors in respect of Purchased Receivables and the addresses of
such Account Debtors.
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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. COLLECTION AGENT, COLLECTIONS AND BUYER ACCOUNT
(A) Designation of Collection Agent: The servicing, administering and collection
of the Receivables shall be conducted by such Person (the "Collection
Agent") so designated from time to time pursuant to this Clause 12(A). Until
the Operating Agent gives notice to the Seller of a designation of a new
Collection Agent, each applicable Seller in respect of such Seller's
Receivables, is designated as, and agrees to perform the duties and
obligations of, the Collection Agent pursuant to the terms of this
Agreement. The Operating Agent may at any time after the occurrence of an
Early Amortisation Event or a Collection Account Event designate as
Collection Agent any Person (including itself) to succeed the Seller or any
successor Collection Agent, on the condition in each case that any such
Person agrees to perform the duties and obligations of the Collection Agent
pursuant to the terms of this Agreement. The Collection Agent may, with the
prior consent of the Operating Agent, subcontract with any other Person for
servicing, administering or collecting the Receivables; provided, however,
that the Collection Agent will remain liable for the performance of the
duties and obligations of the Collection Agent under this Agreement.
(B) Duties of Collection Agent: The Collection Agent:
(1) will take or cause to be taken all such actions as may be necessary or
advisable to collect each Purchased Receivable, all in accordance with
applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy and
the instructions of the Operating Agent. Each of the Seller and the
Buyer hereby appoints the Collection Agent as its agent to enforce its
respective rights and interests in and under the Purchased Receivables,
the Related Security and the Contracts;
(2) will deposit in the Collection Account for the account of the Buyer all
Collections of Purchased Receivables in accordance with this Agreement
and may, unless and until instructed otherwise by the Operating Agent
following the occurrence of an Early Amortisation Event or a Collection
Account Event, deposit in the Collection Account monies other than
Collections. Following the occurrence of a Collection Account Event, or
an Early Amortisation Event, the Collection Agent shall segregate all
cash,
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cheques and other instruments received by it from time to time constituting
Collections of Purchased Receivables as the Operating Agent may direct and
deposit in a bank account designated by the Operating Agent all such cash,
cheques and other instruments (together with the Buyer's Entitlement to the
Collection Account) as soon as practicable and in any event on the first
Local Business Day following receipt by the Collection Agent of such
Collections and will give such payment instructions and take such other
steps (whether or not contemplated by the Trust Account Bank Mandate) as the
Operating Agent may require;
(3) confirms that, in accordance with Trust Account Bank Mandate, the Collection
Account Bank has been instructed to make available to the Collection Agent
information showing amounts received on each Local Business Day and standing
to the credit of the Collection Account as at the close of business on that
day;
(4) upon receipt of the information referred to in (3) above the Collection
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 standing to the credit of the Collection Account on each
Local Business Day, the Buyer Entitlement and the Seller Entitlement
respectively, and shall direct the Collection Account Bank, prior to 12:00
noon on each Local Business Day, to transfer to the Buyer Account the Buyer
Entitlement;
(5) other than the transfers referred to in paragraph (4) above the Collection
Agent shall not, without the prior written consent of the Operating Agent,
withdraw funds from the Collection Account or direct the Collection Account
Bank to make any transfers from the Collection Account, except for
withdrawals on transfers of cleared funds standing to the credit of the
Collection Account which represent the Seller Entitlement and provided that
any such withdrawal or transfer would not cause the Collection Account to
become overdrawn;
(6) 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
Collection Agent (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;
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(7) if other than the Seller, 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;
(8) if other than the Seller, 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 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
(9) if the Operating Agent or its designee, and notwithstanding anything to
the contrary contained in this Agreement, shall have no obligation to
collect, enforce or take any other action described in this Agreement
with respect to any Receivable that is not a 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 (4) and (5) above.
(C) 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 in the event that there is an Early Amortisation Event or
a Collection Account Event, withdraw, by way of advance payment on account
of such Purchase Price as will or may be payable to the Seller on the next
following Purchase Date, any amount or amounts standing to the credit of the
Buyer Account. Any amount so withdrawn (an "Advance Payment") shall be set
off pro tanto in accordance with Clause 4(C) against the Buyer's obligation
to pay any Purchase Price payable on the next following Purchase Date and,
to the extent the amount of the Advance Payment exceeds the amount of the
Purchase Price, 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 in the event that there
is an Early Amortisation Event or a Collection Account Event. The Seller
shall not be obliged to pay interest on any Advance Payment unless and to
the extent that it is not refunded as required under this Clause. Any
overdue amounts shall bear default interest in accordance with Clause 6(G).
(D) Failure to Report: If there is a failure at any time by the Collection Agent
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
Account in respect of any Settlement Period such
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that the amounts due by the Seller and the Buyer pursuant to Clauses 4(B)
and (C) cannot be accurately determined (in the Operating Agent's reasonable
opinion), there will fall due from 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, acting
reasonably. For the purposes of this Clause 12(D), it shall be considered
reasonable for the Operating Agent to anticipate that all Collections due
during such Settlement Period were received by the Collection Agent 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 or (provided no Early
Amortisation Event has occurred) 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 Collection Agent does not last longer than
two consecutive Settlement Periods and the provisions of this Clause 12(D)
are complied with, such failure shall not by itself constitute an Early
Amortisation Event.
13. PROTECTION OF THE BUYER'S RIGHTS
(A) Notice of Sale: At any time after the occurrence of an Early Amortisation
Event, the Operating Agent may (and the Seller following the Operating
Agent's request shall) notify the 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 Account Debtors of Purchased Receivables, or any
of them, that payment of all amounts payable under any such Purchased
Receivable be made directly to the Operating Agent or its designee.
(B) Legal Assignment: The Seller shall, if requested by the Operating Agent
after the occurrence of an Early Amortisation Event, forthwith execute a
legal assignment to the Buyer or the Operating Agent or as the Operating
Agent may direct (as determined by the Operating Agent) in such form as the
Operating Agent requires of all or any of the Purchased Receivables and the
Related Security and the full benefit thereof and will, if so required, give
notice thereof to the relevant Account Debtor.
(C) Reconstruction of Accounts Receivable Trial Balance: If at any time the
Seller does not (i) generate an Accounts Receivable Trial Balance in
relation to any Purchase Date (whether or not it is obliged to do so) or
(ii) provide the information to Exide Europe enumerated in Clause 9(L), the
Operating Agent will have the right to reconstruct that Accounts Receivable
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Trial Balance or such information so that a determination of the Purchased
Receivables can be made, and such reconstruction will be conclusive (in the
absence of manifest error) for the purposes of determining Purchased
Receivables.
(D) Operating Agent's Right to Perform: If the Originator fails to perform any
of its agreements or obligations under this Agreement, the Operating Agent
may (but shall not be required to) itself perform, or cause performance of,
such agreement or obligation.
(E) Power of Attorney: Without prejudice to the provisions of Clauses 13(A) to
(D), each Originator 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, Eureka and/or the Liquidity Banks and/or the
Operating Agent 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 agreement or
obligation of the Originator under or in connection with this Agreement
and/or under the Trust Account Bank Mandate(s), and to exercise all other
remedies of the Originator 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. The power of attorney hereby granted is given
by way of security, is coupled with an interest, and is irrevocable and will
extend to and be binding upon the successors and assigns of the Originator.
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, Eureka nor
the Operating Agent will have any obligation or liability with respect
to any Purchased Receivables or related Contracts, nor will the Buyer,
Eureka or the Operating Agent be obliged to perform any of the
obligations of the Seller thereunder.
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(C) Trust: Until the Operating Agent requests otherwise, the Seller will hold in
trust for the sole benefit of the Buyer the Contracts and other documentary
items relating to the uncollected Purchased Receivables at its address
specified in this 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 trust for both the Buyer and the
Seller to the extent of the respective rights of the Buyer and the Seller
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 following an Early Amortisation Event, 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 xxxx 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 (except in so
far as perfection may entail notifying the Account Debtors of the Buyer's
ownership of the Purchased Receivables and the Collections of the Purchased
Receivables, which shall only be undertaken in accordance with Clause 13(A)
after an Early Amortisation Event), protect or more fully evidence the
Buyer's ownership interest in the Purchased Receivables, the Collections and
the Related Security and pending such time will keep an up to date record of
all Purchased Receivables.
(E) Third Party Collection Agent: At any time following the designation of a
Collection Agent other than the Seller:
(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
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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.
(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 and trustee of the Buyer, and promptly remit it
to the Buyer and, until so remitted, will hold in trust for the Buyer
any dividend received or value added tax recovered by the Seller in
respect thereof (and any such dividend or 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, 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.
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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 Eureka. 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: The Seller agrees to indemnify the Buyer, the
Operating Agent and their respective Affiliates and the Collection
Agent 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 under or in connection with this Agreement, or
any other information or report delivered by the Seller or the
Collection Agent 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 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 Account Debtor) of the 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
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, as Collection Agent or otherwise, to
perform its duties or obligations in accordance with the
provisions of this Agreement;
(6) the Buyer, at the request or with the approval of the Seller,
contracting for or arranging foreign exchange transactions
and/or funding in connection with any anticipated Purchase and
such Purchase does not in fact take place as a result of the
Seller not delivering a Notice of Sale, the operation of Clause
3(B) or any other provision of this Agreement, or a sale of
Receivables not being effected in relation to a Notice of Sale
by reason of any event described in Clause 11(D)(l), (2), (3)
and (4) or any breach by the Seller (in whatever capacity) 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 transfer of an ownership interest in any Receivable other
than an Eligible Receivable (to the extent that such amounts
have not already been recovered by the applicable indemnified
party pursuant to Clause 5(D)).
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) Increased Costs: If the Operating Agent determines that compliance with
any law or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the force of
law) coming into force after the Effective Date affects or would affect
the amount of capital required or expected to be maintained by the
Buyer, the
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Operating Agent, Citibank or any Person controlling the Buyer, the
Operating Agent or Citibank, and the Operating Agent determines that
the amount of such capital is increased by or based upon the existence
of the Buyer's agreement, in its discretion, to make or maintain
purchases under or pursuant to this Agreement and other similar
agreements or facilities (or any agreement entered into in accordance
with Clause 19(C)), or if the Operating Agent reasonably determines
that any amount is to be paid for liquidity agreements by the Buyer on
account of capital required or expected to be maintained by the
provider thereof, then, upon written demand by the Operating Agent, the
Seller shall immediately pay to the Operating Agent for the account of
the Buyer or Citibank or, as the case may be, for its own account from
to time, additional amounts as specified by the Operating Agent,
sufficient to compensate, in light of such circumstances, to the extent
that the Operating Agent reasonably determines such increase in capital
or, as the case may be, such amount to be allocable to the existence
of the Buyer's agreement as referred to above. A certificate as to such
amount submitted to the Seller by the Operating Agent shall, in the
absence of manifest error, be conclusive and binding for all purposes.
(D) Increased Costs in Respect of Taxation: If the Operating Agent
determines that as a result of any change in or in the interpretation
of or of the introduction of any law, regulation or regulatory
requirement relating to taxation coming into force after the Effective
Date, or as a result of any act or omission of the Seller, any of the
Buyer, the Operating Agent, Citibank or any Person controlling the
Buyer, Citibank or the Operating Agent, incurs or will incur an
increased cost in respect of purchase or agreements to purchase made
under or pursuant to this Agreement (or any agreement entered into
pursuant to Clause 19(C)) other than an increased cost arising solely
as a result of a change in the rate of taxation on the overall net
income of the relevant indemnified party, the Seller shall immediately
pay to the Operating Agent for the account of the Buyer or Citibank or,
as the case may be, for its own account from time to time, additional
amounts as specified by the Operating Agent, equal to such cost. A
certificate as to such amount submitted to the Seller by the Operating
Agent shall, in the absence of manifest error, be conclusive and
binding for all purposes.
(E) Judgment Currency: Each reference in this Agreement to a specific
currency is of the essence. The obligation of the Seller (individually,
or as the Collection Agent) 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, 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
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the specified currency originally due to the Operating Agent or the
Buyer, the Seller 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.
(F) Payment: Any amounts subject to the indemnification provisions of
Clause 15(B), (C), (D) or (E) shall be paid by the Seller to the
Operating Agent within two Programme Business Days following the
Operating Agent's demand therefor.
(G) After Tax Amount: In the event that any taxing authority seeks to
charge to tax any sum paid to the Buyer or the Operating Agent or any
of their respective Affiliates as a result of the indemnities or other
obligations contained herein, 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 and the Operating Agent with respect to an
amendment, or (2) the Seller, the Buyer or the Operating Agent, as the
case may be, with respect to a waiver or consent by it, and then such
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
(B) Entire Agreement: This Agreement contains a final and complete
integration of all prior expressions by the parties with respect to the
subject matter of this Agreement and constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement,
superseding all prior oral or written understandings.
17. NOTICES
All notices and other communications provided for under this Agreement
shall, unless otherwise stated in this Agreement, be in writing in the
English language (including telex and fax communication) and mailed
(first class, postage paid) or delivered to each party at its address
set out under its name on the execution pages of this Agreement or at
such other telex or fax number or address as may be designated by such
party in a written notice to the other parties. All such notices and
communications will be effective, (i) in the case of written notice,
five days after being deposited in the post, or (ii) in the case of
notice by telex, when telexed against receipt of answer back, or (iii)
in the case of notice by fax, at the time of
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transmission unless served on a day which is not a Local Business Day
or after 500 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 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 by the Seller at any time
after the Seller is in default of its obligations under this Agreement
or an Early Amortisation Event has occurred, and to set off and apply,
and/or to instruct Citibank or any of Citibank's Affiliates to set off
and apply, any and all deposits at any time held and other indebtedness
at any time owing (whether general or special, time or demand,
provisional or final and in whatever currency) by the Buyer, the
Operating Agent, Citibank or, as the case may be, any such Affiliate to
or for the credit or the account of the Seller against any and all of
the obligations of the Seller (as such, as Collection Agent, or
otherwise), 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 and its successors and permitted
assignees in accordance with Clause 19(B); (2) the Buyer and also in
relation to the benefit, but not the burden of this 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", "Buyer" and
"Operating Agent" shall be construed accordingly).
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(B) The Seller: No Seller may assign any of its rights, benefits or
interest in or under this Agreement except with the prior consent of
the Operating Agent.
(C) The Buyer: The Buyer may grant or assign all or part of any Purchased
Receivable (or any participation or interest, whether proprietary or
contractual, in or in respect of all of any part of any Purchased
Receivable) and/or all or any of its rights, benefits and interest in
or under this Agreement (1) as provided in this Agreement, (2) to
Eureka or any Affiliate of Eureka or any vehicle managed by Eureka or
an Affiliate of Eureka (3) to Citibank or any Affiliate of Citibank or
any vehicle managed by Citibank or an Affiliate of Citibank, or (4)
(after first offering to make such grant or assignment on substantially
similar terms to the Seller, and the Seller not accepting such offer
within 10 Programme Business Days of the date of the offer) to any
other Person which engages in the business of purchasing or accepting
grants or assignments of, or making loans in respect of, accounts
receivable or other debts or intangibles or participations or
interests, whether proprietary or contractual, therein or in respect
thereof, and has entered into an agreement with the Buyer. Any such
grant or assignment as referred to in (2), (3) and (4) above shall be
upon such terms and conditions as the parties thereto may mutually
agree. Upon the assignment of all or part of any Purchased Receivable,
rights, benefits and/or interests from an assignor as described above,
the respective assignee receiving such assignment shall have all the
rights of such assignor hereunder with respect to such Purchased
Receivable (or part thereof), rights, benefits and/or interests. An
assignor of any Purchased Receivable (or part thereof), rights,
benefits and/or interests under this Agreement will provide notice to
the Seller of any such assignment, unless notice is waived by the
Seller.
(D) Additional Sellers: The Operating Agent may, in its sole and absolute
discretion, at the request of Exide Europe, admit either or both of
DETA UK Limited and/or FRIWO Batteries Limited 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
- 54 -
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 a "Seller".
20. 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 Capital
of all Groups of Receivables has been reduced to zero and all Yield,
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 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.
The Operating Agent will notify the Rating Agencies promptly upon the
occurrence of:
(A) the Termination Date; and/or
(B) any material amendment to this Agreement.
21. NO PROCEEDINGS
(A) Buyer: The Seller and the Operating Agent each hereby agree that they
will not institute against the Buyer any bankruptcy, insolvency or
similar proceeding so long as any commercial paper issued by Eureka or
any of its Affiliates is outstanding or one year plus one day has not
elapsed since the last day on which any such commercial paper was
outstanding.
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(B) Eureka: The Seller, the Buyer and the Operating Agent each hereby agree
that they will not institute against Eureka or any of its Affiliates
any bankruptcy, insolvency or similar proceeding so long as any
commercial paper issued by Eureka or any of its Affiliates is
outstanding or one year plus one day has not elapsed since the last day
on which any such commercial paper was outstanding.
22. 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.
23. CONFIDENTIALITY
Unless otherwise required by applicable law or regulation, or as
requested by any regulator or tribunal with competent jurisdiction
over, or over any business of, the relevant party, each of the parties
agrees to maintain the confidentiality of this Agreement in its
communications with third parties and otherwise.
24. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement is governed by, and shall be construed in
accordance with, the laws of England.
(B) Consent to Jurisdiction: The parties hereto hereby irrevocably and for
the benefit of each other submit to the jurisdiction of the courts of
England in any action or proceeding arising out of or relating to this
Agreement, and 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 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 or the Buyer, as
applicable, at the address designated for notices under this Agreement.
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The Seller and the Buyer agree that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing shall affect the right to serve process in any other
manner permitted by law. Each of the parties hereto which is not
incorporated in England irrevocably appoints the person specified
against its signature to accept any service of any process on its
behalf and further undertakes to the other parties hereto that it will
at all times during the continuance of this Agreement maintain the
appointment of some person in England as its agent for the service of
process and irrevocably agrees that the service of any writ, notice or
other document for the purposes of any suit, action or proceeding in
the courts of England shall be duly served upon it if delivered or sent
to the address of such appointee (or to such other address in England
as that party may notify to the other parties hereto).
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as a
Deed.
-57-
RECEIVABLES SALE AGREEMENT
dated 10 June, 1997
~
SOCIEDAD ESPANOLA DEL
ACUMULADOR TUDOR, S.A.
as Seller
EXIDE EUROPE FUNDING Ltd.
as Buyer
TUDOR COLLECTIONS LTD
as Agent
CITIBANK, NA.
as Operating Agent
Xxxxxxxx Chance
Madrid
CLAUSES PAGE NOS.
1. DEFINITIONS AND CONSTRUCTION.......................................................... 1
2. FACILITY.............................................................................. 17
3. CONDITIONS PRECEDENT.................................................................. 18
4. PURCHASES............................................................................. 19
5. COLLECTIONS AND SETTLEMENT............................................................ 20
6. FEES, COSTS AND STAMP DUTY............................................................ 22
7. PAYMENTS AND COMPUTATIONS, ETC........................................................ 23
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER.......................................... 24
9. AFFIRMATIVE COVENANTS OF THE SELLER................................................... 27
10. NEGATIVE COVENANTS OF THE SELLER...................................................... 29
11. REPORTING REQUIREMENTS OF THE SELLER.................................................. 30
12. COLLECTION AGENT, COLLECTION AND AGENT ACCOUNT........................................ 32
13. PROTECTION OF THE BUYER'S RIGHTS...................................................... 34
14. RESPONSIBILITIES OF THE SELLER........................................................ 35
15. AGENCY AND INDEMNITIES................................................................ 37
16. AMENDMENTS, ETC. ..................................................................... 40
17. NOTICES............................................................................... 40
18. NO WAIVER: REMEDIES................................................................... 40
19. BINDING EFFECT: ASSIGNABILITY......................................................... 41
20. TERMINATION........................................................................... 42
21. NO PROCEEDINGS........................................................................ 42
22. EXECUTION IN COUNTERPARTS: SEVERABILITY............................................... 43
23. CONFIDENTIALITY....................................................................... 43
24. GOVERNING LAW AND JURISDICTION........................................................ 43
SCHEDULE I..................................................................................... 45
Offices of the Seller................................................................. 45
SCHEDULE 2..................................................................................... 46
Form of Admission of Additional Seller................................................ 46
SCHEDULE 3..................................................................................... 48
Settlement Statement.................................................................. 48
SCHEDULE 4..................................................................................... 51
Form of Summary Report................................................................ 51
SCHEDULE 5..................................................................................... 54
Initial Conditions Precedent.......................................................... 54
SCHEDULE 6..................................................................................... 56
Form of Notice of Sale................................................................ 56
SCHEDULE 7..................................................................................... 57
Form of Contract...................................................................... 57
SCHEDULE 8 - Part 1............................................................................ 59
Information to be Provided to Exide Europe............................................ 59
SCHEDULE 8 - Part 2............................................................................ 60
Form of Monthly Summary............................................................... 60
SCHEDULE 9..................................................................................... 61
Form of Power of Attorney............................................................. 61
EXECUTION PAGES................................................................................ 62
THIS RECEIVABLES SALE AGREEMENT, dated 10 June, 1997, is made among:
(1) SOCIEDAD ESPANOLA DEL ACUMULADOR TUDOR, S.A. ("Tudor") (the "Seller")
(2) EXIDE EUROPE FUNDING LTD. (the "Buyer"); and
(3) CITIBANK, N.A., a United States national banking association acting
through its London branch at 000 Xxxxxx, Xxxxxx XX0X 0XX (the
"Operating Agent").
(4) TUDOR COLLECTIONS LTD. (the "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 rights, title to and
interest in such Receivables from the Seller on or after the Effective
Date; and
B. The Buyer will inter alia, under the RPA, on sell such Receivables to
Eureka Securitisation Plc. which will designate the Agent to collect in
its own name but on behalf of Eureka the amounts payable by Account
Debtors pursuant to a Contract, which has been the object of a sale and
purchase in accordance with Preliminary Statement A above, and
C. The Agent will carry out certain duties in respect of the Agent Account
as described in this Agreement.
D. 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, in particular,
Clause 4(G).
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
In this Agreement (including the Preliminary Statements):
(A) Accounting Terms: All accounting terms not specifically defined in this
Agreement shall be construed in accordance with generally accepted
accounting principles as in effect on the date hereof in Spain.
(B) Defined Terms: The following terms shall have the meanings indicated:
"Account Bank Mandate" means an agreement in respect of the Agent Account in
form and substance satisfactory to the Operating Agent (as evidenced by its
execution thereof), as described in Clause 8 (Q).
"Account Debtor" means a Person obliged to make payment(s) pursuant to a
Contract.
-1-
"Accounts Receivable Listing" means a list, by invoice number, of all of the
Contracts which are shown on the Seller's general ledger in which payment
obligations or other are outstanding at the time the list is compiled 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 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 Purchased Receivables have been reduced by virtue of any prompt payment
discounts, accruals for volume rebates, warranty claims by the applicable
Account Debtor(s), and other credit notes (including, without limitation, credit
notes issued to Account Debtors as a result of disputes, claims and invoicing
errors by the Seller).
