Receivables Sale Agreement among Sociedad Española del Acumulador Tudor, S.A., Fulmen Iberica, S.L., Exide Holding Europe, S.A., Batteries Funding Limited, and Citibank, N.A. dated May 24, 2002
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Summary
This agreement is between Sociedad Española del Acumulador Tudor, S.A. and Fulmen Iberica, S.L. (the Sellers), Exide Holding Europe, S.A. (as Offer Agent), Batteries Funding Limited (the Buyer), and Citibank, N.A. (as Operating Agent). The Sellers agree to offer and sell certain receivables to the Buyer, with Exide acting as Offer Agent and Citibank managing operations. The agreement outlines the process for offering, purchasing, and settling receivables, as well as the roles, obligations, and protections for each party. It includes conditions, reporting requirements, and termination provisions.
EX-10.15 16 dex1015.txt AGREEMENT EXHIBIT 10.15 EXECUTION COPY Dated 24 May 2002 SOCIEDAD ESPANOLA DEL ACUMULADOR TUDOR, S.A. and FULMEN IBERICA, S.L. together, the Sellers EXIDE HOLDING EUROPE, S.A. as Offer Agent BATTERIES FUNDING LIMITED as Buyer CITIBANK, N.A. as Operating Agent ------------------------------------- RECEIVABLES SALE AGREEMENT ------------------------------------- CONTENTS
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-3- THIS RECEIVABLES SALE AGREEMENT, dated 24 May 2002, is made among: (1) SOCIEDAD ESPANOLA DEL ACUMULADOR TUDOR, S.A. a company with its registered office at Condesa de Venadito, 1, 28027 Madrid; ("Tudor"); (2) FULMEN IBERICA, S.L. a company with its registered office at C/Miquel Torello i Pages, 11-13 - Pol. Ind. El Pla, 08750 Molins de Rei, Barcelona; ("Fulmen"); (Tudor and Fulmen together with any Additional Seller (as defined herein) are collectively referred to as the "Sellers" or "Spanish Sellers", or where the context requires, are also individually referred to as a "Seller" or "Spanish Seller"); (2) EXIDE HOLDING EUROPE, S.A., a French Societe Anonyme, with its registered office at 5-7 Allee des Pierres Mayettes, 92636 Gennevilliers Cedex, France (the "Offer Agent" or "Exide Europe" as applicable); (3) BATTERIES FUNDING LIMITED, a company with its registered office at West Block, International Financial Services Centre, Dublin 1, Ireland (the "Buyer"); (4) CITIBANK, N.A., a United States national banking association acting through its London branch at 336 Strand, London WC2R 1HB (the "Operating Agent"). Preliminary Statements (A) The Sellers and the Buyer have agreed, upon the terms and subject to the conditions of this Agreement, that the Offer Agent shall from time to time for and on behalf of the Sellers offer to assign Receivables arising, from time to time, from Contracts and that, subject to the satisfaction of the conditions precedent as set out in Clause 3 below, the Buyer will accept such offers in the manner prescribed herein; and (B) The Operating Agent has been requested and is willing to act as Operating Agent as set out in this 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: -4- "Acceptance Fee" has the meaning ascribed to that term in Clause 4(B). "Account Bank Mandate" means an agreement in respect of the Buyer Collection Account in form and substance satisfactory to the Operating Agent and the Buyer (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. "Accounts Receivable Listing" means a list, by invoice number, of all of the Contracts entered into with Designated Account Debtors which are shown on each Seller's general ledger as outstanding as at (but excluding) each relevant Reference Date, including the information specified in Clause 4(E) together with such other information concerning each Contract, and in such format, as the Operating Agent may specify. "Accounts Receivable Trial Balance" means each Seller's accounts receivable trial balance computer printout, containing a list of Designated Account Debtors together with the aged Outstanding Balance of the Receivables. "Accruals" means, as of any time, the aggregate amount by which the face value of Eligible Receivables which are Paid Receivables have been reduced by virtue of any prompt payment discounts, accruals for volume rebates, warranty claims by the applicable Designated Account Debtor(s), and other credit notes (including, without limitation, credit notes issued to Account Debtors as a result of disputes, claims and invoicing errors by the Sellers). "Additional Designated Account Debtor" means an Account Debtor designated by a Seller as an Designated Account Debtor pursuant to Clause 4(A)(2). "Additional Seller" means any member of the Exide European Group which becomes party to this Agreement in accordance with Clause 19(D). "Advance Payment" means, at any