"Advance Payment" means, at any time, the aggregate amount of any withdrawals
from the Agent Account made by the Seller under Clause 12(C) to the extent they
are outstanding and not repaid.
"Admission of Additional Seller" means an agreement substantially in the form
set out in Schedule 2.
"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 any other Person
controlling, controlled by or under common control with that Person and includes
a Subsidiary (as defined below in its governing law) or a Holding Company of
that Person and any other Subsidiary of that Holding Company; provided however
that, except in respect of paragraph (2) of the definition of "Eligible
Receivable" and Clause 6(A), Persons which are not part of the Exide Group
shall not be considered to be Affiliates of any Person which is part of the
Exide Group.
"Agent Account" means the account opened by Tudor Collections Ltd. with the
Agent Account Bank in the name of Tudor Collections Ltd. but in the interest and
on behalf of Eureka and the Liquidity Banks.
"Agent Account Bank" means Banesto acting through its branch at or such other
branch or bank at which the Agent Account is, with the prior written consent of
the Operating Agent, maintained from time to time.
"Agent Account Event" shall be deemed to have occurred if Exide Europe fails to
maintain a Debt Service Cover Ratio of greater than 1.10:1.00.
"Agent Fee" means a fee payable on a year basis to the Agent in respect of
maintaining and, to the extent required, operating the Agent Account.
"Approved Jurisdiction" means (i) Spain or (ii) United Kingdom, France, Italy,
Germany, The Netherlands or Belgium, or (iii) another jurisdiction in respect of
which the Seller has obtained as security from the applicable Account Debtor a
clear and unconditional demand letter of credit
-2-
(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 (which assignment shall
include full notice to the applicable bank issuing the letter of credit),
requiring payment to be made directly to the Operating Agent.
"Available Collections" means, at any time, an amount equal to all Collections
credited to the Agent Account in respect of Purchased Receivables less all
accrued Yield and Programme Costs (whether or not incurred or paid by the Buyer)
together with any other amounts owing to the Buyer, the Operating Agent or the
Agent under this Agreement.
"Banesto" means Banco Espanol de Credito, S.A., a credit entity incorporated and
organised under the laws of Spain acting for the purposes of this Agreement
through its branch at Xxxxx xx xx Xxxxxxxxxx 000, 00000 Xxxxxx.
"Bank Facility Rate" means either: (a) in the event that either Eureka shall not
at any time, fund its purchase under the RPA with the issuance of commercial
paper, or purchases are being made under the PPA, due solely to an Early
Amortisation Event, a per annum rate equal to Dollar LIBOR plus 1.75% and
applicable reserve asset costs for a five year facility (as certified by the
Operating Agent), or (b) in the event that Eureka shall not at any time fund its
purchase under the RPA with the issuance of commercial paper or purchases are
being made under the PPA, for any reason other than due to an Early Amortisation
Event, a per annum rate equal to Dollar LIBOR plus 0.125% and applicable reserve
asset costs for a five year facility (as certified by the Operating Agent).
"Base Rate" means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, New
York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there is no nearest
1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2 of 1% per annum,
plus (ii) the rate obtained by dividing (A) the latest three-week moving
average of secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States money
market banks, such three-week moving average (adjusted to the basis of a
year of 360 days) being determined weekly on each Monday (or, if such
day is not a Programme Business Day, on the next succeeding Programme
Business Day) for the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York or, if
such publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank from three New York
certificate of deposit dealers of recognised standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the
daily percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not limited
to, any emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or including
(among other liabilities) three
-3-
month Dollar non-personal time deposits in the United States, plus
(iii) the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits of Citibank
in the United States; and
(c) 1/2 of one per cent per annum above the Federal Funds Rate.
"Buyer Entitlement" means, at any time, in respect of the total amount standing
to the credit of the Agent Account, the portion thereof attributable to or
representing Collections together with interest credited by on the Agent Account
to such portion by the Agent Account Bank.
"Capital" equals, at any time, the Peseta Equivalent of the Seller'
Proportionate Share of Programme Capital as defined and calculated pursuant to
the RPA.
"Citibank" means Citibank, N.A., a national banking association under the laws
of the United States of America.
"Collection Agent" means at any time the Person then authorised pursuant to this
Agreement to service, administer and collect Purchased Receivables.
"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.
"Commitment" means the commitment of the Buyer under Clause 2 hereof.
"Concentration Amount" means as of any date, with respect to each Account
Debtor, the product of (a) the Concentration Limit applicable to such Account
Debtor and (b) the Dollar Equivalent of the Outstanding Balance of Purchased
Receivables aggregated among all Origination Agreements.
"Concentration Limit" means, in relation to the aggregate Receivables for each
Account Debtor: (a) for any single Account Debtor rated at least A-l or P-1 or
its equivalent by the Rating Agencies, 17%; (b) for any single Account Debtor
rated A-2 or P-2 or its equivalent by the Rating Agencies, 8.5%; (c) for any
single Account Debtor rated A-3 or P-3 or its equivalent by the Rating Agencies,
5.66%; (d) for any single Account Debtor rated below A-3 or P-3 or not rated on
its short term debt, 3.4% (to the extent an Account Debtor does not have a short
term rating but has an actual or implied senior long-term debt rating, the
applicable percentage will be determined based on equivalent senior long-term
debt ratings (as determined by the Operating Agent) for the short term ratings
specified above).
"Contract" means a written agreement between the Seller and an Account Debtor
pursuant to which the 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.
"Country Limit" means the Peseta Equivalent of $66,000,000.
-4-
"Credit and Collection Policy" means the Seller's policies, practices and
procedures relating to Contracts and Receivables, in form and context
satisfactory to the Operating Agent in accordance with paragraph (i) of Schedule
5 as modified from time to time with the consent of the Operating Agent.
"Currency Exchange Agreement" means, as of any time, the Currency Exchange
Agreement (as that term is defined in the RPA or the PPA, as applicable) that
may be entered into by the Buyer from time to time in accordance with the
provisions of the RPA or PPA, as applicable.
"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.
"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 Purchased Receivables that were 91-120 days past due at the end of
each such month plus Purchased 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.
"Debt Service Cover Ratio" means the Debt Service Cover Ratio as that term is
defined and calculated pursuant to the Syndicated Facility; provided however, if
the Syndicated Facility is terminated for any reason, the definition and
calculation of Debt Service Cover Ratio for the purposes of this Agreement will
survive such termination.
"Defaulted Receivable" means a Receivable:
(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 Account Debtor has taken any action, or
suffered any event to occur, of the type described in Clause l1(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 unless the
Operating Agent has advised the Seller that an Account Debtor shall not be
considered a Designated Account Debtor.
-5-
"Determination Date" means initially, the Effective Date and thereafter, each
following Tuesday; 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 Purchased 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 Account Debtor
on the related Purchased Receivable or (iii) any set-off in respect of any claim
by the Account Debtor on the related Purchased Receivable or (b) subject to any
specific dispute, offset, counterclaim or defence whatsoever (except the
discharge in bankruptcy of the 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 Dollar Equivalent of
total sales giving rise to Programme Receivables for the Programme Seller for
the past Dilution Horizon divided by the Dollar Equivalent of the outstanding
balance of Eligible Receivables aggregated among all Origination Agreements
(whether or not they are Purchased Receivables) 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 Volatility Factor" means as of any date, a percentage equal to the
product of (i) the amount by which (A) the highest two month average Programme
Dilution Ratio during the most recently ended twelve month period exceeds (B)
the average of the Programme Dilution Ratios during such twelve month period and
(ii) (A) the highest two month average Programme Dilution Ratio during such
twelve month period divided by (B) the average of the Dilution Ratios during
such twelve month period.
"Discount" means with respect to a Group of Receivables on the relevant
Purchase Date the sum of applicable Yield and applicable Programme Costs,
applicable Accruals, applicable Reserves and the Stamp Duty Reserve.
""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 at the most recent Settlement Date.
"Dollars" and the sign "$" each mean the lawful currency of the United States of
America.
"Early Amoritsation Event" means the first to occur of:
-6-
(1) any Originator defaults in the payment on the due date of any payment
due and payable by it under or relating to this Agreement or any of the
other Relevant Documents and such default continues unremedied for a
period of five (5) Local Business Days after the earlier of the
Originator becoming aware of such default and the receipt by the
Originator of written notice by the Operating Agent requiring the same
to be remedied;
(2) subject to Clause 12 (D), any Originator defaults in the performance or
observance of any of its other covenants and obligations, or breaches
any representation or warranty (other than a breach of the
representation and warranty in Clause 8(T)), under this Agreement or
any of the other Relevant Documents, which in the reasonable opinion of
the Operating Agent is materially prejudicial to the interests of the
Buyer and/or Eureka and/or the Liquidity Banks and/or the Operating
Agent, and such default is not remedied to the satisfaction of the
Operating Agent within five Local Business Days of the earlier of the
Originator becoming aware of such default and receipt by the Originator
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 Originator satisfies its obligations pursuant to
Clause 5 (D) within such five-Local Business Day period, such default
or breach shall not be considered to be an Early Amortisation Event);
(3) an effective resolution is passed for the winding up of any Originator;
(4) any Originator 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, (which
cessation or threat thereof would, in the opinion of the Operating
Agent be likely to materially and adversely affect the Originator's
ability to perform its obligations under the Relevant Documents, or any
of them) or the Originator becomes unable to pay its debts, or is
deemed unable to pay its debts, 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 the capital stock of the Seller;
(6) Exide Europe breaches the 1:1 Debt Service Cover Ratio ;
(7) any Debt of a member of the Exide Group in excess (in the aggregate) of
the Peseta 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;
(8) any sale of Eligible Receivables under this Agreement ceases to be
considered a true sale of such Eligible Receivables;
(9) proceedings are initiated against the Originator in respect of its
liquidation, winding-up, administration, insolvency, composition,
reorganisation (other than a reorganisation the terms of which have
been approved by the Operating Agent and where the Originator is
solvent) under any applicable liquidation, administration, insolvency,
composition, reorganisation or
-7-
other similar laws save where such proceedings are being contested in
good faith by the Originator, or an administrative or other receiver,
servicer or other similar official is appointed in relation to the
Originator or in relation to the whole or any substantial part of the
undertaking or assets of the Originator or an encumbrancer shall take
possession of the whole or any substantial part of the undertaking or
assets of the Originator, 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 Originator and in
any of the foregoing cases it shall not be discharged within 15 days;
(10) if the Originator 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;
(11) for any three month period, the average Default Ratio exceeds 5 %;
(12) for any three month period, the average Dilution Ratio exceeds 23 %;
(13) for any three month period, the average Loss to Liquidation Ratio
exceeds 0,5 %;
(14) the Buyer is unable to obtain appropriate funds from its currency swap
counterparty under the Currency Exchange Agreement; or
(15) an Early Amortisation Event as that term is defined under the RPA or
the PPA, or a Programme Amortisation Event under any other Origination
Agreement.
"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 which is a Programme
Business Day.
"Eligible Receivable" means a Receivable:
(1) the Account Debtor of which is a corporate body/entity which is
(according to the address specified in the related invoice) resident of
an Approved Jurisdiction;
(2) the Account Debtor of which is a Designated Account Debtor and is not
an Affiliate of any party to this 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 at the date of Purchase;
-8-
(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 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 Dollar Equivalent of the Outstanding Balance of which, when added
to the Dollar Equivalent of the Outstanding Balance (as that term is
defined under each Origination Agreement) of all other Purchased
Receivables under all Origination Agreements 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 pesetas;
(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 by Spanish law and which, together
with such Receivable, is in full force and effect and constitutes the
legal, valid, binding and enforceable obligation of the Account Debtor,
(B) is freely assignable (or if not assignable without the consent of
the Account Debtor, such consent has been obtained to the satisfaction
of the Operating Agent) and (C) is not subject to any Adverse Claim or
dispute, set off, counterclaim or defence whatsoever;
(10) which, together with the Contract related thereto, does not contravene
in any material respect any applicable laws, rules or regulations and
with respect to which the Seller is not in violation of any such law,
rule or regulation in any material respect;
(11) which (A) satisfies all applicable requirements of the Credit and
Collection Policy and (B) complies with such other criteria and
requirements (other than those relating to the collectability of such
Receivable) as the Operating Agent may from time to time specify to the
Seller and which are based on a criterion or requirement of any one or
more of the Rating Agencies;
(12) which is not subject to withholding taxes on payments from the Account
Debtors in respect thereof;
(13) which represents all or part of the sales price in respect of the
supply of goods or services in the Approved Jurisdiction in question;
(14) the Account Debtor of which is not a government agency or local
authority unless the Account Debtor of which is considered a separate
corporate entity under applicable law that is owned, directly or
indirectly by a government agency or local authority;
(15) which has not been prepaid in whole or in part; and
(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.
-9-
"Eureka" means Eureka Securitisation, Plc, a company incorporated under the laws
of England and Wales.
"Exide Europe" means Exide Holding Europe, a French societe anonyme.
"Exide Group" means Exide Europe and all of its Subsidiaries.
"Facility Fee" means the Seller's Proportionate Share of 0.30% per annum of the
Facility Limit calculated monthly in arrears and applied on each Settlement
Date.
"Facility Limit" means $175,000,000.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Programme Business Day, for the next preceding Programme Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Programme Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognised standing selected by it.
"Fees Letter" means the Fees Agreement dated as of the date hereof, between,
inter alia, the Originator, Exide Funding, Exide Europe and the Operating Agent
in respect of the calculation and payment of certain fees.
"Final Payment Date" means the date on which payment is made by the Operating
Agent to the Seller pursuant to Clause 5(C).
"Foreign Currency Reserve" as of any Settlement Date will equal 5.5% of the Loss
and Dilution Reserve for such Settlement Date, or such other amount as
determined by the Operating Agent (and notified in writing to the Seller),
acting reasonably (upon the written request of the 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).
"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 Notice of Sale.
"Guarantee" means any guarantee, indemnity, letter of credit or any other
obligation or irrevocable offer (whatever called and of whatever nature):
(1) to pay or to purchase;
(2) to provide funds (whether by the advance of money, the purchase of or
subscription for shares or other securities, the purchase of assets,
rights or services, or otherwise) for the payment or discharge of;
(3) to indemnify against the consequences of default in the payment of; or
- 10 -
(4) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend, distribution,
capital or premium or shares, stock or other interests, or the insolvency or
financial condition of another person.
"Initial Purchase" means the first Purchase completed under this Agreement.
"Interest Period" means initially, the period commencing on the Effective Date
and ending on the following Settlement Date, and thereafter, each period
beginning on the day following the last day of the immediately preceding
Interest Period and ending on the following Settlement Date; provided however,
if such day is not a Programme Business Date, the applicable Interest Period
shall end on the next succeeding Programme Business Day.
"Letter of Undertaking" means the Letter of Undertaking given by Exide Europe
substantially in the form set out in Schedule 2 to the RPA.
"LIBOR" means the rate per month determined by the Operating Agent to be equal
to the arithmetic mean (rounded upwards, if not already such a multiple, to the
nearest whole multiple of one-sixteenth of one per cent) of the offered
quotations for Dollars which appear on page 3750 of the Telerate screen or, if
such page or service shall cease to be available, such other page or such other
service (as the case may be) as the Operating Agent may select. If less than two
quotations for the relevant rate and the relevant period are displayed and the
Operating Agent has not selected an alternative service on which two or more
such quotations are displayed "LIBOR" shall mean the Base Rate.
"Liquidity Bank" means any financial institution which may from time to time
become a party to the PPA as a Liquidity Bank thereunder.
"Local Business Day" means any day (other than a Saturday or Sunday) on which
banks and foreign exchange markets are open for business in Madrid. 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 and Dilution Reserve" as of any Settlement Date will equal:
[C + YR] x [max(DYN,FLOOR)/l -(max(DYN,FLOOR))]
where:
DYN = [(SF2 x ED) + DVF] x DHR + (SF1 x LR x LHR)]
FLOOR = CF + (ED x DHR), with a minimum amount of $12,000,000
where:
C = Programme Capital
YR = Seller's Proportionate Share of Yield Reserve
SF1 = Stress Factor One = 2.25
SF2 = Stress Factor Two = 2.25
-11-
ED = Average Programme Dilution Ratio during the preceding 12 months
DVF = Dilution Volatility Factor
DHR = Dilution Horizon Ratio
LHR = Loss Horizon Ratio
CF = Concentration Floor = 17%
LR = Loss Ratio
"Loss Horizon" equals the sum of 90 days plus the Weighted Average Term
calculated among all Origination Agreements as of the Settlement Date.
"Loss Horizon Ratio" equals the total sales giving rise to Programme Receivables
for the Programme 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 to Liquidation Ratio" as of any date, is equal to the ratio (expressed as
a percentage) of (i) the Dollar Equivalent of the aggregate outstanding balance
of all Receivables that were written off by the 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 Dollar Equivalent of the
total Diluted Receivables during such twelve month period.
"Net Receivable Balance" means at any time the excess of (i) the Dollar
Equivalent of the aggregate Outstanding Balance of Eligible Receivables (whether
or not they are Purchased Receivables) over (ii) the sum of the
Overconcentration Amount at such time, plus the aggregate Unapplied Cash at such
time.
"Notice of Sale" has the meaning assigned to that term in Clause 4(A).
"Onward Sale Fee" means 0.01 % per annum on the average outstanding Capital
calculated monthly in arrears and applied on each Settlement Date.
"Origination Agreement" means as of any time each agreement whereby a member of
the Exide 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 Spain, this Agreement, (ii) for France, the Receivables Subrogation
Agreement dated as of the date hereof between CEAC Compagnie Europeenne
d'Accumulateurs S.A. and Batterie Xxxxx as Originators, Exide Funding as
Receivables Purchaser and Citibank as Operating Agent, (iii) for United Kingdom,
the Receivables Sale Agreement dated as of the date hereof between CMP Batteries
Limited, Exide (Dagenham) Limited, Fulmen (U.K.) Limited and B.I.G. Batteries
Limited as Seller, Exide Funding as Buyer and Citibank as Operating Agent, (iv)
for Italy, the Receivables Purchase Agreement dated as of the date hereof
between Societa Industriale Accumulatori s.r.l. and Compagnia Generale
Accumulatori S.p.A. as Seller, Archimede Securitisation s.r.l. as Buyer,
Citibank (London branch) as Operating Agent and Citibank (Milan branch) as
Allocation Agent and (b) the Onward Sale Agreement dated as of the date hereof
between Archimede Securitisation s.r.l. as onward seller, Exide Funding as
onward buyer and Citibank as Operating Agent, and (v) for
-12-
Germany, the German Receivables Sale Agreement dated as of the date hereof
between Accumulatorenfabrik Sonnenschein GmbH, Exide Automotive Batterie GmbH
and Xxxxx Batterie A.G. as Sellers, Exide Funding as Buyer and Citibank as
Operating Agent.
"Originator" means Tudor, in its capacity as Seller or Collection Agent, as the
context may require.
"Outstanding Balance" of any Receivable at any time means the then unpaid face
amount thereof (including VAT) (except for purposes of determining the Default
Ratio, where the unpaid face amount of any Purchased Receivable which has been,
or would be, written off or provided for in the Seller's books as uncollectible
in accordance with the Credit and Collection Policy shall be deemed to be zero).
"Overconcentration Amount" means at any time the Dollar Equivalent of the sum of
the amounts, if any, by which the Outstanding Balance of Receivables owing by
each Account Debtor on such date exceeds the Concentration Amount applicable to
such Account Debtor.
"Person" means an individual, partnership, company, body corporate, corporation,
trust, unincorporated association, joint venture, government, or governmental
body or agency or other entity.
"Peseta" means the lawful currency of Spain.
"Peseta Equivalent" of any sum and at any time means the amount of Peseta that
would be purchased under the Currency Exchange Agreement at the Spot Rate for
such sum at such time.
"PPA" means the Parallel Purchase Agreement dated 3 June 1997 between the Buyer,
the Liquidity Banks (as defined therein) and the Operating Agent.
"Programme" means the revolving sale of trade receivables originated by Exide
Holdings Europe S.A. and certain of its subsidiaries and the funding of such
revolving sale pursuant to the funding arrangements established in relation to
each Origination Agreement.
"Programme Amortisation Event" means an Early Amortisation Event of the type
described in paragraphs (1), (2), (3), (4), (6), (7), (9), (10) or (16) of the
definition of "Early Amortisation Event".
"Programme Business Day" means any day (other than a Saturday or Sunday) on
which banks and foreign exchange markets are open for business in London, Paris
and New York. Where an obligation is expressed in this Agreement to be performed
on a Programme Business Day and such Programme Business Day is not also a Local
Business Day, such obligation shall be performed on the immediately preceding
Local Business Day which is also a Programme Business Day.
"Programme Capital" equals, at any time, total Capital as defined and calculated
pursuant to the RPA or the PPA, as applicable.
"Programme Costs" comprise (a) the Onward Sale Fee, the Agent Fee and (b) the
Seller's Proportionate Share of (i) the Facility Fee, (ii) the Investor Fee as
defined in the Fees Letter and the Programme Fee as defined in the Fees Letter.
-13-
"Programme Dilution Ratio" as of any date, is equal to the aggregate Dilution
Ratios calculated among all Origination Agreements.
"Programme Receivables" means the aggregate Dollar Equivalent of Receivables (as
that term is defined in each Origination Agreement), aggregated among all
Origination Agreements.
"Programme Sellers" means, collectively, all of the Affiliates of Exide Europe
designated as Sellers or Originators pursuant to all of the Origination
Agreements.
"Proportionate Share" equals, at any time, in respect of the Seller or any party
comprising the Seller, the result of the formula: the Dollar Equivalent of all
Purchased Receivables from the Seller (or such party, as applicable), divided by
the Dollar Equivalent of all Purchased Receivables and Subrogated Receivables
(as these terms are used in each applicable Origination Agreement), aggregated
among all Origination Agreements.
"Purchase" means a purchase or purported purchase by the Buyer of a Group of
Receivables from the Seller pursuant to this Agreement.
"Purchase Date" means the Effective Date and each Settlement Date after the
Effective Date occurring before the Termination Date on which there is a
Purchase of Receivables by the Buyer as contemplated by this Agreement.
"Purchase Price" means, in respect of a Group of Receivables, an amount in
pesetas equal to the Outstanding Balance of the Group of Receivables as at the
proposed Purchase Date less the Discount, as calculated by the Operating Agent.
"Purchased Receivable" means a Receivable (whether or not an Eligible
Receivable) purchased or purported to be purchased by the Buyer under this
Agreement.
"Rating Agencies"' means Standard & Poor's Ratings Group, a division of the
McGraw Hill Companies Inc., and Xxxxx'x Investors Service, Inc.
"Receivable" means the indebtedness of any Account Debtor under a Contract
arising from a sale or contract of sale of merchandise or provision or contract
of provision of services by the Seller and representing part or all of the sale
price of such merchandise or services and includes the right to payment of any
interest or finance charges and other obligations of such Account Debtor with
respect thereto.
"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.
-14-
"Relevant Date" means the earlier of:
(1) the date on which all Capital of all Groups of Receivables is reduced
to zero; and
(2) the date on which the Outstanding Balance of all Purchased Receivables
is reduced to zero.
"Relevant Documents" means this Agreement, the Account Bank Mandate and the Fees
Letter.
"Reserves" means as of any date the Seller's Proportionate Share of the sum of
the Loss and Dilution Reserve, the Yield Reserve and the Foreign Currency
Reserve.
"RPA" means the Receivables Purchase Agreement dated as of the date hereof
between the Buyer Eureka and the Operating Agent.
"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 Sociedad Espanola del Acumulador Tudor, S.A. and any additional
Seller made party to this Agreement in accordance with Clause 19 (D).
"Seller Entitlement" means, at any time, in respect of the total amount
standing to the credit of the Agent Account together with interest thereon, the
portion thereof which is not attributable to or representing Collections.
"Seller Non-Transaction Account" means (i) in respect of Tudor, the account
numbered 0030-1518-02-000233271, established with Banco Espanol de Credito,
Banca Corporativa or such other account at such branch of the Agent Account Bank
as the Seller may from time to time specify by written notice to the Agent
Account Bank with a copy to the Operating Agent.
"Settlement Date" means initially, the Effective Date and thereafter, each
following Thursday; provided however, if such day is not a Programme Business
Day which is also a Local Business Day under the Origination Agreement for
Italy, the Settlement Date for such week shall be the next succeeding Programme
Business Day which is also a Local Business Day under the Origination Agreement
for Italy.
"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
Pesetas, (amongst other things) the amount of Receivables purchased by the Buyer
during the last Settlement Period.
"Spot Rate" means, as of any Settlement Date, the spot rate utilised for the
Currency Exchange Agreement as determined for such Settlement Date.
"Subsidiary" means, under Spanish law, any entity (a) which is directly or
indirectly controlled by another company, (b) in which one half or more of its
corporate share capital is owned by another company, (c) which is a subsidiary
of another company which in turn is a subsidiary (in accordance
-15-
with what is referred in letters (a) and (b) of this definition) of another
company. For this purpose, a company is deemed to be controlled by another if
such other company has the power to manage and administer its affairs or to
control the composition of its management body.
"Summary Report" means a report as of each Determination Date or more frequently
if requested by the Operating Agent, substantially in the form of Schedule 4,
furnished by 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.
"Syndicated Facility" means the FF 2,569,000,000 Facilities Agreement dated 30th
November 1995 between Compagnie Europeenne d'Accumulateurs S.A., Euro Exide
Corporation Limited, Exide Holding Europe and Sociedad Espanola del Acumulador
Xxxxx X.X. as the Lead Borrowers, Bankers Trust International Plc. as Lead
Arranger, Bankers Trust Company, Bank of America National Trust and Savings
Association, Bank of Montreal and Citibank International Plc. as Underwriters,
Bank of America International Limited, Bank of Montreal and Citibank
International Plc. as Co-Arrangers, Bankers Trust Company as Agent and Security
Agent and the Lenders described therein, as that agreement may be amended or
restated from time to time.
"Temporary Adjustment Account" means the sub-account held by the Buyer with
Citibank, N.A., London branch, denominated in Sterling and utilised for the
purposes set out in Clause 12 (D), under the account number 00000000.
"Termination Date" means the earliest to occur of (1) the Programme Business Day
designated by the Seller as the Termination Date following 2 Programme Business
Days' notice to the Operating Agent, (2) the Termination Date under the RPA or
the PPA, (3) an Early Amortisation Event, and (4) 10 June, 2002.
"Turnover Rate" means, as of any Purchase Date under the RPA or the PPA,
applicable, the average of each of the three most recently ended months
outstanding Net Receivable Balance as of the last day of each such month, over
the Dollar Equivalent of the aggregate outstanding balance of Receivables sold
by the Seller and Originators under all Origination Agreements during each such
month.
"Unapplied Cash" means as of any date with respect to any Receivable, the
aggregate Collections which have not yet been reflected on the books and records
of the Originator as a reduction to the Dollar Equivalent of the Outstanding
Balance of such Receivable.
"Weighted Average Term" means the weighted average term of all Purchased
Receivables, calculated on the basis of the formula: E(original stated payment
term of each invoice x amount of such invoice) / Einvoice amount.
"Yield" will be calculated on the first Purchase Date and on each Settlement
Date thereafter on the basis of the outstanding Capital as at such dates times
the Yield Rate divided by 360 times the number of days elapsed in the relevant
Interest Period.
"Yield Rate" will be the cost of commercial paper notes issued by Eureka to fund
its purchase or Receivables, plus related dealer commissions, and administration
costs (such administration costs not
-16-
to exceed 0.30% of Capital per annum), plus the cost of swapping Dollar proceeds
of commercial paper into the currency of the Purchased Receivables, determined
by the Operating Agent and expressed as a percentage of Capital. In the event
Eureka shall not at any time, fund its purchases under the RPA with the issuance
of commercial paper, or if purchases are being made under the PPA, the Yield
Rate shall be the Bank Facility Rate.
"Yield Reserve" means as of any Settlement Date, the product of (1) two times
the Turnover Rate for such date and (2) the sum of (a) fifty-two times the Yield
for such date, divided by 12 (Yield calculated for this purpose using the higher
of the Yield Rate and the rate shown in paragraph (a) of the definition of "Bank
Facility Rate"); (b) the facility fee of 0.30% per annum of the Facility Limit
calculated monthly in arrears and applied on each Settlement Date a; (c) the
Programme Fee as defined in the Fees Letter; and (d) the product of (i) the
Dollar Equivalent of the most recently ended month's outstanding Net Receivable
Balance aggregated among all Origination Agreements less the Dollar Equivalent
of Defaulted Receivables aggregated among all Origination Agreements and (ii)
0.75% (substitute collection agent reserve) the resulting figure divided by 12.
(C) This Agreement: Any reference to "this Agreement" or any other
agreement or document shall, unless the context otherwise requires,
include this Agreement or, as the case may be, that other agreement or
document as from time to time amended, supplemented or novated, and any
document which amends, supplements or novates this Agreement or, as the
case may be, that other agreement or document. Any reference to Clauses
or paragraphs in this Agreement is, subject to any contrary indication,
a reference to a Clause or paragraph in this Agreement.
(D) Origination 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.
(E) Headings: Headings shall be ignored in construing this Agreement.
(F) Time: Save where the contrary is indicated, any reference in this
Agreement to a time of day (including opening and closing of business
hours) shall be construed as a reference to Madrid time.
(G) Time of Essence: Time shall be of the essence in this Agreement and all
documents delivered pursuant to the terms of this Agreement, subject to
the prior waiver of such timing by the affected party.
2. FACILITY
The Buyer hereby offers to commit to purchase at a discount from the Seller on
each Purchase Date falling on or after the Effective Date, full title and
ownership in and to certain Receivables on the terms and conditions set out in
this Agreement and in consideration of the covenants contained in this
Agreement.
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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: Each Purchase (including the Initial Purchase) is
subject to the further following conditions precedent:
(1) 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 directors' certificate as
may be required by the Operating Agent as to the
Seller's solvency;
(c) after the proposed Purchase the Outstanding Balance of
Purchased 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;
(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 Account
Debtors are resident in United Kingdom, France, Italy,
Germany, The Netherlands or Belgium after the proposed
Purchase, Capital in respect of such Purchased
Receivables does not exceed 15% of the Capital in
respect of all Purchased Receivables; and
(g) after the proposed Purchase, Capital would not exceed
the Country Limit, and Programme Capital would not
exceed the Facility Limit.
(2) On or prior to each Purchase Date the Seller shall have
delivered to the Operating Agent an Accounts Receivable
Listing.
(3) On or prior to each Purchase 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 Purchase Date.
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(4) The Commitment shall not have been cancelled.
(5) The Operating Agent has received such other approvals, legal
opinions or documents as the Operating Agent may reasonably
request.
(C) 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 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.
(D) The Commitment shall be cancelled:
(1) on the Termination Date; or
(2) if it becomes unlawful in any jurisdiction for the Buyer to
give effect to any of its obligations as contemplated by this
Agreement to fund or maintain the funding of any Purchase,
whichever shall first occur.
4. PURCHASES
(A) Making Purchases: The Seller shall, by 10:00 a.m., London time, on the
Determination Date prior to each proposed Purchase Date, deliver to the
Buyer a Notice of Sale by facsimile (and shall send the original Notice
of Sale to the Operating Agent by ordinary post on the day it is
delivered by facsimile) substantially in the form of Schedule 7
("Notice of Sale") identifying (inter alia) the Purchase Date, the then
Outstanding Balance of Receivables (if any) and the Purchase Price for
such Receivables computed by the Operating Agent. The computation of
the Purchase Price by the Operating Agent shall, in the absence of
manifest error, be deemed to be conclusive.
(B) Sale: The delivery of the Notice of Sale by facsimile will constitute
notification to the Buyer of the Receivables and the Related Security,
designated pursuant to Clause 4(D), which the Buyer is to purchase for
the Purchase Price as set out in the Notice of Sale. The Buyer shall,
subject to the terms and conditions of this Agreement (including, for
the avoidance of doubt, Clause 3) pay in full the Purchase Price (in
the manner described in Clause 4(C)), which payment will effect the
transfer to the Buyer of full title and ownership in and to those
Receivables and the Related Security with respect to those Receivables.
(C) Purchase Price: The Buyer shall pay in full the Purchase Price on the
Purchase Date in the currency and funds specified in Clause 7(B) to the
Seller Non-Transaction Account. If, however, pursuant to Clause 12(C),
there is any Advance Payment outstanding then the Buyer will remit to
the Seller only that portion of the Purchase Price that exceeds the
amount of such Advance Payment.
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(D) Determination of Purchased Receivables: On or prior to each Purchase
Date in respect of which a Notice of Sale is to be delivered, the
Seller will identify the Group of Receivables to be offered for
purchase by the Buyer on such date in such format as the Operating
Agent may specify.
(E) Records: On or prior to each Purchase Date in respect of which a Notice
of Sale is to be delivered, the Seller will at the Seller's expense
deliver to the Operating Agent (or as the Operating Agent may direct)
the Accounts Receivable Trial Balance generated on or in relation to
such Purchase Date, identifying the Receivables designated pursuant to
this Clause 4(D).
(F) Perfection: Subject to Clause 13, each of the Seller and the Buyer will
take all such steps and comply with all such formalities as may be
required to perfect or more fully to evidence or secure title to the
Receivables assigned (or purported to be assigned) pursuant to Clause
4.
(G) Delegation of Powers of Operating Agent: The Operating Agent hereby
delegates to the Seller all of its obligations under this Clause 4,
which delegation the Seller irrevocably accepts. The Seller 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.
5. COLLECTIONS AND SETTLEMENT
(A) Collection of Receivables: (1) On each day the Collection Agent shall
as described in Clause 12(B) set aside and hold for the Buyer all
Collections of Purchased Receivables on such day, and (2) the Operating
Agent shall issue a Settlement Statement to the Seller and to the Agent
Account Bank within two Programme Business Days after each Settlement
Date in relation to the Settlement Period which ended on that
Settlement Date.
Such Collections will be credited to the Agent Account maintained by
the Agent Account Bank in accordance with the terms of the Agent
Account Bank Mandate.
(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 Purchase Date the Buyer, unless otherwise instructed by
the Operating Agent, will set off, against its obligation to
pay the Purchase Price of the Group of Receivables to be
purchased by the Buyer on such Purchase Date, the amount (if
any) of any Advance Payment withdrawn by the Seller from the
Agent Account pursuant to Clause 12(C) and which has not been
refunded as of close of business on the Programme Business Day
immediately preceding such Purchase Date.
(2) On each Determination Date the Operating Agent shall calculate:
(a) Capital as at the forthcoming Settlement Date; and
(b) Yield and Programme Costs in respect of the Capital as
at the forthcoming Settlement Date.
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(3) On each Settlement Date the Operating Agent shall cause to be
paid from the Agent Account (without prejudice to, and subject
always to, the provisions of Clause 12(C) regarding Advance
Payments) and in the following order:
(a) to the Buyer, Yield and Programme Costs in respect of
the Interest Period ending on that Settlement Date;
(b) to the Seller, the Purchase Price (if any) in respect
of Purchased Receivables, to the extent the Purchase
Price is not satisfied by way of set-off pursuant to
Clauses 5(B)(1) and 12(C);
(c) to the Seller, the Proportionate Share of all sums
received by the Buyer pursuant to Clause 5(B)(3)(c) of
the RPA or the PPA, as applicable, by way of deferred
purchase price for the Purchased Receivables; and
(d) to the Buyer, the amounts credited to the Agent Account
in respect of Purchased Receivables after payment of
the amounts set forth in (a) and (b) above;
(e) to the Seller, the amounts credited to the Agent
Account other than in respect of the Purchased
Receivables; and
(f) to the Buyer all amounts standing to the credit of the
Agent Account after payment of items (a) to (e) above.
(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 Programme Business Day, 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) If and to the extent that the Buyer receives funds pursuant to
Clause 5(C)(2) of the RPA or the PPA, as applicable, the
Operating Agent shall cause to be paid from the Buyer Account
to the Seller, the Seller's Proportionate Share of such funds,
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 Purchased
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 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 Purchased Receivable otherwise than with the
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prior consent of the Operating Agent), the Seller will be
deemed to have received on such day a Collection of such
Purchased Receivable in the amount of such reduction,
adjustment or cancellation and shall credit such amount to the
Agent 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 Purchased
Receivable, the Seller will be deemed to have received on such
day a Collection of such Purchased Receivable equal to its
original Outstanding Balance less any Collections previously
received with respect thereto and shall credit to the Agent
Account an amount equal to such deemed Collection by way of
indemnity.
(3) If any Purchased Receivable was not an Eligible Receivable at
the time of Purchase, on the date such fact becomes known to
the Seller, the Seller will be deemed to have received a
Collection of such Purchased Receivable equal to its original
Outstanding Balance less any Collections previously received
with respect thereto and shall credit to the Agent Account an
amount equal to such deemed collection by way of indemnity.
(4) If the Seller is not acting as the Collection Agent, it will
promptly pay to the Collection Agent the amount of any deemed
Collection pursuant to Clause 5(D)(1) (2) or (3) above by way
of indemnity.
(5) If, following any payment in respect of a deemed Collection of
a Purchased Receivable pursuant to Clause 5(D)(1), (2), (3) or
(4) above, the Buyer shall receive any further Collections in
respect of such Purchased Receivable, the Buyer shall (provided
no Early Amortisation Event has 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 an Account Debtor in respect
of any indebtedness owed by it to the Seller and any credits,
defective, rejected, repossessed or returned goods or other non cash
items of an Account Debtor will, except as otherwise specified in
writing by such Account Debtor or otherwise required by contract or law
and unless otherwise instructed by the Operating Agent, be applied as a
Collection of Purchased Receivables of such 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 Account Debtor.
6. FEES, COSTS AND STAMP DUTY
(A) Collection Agent 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 Collection Agent, the Seller will pay the
Buyer, upon its demand, a collection fee as determined by the Operating
Agent, not exceeding 110% of the fees, costs and expenses, plus value
added tax (if applicable), of the substitute Collection Agent incurred
in performing such function
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(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 this
Agreement and the other documents to be delivered pursuant to this
Agreement or in connection therewith, such costs and expenses to
include, without limitation, the reasonable fees and out-of-pocket
expenses of legal advisers (plus VAT thereon) to the Buyer, the Agent,
and the Operating Agent with respect thereto and with respect to
advising the Buyer and the Operating Agent as to their respective
rights and remedies under this Agreement, and all costs and expenses,
if any (including legal fees and expenses plus VAT thereon), in
connection with the enforcement of this Agreement, the other documents
to be delivered pursuant to this Agreement or in connection therewith
and the Purchased Receivables. The Buyer, the Agent, and the Operating
Agent agree to take reasonable steps, consistent with the protection of
their respective interests under this Agreement, to mitigate their
costs and expenses in connection with the enforcement of this
Agreement, the other documents to be delivered pursuant to this
Agreement and the 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 this Agreement or the purchase, assignment or reassignment
of Receivables under or pursuant to this Agreement, or the other
documents to be delivered under this Agreement or in any way connected
with any transaction contemplated by this Agreement. 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) Default Interest: The Seller shall pay to the Operating Agent or, as
the case may be, the Buyer interest (as well after as before judgment)
on all amounts not paid or repaid when due under this Agreement at 2%
per annum above the Base Rate payable on demand of the Operating Agent.
(E) 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.
(F) 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 amount to be paid to or deposited with the Operating
Agent for it own account or for the account of the Agent or the Buyer
by the Seller or by the Collection Agent 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.
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(B) Currency: All amounts payable by the Seller under this Agreement to the
Operating Agent for its own account or for the account of the Buyer
shall be paid in pesetas. The Purchase Price amounts payable by the
Buyer under this Agreement shall be paid in pesetas.
(C) Accounts: Any amount payable under this Agreement shall be remitted to
the following accounts:
(1) if to the Seller, to the Seller Non-Transaction Account;
(2) if to the Buyer, to the Agent Account;
(3) if to the Operating Agent for its own account, Account No.
1842358 (Sort Code 18-50-08) with Citibank 000 Xxxxxx Xxxxxx
XX0X 0XX.
(D) Grossing Up: To the fullest extent permitted by law, the Seller will
make all payments under this Agreement regardless of any defence or
counterclaim. Further, if the Seller, in its individual capacity, is
compelled by law to make any deductions or withholdings from any
payments pursuant to this Agreement including, without limitation,
payments in respect of Receivables or Collections, the Seller will pay
such additional amounts as may be necessary in order that the net
amount received by the Operating Agent or the Agent, or to 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, the 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 Collection Agent, the Operating Agent shall determine the
appropriation of any payment to it for the account of the Agent to any
amount to be paid to or deposited with it for the account of the Agent
by the Seller and/or the Collection Agent under this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represent and warrants, 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
this Agreement and all other instruments and documents to be
delivered under this Agreement, and the transactions
contemplated by this Agreement.
(C) Exide Europe Power and Authority: Exide Europe has full power
and authority to effect, and has taken all necessary action to
authorise, the execution, delivery and performance by it of the
Letter of Undertaking and all other instruments or documents to
be delivered under the Letter of Undertaking, and the
transactions contemplated by the Letter of Undertaking.
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(D) Non-Violation: The execution, delivery and performance by the
Seller of this Agreement and all other instruments and
documents to be delivered pursuant to this Agreement and all
transactions contemplated by this Agreement, and the execution,
delivery and performance by Exide Europe of the Letter of
Undertaking and all transactions contemplated thereby:
(1) do not contravene (a) any Seller's or Exide Europe's
memorandum or articles of association (or analogous
constitutive documents), (b) any law, rule or
regulation applicable to the Seller or Exide Europe,
(c) any material contractual restriction contained in
any agreement or instrument binding on or affecting any
party comprising the Seller or its assets, 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 or Exide Europe's assets;
(2) do not result in or require the creation of any lien,
security interest or other charge or encumbrance upon
or with respect to any of the Seller's or, 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 of this Agreement or any other document to be
delivered in connection with this Agreement or for the
transactions contemplated by this Agreement or for the due
execution, delivery or performance by Exide Europe of the
Letter of Undertaking or any other document to be delivered in
connection with the Letter of Undertaking or for the
transactions contemplated by the Letter of Undertaking.
(F) Obligations Binding: (1) This Agreement constitutes the legal,
valid, binding and enforceable obligation of the Seller; and
(2) the Letter of Undertaking constitutes the legal, valid,
binding and enforceable obligation of 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, as applicable, as at that date and the
results of the operations of the Seller and those subsidiaries,
or Exide Europe, as applicable, for the period ended on that
date, all in accordance with generally accepted accounting
principles consistently applied.
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(H) No Material Adverse Change to Seller: Since 11 April 1996,
being the date of the Seller's most recent audited annual
account, 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 this
Agreement.
(I) No Material Adverse Change to Exide Group: Since 31 March 1996,
being the date of the Exide Group's most recent audited
consolidated annual accounts, there has been no change in the
business or financial condition of the Group which is
reasonably likely to materially adversely affect the ability of
Exide Europe to perform its obligations under the Letter of
Undertaking.
(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 to
perform its obligations under this Agreement or the ability of
Exide Europe to perform its obligations under the Letter of
Undertaking.
(K) No Default: No Seller nor any of its Affiliates, nor Exide
Europe, are 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 or any of
its Affiliates, or Exide Europe, and would not materially
adversely affect the ability of the Seller to perform its
obligations under this Agreement or the ability of Exide Europe
to perform its obligations under the Letter of Undertaking.
(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 except as provided in this
Agreement, and upon each Purchase the Buyer will acquire full
equitable and beneficial title and ownership to and of each
Purchased Receivable, the Collections and the Related Security
then existing or thereafter arising free and clear of any
Adverse Claim except as provided in this Agreement.
(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 its individual capacity or
as Collection Agent) 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
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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 it
books, records and document evidencing Receivables or the
related Contracts are at the locations set forth in Schedule 1
or at such other location(s) approved by the Operating Agent
(such approval not to be unreasonably withheld or delayed).
(Q) Location of Bank Accounts: The bank accounts to which the
Seller has directed the Account Debtors to remit payments for
the Receivables is the Agent Account (or such other account(s)
at such location(s) as may have been previously approved by the
Operating Agent and in relation to which an Account Bank
Mandate has been duly executed inter alia by the Seller (in its
individual capacity and/or as Collection Agent) the Buyer and
the Agent Account Bank and delivered to the Operating Agent and
in respect of which the relevant bank has agreed, in relation
to the Buyer Entitlement, not to exercise any right of set-off,
net-off, combination or consolidation of accounts or
counterclaim whatsoever.
(R) No Winding-Up: No step has been taken or is intended by the
Seller or, so far as it is aware, by any other Person for the
Seller's winding-up, liquidation, dissolution, administration,
merger or consolidation or for the appointment of a receiver or
administrator or equivalent or analogous action of the Seller
or 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 or by Exide Europe of
any of its obligations under the Letter of Undertaking.
(T) Eligibility: Each Receivable the subject of a Notice of Sale is
an Eligible Receivable as at the time of Purchase.
The Seller further represents and warrants that the representations and
warranties in this Clause 8 shall be true and correct on and as of each
Purchase Date as though made on each such date and by reference to the
then-existing circumstances.
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:
(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, and
would not
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reasonably likely to 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 the Seller having knowledge of such matters and co-
operate in the reconstruction of the Accounts Receivable Trial
Balance pursuant to Clause 13(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 or which have been documented in an escritura
publica or in a poliza intervenida.