time, the aggregate amount of any withdrawals from (prior to the Payment Notification Date) the Seller Collection Account and (on and following the Payment Notification Date) the Buyer Collection Account made by the Sellers under Clause 12(C) to the extent they are outstanding and not repaid. "Adverse Claim" means any claim of ownership, lien, security interest, mortgage, charge, or encumbrance, or other right or claim of any Person. "Admission of Additional Seller" means an agreement substantially in the form set out in Schedule 2. "Affiliate" when used with respect to a Person, a Subsidiary of that Person or a Holding Company of that Person or any other Subsidiary of that Holding Company. -5- "Approved Currency" means, on the date hereof, Euro and, thereafter, with the prior written consent of the Operating Agent and in addition to Euro, Dollars. "Approved Jurisdiction" means each (i) jurisdiction in the European Union, or (ii) any other jurisdiction in respect of which the Seller has obtained as security from the applicable Designated Account Debtor a clear and unconditional demand letter of credit (governed by the Uniform Customs and Practice for Documentary Credits) from a bank whose short-term debt is rated at least A-1 and P-1 by the Rating Agencies, the term of which is in form and substance satisfactory to the Operating Agent (acting reasonably) and the conditions of which are in form and substance satisfactory to the Operating Agent (acting reasonably), and which letter of credit has been fully assigned to the Operating Agent on behalf of the Buyer (which assignment shall include full notice to the applicable bank issuing the letter of credit), requiring payment to be made directly to the Operating Agent on behalf of the Buyer. "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 Paseo de la Castellana, 103, 28046 Madrid. "Buyer Account" means each account in the name of the Buyer with Citibank, the details of which are set out in Schedule 1 Part 2, or (with the prior written consent of the Operating Agent) such other account at such bank as the Buyer may utilise for the purposes of this Agreement and designate as a Buyer Account. "Buyer Collection Account" means in respect of the Buyer, the account to be established with the Buyer Collection Account Bank on or prior to the Payment Notification Date pursuant to an Account Bank Mandate. "Buyer Collection Account Bank" means, in respect of the Buyer, such bank and branch at which the Buyer Collection Account is maintained from time to time. "Buyer Entitlement" means, at any time, in respect of the total amount standing to the credit of the Seller Collection Account (prior to the Payment Notification Date) and the Buyer Collection Account (on and following the Payment Notification Date), the portion thereof attributable to or representing Collections together with interest credited by the Collection Account Bank or the Buyer Collection Account Bank to such portion. "Capital" equals, on any Settlement Date, the aggregate of the Dollar Equivalent of the Existing Receivables Purchase Price and Future Receivables Purchase Price paid to the Sellers (including, on such Settlement Date, if any) less the aggregate amount of Collections which have been paid to the Buyer as of such Settlement Date. "Citibank" means Citibank, N.A., a national banking association under the laws of the United States of America. -6- "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. "Collection Account Bank" means Banesto in respect of Tudor and La Caixa in respect of Fulmen or such other branch or bank at which each Seller Collection Account is, with the prior written consent of the Operating Agent, maintained from time to time. "Concentration Amount" means as of any date, with respect to each Designated Account Debtor, the product of (a) the Concentration Limit applicable to such Designated Account Debtor and (b) the Dollar Equivalent of the Programme Eligible Receivables. "Concentration Limit" means, in relation to the aggregate Receivables for each Designated Account Debtor: (a) for any single Designated Account Debtor rated at least A-l or P-l or its equivalent by the Rating Agencies, 17%; (b) for any single Designated Account Debtor rated A-2 or P-2 or its equivalent by the Rating Agencies, 8.5%; (c) for any single Designated Account Debtor rated A-3 or P-3 or its equivalent by the Rating Agencies, 5.66%; (d) for any single Designated Account Debtor rated below A-3 or P-3 or not rated on its short term debt, 3.4% (to the extent a Designated Account Debtor does not have a short term rating but has an actual or implied senior long-term debt rating, the applicable percentage will be determined based on equivalent