(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.
(I) Collections: If the Seller is not acting as Collection Agent, (1)
give all reasonable assistance (including the provision of
information) to any third party replacing the Seller as
Collection Agent in accordance with the provisions of this
Agreement, and (2) remit any Collections on Purchased Receivables
to the Collection Agent within one Business Day after the receipt
or deemed receipt thereof.
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(J) Bank Accounts: Pay or cause to be paid all Collections of
Receivables directly into the bank account or accounts referred
to in Clause 8(Q) or such other account(s) approved by the
Operating Agent and the Buyer.
(K) Audit Costs: The Seller shall pay the reasonable fees and
expenses for one audit by the Operating Agent 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.
(L) 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 10, 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
Until the later of the Termination Date and the Relevant Date, the
Seller will not, without the consent of the Operating Agent:
(A) No Disposal of Receivables: Except as otherwise provided herein,
sell, assign (by operation of law or otherwise) or otherwise
dispose of, or create or suffer to exist any Adverse Claim upon
or with respect to, any Receivable purchased or to be offered for
purchase under this Agreement or the related Contract, or assign
any right to receive income in respect thereof.
(B) No Transfer of Business: 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: (a) The Seller shall not
create or permit to subsist any Security Interest on any of its
Receivables, and (b) If the Seller creates or permits to subsist
any Security Interest on any of its Receivables contrary to (a)
above, all the obligations of the Seller under this Agreement
shall automatically and immediately be secured upon the same
assets, ranking at least pari passu with the other obligations
secured on those assets.
(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.
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(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 Account Debtor or the operation of
this Agreement without the prior written consent of the Operating
Agent.
(F) Cross Indemnity: The Seller shall not amend or otherwise change
the Deed of Cross-Indemnity dated as of the date hereof between
Exide Europe and the Programme Sellers, except in respect of
amendments or changes of a purely technical or immaterial nature
which do not affect either: (i) the title of the Buyer to the
Receivables assigned (or purported to be assigned) pursuant to
Clause 4 or (ii) the effectiveness of the assignment (or
purported assignment) pursuant to Clause 4.
11. REPORTING REQUIREMENTS OF THE SELLER
Until the later of the Termination Date and the Relevant Date, the
Seller 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 year, a
copy of the Seller's annual accounts and (if they are prepared)
consolidated accounts in conformity with generally accepted
accounting principles, applied on a basis consistent with that of
the preceding financial year.
(B) Annual Accounts of Exide Europe: As soon as available and in any
event within 180 days after the end of each of Exide Europe's
financial years, a copy of Exide Europe's annual accounts,
prepared (as appropriate) on a consolidated basis in conformity
with generally accepted accounting principles, applied on a
basis consistent with that of the preceding financial year,
together with the report of an internationally recognised firm of
independent auditors.
(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), (3) or (4) below or any event
which, with the giving of notice or lapse of time or both, would
constitute one of such events, the statement of the chief
financial officer or chief accounting officer of the Seller
setting out details of that event and the action which the Seller
proposes to take with respect to that event:
(1) the Seller fails to pay any principal of or premium or
interest on any Debt in excess (in the agregate) of the
Peseta 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
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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 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 (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 or a receiver, administrative receiver or manager
is appointed over any part of the assets or undertaking of
the Seller or any event analogous, to any of the foregoing
occurs (except, in the case where a petition is presented (i)
the proceeding is frivolous or vexatious and (ii) the
Originator is solvent and is contesting the proceeding in
good faith);
(3) an Agent Account Event occurs; or
(4) an Early Amortisation Event occurs.
(E) Debt Service Cover Ratio: Within 45 days after the end of every
Accounting Quarter (as that term is defined under the Syndicated
Facility), a report showing the current Debt Service Cover Ratio
of Exide Europe for such calendar month.
(F) 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 of its Affiliates], as the
Operating Agent may from time to time reasonably request in
order to protect the interests of the Buyer or the Operating
Agent, including, prior to 10:00 a.m., London time, on each
Summary Report Date, a Summary Report (with, among other things,
the information necessary to determine the Default Ratio).
(G) 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 Account Debtors in respect
of Purchased Receivables and the addresses of such 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.
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12. COLLECTION AGENT, COLLECTION AND AGENT ACCOUNT
(A) Designation of Collection Agent: The servicing, administering and
collection of the Receivables shall be conducted by such Person (the
"Collection Agent") so designated from time to time pursuant to this
Clause 12(A). Until the Operating Agent gives notice to the Seller of a
designation of a new Collection Agent, the Seller's Receivables is
designated as, and agrees to perform the duties and obligations of, the
Collection Agent pursuant to the terms of this Agreement. The Operating
Agent may at any time after the occurrence of an Early Amortisation
Event or an Agent Account Event designate as Collection Agent any
Person (including itself) to succeed the Seller or any successor
Collection Agent, on the condition in each case that any such Person
agrees to perform the duties and obligations of the Collection Agent
pursuant to the terms of this Agreement. The Collection Agent may, with
the prior consent of the Operating Agent, subcontract with any other
Person for servicing, administering or collecting the Receivables;
provided, however, that the Collection Agent will remain liable for the
performance of the duties and obligations of the Collection Agent under
this Agreement.
(B) Duties of Collection Agent: The Collection Agent:
(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 appoint the
Collection Agent as its agent to enforce its respective rights
and interests in and under the Purchased Receivables, the
Related Security and the Contracts;
(2) will deposit in the Agent Account for the account of the Buyer
all Collections of Purchased Receivables in accordance with
this Agreement and the Agent Account Bank Mandate and may,
unless and until instructed otherwise by the Operating Agent
following the occurrence of an Early Amortisation Event or a
Agent Account Event, deposit in the Agent Account monies other
than Collections.
(3) confirm that the Agent Account Bank will make available to the
Collection Agent information showing amounts received on each
Local Business Day and standing to the credit of the Agent
Account as at the close of business on that day;
(4) upon receipt of the information referred to in (3) above the
Collection 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 standing to the
credit of the Agent Account on each Local Business Day, the
Buyer Entitlement and the Seller Entitlement respectively, and
shall direct the Agent Account Bank, prior to 12:00 noon on
each Local Business Day, to transfer to the Seller
Non-Transaction Account the Seller Entitlement;
(5) other than the transfers referred to in paragraph (4) above the
Collection Agent shall not, without the prior written consent
of the Operating Agent, withdraw funds from the Agent Account
or direct the Agent Account Bank to make any transfers from the
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Agent Account, except for withdrawals or transfers of cleared
funds standing to the credit of the Agent Account which
represent the Seller Entitlement and provided that any such
withdrawal or transfer would not cause the Agent Account to
become overdrawn;
(6) 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 Collection Agent (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;
(7) if other than the Seller, 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;
(8) if other than the Seller, 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
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
(9) if the Operating Agent or its designee, and notwithstanding
anything to the contrary contained in this Agreement, shall
have no obligation to collect, enforce or take any other action
described in this Agreement with respect to any Receivable that
is not a 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
(4) and (5) above.
(C) 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 in the event that there is an Early
Amortisation Event or an Agent Account Event, withdraw, by way of
advance payment on account of such Purchase Price as will or may be
payable to the Seller on the next following Purchase Date, any amount
or amounts standing to the credit of the Agent Account. Any amount so
withdrawn (an "Advance Payment") shall be set off pro tanto in
accordance with Clause 4(C) against the Buyer's obligation to pay any
Purchase Price payable on the next following Purchase Date and, to the
extent the amount of the Advance Payment exceeds the amount of the
Purchase Price, be refunded by the Seller in full by the transfer of
cleared funds to the Agent 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 Agent Account immediately upon the demand of the Operating
Agent in the event that there is an Early Amortisation Event or a Agent
Account Event. The Seller shall not be obliged to pay interest on any
Advance Payment unless and to the extent that it is not refunded as
required under this Clause. Any overdue amounts shall bear default
interest in accordance with Clause 6(D).
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(D) Failure to Report: If there is a failure at any time by the Collection
Agent 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 Agent Account in respect of any Settlement Period such that the
amounts due by the Seller and the Buyer pursuant to Clauses 4(B) and
(C) cannot be accurately determined (in the Operating Agent's
reasonable opinion), there will fall due from 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, acting reasonably. For the purposes of this Clause
12(D), it shall be considered reasonable for the Operating Agent to
anticipate that all Collections due during such Settlement Period were
received by the Collection Agent 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 or (provided no Early Amortisation Event
has occurred) 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 Collection Agent does not last longer
than two consecutive Settlement Periods and the provisions of this
Clause 12(D) are complied with, such failure shall not by itself
constitute an Early Amortisation Event.
(E) In consideration of the Agent acting as such under this Agreement, the
Seller shall pay to the Agent until the Termination Date the Agent Fee
of Pesetas 45.000 plus VAT (if any), such fee to be payable quarterly
in advance on the first Settlement Date and three monthly thereafter.
13. PROTECTION OF THE BUYER'S RIGHTS
(A) Notice of Sale: At any time after the occurrence of an Early
Amortisation Event, the Operating Agent may (and the Seller following
the Operating Agent's request shall) notify the 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 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 in
relation to any Purchase Date (whether or not it is obliged to do so)
or (ii) provide the information to Exide Europe enumerated in Clause
9(L),,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 Originator 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.
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(D) Power of Attorney (Poderes Notariales): Without prejudice to the
provisions of Clauses 13(A) to (D), the Originator 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, Eureka and/or the Operating Agent and/or the Liquidity Banks
and/or to perfect title to any of the Purchased Receivables, or Related
Security, including the redirection of mail and endorse drafts, cheques
and other payment media, to perform any agreement or obligation of the
Originator under or in connection with this Agreement and/or under the
Account Bank Mandate(s), and to exercise all other remedies of the
Originator 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. The power of attorney hereby granted is given by way
of security, is coupled with an interest, and is irrevocable and will
extend to and be binding upon the successors and assigns of the
Originator and is in substance on the terms expressed in Schedule 9 to
this Agreement.
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, Agent and Operating Agent: None of the
Buyer, Agent, Eureka nor the Operating Agent will have any
obligation or liability with respect to any Purchased
Receivables or related Contracts, nor will the Buyer, Agent,
Eureka or the Operating Agent be obliged to perform any of the
obligations of the Seller thereunder.
(C) Until the Operating Agent requests otherwise, the Seller will
hold in the interest of and 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 such
interests for both the Buyer and the Seller to the extent of
the respective rights of the Buyer and the Seller 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
following an Early Amortisation Event, 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.
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(D) Marking: The Seller will xxxx 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 (except in so far as perfection
may entail notifying the Account Debtors of the Buyer's ownership of
the Purchased Receivables and the Collections of the Purchased
Receivables, which shall only be undertaken in accordance with Clause
13(A) after an Early Amortisation Event), protect or more fully
evidence the Buyer's ownership interest in the Purchased Receivables,
the Collections and the Related Security and pending such time will
keep an up to date record of all Purchased Receivables.
(E) Third Party Collection Agent: At any time following the designation of
a Collection Agent other than the Seller:
(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.
(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;
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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 Buyer any dividend received or value added tax
recovered by the Seller in respect thereof (and any such
dividend or 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, 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 Eureka. 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: The Seller agrees to indemnify the Buyer, the
Agent, the Operating Agent and their respective Affiliates and the
Collection Agent 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) in the case of the Agent, the
Operating Agent and their respective Affiliates and the Collection
Agent 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 under or in connection with this Agreement, or
any other information or report delivered by the Seller or the
Collection Agent 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 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;
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(3) the failure to vest and maintain vested in the Buyer ownership
of each Purchased Receivable, free and clear of any Adverse
Claim whether existing at the time of the Purchase of such
Receivable or at any time thereafter, excluding any such
Adverse Claim created by the Buyer;
(4) any dispute, claim, offset or defence (other than discharge in
bankruptcy or winding up by reason of insolvency or analogous
event of the Account Debtor) of the Account Debtor to the
payment of any Receivable which is, or is purported to be, a
Purchase 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
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, as Collection Agent or otherwise, to
perform its duties or obligations in accordance with the
provisions of this Agreement;
(6) the Buyer, at the request or with the approval of the Seller,
contracting for or arranging foreign exchange transactions
and/or funding in connection with any anticipated Purchase and
such Purchase does not in fact take place as a result of the
Seller. not delivering a Notice of Sale, the operation of
Clause 3(B) or any other provision of this Agreement, or a sale
of Receivables not being effected in relation to a Notice of
Sale by reason of any event described in Clause 11(D)(1), (2),
(3) and (4) or any breach by the Seller (in whatever capacity)
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 transfer of an ownership interest in any Receivable other
than an Eligible Receivable (to the extent that such amounts
have not already been recovered by the applicable indemnified
party pursuant to Clause 5(D).
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) Increased Costs: If the Operating Agent determines that compliance with
any law or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the force of
law) coming into force after the Effective Date affects or would affect
the amount of capital required or expected to be maintained by the
Buyer, the Agent, the Operating Agent, Citibank or any Person
controlling the Buyer, the Agent, the Operating Agent or Citibank, and
the Operating Agent determines that the amount of such capital is
increased by or based upon the existence of the Buyer's agreement, in
its disconnection, to make or maintain purchases under or pursuant to
this Agreement and other similar
-38-
agreements or facilities (or any agreement entered into in accordance
with Clause 19(C)), or if the Operating Agent reasonably determines
that any amount is to be paid for liquidity agreements by the Buyer on
account of capital required or expected to be maintained by the
provider thereof, then, upon written demand by the Operating Agent, the
Seller shall immediately pay to the Operating Agent for the account of
the Buyer or Citibank or the Agent or, as the case may be, for its own
account from to time, additional amounts as specified by the Operating
Agent, sufficient to compensate, in light of such circumstances, to the
extent that the Operating Agent reasonably determines such increase in
capital or, as the case may be, such amount to be allocable to the
existence of the Buyer's agreement as referred to above. A certificate
as to such amount submitted to the Seller by the Operating Agent shall,
in the absence of manifest error, be conclusive and binding for all
purposes.
(D) Increased Costs in Respect of Taxation: If the Operating Agent
determines that as a result of any change in or in the interpretation
of or of the introduction of any law, regulation or regulatory
requirement relating to taxation coming into force after the Effective
Date, or as a result of any act or omission of the Seller, any of the
Buyer, the Agent, the Operating Agent, Citibank or any Person
controlling the Buyer, the Agent, Citibank or the Operating Agent,
incurs or will incur an increased cost in respect of purchase or
agreements to purchase made under or pursuant to this Agreement (or any
agreement entered into pursuant to Clause 19(C)) other than an
increased cost arising solely as a result of a change in the nate of
taxation on the overall net income of the relevant indemnified party,
the Seller shall immediately pay to the Operating Agent for the account
of the Buyer, the Agent or Citibank or, as the case may be, for its own
account from time to time, additional amounts as specified by the
Operating Agent, equal to such cost. A certificate as to such amount
submitted to the Seller by the Operating Agent shall, in the absence of
manifest error, be conclusive and binding for all purposes.
(E) Judgment Currency: Each reference in this Agreement to a specific
currency is of the essence. The obligation of the Seller (individually,
or as the Collection Agent) 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, 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, the Seller 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.
(F) Payment: Any amounts subject to the indemnification provisions of
Clause 15(B), (C), (D) or (E) shall be paid by the Seller to the
Operating Agent within two Programme Business Days following the
Operating Agent's demand therefor.
(G) After Tax Amount: In the event that any taxing authority seeks to
charge to tax any sum paid to the Buyer or the Operating Agent or any
of their respective Affiliates as a result of the indemnities or other
obligations contained herein, 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
-39-
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 Agent, the Buyer and the Operating Agent with
respect to an amendment, or (2) the Seller, the Agent the Buyer or the
Operating Agent, as the case may be, with respect to a waiver or
consent by it, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
(B) Entire Agreement: This Agreement contains a final and complete
integration of all prior expressions by the parties with respect to the
subject matter of this Agreement and constitutes the entire agreement
among the parties with respect to the subject matter of this Agreement,
superseding all prior oral or written understandings.
17. NOTICES
All notices and other communications provided for under this Agreement
shall, unless otherwise stated in this Agreement, be in writing in the
English language (including telex and fax communication) and mailed
(first class, postage paid) or delivered to each party at its address
set out under its name on the execution pages of this Agreement or at
such other telex or fax number or address as may be designated by such
party in a written notice to the other parties. All such notices and
communications will be effective, (i) in the case of written notice,
five days after being deposited in the post, or (ii) in the case of
notice by telex, when telexed against receipt of answer back, or (iii)
in the case of notice by fax, at the time of transmission unless served
on a day which is not a Local Business Day or after 5:00pm at the place
in which the recipient is located, in which case it will be effective
at 9:00am at the place in which the recipient is located on the
following Local Business Day. In each case notice must be addressed as
aforesaid:
18. NO WAIVER: REMEDIES
(A) No Waiver: No failure on the part of the Agent, the Buyer, the Seller
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 night 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, the
Agent, and the Operating Agent are hereby authorised by the Seller at
any time after the Seller is in default of its obligations under this
Agreement or an Early Amortisation Event has occurred and to set off
and apply, and/or to instruct Citibank or any of Citibank's Affiliates
to set off and apply, any and all deposits at any time held and other
indebtedness at any time owing (whether general or special, time or
demand, provisional or final and in whatever currency) by the Buyer,
the Agent, the Operating Agent or, as the case may be, any such
Affiliate to
-40-
or for the credit or the account of the Seller against any and all of
the obligations of the Seller (as such, as Collection Agent, or
otherwise), now or hereafter existing under this Agreement, to the
Buyer, the Agent, or the Operating Agent or their respective successors
and assigns on, 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 and its successors and permitted
assignees in accordance with Clause 19(B); (2) the Buyer and also in
relation to the benefit, but not the burden of this 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; (3) the Agent and its successors
and (4) Citibank and its successors as Operating Agent (and the terms
"Seller", "Buyer" and "Operating Agent" shall be construed
accordingly).
(B) The Seller: No Seller may assign any of its rights, benefits or
interest in or under this Agreement except with the prior consent of
the Operating Agent.
(C) The Buyer: The Buyer may grant or assign all or part of any Purchased
Receivable (or any participation or interest, whether proprietary or
contractual, in or in respect of all of any part of any Purchased
Receivable) and/or all or any of its rights, benefits and interest in
or under this Agreement (1) as provided in this Agreement, (2) to
Eureka or any Affiliate of Eureka or any vehicle managed by Eureka or
an Affiliate of Eureka (3) to Citibank or any Affiliate of Citibank or
any vehicle managed by Citibank or an Affiliate of Citibank, or (4)
(after first offering to make such grant or assignment on
substantially similar terms to the Seller, and the Seller not
accepting such offer within 10 Programme Business Days of the date of
the offer) to any other Person which engages in the business of
purchasing or accepting grants or assignments of, or making loans in
respect of, accounts receivable or other debts or intangibles or
participations or interests, whether proprietary or contractual,
therein or in respect thereof, and has entered into an agreement with
the Buyer. Any such grant or assignment as referred to in (2), (3) and
(4) above shall be upon such terms and conditions as the parties
thereto may mutually agree. Upon the assignment of all or part of any'
Purchased Receivable, rights, benefits and/or interests from an
assignor as described above, the respective assignee receiving such
assignment shall have all the rights of such assignor hereunder
with respect to such Purchased Receivable (or part thereof), rights,
benefits and/or interests. An assignor of any Purchased Receivable (or
part thereof), rights, benefits and/or interests under this Agreement
will provide notice to the Seller of any such assignment, unless notice
is waived by the Seller.
(D) Additional Seller: The Operating Agent may, in its sole and absolute
discretion, at the request of Exide Europe, admit DETA-Iberica S.A. 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:
-41-
(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 a "Seller".
20. 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 Capital
of all Groups of Receivables has been reduced to zero and all Yield,
Programme Costs and other fees due under this Agreement or Fees Letter
have been paid; provided, however, that the rights and remedies with
respect to any breach 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. The
Operating Agent will notify the Rating Agencies promptly upon the
occurrence of:
(A) the Termination Date; and/or
(B) any material amendment to this Agreement.
21. NO PROCEEDINGS
(A) Buyer: The Seller and the Operating Agent each hereby agree that they
will not institute against the Buyer any bankruptcy, insolvency or
similar proceeding so long as any commercial paper issued by Eureka or
any of its Affiliates is outstanding or one year plus one day has not
elapsed since the last day on which any such commercial paper was
outstanding.
(B) Eureka: The Seller, the Buyer and the Operating Agent each hereby agree
that they will not institute against Eureka or any of its Affiliates
any bankruptcy, insolvency or similar proceeding so long as any
commercial paper issued by Eureka or any of its Affiliates is
outstanding or one year plus one day has not elapsed since the last day
on which any such commercial paper was outstanding.
-42-
22. 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.
23. CONFIDENTIALITY
Unless otherwise required by applicable law or regulation, or as
requested by any regulator or tribunal with competent jurisdiction
over, or over any business of, the relevant party, each of the parties
agrees to maintain the confidentiality of this Agreement in its
communications with third parties and otherwise.
24. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and construed in
accordance with, the laws of Spain.
(B) Consent to Jurisdiction: The parties hereto hereby irrevocably and for
the benefit of each other submit to the jurisdiction of the courts of
Madrid 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 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 or the Buyer, as
applicable, at the address designated for notices under this Agreement.
The Seller 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.
-43-
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
SOCIEDAD ESPANOLA DEL ACUMULADOR, S.A.
as Seller
By: /s/ Xxxxxxxxx Xxxxxxx Falcon
-------------------------------------
Name: XXXXXXXXX XXXXXXX FALCON
Title: EMPOWERED
Date: 10.06.1997
EXIDE EUROPE FUNDING Ltd.
as Buyer
By: /s/ XXXX XXXXXXX-XXXXXX
-------------------------------------
Name: XXXX XXXXXXX-XXXXXX
Title: DIRECTOR
Date: 13.06.97
TUDOR COLLECTIONS LTD.
as Agent
By: /s/ XXXX XXXXXXX-XXXXXX
-------------------------------------
Name: XXXX XXXXXXX-XXXXXX
Title: DIRECTOR
Date: 13.06.97
CITIBANK, N.A.
as Operating Agent
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: VP
Date: 17.06.97
-44-
EXECUTION COPY
GERMAN RECEIVABLES SALE AGREEMENT
dated 5 June, 1997
ACCUMULATORENFABRIK SONNENSCHEIN GmbH
EXIDE AUTOMOTIVE BATTERIE GmbH
XXXXX BATTERIE AG
collectively, as Sellers and as Collection Agents
EXIDE EUROPE FUNDING LTD.
as Buyer
CITIBANK, N.A.
as Operating Agent
Xxxxxxxx Chance
Frankfurt
CONTENTS
1. DEFINITIONS AND CONSTRUCTION...................................... 1
2. FACILITY.......................................................... 22
3. CONDITIONS PRECEDENT.............................................. 22
4. PURCHASES......................................................... 24
5. COLLECTIONS AND SETTLEMENT........................................ 26
6. FEES, COSTS AND STAMP DUTY........................................ 29
7. PAYMENTS AND COMPUTATIONS, ETC.................................... 30
8. REPRESENTATIONS AND WARRANTIES OF THE SELLERS..................... 31
9. AFFIRMATIVE COVENANTS OF THE SELLERS.............................. 35
10. NEGATIVE COVENANTS OF THE SELLERS................................. 37
11. REPORTING REQUIREMENTS OF THE SELLERS............................. 38
12. COLLECTION AGENTS, COLLECTIONS AND BUYER ACCOUNTS................. 40
13. PROTECTION OF THE BUYER'S RIGHTS.................................. 45
14. RESPONSIBILITIES OF THE SELLERS................................... 46
15. AGENCY AND INDEMNITIES............................................ 48
16. AMENDMENTS, ETC................................................... 51
17. NOTICES........................................................... 52
18. NO WAIVER: REMEDIES............................................... 52
19. BINDING EFFECT: ASSIGNABILITY..................................... 53
20. TERMINATION....................................................... 54
21. NO PROCEEDINGS.................................................... 55
22. RESTRUCTURING..................................................... 55
23. RELEASE OF EXCESS RELATED SECURITY................................ 56
24. EXECUTION IN COUNTERPARTS: SEVERABILITY........................... 56
25. CONFIDENTIALITY................................................... 56
26. GOVERNING LAW AND JURISDICTION.................................... 56
THE SCHEDULES
Schedule 1 Part 1 - Offices of the Sellers
Part 2 - Collection Accounts
Part 3 - Seller Non-Transaction Accounts
Part 4 - Buyer Accounts
Schedule 2 Form of Admission of Additional Seller
Schedule 3 Form of Settlement Statement
Schedule 4 Form of Summary Report
Schedule 5 Initial Conditions Precedent
Schedule 6 Form of Notice of Sale
Schedule 7 Forms of Contract
Schedule 8 Part 1 - Information to be provided to Exide Europe
Part 2 - Form of Monthly Summary
Schedule 9 Part 1 - Form of ASGmbH Account Pledge Agreement
Part 2 - Form of EABGmbH Account Pledge Agreement
Part 3 - Form of HBAG Account Pledge Agreement
Part 4 - Form of Buyer Account Pledge Agreement
THIS RECEIVABLES SALE AGREEMENT, dated 5 June, 1997, is made among:
(1) ACCUMULATORENFABRIK SONNENSCHEIN GmbH, a company registered under HRB
107 at Amtsgericht Budingen ("ASGmbH");
(2) EXIDE AUTOMOTIVE BATTERIE GmbH, a company registered under HRB 6408 at
Amtsgericht Kassel ("EABGmbH");
(3) XXXXX BATTERIE AG, a company registered under HRB 1087 at Amtsgericht
Soest ("HBAG" and, together with ASGmbH and EABGmbH, the "Sellers" and
"Seller" means any of them);
(4) EXIDE EUROPE FUNDING LTD., a company with its registered office at 00
Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the
"Buyer");
(5) CITIBANK, N.A., a United States national banking association acting
through its London branch at 000 Xxxxxx, Xxxxxx XX0X lHB (the
"Operating Agent");
Preliminary Statements
A. Each of the Sellers 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
such Seller on or after the Effective Date; and
B. 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, in particular,
Clause 4(G).
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
In this Agreement (including the Preliminary Statements):
(A) Accounting Terms: All accounting terms not specifically defined in this
Agreement shall be construed in accordance with generally accepted
accounting principles as in effect on the date hereof in the Federal
Republic of Germany.
-1-
(B) Defined Terms: The following terms shall have the meanings indicated:
"Account Debtor" means a Person obliged to make payment(s) pursuant to a
Contract.
"Account Pledge Agreements" means the account pledge agreements substantially in
the forms of Schedule 9 hereto.
"Accounts Receivable Listing" means a list, by invoice number, of all of the
Contracts which are shown on a Seller's general ledger as outstanding at the
time the list is compiled together with such other information concerning each
Contract, and in such format, as the Operating Agent may specify.
"Accounts Receivable Trial Balance" means a Seller's accounts receivable trial
balance computer printout, containing a list of 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 Purchased Receivables have been reduced by virtue of any prompt payment
discounts, accruals for volume rebates, warranty claims by the applicable
Account Debtor(s), and other credit notes (including, without limitation, credit
notes issued to Account Debtors as a result of disputes, claims and invoicing
errors by the relevant Seller).
"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 Account made by the Seller under Clause 12(C) to the extent they
are outstanding and not repaid.
"Adverse Claim" means any claim of ownership, lien, security interest, mortgage,
charge, or encumbrance, or other right or claim of any Person.
"Affiliate" when used with respect to (i) any company incorporated in the
Federal Republic of Germany means any related company or corporation in
accordance with Section 15 of the German Stock Corporation Act ("Akriengesetz")
and (ii) any other Person means any other Person controlling, controlled by or
under common control with, in each case, directly or indirectly that Person and
includes a Subsidiary (as defined below) or a company or corporation of which
that Person is a Subsidiary and any other Subsidiary of such company or
corporation; provided however, that, Persons which are not part of the Exide
Group shall not be considered to be Affiliates of any Person which is part of
the Exide Group except for the purposes of paragraph (i) above, paragraph (2) of
the definition of "Eligible Receivable" and Clause 6(A).
-2-
"Approved Jurisdiction" means each of (i) the Federal Republic of Germany or
(ii) France, Italy, England, Wales, Scotland or Northern Ireland, Spain, The
Netherlands or Belgium, or (iii) another jurisdiction in respect of which the
Seller has obtained as security from the applicable 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-l and P-l 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 (which assignment shall include full notice to the
applicable bank issuing the letter of credit), requiring payment to be made
directly to the Operating Agent.
"Available Collections" means, at any time, an amount equal to the aggregate of
all Collections standing to the credit of the Buyer Accounts in respect of
Purchased Receivables less all accrued Yield and Programme Costs (whether or not
incurred or paid by the Buyer) together with any other amounts owing from the
Collection Agents to the Buyer or the Operating Agent under this Agreement.
"Bank Facility Rate" means either: (a) in the event Eureka shall not at any
time, fund its purchase under the RPA with the issuance of commercial paper or
purchases are being made under the PPA, due solely to an Early Amortisation
Event, a per annum rate equal to Dollar LIBOR plus 1.75%, or (b) in the event
Eureka shall not at any time fund its purchase under the RPA with the issuance
of commercial paper or purchases are being made under the PPA, for any reason
other than due to an Early Amortisation Event, a per annum rate equal to Dollar
LIBOR plus 0.125%.
"Base Rate" means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, from
time to time, as Citibank's base rate:
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there is no nearest
1/16 of 1%, to the next highest 1/16 of 1%) of (i) 1/2 of 1% per
annum, plus (ii) the rate obtained by dividing (A) the latest three-
week moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average (adjusted to
the basis of a year of 360 days) being determined weekly on each Monday
(or, if such day is not a Programme Business Day, on the next
succeeding Programme Business Day) for the three-week period ending on
the previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
-3-
Citibank from three New York certificate of deposit dealers of
recognised standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for Citibank with respect to
liabilities consisting of or including (among other liabilities) three-
month Dollar non-personal time deposits in the United States plus (iii)
the average during such three-week period of the annual assessment
rates estimnated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring Dollar deposits of Citibank
in the United States; and
(c) 1/2 of one per cent. per annum above the Federal Funds Rate.
"Buyer Account" means each of the accounts specified in Part 4 of Schedule 1 in
the name of the Buyer with the Collection Account Banks or such other account at
such bank as the Buyer may utilise for the purposes of this Agreement and
designate as a Buyer Account.
"Buyer Entitlement" means all amounts standing to the credit of the Seller Non-
Transaction Accounts which are not Seller Entitlement.
"Capital" equals, at any time, the Deutsch Xxxx Equivalent of the Sellers'
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" means, in respect of each Seller, each of the accounts set
opposite such Seller's name in Part 2 of Schedule 1 pursuant to the Collection
Account Bank Mandates and operated by the relevant Collection Agent or such
other account or accounts of each Seller with the Collection Account Banks as
may, with the prior written consent of the Operating Agent, be utilised for the
purposes of this Agreement and designated as a Collection Account.
"Collection Account Banks" means each of the banks listed in Part 2 of Schedule
1 with which a Collection Account is held or such other branch or bank at which
a Collection Account is, with the prior written consent of the Operating Agent,
opened or maintained from time to time.
"Collection Account Bank Mandates" means the resolutions, instructions and
signature authorities given by each Seller to the Collection Account Banks in
form and substance satisfactory to the
-4-
Operating Agent (as evidenced by its execution thereof), as they may be amended
from time to time with the prior written consent of the Operating Agent.
"Collection Account Event" shall be deemed to have occurred if Exide Europe
fails to maintain a Debt Service Cover Ratio of greater than 1.10 :1.00.
"Collection Agent" means at any time the Person then authorised pursuant to this
Agreement to service, administer and collect Purchased Receivables.
"Collections" means, with respect to any Purchased Receivable, all cash
collections and other cash proceeds of that Purchased Receivable (including
Uberweisungen, bank transfers, wire-transfers, checks, bills of exchange, direct
debits, but 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.
"Commitment" means the commitment of the Buyer under Clause 2 hereof.
"Concentration Amount" means as of any date, with respect to each Account
Debtor, the product of (a) the Concentration Limit applicable to such Account
Debtor and (b) the Dollar Equivalent of the Outstanding Balance of Purchased
Receivables aggregated among all Origination Agreements.
"Concentration Limit" means, in relation to the aggregate Receivables for each
Account Debtor: (a) for any single Account Debtor rated at least A-I or P-l or
its equivalent by the Rating Agencies, 17%;
(b) for any single Account Debtor rated A-2 or P-2 or its equivalent by the
Rating Agencies, 8.5%;
(c) for any single Account Debtor rated A-3 or P-3 or its equivalent by the
Rating Agencies, 5.66%;
(d) for any single Account Debtor rated below A-3 or P-3 or not rated on its
short term debt, 3.4% (to the extent an Account Debtor does not have a short
term rating but has an actual or implied senior long-term debt rating, the
applicable percentage will be determined based on equivalent senior long-
term debt ratings (as determined by the Operating Agent) for the short term
ratings specified above).
"Contract" means a written agreement between a Seller and an Account Debtor
pursuant to which the Account Debtor is obliged to pay for goods or services
sold or provided by such Seller (including any value added tax in respect
thereof) from time to time.
"Country Limit" means the DM Equivalent of $37,000,000.
"Credit and Collection Policy" means in respect of a Seller, its policies,
practices and procedures relating to Contracts and Receivables in form and
content satisfactory to the Operating Agent in accordance with paragraph (j) of
Schedule 5, as modified from time to time with the consent of the Operating
Agent.
-5-
"Currency Exchange Agreement" means, as of any time, the Currency Exchange
Agreement (as that term is defined in the RPA or the PPA, as applicable) that
may be entered into by the Buyer from time to time in accordance with the
provisions of the RPA or the PPA, as applicable.
"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.
"Debt Service Cover Ratio" means the Debt Service Cover Ratio as that term is
defined and calculated pursuant to the Syndicated Facility; provided however, if
the Syndicated Facility is terminated for any reason, the definition and
calculation of Debt Service Cover Ratio for the purposes of this Agreement will
survive such termination.
"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 Purchased Receivables that were 91-120 days past due at the end of
each such month plus Purchased Receivables that were charged off (or, without
duplication, which should have been charged off) as uncollectible during each
such month which, if they had not been charged off (or, without duplication,
which should have been charged off) would have been less than 90 days past due
during such month to (ii) aggregate sales giving rise to Receivables that were
generated during the calendar month immediately preceding the commencement of
the Loss Horizon preceding such date.
"Defaulted Receivable" means a Receivable:
(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 Account Debtor has taken any action, or
suffered any event to occur, of the type described in Clause 11(D)(2);
or
-6-
(3) which has been, or should be, written off or provided for in a Seller's
books as uncollectible in accordance with the Credit and Collection
Policy.
"Designated Account Debtor" means, at any time, all Account Debtors unless the
Operating Agent has advised a Seller that an Account Debtor shall not be
considered a Designated Account Debtor.
"Deutsche Xxxx" and "DM" each mean the lawful currency of the Federal Republic
of Germany;
"Determination Date" means initially, the Effective Date and thereafter, each
following Tuesday; 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 Purchased Receivable which is
either (a) reduced or cancelled as a result of (i) any defective or rejected
goods or services, or any failure by a 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 a Seller which reduces the amount payable by the Account Debtor on
the related Purchased Receivable or (iii) any set-off in respect of any claim by
the Account Debtor on the related Purchased Receivable or (b) subject to any
specific dispute, offset, counterclaim or defence whatsoever (except the
discharge in bankruptcy of the Account Debtor thereof).
"Dilution Horizon" means, at any time, the estimated weighted average period in
days between the issuance of invoices and the related credit note, if any, by
the Programme Sellers, as such period is calculated by the Operating Agent
from time to time.
"Dilution Horizon Ratio" equals the higher of (a) the Dollar Equivalent of total
sales giving rise to Programme Receivables for the Programme Sellers for the
past Dilution Horizon divided by the Dollar Equivalent of the outstanding
balance of Eligible Receivables (whether or not they are Purchased Receivables)
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 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
-7-
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.
"Discount" means with respect to a Group of Receivables on the relevant Purchase
Date the sum of applicable Programme Costs, applicable Accruals and applicable
Reserves.
"DM Equivalent" or "Deutsche Xxxx Equivalent" of any sum and at any time means
the amount of Deutsche Xxxx that would be purchased under the Currency Exchange
Agreement at the Spot Rate determined for such sum at such time.
"Dollar Equivalent" of any sum and at any time means the amount of Dollar that
would be purchased under the Currency Exchange Agreement at the Spot Rate
determined for such sum the most recent Settlement Date.
"Dollars" and the sign "$" each mean the lawful currency of the United States of
America.
"Early Amortisation Event" means the first to occur of:
(1) any Originator defaults in the payment on the due date of any payment
due and payable by it under or relating to this Agreement or any of
the other Relevant Documents and such default continues unremedied
for a period of five (5) Local Business Days after the earlier of
such Originator becoming aware of such default and the receipt by
such Originator of written notice by the Operating Agent requiring
the same to be remedied;
(2) subject to Clause 12(D), any Originator defaults in the performance
or observance of any of its other covenants and obligations, or
breaches any representation or warranty (other than a breach of the
representation and warranty in Clause 8(T)), under this Agreement or
any of the other Relevant Documents, which in the reasonable opinion
of the Operating Agent is materially prejudicial to the interests of
the Buyer and/or Eureka and/or the Liquidity Banks and/or the
Operating Agent, and such default is not remedied to the satisfaction
of the Operating Agent within five Local Business Days of the earlier
of such Originator becoming aware of such default and receipt by such
Originator 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 an Originator satisfies its obligations
pursuant to Clause 5(D) within such five Local Business Day period,
such default or breach shall not be considered to be an Early
Amortisation Event);
(3) an effective resolution is passed for winding up any Originator;
-8-
(4) any Originator 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,
(which cessation or threat thereof would, in the opinion of the
Operating Agent be likely to materially and adversely affect such
Originator's ability to perform its obligations under the Relevant
Documents, or any of them) or any Originator becomes unable to pay
its debts (Zahlungsunfahigkeit), or is deemed unable to pay its
debts, within the meaning of German law on insolvency, including
within the meaning of the Konkursordnung or the Vergleichsordnung 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 or over-indebted
(uberschuldet);
(5) Exide Europe ceases at any time to own, directly or indirectly, a
minimum of 80% of each class of the outstanding capital stock of any
Seller;
(6) Exide Europe breaches the 1:1 Debt Service Cover Ratio;
(7) any Debt of a member of the Exide Group in excess (in the aggregate)
of the DM 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;
(8) any sale of Eligible Receivables under this Agreement ceases to
create a valid and perfected unencumbered first priority interest or
security interest in such Eligible Receivables;
(9) proceedings are initiated against any Originator in respect of its
liquidation, winding-up, administration, insolvency, composition,
reorganisation (other than a reorganisation the terms of which have
been approved by the Operating Agent and where such Originator is
solvent) under any applicable liquidation, administration,
insolvency, composition, reorganisation or other similar laws save
where such proceedings are being contested in good faith by such
Originator, or an administrative or other receiver, servicer or other
similar official is appointed in relation to any Originator or in
relation to the whole or any substantial part of the undertaking or
assets of any Originator or an encumbrancer shall take possession of
the whole or any substantial part of the undertaking or assets of any
Originator, 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 any Originator and
in any of the foregoing cases it shall not be discharged within 15
days;
-9-
(10) if any Originator 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,
(11) for any three month period, the average Default Ratio exceeds 5%;
(12) for any three month period, the average Dilution Ratio exceeds 7%;
(13) for any three month period, the average Loss to Liquidation Ratio
exceeds 0.5%;
(14) the Buyer is unable to obtain appropriate funds from its currency
swap counterparty under the Currency Exchange Agreement; or
(15) an Early Amortisation Event as that term is defined under the RPA or
the PPA or a Programme Amortisation Event under any other Origination
Agreement.
"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 which is a Programme Business
Day.
"Eligible Receivable" means a Receivable:
(1) the Account Debtor of which is a company or commercial partnership or
registered cooperative or any other body corporate which is
(according to the address specified in the related invoice) organised
under the laws of and resident in an Approved Jurisdiction;
(2) the Account Debtor of which is a Designated 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 at the date of Purchase;
- 10 -
(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 and (ii) within 120 days in respect of ASBmbH and HBAG or 180
days in respect of EABGmbH after the earlier of the original billing
date and the date that the invoice relating thereto is despatched;
(7) the Dollar Equivalent of the Outstanding Balance of which, when added
to the Dollar Equivalent Outstanding Balance (as that term is defined
under each Origination Agreement) of all other Purchased Receivables
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 Deutsche Xxxx;
(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
applicable conflict of laws principles in the Federal Republic of
Germany) by the laws of the Federal Republic of Germany and which is
in existence and in full force and effect and constitutes the legal,
valid and binding obligation of the Account Debtor, (B) is an
obligation which is freely assignable in the manner contemplated in
this Agreement and, for the avoidance of doubt, is not subject to any
restriction on assignment 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 relevant Seller is not in
violation of any such law, rule or regulation in any material
respect;
(11) which (A) satisfies all applicable requirements of the Credit and
Collection Policy and (B) complies with such other criteria and
requirements (other than those relating to the collectability of such
Receivable) as the Operating Agent may from time to time specify to
the relevant Seller and which are based on a criterion or requirement
of any one or more of the Rating Agencies;
(12) which is not subject to withholding taxes on payments from the
Account Debtors in respect thereof;
(13) which represents all or part of the sales price in respect of the
supply of goods or services in the Approved Jurisdiction in question;
-11-
(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; and
(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.
"Eureka" means Eureka Securitisation, Plc., a company incorporated under the
laws of England and Wales.
"Exide Europe" means Exide Holdings Europe S.A., a French societe anonyme.
"Exide Group" means Exide Europe and all of its Subsidiaries.
"Facility Fee" means the Sellers' Proportionate Share of 0.30% per annum of the
Facility Limit calculated monthly in arrears and applied on each Settlement
Date.
"Facility Limit" means $ 175,000,000.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Programme Business Day, for the next preceding Programme Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Programme Business Day, the average of the
quotations for such day on such transactions received by the Operating Agent
from three Federal funds brokers of recognised standing selected by it.
"Fees Letter" means the Fees Agreement dated as of the date hereof between,
inter alia the Originators, the Buyer, Exide Europe and the Operating Agent in
respect of the calculation and payment of certain fees.
"Final Payment Date" means the date on which payment is made by the Operating
Agent to a Seller pursuant to Clause 5(C).
-12-
"Foreign Currency Reserve" as of any Settlement Date will equal 5.5% of the Loss
and Dilution Reserve for such Settlement Date, or such other amount as
determined by the Operating Agent (and notified in writing to the Sellers),
acting reasonably (upon the written request of the 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).
"Funding Agreement" means any agreement whereby the Buyer acquires or may
acquire funds for the purpose of financing (in whole or in part) the purchase of
Receivables hereunder.
"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 Notice of Sale.
"Guarantee" means any guarantee, indemnity, letter of credit or any other
obligation or irrevocable offer (whatever called and of whatever nature):
(1) to pay or to purchase;
(2) to provide funds (whether by the advance of money, the purchase of or
subscription for shares or other securities, the purchase of assets,
rights or services, or otherwise) for the payment or discharge of;
(3) to indemnify against the consequences of default in the payment of;
or
(4) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend, distribution,
capital or premium on shares, stock or other interests, or the insolvency or
financial condition of another person.
"Initial Purchase" means the first Purchase completed under this Agreement.
"Interest Period" means initially, the period commencing on the Effective Date
and ending on the following Settlement Date and thereafter, each period
beginning on the day following the last day of the immediately preceding
Interest Period and ending on 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.
"Letter of Undertaking" means the Letter of Undertaking given by Exide Europe
substantially in the form set out in Schedule 2 to the RPA.
-13-
"LIBOR" means the rate per month determined by the Operating Agent to be equal
to the arithmetic mean (rounded upwards, if not already such a multiple, to the
nearest whole multiple of one-sixteenth of one per cent) of the offered
quotations for Dollars which appear on page 3750 of the Telerate screen or, if
such page or service shall cease to be available, such other page or such other
service (as the case may be) as the Operating Agent may select. If less than two
quotations for the relevant rate and the relevant period are displayed and the
Operating Agent has not selected an alternative service on which two or more
such quotations are displayed "LIBOR" shall mean the Base Rate.
"Liquidity Bank" means any financial institution which may from time to time
become a party to the PPA as a Liquidity Bank thereunder.
"Local Business Day" means any day (other than a Saturday or Sunday) on which
banks and foreign exchange markets are open for business in Frankfurt am Main.
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 and Dilution Reserve'" as of any Settlement Date will equal:
[C + YR] x [max(DYN,FLOOR)/1 -(max(DYN,FLOOR))]
where:
DYN = [(SF2 x ED) + DVF] x DHR + (SF1 x LR x LHR)
FLOOR = CF + (ED x DHR), with a minimum amount of $12,000,000
where:
C = Programme Capital
YR = the Sellers' Proportionate Share of Yield Reserve
SF1 = Stress Factor One = 2.25
SF2 = Stress Factor Two = 2.25
ED = Average Programme Dilution Ratio during the preceding 12 months
DVF = Dilution Volatility Factor
DHR = Dilution Horizon Ratio
LHR = Loss Horizon Ratio
CF = Concentration Floor = 17%
LR = Loss Ratio
-14-
"Loss Horizon" equals the sum of 90 days plus the Weighted Average Term
calculated among all Origination Agreements as of the Settlement Date.