senior long-term debt ratings (as determined by the Operating Agent) for the short term ratings specified above). "Contract" means a written agreement (and, for the avoidance of doubt, includes any oral agreement evidenced by an invoice containing or referring to the standard terms of business of the relevant Seller) between a Seller and an Account Debtor pursuant to which such Account Debtor is obliged to pay for goods or services sold or provided by such Seller (including any value added tax in respect thereof) from time to time. "Country" means Spain. "Credit and Collection Policy" means each Seller's policies, practices and procedures relating to Contracts and Receivables in form and content satisfactory to the Operating Agent in accordance with paragraph (k) of Schedule 5 as modified from time to time with the consent of the Operating Agent. "Currency Exchange Agreement" means the spot currency agreement and the forward currency agreement to be entered into on or prior to the Effective Date by the Buyer and a counterparty rated at least A-1 and P-1 or its equivalent by the Rating Agencies (a "Swap Counterparty") to exchange, respectively, the amount in Dollars received by the Buyer under the Facilities Agreement into the currencies of the denomination of the Receivables acquired by the Buyer under all Origination Agreements to which it is a party and the currencies of the amount of Collections -7- payable to the Buyer under all Origination Agreements to which it is a party into Dollars. "Currency Exchange Costs" means the costs payable by the Buyer to the counterparty under the Currency Exchange Agreement (expressed as a percentage of Capital); "Debt" means any indebtedness, present or future, actual or contingent in respect of moneys borrowed or raised or any financial accommodation whatever and, without limitation, shall include: (1) indebtedness under or in respect of a negotiable or other financial instrument, Guarantee, interest, gold or currency exchange, hedge or arrangement of any kind, redeemable share, share the subject of a Guarantee, discounting arrangement, finance lease or hire purchase agreement; (2) the deferred purchase price (for more than 90 days) of an asset or service; and (3) any obligation to deliver goods or other property or provide services paid for in advance by a financier or in relation to another financing transaction. "Deemed Settlement Date" means a date which would have been a Settlement Date were it not to fall during a Specified Bank Holiday Period. "Default Ratio" as of any date, is equal to the ratio (expressed as a percentage) for the most recent month for which such ratio is available of (i) aggregate Eligible Receivables which are Paid Receivables that were 91-120 days past due at the end of each such month plus Eligible Receivables which are Paid Receivables that were charged off (or, without duplication, which should have been charged off) as uncollectible during each such month which, if they had not been charged off (or, without duplication, which should have been charged off) would have been less than 90 days past due during such month to (ii) aggregate sales giving rise to Receivables that were generated during the calendar month immediately preceding the commencement of the Loss Horizon preceding such date. "Defaulted Receivable" means an Eligible Receivable which is a Paid Receivable and: (1) which, after the original due date, remains unpaid in whole or in part for more than 90 days; (2) in respect of which the Designated Account Debtor has taken any action, or suffered any event to occur, of the type described in Clause 11(D)(2); or (3) which has been, or should be, written off or provided for in the Seller's books as uncollectible in accordance with the Credit and Collection Policy. -8- "Designated Account Debtor" means, at any time, all Account Debtors (other than those designated in Schedule 10) unless the Operating Agent has advised the Offer Agent (on behalf of the Sellers) that an Account Debtor shall not be considered a Designated Account Debtor. "Determination Date" means initially, the Effective Date and thereafter, each following Monday (or such other day as may be agreed from time to time between the Offer Agent (on behalf of the Sellers) and the Operating Agent); provided however, if such day is not a Programme Business Day, the applicable Determination Date shall be the next succeeding Programme Business Day. "Diluted Receivable" means that portion of any Eligible Receivable which is a Paid Receivable which is either (a) reduced or cancelled as a result of (i) any defective or rejected goods or services, or any failure by any Seller to deliver any goods or services or otherwise