"Loss Horizon Ratio" equals the total sales giving rise to Programme
Receivables for the Programme Sellers for the Loss Horizon divided by the
outstanding balance of Programme Receivables as of the end of the most recent
month.
"Loss Ratio" as of any date equals the highest 3 month average Default Ratio
aggregated among all Origination Agreements which has occurred in the 12 months
immediately preceding such date.
"Loss to Liquidation Ratio" as of any date, is equal to the ratio (expressed as
a percentage) of (i) the aggregate outstanding balance of all Receivables that
were written off by the Sellers during the twelve month period most recently
ended prior to such date to (ii) the aggregate amount of such total sales giving
rise to Receivables less the Dollar Equivalent of the total Diluted Receivables
during such twelve month period.
"Net Receivable Balance" means at any time the excess of (i) the Dollar
Equivalent of the aggregate Outstanding Balance of Eligible Receivables (whether
or not they are Purchased Receivables) over (ii) the sum of the
Overconcentration Amount at such time, plus the aggregate Unapplied Cash at such
time.
"Notice of Sale" has the meaning assigned to that term in Clause 4(A).
"Onward Sale Fee" means 0.01% per annum on the average outstanding Capital
calculated monthly in arrears and applied on each Settlement Date.
"Origination Agreement" means as of any time each agreement, whereby a member
of the Exide 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 as of the date
hereof between CMP Batteries Limited, Exide (Dagenham) Limited, Fulmen (U.K.)
Limited and B.I.G. Batteries Limited as Seller, Exide Funding as Buyer and
Citibank as Operating Agent, (ii) for France, the Receivables Subrogation
Agreement dated as of the date hereof between CEAC, Compagnie Europeenne
d'Accumulateurs S.A. and Batterie Xxxxx as Originators, Exide Funding as
Receivables Purchaser and Citibank as Operating Agent, (iii) for Spain, the
Receivables Sale Agreement dated as of the date hereof between Sociedad Espanola
del Acumulador Tudor, S.A. as Seller, Exide Funding as Buyer, Tudor Collections
Ltd as Agent and Citibank as Operating Agent, (iv) for Italy, (a) the
Receivables Purchase Agreement dated as of the date hereof between Societa
Industriale Accumulatori
-15-
s.r.l. and Compagnia Generale Accumulatori S.p.A. as Seller, Archimede
Securitisation s.r.i as Buyer, Citibank (London branch) as Operating Agent and
Citibank (Milan branch) as Allocation Agent, and (b) the Onward Sale Agreement
dated as of the date hereof between Archimede Securitisation s.r.l. as onward
seller, Exide Funding as onward buyer and Citibank as Operating Agent and (v)
for Germany, this Agreement.
"Originator" means each of ASGmbH, EABGmbH and HBAG, in its capacity as Seller
and/or Collection Agent, as the context may require.
"Outstanding Balance" of any Receivable at any time means the then unpaid face
amount thereof (including VAT) (except for purposes of determining the Default
Ratio, where the unpaid face amount of any Purchased 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).
"Overconcentration Amount" means at any time the Dollar Equivalent of the sum of
the amounts, if any, by which the Outstanding Balance of Receivables owing by
each Account Debtor on such date exceeds the Concentration Amount applicable to
such Account Debtor.
"Person" means an individual, partnership, company, body corporate, corporation,
trust, unincorporated association, joint venture, government, or governmental
body or agency or other entity.
"PPA" means the Parallel Purchase Agreement dated as of the date hereof
between the Buyer and Citibank and such other parties as may become a Buyer
thereunder.
"Programme" means the revolving sale of trade receivables originated by Exide
Holdings Europe S.A. and certain of its subsidiaries and the funding of such
revolving sale pursuant to the funding arrangements established in relation to
each Origination Agreement.
"Programme Amortisation Event" means an Early Amortisation Event of the type
described in paragraphs (1), (2), (3), (4), (6), (7), (9), (10) or (15) of the
definition of "Early Amortisation Event".
"Programme Business Day"' means any day (other than a Saturday or Sunday) on
which banks and foreign exchange markets are open for business in London, Paris
and New York. Where an obligation is expressed in this Agreement to be performed
on a Programme Business Day and such Programme Business Day is not also a Local
Business Day, such obligation shall be performed on the immediately preceding
Local Business Day which is also a Programme Business Day.
- 16 -
"Programme Capital" equals, at any time, total Capital as defined and calculated
pursuant to the RPA or the PPA, as applicable.
"Programme Costs" comprise (a) the Onward Sale Fee and (b) the Sellers'
Proportionate Share of (i) the Facility Fee, (ii) the Investor Fee as defined in
the Fees Letter and (iii) the Programme Fee as defined in the Fees Letter.
"Programme Dilution Ratio" as of any date, is equal to the aggregate of the
Dilution Ratios calculated among all Origination Agreements.
"Programme Receivables" means the aggregate Dollar Equivalent of Receivables (as
that term is defined in each Origination Agreement), aggregated among all
Origination Agreements.
"Programme Sellers" means, collectively, all of the Affiliates of Exide Europe
designated as Sellers or Originators pursuant to any or all of the Origination
Agreements.
"Proportionate Share" equals, at any time, in respect of the Sellers or any of
them, the result of the formula: the Dollar Equivalent of all Purchased
Receivables from the Sellers (or any of them, as applicable), divided by the
Dollar Equivalent of all Purchased Receivables and Subrogated Receivables (as
these terms are used in each applicable 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 this Agreement.
"Purchase Date" means the Effective Date and each Settlement Date after the
Effective Date occurring before the Termination Date on which there is a
Purchase of Receivables by the Buyer as contemplated by this Agreement.
"Purchase Price" means, in respect of a Group of Receivables, an amount in
Deutsche Xxxx equal to the Outstanding Balance of the Group of Receivables as at
the proposed Purchase Date less the Discount, as calculated by the Operating
Agent.
"Purchased Receivable" means a Receivable (whether or not an Eligible
Receivable) purchased or purported to be purchased by the Buyer under this
Agreement.
"Rating Agencies" means Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies Inc. and Xxxxx'x Investors Service, Inc.
-17-
"Receivable" means the indebtedness of any Account Debtor under a Contract
arising from a sale or contract of sale of merchandise or provision or contract
of provision of services by a Seller and representing part or all of the sale
price of such merchandise or services and includes the right to payment of any
interest or finance charges and other obligations of such Account Debtor with
respect thereto.
"Records" means, in respect of any Receivable, all Contracts, correspondence,
notes of dealings with other documents, books, books of account, registers,
records and other information (including, without limitation, computer
programmes, tapes, discs, punch cards, data processing software and related
property and rights) maintained (and recreated in the event of destruction of
the originals thereof) with respect to such Receivable and the related Account
Debtor.
"Related Security" means with respect to any Receivable all of the relevant
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, 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, Records
and all proceeds at any time arising out of the resale, redemption or other
disposal (net of collection costs); or dealing with, or judgments relating to,
any of the foregoing, any debts represented thereby and all rights of action
against any Person in connection therewith.
"Relevant Date" means the earlier of:
(1) the date on which all Capital of all Groups of Receivables is reduced to
zero; and
(2) the date on which the Outstanding Balance of all Purchased Receivables is
reduced to zero.
"Relevant Documents" means this Agreement, the Collection Account Bank Mandates,
the Account Pledge Agreements and the Fees Letter.
"Reserves" means, as of any date, the Sellers' Proportionate Share of the sum of
the Loss and Dilution Reserve, the Yield Reserve and the Foreign Currency
Reserve.
"RPA" means the Receivables Purchase Agreement dated as of the date hereof
between the Buyer, Eureka and the Operating Agent.
"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.
-18-
"Sellers" means, collectively, ASGmbH, EABGmbH and HBAG and any Additional
Seller made party to this Agreement in accordance with Clause 19(D) provided
that, for the avoidance of doubt, all covenants, indemnities, representations
and warranties given or made by any party comprising the Sellers pursuant to
this Agreement (whether in its capacity as Seller or as Collection Agent) shall
be deemed to be given or made jointly and severally by it and the other parties
comprising the Sellers, and vice versa. Where the context requires, including,
for the avoidance of doubt, for the purpose of the definitions of "Early
Amortisation Event" and "Collection Agent Event" each such party individually
shall also be considered to be a "Seller".
"Seller Entitlement" means, at any time, in respect of the total amount standing
to the credit of the Collection Accounts together with interest thereon, the
portion thereof which is not attributable to or representing Collections.
"Seller Non-Transaction Account" means in respect of each Seller, each of the
accounts set opposite such Seller's name in Part 3 of Schedule 1 or such other
account or accounts at such branch of such bank as such Seller may from time to
time specify by written notice to the Collection Account Bank with a copy to the
Operating Agent.
"Settlement Date" means initially, the Effective Date and thereafter, each
following Thursday; provided however, if such day is not a Programme Business
Day which is also a Local Business Day under the Origination Agreement for
Italy, the Settlement Date for such week shall be the next succeeding Programme
Business Day which is also a Local Business Day under the Origination Agreement
for Italy.
"Settlement Period" means any period beginning on (and including) a Settlement
Date and ending on (but excluding) the next following Settlement Date.
"Settlement Statement" means a statement, as of any Settlement Date, prepared by
the Operating Agent substantially in the form of Schedule 3 showing, (amongst
other things) the amount of Receivables purchased by the Buyer during the last
Settlement Period.
"Spot Rate" means, as of any Settlement Date, the spot rate utilised for the
Currency Exchange Agreement as determined for such Settlement Date.
"Stamp Duty" means any stamp duty, stamp duty reserve tax, registration or other
transaction or documentary tax (including without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same).
-19-
"Subsidiary" means a subsidiary within the meaning of Section 15 of the Stock
Corporations Act (Aktiengesetz).
"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 a 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.
"Syndicated Facility" means the FF 2,569,000,000 Facilities Agreement dated 30th
November 1995 between Compagnie Europeenne d'Accumulateurs S.A., Euro Exide
Corporation Limited, Exide Holding Europe and Sociedad Espanola del Acumulador
Xxxxx X.X. as the Lead Borrowers, Bankers Trust International Plc. as Lead
Arranger, Bankers Trust Company, Bank of America National Trust and Savings
Association, Bank of Montreal and Citibank International Plc. as Underwriters,
Bank of America International Limited, Bank of Montreal and Citibank
International Plc. as Co-Arrangers, Bankers Trust Company as Agent and Security
Agent and the Lenders described therein, as that agreement may be amended or
restated from time to time.
"Temporary Adjustment Account" means the sub-account held by the Buyer with
Citibank, N.A., London branch, denominated in Deutsche Xxxx and utilised for
such purpose under the account number 00000000.
"Termination Date" means the earliest to occur of (1) the Programme Business Day
designated by the Seller as the Termination Date following 2 Programme Business
Days' notice to the Operating Agent, (2) the Termination Date under the RPA or
the PPA, (3) an Early Amortisation Event, and (4) 5 June, 2002.
"Turnover Rate" means, as of any Purchase Date, the average of each of the three
most recently ended months outstanding Net Receivable Balance under the RPA or
the PPA, as applicable, as of the last day of each such month, over the Dollar
Equivalent of aggregate outstanding balance of Receivables sold by the Sellers
and Originators under all Origination Agreements during each such month.
"Unapplied Cash" means as of any date with respect to any Receivable, the
aggregate Collections which have not yet been reflected on the books and records
of the Originator as a reduction to the Dollar Equivalent of the Outstanding
Balance of such Receivable.
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"Weighted Average Term" means the weighted average term of all Purchased
Receivables, calculated on the basis of the formula: E(original stated payment
term of each invoice x amount of such invoice) / Einvoice amount.
"Yield" will be calculated on the first Purchase Date and on each Settlement
Date thereafter on the basis of the outstanding Capital as at such dates times
the Yield Rate divided by 360 times the actual number of days elapsed in the
relevant Interest Period.
"Yield Rate" will be the cost of commercial paper notes issued by Eureka to fund
its purchase of Receivables, plus related dealer commissions and administration
costs (such administration costs not to exceed 0.03% of Capital per annum), plus
the cost of swapping Dollar proceeds of commercial paper into the currency of
the Purchased Receivables, determined by the Operating Agent and expressed as a
percentage of Capital. In the event Eureka shall not at any time, fund its
purchases under the RPA with the issuance of commercial paper, or if purchases
are being made under the PPA, the Yield Rate shall be the Bank Facility Rate.
"Yield Reserve" means as of any Settlement Date, the product of (1) two times
the Turnover Rate for such date and (2) the sum of (a) fifty-two times the Yield
for such date, divided by 12 (Yield calculated for this purpose using the higher
of the Yield Rate and the rate shown in paragraph (a) of the definition of "Bank
Facility Rate"); (b) the facility fee of 0.30% per annum of the Facility Limit
calculated monthly in arrears and applied on each Settlement Date; (c) the
Programme Fee as defined in the Fees Letter; and (d) the product of (i) the
Dollar Equivalent of the most recently ended month's outstanding Net Receivable
Balance aggregated among all Origination Agreements less the Dollar Equivalent
of Defaulted Receivables aggregated among all Origination Agreements and (ii)
0.75% (substitute collection agent reserve) the resulting figure divided by 12.
(C) This Agreement: Any reference to "this Agreement" or any other agreement
or document shall, unless the context otherwise requires, include this
Agreement or, as the case may be, that other agreement or document as from
time to time amended, supplemented or novated, and any document which
amends, supplements or novates this Agreement or, as the case may be, that
other agreement or document. Any reference to Clauses or paragraphs in
this Agreement is, subject to any contrary indication, a reference to a
Clause or paragraph in this Agreement.
(D) Origination 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.
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(E) Headings: Headings shall be ignored in construing this Agreement.
(F) Time: Save where the contrary is indicated, any reference in this
Agreement to a time of day (including opening and closing of business
hours) shall be construed as a reference to Frankfurt am Main time.
(G) Time of Essence: Time shall be of the essence in this Agreement and all
documents delivered pursuant to the terms of this Agreement, subject to
the prior waiver of such timing by the affected party.
2. FACILITY
The Sellers hereby agree to sell and the Buyer hereby offers to commit to
purchase at a discount from the Sellers on each Purchase Date falling on or
after the Effective Date, full title and ownership in and to certain Receivables
on the terms and conditions set out in this Agreement.
3. CONDITIONS PRECEDENT
(A) To Initial Purchase: The Initial Purchase is subject to the condition
precedent that the Operating Agent receive 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: Each Purchase (including the Initial Purchase) is
subject to the further following conditions precedent:
(1) On each Purchase Date the following statements must be true and
correct (and the relevant Seller will be deemed to have jointly and
severally with the other Sellers so certified on such date that):
(a) the representations and warranties of each 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) such Seller has delivered such directors' certificate as may
be required by the Operating Agent as to such Seller's
solvency;
(c) after the proposed Purchase the Outstanding Balance of
Purchased Receivables would be at least equal to the sum of
(i) aggregate outstanding
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Capital (ii) 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 any Seller of any of its Receivables
out of the ordinary course of its business without the prior
written consent of the Operating Agent;
(f) the aggregate Outstanding Balance of all Purchased Receivables
whose Account Debtors are resident in France, Italy, England,
Wales or Northern Ireland, Spain, The Netherlands or Belgium
does not exceed 15% of the outstanding Capital; and
(g) after the proposed Purchase, Capital would not exceed the
Country Limit and Programme Capital would not exceed the
Facility Limit.
(2) On or prior to each Purchase Date the relevant Seller shall have
delivered to the Operating Agent an Accounts Receivable Listing.
(3) On or prior to each Purchase Date each Seller shall have complied
with all of its reporting and other obligations under this Agreement
unless such failure to comply has been waived by the Operating Agent
in respect of such Purchase Date.
(4) The Commitment shall not have been cancelled.
(5) The Operating Agent has received such other approvals, legal
opinions or documents as the Operating Agent may reasonably request.
(C) The Operating Agent shall, as soon as reasonably practicable after
submission to it of a form of Contract other than the form set out in
Schedule 7, notify the relevant Seller as to whether it approves of the
form for the purposes of paragraph (9) of the definition of "Eligible
Receivable", such approval not to be unreasonably withheld. In considering
whether to approve such other form of Contract, the Operating Agent may,
as a condition of considering whether to give its approval, take such
legal advice as it deems appropriate including, without limitation, advice
from counsel in the Federal Republic of Germany, and all related costs,
charges, and expenses (including without limitation reasonable legal fees,
disbursements and VAT thereon) shall be for the joint and several account
of the Sellers.
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(D) The Commitment shall be cancelled:
(1) on the Termination Date; or
(2) if it becomes unlawful in any jurisdiction for the Buyer to give
effect to any of its obligations as contemplated by this Agreement
to fund or maintain the funding of any Purchase,
whichever shall first occur.
4. PURCHASES
(A) Making Purchases: Each Seller shall, prior to 10 a.m. London time on the
Determination Date immediately prior to each proposed Purchase Date,
deliver to the Buyer a Notice of Sale by facsimile (and shall send the
original Notice of Sale to the Operating Agent by ordinary post on the day
it is delivered by facsimile) substantially in the form of Schedule 6
("Notice of Sale") identifying (inter alia) the Purchase Date, the then
Outstanding Balance of Receivables (if any) and the Purchase Price for
such Receivables calculated by the Operating Agent on behalf of the Buyer.
The calculation of the Purchase Price by the Operating Agent shall, in the
absence of manifest error, be deemed to be conclusive and binding on the
parties hereto.
(B) Sale: The delivery of the Notice of Sale by facsimile will constitute
notification to the Buyer of the Receivables and the Related Security,
designated pursuant to Clause 4(D), which the Buyer is to purchase for the
Purchase Price as set out in the Notice of Sale. The Buyer shall, subject
to the terms and conditions of this Agreement (including, for the
avoidance of doubt, Clause 3) pay in full the Purchase Price once the sale
and assignment has been affected. Sale and assignment to the Buyer of full
title and ownership in and to those Receivables and the Related Security
with respect to those Receivables are effected by either (i) payment of
the Purchase Price as calculated by the Operating Agent (including payment
by set-off pursuant to Clause 5(B)(1) in connection with Clause 12(C)) or
(ii) verbal acceptance of the offer. To the extent that title to Related
Security cannot be transferred by mere agreement between a Seller and the
Buyer as effected in the foregoing sentence of this Clause, each of the
Sellers and the Buyer agree that:
(a) insofar as Related Security governed by German law is concerned:
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(i) any transfer of possession (Ubergabe) necessary to transfer
title in a Related Security, in particular in relation to
cheques, bills of exchange or Vorgehaltseigentum, is replaced
by as the case may be:
aa) the relevant Seller holding such instruments of debt or
other movables in custody for the Buyer free of charge
(Verwahrung); and/or
bb) assigning hereby to the Buyer all claims for return
against the relevant persons which are in actual
possession of such instrument or movable;
(ii) any notice to be given in order to effect transfer of title
shall, however subject to Clause 14(D) immediately be given by
such Seller in such form as the Operating Agent requires and
each Seller hereby agrees that if such Seller fails to give
such notice, the Operating Agent is hereby irrevocably
authorised to give such notice on behalf of such Seller; and
(iii) any other thing to be done or form or registration to be
effected shall be immediately done and effected by such Seller
at its own cost; and
(b) insofar as Related Security governed by the law of any other
jurisdiction is concerned:
(i) the relevant Seller shall do all acts and things at its own
cost which, under applicable law are necessary to be done in
order to effect transfer of title; and
(ii) insofar as applicable law does allow, sub-paragraphs (a) (i),
(ii) and (iii) shall apply mutatis mutandis to such Related
Security.
(C) Purchase Price: The Buyer shall pay in full the Purchase Price on the
Purchase Date in the currency and funds specified in Clause 7(B) to the
relevant Seller's account specified in Clause 7(C).
(D) Determination of Purchased Receivables: On or prior to each Purchase Date
in respect of which a Notice of Sale is to be delivered, the relevant
Seller will identify the Group of Receivables to be offered for purchase
by the Buyer on such date in such format as the Operating Agent may
specify.
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(E) Records: On or prior to each Purchase Date in respect of which a Notice
of Sale is to be delivered, the relevant Seller will at the Seller's
expense deliver to the Operating Agent (or as the Operating Agent may
direct) the Accounts Receivable Trial Balance generated on or in
relation to such Purchase Date, identifying the Receivables designated
pursuant to this Clause 4(E).
(F) Perfection: Subject to Clause 13, each Seller and the Buyer will take
all such steps and comply with all such formalities as may be required
to perfect or more fully to evidence or secure title to the Receivables
and the Related Security sold and assigned (or purported to be sold and
assigned) pursuant to this Clause 4.
(G) Delegation of Powers of Operating Agent: The Operating Agent hereby
delegates to the Sellers all of its obligations under this Clause 4,
which delegation the Sellers irrevocably accept. Each of the Sellers
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.
5. COLLECTIONS AND SETTLEMENT
(A) Collection of Receivables: (1) On each day the Collection Agent shall
as described in Clause 12(B) set aside and hold in trust (Treuhand) for
the Buyer until the following Settlement Date all Collections of
Purchased Receivables on such day, and (2) the Operating Agent shall
issue a Settlement Statement to the relevant 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 Purchase Date the Buyer shall, unless otherwise
instructed by the Operating Agent, set off, against its
obligation to pay the Purchase Price of the Group of
Receivables to be purchased by the Buyer on such Purchase Date,
the aggregate amount (if any) of any Advance Payments withdrawn
by the relevant Collection Agent from any Buyer Account
pursuant to Clause 12(C) and which has not been refunded as of
close of business on the Programme Business Day immediately
preceding such Purchase Date.
(2) On each Determination Date the Operating Agent shall calculate:
(a) Capital as at the forthcoming Settlement Date; and
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(b) Yield and Programme Costs in respect of the Capital as at
the forthcoming Settlement Date.
(3) On each Settlement Date each Collection Agent shall pay all
Collections in respect of Purchased Receivables into the Buyer
Accounts set out in Part 4 of Schedule 1 subject to the
provisions of Clause 12(C) regarding Advance Payments.
(4) On each Settlement Date the Operating Agent shall cause to be
paid from the Buyer Accounts (without prejudice to, and subject
always to, the provisions of Clause 12(C) regarding Advance
Payments):
(a) to the Buyer, Yield and Programme Costs in respect of the
Interest Period ending on that Settlement Date;
(b) to the Seller, the Purchase Price (if any) in respect of
Purchased Receivables, to the extent the Purchase Price is
not satisfied by way of set-off pursuant to Clauses
5(B)(1) and 12(C);
(c) to each Collection Agent, the Proportionate Share of the
relevant Seller of all sums received by the Buyer pursuant
to Clause 5(B)(3)(c) of the RPA or the PPA, as applicable,
by way of a success fee in respect of the collection of
the Purchased Receivables; and
(d) to the Buyer, all amounts standing to the credit of the
Buyer Account after payment of the amounts set forth in
(a) and (b) above.