to perform under the underlying Contract or invoice, or (ii) any change in the terms of or cancellation of any Contract or invoice or any other adjustment by any Seller which reduces the amount payable by the Designated Account Debtor on the related Paid Receivable or (iii) any set-off in respect of any claim by the Designated Account Debtor on the related Eligible Receivable which is a Paid Receivable or (b) subject to any specific dispute, offset, counterclaim or defence whatsoever (except the discharge in bankruptcy of the Designated Account Debtor thereof). "Dilution Horizon" means, at any time, the estimated weighted average period in days between the issuance of invoices and the related credit note, if any, by the Programme Sellers, as such period is calculated by the Operating Agent from time to time. "Dilution Horizon Ratio" equals the higher of (a) the Dollar Equivalent of total sales giving rise to Programme Receivables for the Programme Sellers for the past Dilution Horizon divided by the Dollar Equivalent of the outstanding balance of Eligible Receivables (whether or not they are Paid Receivables) (as such term is used in each applicable Origination Agreement)) aggregated among all Origination Agreements as of the end of the most recent month and (b) 0.5. "Dilution Ratio" as of any date, is equal to the ratio (expressed as a percentage) for the most recently ended month of (i) the aggregate amount of Receivables that become Diluted Receivables during each such month to (ii) the aggregate sales giving rise to Receivables that were originated during the preceding month. "Dilution Reserve" means as of any Settlement Date: (PER minus DefR) x max [DYN, FLOOR] where : DYN = [(SF2xED) + DVF) x DHR] -9- FLOOR = EDxDHR Provided that the Dilution Reserve shall never be less than the amount such that, when aggregated to the floor applicable to the Loss Reserve, is equal to the Euro Equivalent of Dollars 15,000,000 Where : PER = The aggregate amount of the Programme Eligible Receivables DefR = The aggregate amount of Programme Eligible Receivables that are Defaulted Receivables (as defined in and aggregated among all Origination Agreements) SF2 = Stress Factor = 2.25 ED = The average Programme Dilution Ratio during the preceding 12 months DVF = Dilution Volatility Factor DHR = Dilution Horizon Ratio "Dilution Volatility Factor" means as of any date, a percentage equal to the product of (i) the amount by which (A) the highest two month average Programme Dilution Ratio during the most recently ended twelve month period exceeds (B) the average of the Programme Dilution Ratios during such twelve month period and (ii) (A) the highest two month average Programme Dilution Ratio during such twelve month period divided by (B) the average of the Programme Dilution Ratios during such twelve month period. "Directors' certificate" means a certificate in the form appended in Schedule 14. "Discount" means, with respect to (i) Existing Receivables the subject of a Letter of Offer or (ii) Purchased Receivables (which were Future Receivables at the time of their Purchase) having come into existence during the relevant Reference Period, on the relevant Settlement Date, the sum of applicable Yield, the applicable Country's Proportionate Share of Programme Costs, applicable Accruals and the sums then required to bring applicable Reserves and the Stamp Duty Reserve to their required levels. "Dollars" and the sign "$" each mean the lawful currency of the United States of America. "Dollar Equivalent" of any sum in any currency at any time means the amount of Dollars that would be purchased under the Currency Exchange Agreement at the Spot Rate determined for such sum as at the most recent Settlement Date. "Early Amortisation Event" means the first to occur of: -10- (1) any Originator or Exide Europe defaults in the payment on the due date of any payment due and payable by it under or relating to the Relevant Documents to which it is a party and such default continues unremedied for a period of five (5) Local Business Days after the earlier of such Originator or Exide Europe becoming aware of such default and the receipt by such Originator or Exide Europe of written notice by the Operating Agent requiring the same to be remedied; (2) subject to Clause 12(D), any Originator, Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe) defaults in the performance or observance of any of its other covenants and obligations, or breaches any representation or warranty under the Relevant Documents to which it is a party, which in the reasonable opinion of the Operating Agent is materially prejudicial to the interests of the Buyer and/or the Lenders and/or the Operating Agent, and