(C) Settlement Procedures after Termination Date: On the Termination Date
and each day thereafter, for all Purchased Receivables:
(1) On each Programme Business Day, the Operating Agent shall cause
to be paid from the Buyer Accounts to the Buyer all amounts
standing to the credit of the Buyer Accounts.
(2) If and to the extent that the Buyer receives funds pursuant to
Clause 5(C)(2) of the RPA or the PPA, as applicable, the
Operating Agent shall cause to be paid from the relevant Buyer
Account to each Collection Agent, the relevant Seller's
Proportionate Share of such funds, by way of a success fee in
respect of all the Purchased Receivables.
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(D) Adjustments and Allowances:
(1) If on any day the Outstanding Balance of any Purchased
Receivable is ether (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 relevant
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 Account Debtor thereof against the relevant 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 Purchased Receivable
otherwise than with the prior consent of the Operating Agent),
the relevant Seller will be deemed to have received on such day
a Collection of such Purchased Receivable in the amount of such
reduction, adjustment or cancellation and shall credit such
amount to the relevant Buyer Account by way of indemnity.
(2) If on any day any of the representations or warranties in
Clause 8 is no longer true with respect to a Purchased
Receivable, the relevant Seller will be deemed to have received
on such day a Collection of such Purchased Receivable equal to
its original Outstanding Balance less any Collections
previously received with respect thereto and shall credit to
the relevant Buyer Account an amount equal to such deemed
Collection by way of indemnity.
(3) If any Purchased Receivable was not an Eligible Receivable at
the time of Purchase, on the date such fact becomes known to a
Seller, the relevant Seller will be deemed to have received a
Collection of such Purchased Receivable equal to its original
Outstanding Balance less any Collections previously received
with respect thereto and shall pay to the Buyer an amount equal
to such deemed collection by way of indemnity.
(4) If a Seller is not acting as the Collection Agent, it will
promptly pay to the Collection Agent the amount of any deemed
Collection pursuant to Clause 5(D)(l), (2) or (3) above by way
of indemnity.
(5) If, following any payment in respect of a deemed Collection of
a Purchased Receivable pursuant to Clause 5(D)(1), (2), (3) or
(4) above, the Buyer shall receive any further Collections in
respect of such Purchased Receivable, the Buyer shall (provided
no Early Amortisation Event has occurred) pay to the relevant
Seller an amount or amounts equal to such further Collections
by way of repayment of indemnity.
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(E) Application of Collections: Any payment by an Account Debtor in respect
of any indebtedness owed by it to the relevant Seller and any credits
or cash proceeds in respect of defective, rejected, repossessed or
returned goods or other non cash items of an Account Debtor will,
except as otherwise specified in writing by such Account Debtor or
otherwise required by contract or law and unless otherwise instructed
by the Operating Agent, be applied as a Collection of Purchased
Receivables of such 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 Account Debtor.
6. FEES, COSTS AND STAMP DUTY
(A) Collection Agent Fees: Until the later of the Termination Date and the
Relevant Date, for any period during which a Seller or an Affiliate of
such Seller is not the Collection Agent, the Sellers jointly and
severally agree that they will pay the Buyer, upon its demand, a
collection fee as determined by the Operating Agent, not exceeding 110%
of the fees, costs and expenses, plus value added tax (if applicable),
of the substitute Collection Agent incurred in performing such
function.
(B) Costs and Expenses: The Sellers jointly and severally agree 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 this Agreement and the other documents to be
delivered pursuant to this Agreement or in connection therewith, such
costs and expenses to include, without limitation, the reasonable fees
and out-of-pocket expenses of legal advisers (plus VAT thereon) to the
Buyer and the Operating Agent with respect thereto and with respect to
advising the Buyer and the Operating Agent as to their respective
rights and remedies under this Agreement, and all costs and expenses,
if any (including legal fees and expenses plus VAT thereon), in
connection with the enforcement of this Agreement, the other documents
to be delivered pursuant to this Agreement or in connection therewith
and the Purchased Receivables. The Buyer and the Operating Agent agree
to take reasonable steps, consistent with the protection of their
respective interests under this Agreement, to mitigate their costs and
expenses in connection with the enforcement of this Agreement, the
other documents to be delivered pursuant to this Agreement and the
Purchased Receivables.
(C) Duties and Taxes: In addition, the Sellers hereby jointly and severally
agree that they will pay on demand of the Operating Agent any stamp
duty, sales, excise, registration and other taxes, duties and fees
payable in connection with the execution, delivery, filing or recording
of this Agreement or the purchase, assignment or reassignment of
Receivables under or pursuant to this Agreement, or the other documents
to be delivered under this Agreement or
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in any way connected with any transaction contemplated by this
Agreement. The Sellers jointly and severally agree 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) Default Interest: The Sellers hereby jointly and severally agree that
they shall pay to the Operating Agent or, as the case may be, the Buyer
interest (as well after as before judgment) on all amounts (other than
interest) not paid or repaid when due under this Agreement at 2% per
annum above the Base Rate payable on demand of the Operating Agent.
(E) Computations: All computations of interest and fees shall be made on
the basis of a year of 360 days and actual number of days (including
the first but excluding the last day) elapsed. In case any of the
Sellers has not paid interest pursuant to this sub-clause (E) or
pursuant to any other provision of applicable law when such payment of
interest is due, the Sellers jointly and severally agree to pay to the
Operating Agent or, as the case may be, the Buyer lump sum damages at
the amount of 2% per annum above the Base Rate on demand of the
Operating Agent.
(F) 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 any Seller
and/or the Collection Agent 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 Sellers under this Agreement to
the Operating Agent for its own account or for the account of the Buyer
shall be paid in Deutsche Xxxx. The Purchase Price amounts payable by
the Buyer under this Agreement shall be paid in Deutsche Xxxx.
(C) Accounts: Any amounts payable under this Agreement shall, unless
provided otherwise by this Agreement, be remitted to the following
accounts:
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(1) if to a Seller, the appropriate Seller Non-Transaction Account;
(2) if to the Buyer (otherwise than to any Buyer Account), Account
No. 8319731 (Sort Code 18-50-08) with Citibank, 000 Xxxxxx,
Xxxxxx XX0X 0XX; and
(3) if to the Operating Agent for its own account, Account No.
3064506 (Sort Code 18-50-08) with Citibank, 000 Xxxxxx, Xxxxxx
XX0X 0XX.
(D) Grossing Up: To the fullest extent permitted by law, each Seller will
make all payments under this Agreement regardless of any defence or
counterclaim. Further, if a Seller, in its individual capacity or as
Collection Agent, is compelled by law to make any deductions or
withholdings from any payments pursuant to this Agreement including,
without limitation, payments in respect of Receivables or Collections,
such 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. Each Seller will
provide the Operating Agent with evidence satisfactory to the Operating
Agent that it has paid such deductions or withholdings.
(E) Appropriation of Payments: Regardless of any appropriation by any
Seller or the Collection Agent, 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 Collection Agent under this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller jointly and severally with the other Sellers represents and
warrants, as of the Effective Date, as follows:
(A) Incorporation: Each Seller and Exide Europe is a company duly
incorporated and validly existing under the laws of its
jurisdiction of incorporation or organisation.
(B) Seller Power and Authority: Each Seller has full power and
authority to effect, and has taken all necessary action to
authorise, the execution, delivery and performance by it of
this Agreement and all other instruments and documents to be
delivered under this Agreement, and the transactions
contemplated by this Agreement.
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(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
Letter of Undertaking and all other instruments or documents to
be delivered under the Letter of Undertaking, and the
transactions contemplated by the Letter of Undertaking.
(D) Non-Violation: The execution, delivery and performance by each
Seller of this Agreement and all other instruments and
documents to be delivered pursuant to this Agreement and all
transactions contemplated by this Agreement, and the execution,
delivery and performance by Exide Europe of the Letter of
Undertaking and all transactions contemplated thereby:
(1) do not contravene (a) any Seller's or Exide Europe's
memorandum or articles of association (or analogous
constitutive documents), (b) any law, rule or
regulation applicable to any Seller or Exide Europe,
(c) any material contractual restriction contained in
any agreement or instrument binding on or affecting
any party comprising the Sellers, Exide Europe or the
Exide Europe's assets, or (d) any order, writ,
judgment, award, injunction or decree binding on or
affecting any Seller or any of such Seller's assets or
Exide Europe or Exide Europe's assets;
(2) do not result in or require the creation of any lien,
security interest or other charge or encumbrance upon
or with respect to any of the Seller's or Exide
Europe's assets or undertaking; and
(3) will not constitute a breach of, nor give rise to any
actual or potential event of default under, any Debt
of any member of the Exide Group, or under any
document relating to such Debt.
(E) Consents: No consent, authorisation, approval, notice or filing
is required (or, if required, which has not been obtained on a
timely basis) for the due execution, delivery or performance by
each Seller of this Agreement or any other document to be
delivered in connection with this Agreement or for the
transactions contemplated by this Agreement or for the due
execution, delivery or performance by Exide Europe of the
Letter of Undertaking or any other document to be delivered in
connection with the Letter of Undertaking or for the
transactions contemplated by the Letter of Undertaking.
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(F) Obligations Binding: (1) This Agreement constitutes the legal,
valid, binding and enforceable obligation of each Seller; and
(2) the Letter of Undertaking constitutes the legal, valid,
binding and enforceable obligation of Exide Europe.
(G) Accounts: The most recent audited annual accounts of each
Seller and Exide Europe, copies of which have been furnished to
the Operating Agent, present a true and fair view of the
financial condition of such Seller and its consolidated
Subsidiaries (if any) or Exide Europe, as applicable, as at
that date and the results of the operations of such Seller and
those subsidiaries, or Exide Europe, as applicable, for the
period ended on that date, all in accordance with generally
accepted accounting principles consistently applied.
(H) No Material Adverse Change to any Seller: Since 31 March 1996,
being the date of each of the Sellers' most recent audited
annual accounts, there has been no change in the business or
financial condition of any Seller which may materially
adversely affect the ability of any Seller to perform its
obligations under this Agreement.
(I) No Material Adverse Change to Exide Group: Since 31 March 1996,
being the date of the Exide Group's most recent audited
consolidated annual accounts, there has been no change in the
business or financial condition of the Group which is
reasonably likely to materially adversely affect the ability of
Exide Europe to perform its obligations under the Letter of
Undertaking.
(J) No Litigation: There are no actions, suits or proceedings
current or pending, or to the knowledge of any Seller
threatened, against or affecting any Seller or its Subsidiaries
(if any) or any of its 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 any
Seller and its Subsidiaries taken as a whole or Exide Europe,
or materially adversely affect the ability of any Seller to
perform its obligations under this Agreement or the ability of
Exide Europe to perform its obligations under the Letter of
Undertaking.
(K) No Default: No Seller nor any of its Affiliates, nor Exide
Europe, 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 any Seller or any of
its Affiliates, or Exide Europe, and would not materially
adversely affect the ability of such Seller to perform its
obligations under
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this Agreement or the ability of Exide Europe to perform its
obligations under the Letter of Undertaking.
(L) No Adverse Claim: Each Receivable will, together with the
Contract related thereto, at all times be owned by the relevant
Seller free and clear of any Adverse Claim except as provided
in this Agreement, and upon each Purchase the Buyer will
acquire full title to and of each Purchased Receivable, the
Collections and the Related Security then existing or
thereafter arising free and clear of any Adverse Claim except
as provided in this Agreement.
(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 any Seller (in its individual capacity or
as Collection Agent) or Exide Europe, to the Operating Agent or
Exide Europe, as applicable, is inaccurate in any material
respect (except as otherwise disclosed to the Operating Agent
at the time of delivery) as of the date so furnished, or
contains any material misstatement of fact or omits to state a
material fact or any fact necessary to make the statements
contained therein not materially misleading.
(O) Place of Business: The principal place of business and
registered office of each Seller is as set forth in Part 1 of
Schedule 1 or at such other location(s) approved by the
Operating Agent (such approval not to be unreasonably withheld
or delayed).
(P) Location of Books: The offices where each Seller keeps all its
books, records and documents evidencing Receivables or the
related Contracts are at the locations set forth in Schedule 1
or at such other location(s) approved by the Operating Agent
(such approval not to be unreasonably withheld or delayed).
(Q) Location of Bank Accounts: The bank accounts to which each
Seller has directed the Account Debtors to remit payments for
the Receivables are the Collection Accounts (or 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 a Collection Account Bank Mandate has been (or will be as
of the Effective Date) duly executed
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by any Seller (in its individual capacity and/or as Collection
Agent) and the Operating Agent) and in respect of which the
relevant bank has agreed, in relation to at least the Buyer
Entitlement, not to exercise any right of set-off, net-off,
combination or consolidation of accounts or counterclaim
whatsoever.
(R) No Winding-Up: No step has been taken or is intended by any
Seller or, so far as it is aware, by any other Person for any
Seller's winding-up, liquidation, dissolution, administration,
merger or consolidation or for the appointment of an
administrator of any Seller or all or any of its assets.
(S) No Breach: There has been no breach by any Seller of any of its
obligations under the Relevant Documents or by Exide Europe of
any of its obligations under the Letter of Undertaking.
(T) Eligibility: Each Receivable the subject of a Notice of Sale is
an Eligible Receivable as at the time of Purchase.
Each Seller further jointly and severally with the other Sellers
represents and warrants that the representations and warranties in this
Clause 8 shall be true and correct on and as of each Purchase Date as
though made on each such date and by reference to the then-existing
circumstances.
9. AFFIRMATIVE COVENANTS OF THE SELLERS
Until the later of the Termination Date and the Relevant Date, each
Seller will jointly and severally with the other Sellers, unless the
Operating Agent otherwise consents:
(A) Compliance with Law: Comply in all material respects with all
applicable laws, rules, regulations and orders binding on it,
its business and assets and all Receivables and related
Contracts, except where non-compliance would not have, and
would not be reasonably likely to have, a material adverse
effect on its ability to perform its obligations hereunder.
(B) Maintain Existence: Preserve and maintain its corporate
existence.
(C) Access: Upon reasonable prior notice, permit the Operating
Agent, or its agents or representatives, to visit the offices
of such Seller during normal office hours and examine and make
and take away copies of all books, records and documents
relating to the Receivables and to discuss matters relating to
the Receivables or any Seller's
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performance hereunder with any of the officers or employees of
such Seller having knowledge of such matters and co-operate in
the reconstruction of the Accounts Receivable Trial Balance
pursuant to Clause 13(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 any Seller pursuant to a
Contract or which otherwise relates to Purchased Receivables.
(I) Collections: If any Seller is not acting as Collection Agent,
(1) give all reasonable assistance (including the provision of
information) to any third party replacing such Seller as
Collection Agent in accordance with the provisions of this
Agreement, and (2) remit any Collections on Purchased
Receivables to the Collection Agent on the Business Day of the
receipt or deemed receipt thereof.
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(J) Bank Accounts: Pay or cause to be paid all Collections of
Receivables directly into the bank account or accounts referred
to in Clause 8(Q) or such other account(s) approved by the
Operating Agent.
(K) Audit Costs: Pay the reasonable fees and expenses for one audit
by the Operating Agent in each financial year of each 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.
(L) Provision of Information to Exide Europe: The Sellers 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, 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 SELLERS
Until the later of the Termination Date and the Relevant Date, each
Seller jointly and severally with the other Sellers hereby undertakes
that no Seller will, without the prior consent of the Operating Agent:
(A) No Disposal of Receivables: Except as otherwise provided
herein, sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse
Claim upon or with respect to, any Receivable purchased or to
be offered for purchase under this Agreement or the related
Contract, or assign any right to receive income in respect
thereof.
(B) No Transfer of Business: Transfer all or substantially all of
its assets and undertaking to any person including 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 any Seller to collect and sell
Receivables as contemplated by this Agreement.
(C) No Security Interest over Receivables: (a) create or permit to
subsist any Security Interest on any of its Receivables, and
(b) any Seller creates or permits to subsist any Security
Interest on any of its Receivables contrary to (a) above, such
Seller shall procure that all the obligations of the Sellers
under this Agreement shall automatically
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and immediately be secured upon the same assets, ranking at
least pari passu with the other obligations secured on those
assets.
(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.
(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 Account Debtor or the
operation of this Agreement without the prior written consent
of the Operating Agent.
(F) Cross Indemnity: The Seller shall not amend or otherwise change
the Deed of Cross-Indemnity dated as of the date hereof
between Exide Europe and the Programme Sellers, except in
respect of amendments or changes of a purely technical or
immaterial nature which do not affect either: (i) the title of
the Buyer to the Receivables assigned (or purported to be
assigned) pursuant to Clause 4 or (ii) the effectiveness of the
assignment (or purported assignment) pursuant to Clause 4.
11. REPORTING REQUIREMENTS OF THE SELLERS
Until the later of the Termination Date and the Relevant Date, each
Seller hereby jointly and severally with the other Sellers agrees that
it will, unless the Operating Agent otherwise consents, furnish to the
Operating Agent in the English language or translated into English
accompanied by a certificate certifying that the translation is true
and full.
(A) Annual Accounts of Sellers: As soon as available and in any
event within 180 days after the end of each of such Seller's
financial years, a copy of such Seller's annual accounts and
(if they are prepared) consolidated accounts in conformity with
generally accepted accounting principles, applied on a basis
consistent with that of the preceding financial year.
(B) Annual Accounts of Exide Europe: As soon as available and in
any event within 180 days after the end of each of Exide
Europe's financial years, a copy of Exide Europe's annual
accounts, prepared (as appropriate) on a consolidated basis in
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conformity with generally accepted accounting principles,
applied on a basis consistent with that of the preceding
financial year.
(C) Other Financial Information: Upon request of the Operating
Agent, such financial information, accounts and records with
respect to such Seller or Exide Europe which are relevant to
the Programme, as the Operating Agent may from time to time
reasonably request.
(D) Defaults and other Events: Forthwith on becoming aware of any
of the events described in (1), (2), (3) or (4) below or any
event which, with the giving of notice or lapse of time or
both, would constitute one of such events, the statement of the
chief financial officer or chief accounting officer of a Seller
setting out details of that event and the action which such
Seller proposes to take with respect to that event:
(1) any Seller fails to pay any principal of or premium or
interest on any Debt, in excess (in the aggregate) of
the DM 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 any Seller 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 any Seller
(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 any
Seller or an administrative receiver is appointed over
any part of the assets or undertaking of any Seller 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) any
Originator is solvent and is contesting the proceeding
in good faith); or
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(3) a Collection Account Event occurs; or
(4) an Early Amortisation Event occurs.
(E) Debt Service Cover Ratio: Within 45 days after the end of every
Accounting Quarter (as that term is defined under the
Syndicated Facility), a report showing the current Debt Service
Cover Ratio of Exide Europe.
(F) 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 any Seller or any of its Affiliates, as the
Operating Agent may from time to time reasonably request in
order to protect the interests of the Buyer or the Operating
Agent, including, prior to 10.00 a.m., London time on each
Summary Report Date, a Summary Report (with, among other
things, the information necessary to determine the Default
Ratio).
(G) Account Debtors: Within two calendar weeks after the end of
each calendar month (or such more frequent time as the
Operating Agent may request in writing), each Seller shall
deliver to the Operating Agent a current list of all Account
Debtors in respect of Purchased Receivables and the addresses
of such Account Debtors.
The obligations of the Sellers to deliver reports or similar information to the
Buyer pursuant to this Agreement may be delegated by the Sellers to Exide
Europe, and the performance by Exide Europe of such obligations hereunder shall
be deemed to be the performance by the Sellers of such obligations; provided
however, that the Sellers shall remain jointly and severally liable for any
non-performance of such obligations.
12. COLLECTION AGENTS, COLLECTIONS AND BUYER ACCOUNTS
(A) Designation of Collection Agents: The servicing, administering and
collection of the Receivables shall be conducted by such Persons (each
"Collection Agent" and together the "Collection Agents") so designated
from time to time pursuant to this Clause 12(A). Until the Operating
Agent gives notice to a Seller of a designation of a new Collection
Agent, each Seller in respect of such Seller's Receivables, is
designated as, and agrees to perform the duties and obligations of,
such Collection Agent pursuant to the terms of this Agreement in
relation to the Purchased Receivables originating from its business.
The Operating Agent may at any time after the occurrence of an Early
Amortisation Event or a Collection Account Event designate as
Collection Agent any Person (including itself) to succeed such Seller
or any successor Collection Agent, on the condition in each case that
any such Person agrees to
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perform the duties and obligations of such Collection Agent pursuant to
the terms of this Agreement. Such Collection Agent may, with the prior
consent of the Operating Agent, subcontract with any other Person for
servicing, administering or collecting the Receivables; provided,
however, that such Collection Agent will remain liable for the
performance of the duties and obligations of such Collection Agent
under this Agreement.
(B) Duties of Collection Agents: Each Collection Agent hereby agrees with
the Buyer and the Operating Agent that it:
(1) will take or cause to be taken and is, until further notice
from the Operating Agent, allowed and empowered to take all
such actions as may be necessary or advisable to collect each
Purchased Receivable, all in accordance with applicable laws,
rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy and the
instructions of the Operating Agent. Each of the Sellers and
the Buyer hereby appoints the respective Collection Agents as
its agents to enforce its respective rights and interests in
and under the Purchased Receivables, the Related Security and
the Contracts in particular, to:
(a) endeavour at its own expense to recover amounts due
from the Account Debtor in accordance with the Credit
and Collection Policy and in particular (but without
prejudice to the generality of the foregoing) exercise
all enforcement measures concerning amounts due from
the Account Debtor. For this purpose such Collection
Agent is hereby authorised to xxx the Account Debtor in
any court in the Federal Republic of Germany or in any
other competent jurisdiction in the Collection Agent's
own name and for the benefit of the Buyer
("Gewillkurte Prozessstandschaft"), the Purchaser
being obliged where necessary to assist such Collection
Agent in exercising all rights and remedies under and
in connection with the relevant Purchased Receivables
and for these purposes the Collection Agent is released
from the restrictions set forth in Section 181 of the
German Civil Code;
(b) keep Records, books of account and documents in
relation to the Purchased Receivables separate from all
other records, books of account and documents relating
to other Receivables or any receivables made or
serviced by the Collection Agent otherwise;
(c) keep records for all taxation purposes, including for
the purposes of value added tax;
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(d) hold all Records relating to the Purchased Receivables in its
possession in trust for, and to the order of, the Buyer;
(e) assist the Buyer in discharging any Related Security in
respect of any Purchased Receivables which have been repaid;
and
(f) assist the Buyer's auditors and provide information to them
upon request,
and each Collection Agent hereby accepts such appointment.
(2) will deposit in the relevant Collection Account for the order of the
Buyer all Collections of Purchased Receivables in accordance with
this Agreement and may, unless and until instructed otherwise by the
Operating Agent following the occurrence of an Early Amortisation
Event or a Collection Account Event, deposit in the Collection
Account monies other than Collections. Following the occurrence of a
Collection Account Event, or an Early Amortisation Event, such
Collection Agent shall segregate all cash, cheques and other
instruments received by it from time to time constituting
Collections of Purchased Receivables as the Operating Agent may
direct and deposit in a bank account designated by the Operating
Agent all such cash, cheques and other instruments (together with
the Buyer's Entitlement to the Collection Accounts) as soon as
practicable and in any event on the first Local Business Day
following receipt by such Collection Agent of such Collections and
will give such payment instructions and take such other steps
(whether or not contemplated by the relevant Collection Account Bank
Mandate) as the Operating Agent may require;
(3) confirms that, in accordance with the relevant Collection Account
Bank Mandate, the relevant Collection Account Bank has been
instructed to make available to such Collection Agent information
showing amounts received on each Local Business Day and standing to
the credit of such Collection Account as at the close of business on
that day;
(4) upon receipt of the information referred to in (3) above such
Collection Agent shall, on behalf of the Buyer and the relevant
Seller, make all such determinations and calculations as are
necessary in order to determine, in respect of amounts standing to
the credit of the relevant Collection Account on each Local Business
Day (including each Settlement Date), the Buyer Entitlement and the
Seller Entitlement respectively, and shall direct the relevant
Collection Account Bank, prior to 12:00 noon on each Settlement
Date, to transfer to the relevant Buyer Account the Buyer
Entitlement;
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(5) other than the transfers referred to in paragraphs (3) above and (C)
below such Collection Agent shall not, without the prior written
consent of the Operating Agent, withdraw funds from any of its
Collection Accounts or direct any Collection Account Bank to make
any transfers from any of its Collection Accounts, except for
withdrawals or transfers of cleared funds standing to the credit of
such Collection Account in accordance with the relevant Collection
Account Bank Mandates and which represent the Seller Entitlement and
provided that any such withdrawal or transfer would not cause any
such Collection Account to become overdrawn;
(6) may not extend, amend, modify or waive the terms of any Purchased
Receivable or amend, modify or waive any term or condition of any
Contract related thereto where such extension, amendment,
modification or waiver would prejudicially affect such Purchased
Receivable, unless the Operating Agent shall have otherwise
consented in writing. Each Seller shall deliver to the relevant
Collection Agent (if other than such Seller) all documents,
instruments and records which evidence or relate to the Purchased
Receivables which the Operating Agent may reasonably request;
(7) if other than a Seller, will provide to such Seller all such
information as such Seller may require for purposes of the Summary
Report and will as soon as practicable following receipt pay to or
to the order of such Seller the Collections of any Receivable which
is not a Purchased Receivable;
(8) if other than a Seller, will as soon as practicable upon demand
make available or (if so demanded) deliver to such Seller all
documents, instruments and records in its possession which evidence
or relate to Receivables of such Seller other than Purchased
Receivables, and copies of documents, instruments and records in its
possession which evidence or relate to Purchased Receivables which
the Operating Agent may reasonably request; and
(9) if the Operating Agent or its designee, and notwithstanding anything
to the contrary contained in this Agreement, shall have no
obligation to collect, enforce or take any other action described in
this Agreement with respect to any Receivable that is not a
Purchased Receivable other than to turn over, make available or
deliver to the relevant Seller the Collections and documents with
respect to any such Receivable as described in (4) and (5) above.
(C) Advance Payments: A Collection Agent may, from time to time on any Local
Business Day prior to the Termination Date unless and until the Operating
Agent directs otherwise in the event that there is an Early Amortisation
Event or a Collection Account Event, withdraw any
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amount or amounts standing to the credit of the Buyer Accounts. Any amount
so withdrawn (an "Advance Payment") which amount is required to be paid by
the respective Collection Agent to the Buyer on the Settlement Date if it
had not been so withdrawn shall be set off pro tanto in accordance with
Clauses 4(C) and 5(B)(1) against the Buyer's obligation to pay any
Purchase Price payable on the next following Purchase Date and, to the
extent the amount of the Advance Payment exceeds the amount of the
Purchase Price, be refunded by such Collection Agent in full by the
transfer of cleared funds to the Buyer's account pursuant to Clause
7(C)(2) not later than 12:00 noon on the next following Settlement Date;
provided always that any Advance Payment shall be refunded by such
Collection Agent by the transfer of cleared funds to the Buyer immediately
upon the demand of the Operating Agent in the event that there is an Early
Amortisation Event or a Collection Account Event. A Collection Agent
shall not be obliged to pay interest on any Advance Payment unless and to
the extent that it is not refunded as required under this Clause. Any
overdue amounts shall bear default interest in accordance with Clause
6(D).
(D) Failure to Report: If there is a failure at any time by the Collection
Agent 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
any Buyer Account in respect of any Settlement Period such that the
amounts due by any Seller and the Buyer pursuant to Clauses 4(B) and (C)
cannot be accurately determined (in the Operating Agent's reasonable
opinion), there will fall due from the Sellers (on a joint and several
basis) to the Buyer on the Settlement Date at the end of such Settlement
Period (on account of repayment of Advance Payments) an amount equal to
the anticipated Collections in respect of such Settlement Period as
determined by the Operating Agent, acting reasonably. For the purposes of
this Clause 12(D), it shall be considered reasonable for the Operating
Agent to anticipate that all Collections due during such Settlement Period
were received by the Collection Agent 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 or by way of further payment by the Sellers, 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 Collection Agent does not last longer
than two consecutive Settlement Periods and the provisions of this Clause
12(D) are complied with, such failure shall not by itself constitute an
Early Amortisation Event.
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13. PROTECTION OF THE BUYER'S RIGHTS
(A) Notice of Sale: At any time after the occurrence of an Early Amortisation
Event, the Operating Agent may (and each Seller following the Operating
Agent's request shall) notify the 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 such Seller to direct) all the 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 any
Seller does not (i) generate an Accounts Receivable Trial Balance in
relation to any Purchase Date (whether or not it is obliged to do so) or
(ii) provide the information to Exide Europe enumerated in Clause 9(L),
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 any Originator 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 at the cost of the Originators.
(D) Power of Attorney: Without prejudice to the provisions of Clauses 13(A) to
(C), each Originator 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, Eureka and/or the Operating Agent and/or the
Liquidity Banks 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
agreement or obligation of such Originator under or in connection with
this Agreement and/or under the Collection Account Bank Mandate(s), and to
exercise all other remedies of such Originator 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. The power of attorney
hereby granted is given by way of security, is coupled with an interest,
and is irrevocable and will extend to and be binding upon the successors
and
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assigns of such Originator. The Operating Agent is hereby released from
the restrictions under Section 181 of the German Civil Code.
14. RESPONSIBILITIES OF THE SELLERS
Notwithstanding anything herein to the contrary, each Seller jointly and
severally with the other Sellers hereby agrees with the Buyer and the
Operating Agent that:
(A) Perform Contracts: Each Seller will perform all its obligations
under the Contracts related to the Purchased Receivables to the same
extent as if such Purchased Receivables had not been sold pursuant
to this Agreement and the exercise by either the Operating Agent or
the Buyer of its rights hereunder will not relieve such Seller from
such obligations.
(B) Exoneration of Buyer and Operating Agent: None of the Buyer, Eureka
nor the Operating Agent will have any obligation or liability with
respect to any Purchased Receivables or related Contracts, nor will
the Buyer, Eureka or the Operating Agent be obliged to perform any
of the obligations of any Seller thereunder.
(C) Trust (Treuhandschaft): Until the Operating Agent requests
otherwise, each Seller will hold in trust (als Treuhander) for the
sole benefit, and to the order of the Buyer the Contracts, Records
and other documentary items relating to the uncollected Purchased
Receivables at its address specified in this Agreement. To the
extent that the Contracts, Records or other documentary items also
relate to Receivables that are not Purchased Receivables, such
Seller will hold them in trust and to the order of both the Buyer
and such Seller to the extent of the respective rights of the Buyer
and such Seller therein unless possession thereof is required by the
Buyer to enforce its ownership rights. Each Seller will deliver such
Purchased Receivables, Contracts, Records and documents to the
Operating Agent (or as it may direct), if so directed by the
Operating Agent following an Early Amortisation Event, and the
Operating Agent will make them available to such Seller to the
extent that they contain material or information that does not
relate to Purchased Receivables and to the extent that the Buyer's
interests are not thereby compromised.
(D) Marking: Each Seller will xxxx clearly and unambiguously its
ordinary business records, including without limitation its master
data processing records, relating to the Purchased Receivables with
a legend acceptable to the Operating Agent indicating that such
Purchased Receivables are owned by the Buyer. Each Seller agrees
that from time to time it will promptly execute and deliver all
instruments and documents,
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and take all further action that the Operating Agent may reasonably
request in order to perfect (except in so far as perfection may
entail notifying the Account Debtors of the Buyer's ownership of the
Purchased Receivables and the Collections of the Purchased
Receivables, which shall only be undertaken in accordance with
Clause 13(A) after an Early Amortisation Event), protect or more
fully evidence the Buyer's ownership interest in the Purchased
Receivables, the Collections and the Related Security and pending
such time will keep an up to date record of all Purchased
Receivables.
(E) Third Party Collection Agent: At any time following the designation
of a Collection Agent other than a Seller:
(1) Each Seller will, at the Operating Agent's request, (a)
assemble all Contracts and Related Security relating to the
Purchased Receivables, 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) Each Seller authorises the Operating Agent to take any and all
steps in such Seller's name and on behalf of such Seller
necessary or desirable, in the determination of the Operating
Agent, to collect all amounts due under any and all Purchased
Receivables, including, without limitation, endorsing such
Seller's name on cheques and other instruments representing
Collections and enforcing such Purchased Receivables and the
related Contracts.
(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
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(2) (without prejudice to Clause 5(D)) which or the Outstanding
Balance of which is, or would be, reduced, adjusted or
cancelled by any Seller and/or any other Person whether as a
result of the matters in Clause 5(D) or for any other reason;
such Seller will use its reasonable endeavours to recover such value
added tax (or the appropriate part thereof) from the appropriate tax
authorities, as agent and trustee of the Buyer, and promptly remit
it to the Buyer and, until so remitted, will hold in trust for the
Buyer any dividend received or value added tax recovered by such
Seller in respect thereof (and any such dividend or recovery will be
and be treated as a Collection). Such 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, each Seller will, at the request of the Operating
Agent, accept a re-assignment of any such Purchased Receivable (for
a nil consideration) solely for the purpose of facilitating
recoupment of such value added tax.
15. AGENCY AND INDEMNITIES
(A) Agency: In acting under this 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 Eureka. 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 the Sellers: Each Seller jointly and severally with
the other Sellers agrees to indemnify the Buyer, the Operating Agent
and their respective Affiliates and the Collection Agent 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:
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(1) reliance on any representation or warranty made or deemed made by
any Seller under or in connection with this Agreement, or any other
information or report delivered by any Seller or the Collection
Agent 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 any Seller 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 noncomformity 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;
(4) any dispute, claim, offset or defence (other than discharge in
bankruptcy or winding up by reason of insolvency or analogous event
of the Account Debtor) of the 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 nor being a legal, valid, binding and
enforceable obligation of such Account Debtor), or any other claim
resulting from the sale of the goods or services related to such
Receivable or the furnishing or failure to furnish such goods or
services;
(5) any failure of any Seller, as Collection Agent or otherwise, to
perform its duties or obligations in accordance with the provisions
of this Agreement;
(6) the Buyer, at the request or with the approval of any Seller,
contracting for or arranging foreign exchange transactions and/or
funding in connection with any anticipated Purchase and such
Purchase does not in fact take place as a result of any Seller not
delivering a Notice of Sale, the operation of Clause 3(B) or any
other provision of this Agreement, or a sale of Receivables not
being effected in relation to a Notice of Sale by reason of any
event described in Clause 11(D)(l), (2), (3) and (4) or any breach
by any Seller (in whatever capacity) of any of its obligations under
or in connection with this Agreement;
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(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 transfer of an ownership interest in any Receivable other than
an Eligible Receivable (to the extent that such amounts have not
already been recovered by the applicable indemnified party pursuant
to Clause 5(D)).
The Operating Agent will provide any 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) Increased Costs: If the Operating Agent determines that compliance with
any law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law)
coming into force after the Effective Date affects or would affect the
amount of capital required or expected to be maintained by the Buyer, the
Operating Agent, Citibank or any Person controlling the Buyer, the
Operating Agent or Citibank, and the Operating Agent determines that the
amount of such capital is increased by or based upon the existence of the
Buyer's agreement, in its discretion, to make or maintain purchases under
or pursuant to this Agreement and other similar agreements or facilities
(or any agreement entered into in accordance with Clause 19(C)), or if the
Operating Agent reasonably determines that any amount is to be paid for
liquidity agreements by the Buyer on account of capital required or
expected to be maintained by the provider thereof, then, upon written
demand by the Operating Agent, each Seller shall immediately pay to the
Operating Agent for the account of the Buyer or Citibank or, as the case
may be, for its own account from to time, additional amounts as specified
by the Operating Agent, sufficient to compensate, in light of such
circumstances, to the extent that the Operating Agent reasonably
determines such increase in capital or, as the case may be, such amount to
be allocable to the existence of the Buyer's agreement as referred to
above. A certificate as to such amount submitted to any Seller by the
Operating Agent shall, in the absence of manifest error, be conclusive and
binding for all purposes.
(D) Increased Costs in Respect of Taxation: If the Operating Agent determines
that as a result of any change in or in the interpretation of or of the
introduction of any law, regulation or regulatory requirement relating to
taxation coming into force after the Effective Date, or as a result of any
act or omission of any Seller, any of the Buyer, the Operating Agent,
Citibank or any Person controlling the Buyer, Citibank or the Operating
Agent, incurs or will incur
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an increased cost in respect of purchases or agreements to purchase made
under or pursuant to this Agreement (or any agreement entered into
pursuant to Clause 19(C)) other than an increased cost arising solely as a
result of a change in the rate of taxation on the overall net income of
the relevant indemnified party, each Seller shall immediately pay to the
Operating Agent for the account of the Buyer or Citibank or, as the case
may be, for its own account from rime to time, additional amounts as
specified by the Operating Agent, equal to such cost. A certificate as to
such amount submitted to any Seller by the Operating Agent shall, in the
absence of manifest error, be conclusive and binding for all purposes.
(E) Judgment Currency: Each reference in this Agreement to a specific currency
is of the essence. The obligation of each of the Sellers in respect of any
sum due from it to the Operating Agent or the Buyer and of the Collection
Agent to 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 such Seller, 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 Seller jointly and severally with the other Seller
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.
(F) Payment: Any amounts subject to the indemnification provisions of Clause
15(B), (C), (D) or (E) shall be paid by each Seller to the Operating Agent
within two Programme Business Days following the Operating Agent's demand
therefor.
(G) After Tax Amount: In the event that any taxing authority seeks to charge
to tax any sum paid to the Buyer or the Operating Agent or any of their
respective Affiliates as a result of the indemnities or other obligations
contained herein, 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. Clause 7(D) applies mutatis matandis.
16. AMENDMENTS, ETC.
(A) Amendments and Waivers: No amendment of any provision of this Agreement
including this Clause 16(A) nor consent to any departure by any Seller
therefrom shall in any event be
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effective unless the same shall be in writing and signed by the Sellers,
the Buyer and the Operating Agent.
(B) Entire Agreement: This Agreement contains a final and complete integration
of all prior expressions by the parties with respect to the subject matter
of this Agreement and constitutes the entire agreement among the parties
with respect to the subject matter of this Agreement, superseding all
prior oral or written understandings.
17. NOTICES
All notices and other communications provided for under this Agreement
shall, unless otherwise stated in this Agreement, be in writing in the
English language (including telex and fax communication) and mailed (first
class, postage paid) or delivered to each party at its address set out
under its name on the execution pages of this Agreement or at such other
telex or fax number or address as may be designated by such party in a
written notice to the other parties. All such notices and communications
will be effective, (wiederlegbare Vermutung) (i) in the case of written
notice, five days after being deposited in the post, or (ii) in the case
of notice by telex, when telexed against receipt of answer back, or (iii)
in the case of notice by fax, at the time of transmission unless served on
a day which is not 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, any Seller 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 by each of the Sellers at any time
after any Seller is in default of its obligations under this Agreement or
an Early Amortisation Event has occurred, and to set off and apply, and/or
to instruct Citibank or any of Citibank's Affiliates to set off and apply,
any and all deposits at any time held and other indebtedness at any time
owing (whether general or special, time or demand, provisional or final
and in whatever currency) by the Buyer, the Operating Agent, Citibank or,
as the case may be, any such Affiliate to or for the credit or the account
of such Seller against any and all of the obligations of such Seller (as
such, as
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Collection Agent, or otherwise), 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) each Seller and its successors and permitted assignees in
accordance with Clause 19(B); (2) the Buyer and also in relation to the
benefit, but not the burden of this 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", "Buyer" and "Operating Agent" shall be construed
accordingly).
(B) The Seller: No Seller may assign any of its rights, benefits or interest
in or under this Agreement except with the prior consent of the Operating
Agent.
(C) The Buyer: The Buyer may grant or assign all or part of any Purchased
Receivable (or any participation or interest, whether proprietary or
contractual, in or in respect of all of any part of any Purchased
Receivable) and/or all or any of its rights, benefits and interest in or
under this Agreement (1) as provided in this Agreement, (2) to Eureka or
any Affiliate of Eureka or any vehicle managed by Eureka or an Affiliate
of Eureka (3) to Citibank or any Affiliate of Citibank or any vehicle
managed by Citibank or an Affiliate of Citibank, or (4) (after first
offering to make such grant or assignment on substantially similar terms
to each Seller, and such Seller nor accepting such offer within 10
Programme Business Days of the date of the offer) to any other Person
which engages in the business of purchasing or accepting grants or
assignments of, or making loans in respect of, accounts receivable or
other debts or intangibles or participations or interests, whether
proprietary or contractual, therein or in respect thereof, and has entered
into an agreement with the Buyer. Any such grant or assignment as referred
to in (2), (3) and (4) above shall be upon such terms and conditions as
the parties thereto may mutually agree. Upon the assignment of all or part
of any Purchased Receivable, rights, benefits and/or interests from an
assignor as described above, the respective assignee receiving such
assignment shall have all the rights of such assignor hereunder with
respect to such Purchased Receivable (or part thereof), rights, benefits
and/or interests. An assignor of any Purchased Receivable (or part
thereof), rights, benefits and/or
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interests under this Agreement will provide notice to such Seller of any
such assignment, unless notice is waived by such Seller.
(D) Additional Sellers: The Operating Agent may, in its sole and absolute
discretion, at the request of Exide Europe, admit any or all of DETA
Akkumulatorenwerk GmbH, MAREG Accumulatoren GmbH, FRIWO SILBERKRAFT GmbH
and/or CEAG Dominit GmbH 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 of 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 Sellers and the Buyer have delivered to
the Operating Agent a duly completed and executed Admission of
Additional Seller in the from 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 a "Seller" and as "Originator".
20. 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 Capital of
all Groups of Receivables has been reduced to zero and all Yield,
Programme Costs and other fees due under this Agreement or the Fee Letter
have been paid; provided, however, that the rights and remedies with
respect to any breach of any representation and warranty made by any
Seller in or pursuant to this Agreement, the
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provisions of Clause 21 and the indemnification and payment provisions of
this Agreement will be continuing and will survive any termination of this
Agreement. The Operating Agent will notify the Rating Agencies promptly
upon the occurrence of:
(A) the Termination Date; and/or
(B) any material amendment to this Agreement.
21. NO PROCEEDINGS
(A) Buyer: Each of the Sellers and the Operating Agent each hereby agree that
they will nor institute against the Buyer any bankruptcy, insolvency or
similar proceeding so long as any commercial paper issued by Eureka or any
of its Affiliates is outstanding or one year plus one day has not elapsed
since the last day on which any such commercial paper was outstanding.
(B) Eureka: Each of the Sellers, the Buyer and the Operating Agent each hereby
agree that it will not institute against Eureka or any of its Affiliates
any bankruptcy, insolvency or similar proceeding so long as any commercial
paper issued by Eureka or any of its Affiliates is outstanding or one year
plus one day has not elapsed since the last day on which any such
commercial paper was outstanding.
22. RESTRUCTURING
(A) The parties to this Agreement agree that if, by reason of any change
in the insolvency law in the Federal Republic of Germany as a result
of the coming into force of the new Insolvency Code
(Insolvenzordnung) or in its interpretation or administration,
Citibank or Eureka so requests, the parties will consider in good
faith a restructuring of this Agreement, the other Relevant
Documents, the RPA and/or the PPA and the transactions contemplated
herein and/or therein Provided that any such restructuring shall be
upon such terms and conditions as are acceptable to Citibank, the
Operating Agent and Eureka and Provided further that the Sellers and
the Collection Agents shall jointly and severally indemnify Citibank,
the Operating Agent and Eureka from and against all losses, costs and
expenses (including legal fees) incurred by any of them in connection
with such restructuring together with VAT thereon irrespective of
whether or not such restructuring is completed.
(B) It is hereby agreed by the parties to this Agreement that the
provisions herein expressed to be for the benefit of Citibank and/or
Eureka are intended to, and create rights in favour of Citibank
and/or Eureka as third parties, directly enforceable by
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each of them in accordance with the provisions hereof or under law
(Verirag zugunsten Dritter).
23. RELEASE OF EXCESS RELATED SECURITY
The Buyer agrees on demand of the relevant grantor of Related Security or
other security (if any) to discharge such Related Security or other
security (if any) or parts thereof granted to it in relation to the
Purchased Receivables or otherwise in so far as the claim secured by such
Related Security or other security (if any) should be exceeded otherwise
than temporarily by 20% of the realisable value of such Related Security
or other security (if any). In the case of a claim for money being granted
as security, its realisation value shall be deemed to be 90% of its
nominal outstanding amount.
24. 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. The illegal,
invalid or unenforceable provision shall be replaced by the parties by a
provision coming as close as legally possible to the commercial interests
of the parties.
25. CONFIDENTIALITY
Unless otherwise required by applicable law or regulation, or as requested
by any regulator or tribunal with competent jurisdiction over, or over any
business of, the relevant party, each of the parties agrees to maintain
the confidentiality of this Agreement in its communications with third
parties save its advisers, provided such advisers are legally bound to
keep confidential the information obtained during the course of their
profession and otherwise.
26. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and construed in
accordance with, the laws of the Federal Republic of Germany.
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(B) Consent to Jurisdiction: The parties hereto hereby irrevocably and for the
benefit of each other submit to the jurisdiction of the Landgericht of
Frankfurt am Main 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. Each Seller agrees that a final
judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing shall affect the right to serve process in
any manner permitted by law.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered on the
day first above written.
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