such default is not remedied to the satisfaction of the Operating Agent within five Local Business Days of the earlier of such Originator, Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe) becoming aware of such default and receipt by such Originator, Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe) of written notice by the Operating Agent requiring the same to be remedied (for the avoidance of doubt, for the purposes of this paragraph (2) if such Originator satisfies its obligations pursuant to Clause 5(D) within such five Local Business Day period, such default or breach shall not be considered to be an Early Amortisation Event); (3) an effective resolution is passed for the winding up of any Originator, Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe); (4) any Originator, Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe) ceases or threatens to cease to carry on its business or ceases to carry on the whole or a substantial part of its business, or stops payment or threatens to stop payment of its debts, or such Originator becomes unable to pay its debts, or is deemed unable to pay its debts within the meaning of Article 874 et seq. of the Spanish Commercial Code of 1885 or Article 1001 et seq. of the Spanish Commercial Code of 1829 (as those Articles may be amended, varied or re-enacted) (or, with respect to Exide Europe, within the meaning of Law No. 85-98 of 25 January 1985 (as amended) or, with respect to the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe), within the meaning of equivalent provisions under applicable law), or becomes unable to pay its debts as they fall due, or the value of its assets falls to less than the amount of its liabilities (taking into account for both these purposes its contingent and prospective liabilities) or otherwise becomes insolvent; -11- (5) Exide Europe ceases at any time to own, directly or indirectly, a minimum of 80% of each class of the outstanding capital stock of any Seller; (6) any Debt of a member of the Exide Europe Group in excess (in the aggregate) of the Euro Equivalent of $5,000,000 becoming prematurely due and payable or is placed on demand as a result of an event of default (howsoever described) under the document relating to that Debt; (7) any sale of Eligible Receivables pursuant to this Agreement ceases to be deemed as or is determined not to be a true sale of such Eligible Receivables; (8) proceedings are initiated against any Originator, Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe) in respect of its liquidation, winding-up, administration, insolvency (including quiebra and suspension de pagos), composition, reorganisation (other than a reorganisation the terms of which have been approved by the Operating Agent and where such Originator, Exide Europe or the Offer Agent (if an Affiliate of Exide Technologies other than Exide Europe) is solvent) under any applicable liquidation, administration, insolvency (including quiebra and suspension de pagos), composition, reorganisation or other similar laws save where such proceedings are being contested in good faith by such Originator, Exide Europe or (if an Affiliate of Exide Technologies other than Exide Europe) the Offer Agent or an administrative or other receiver, servicer or other similar official is appointed in relation to such Originator, Exide Europe or (if an Affiliate of Exide Technologies other than Exide Europe) the Offer Agent or in relation to the whole or any substantial part of the undertaking or assets of such Originator, Exide Europe or (if an Affiliate of Exide Technologies other than Exide Europe) the Offer Agent or an encumbrancer shall take possession of the whole or any substantial part of the undertaking or assets of such Originator, Exide Europe or (if an Affiliate of Exide Technologies other than Exide Europe) the Offer Agent, or a distress or execution or other process shall be levied or enforced upon or sued out against the whole or any substantial part of the undertaking or assets of such Originator, Exide Europe or (if an Affiliate of Exide Technologies other than Exide Europe) the Offer Agent and in any of the foregoing cases it shall not be discharged within 15 days; (9) if any Originator, Exide Europe or (if an Affiliate of Exide Technologies other than Exide Europe) the Offer Agent shall initiate or consent to judicial proceedings relating to itself under any applicable liquidation, administration, insolvency (including quiebra and suspension de pagos), composition, reorganisation or other similar laws or shall make a conveyance or assignment for the benefit of its creditors generally; (10) for any three month period, the average Default Ratio exceeds 9%; -12- (11) for any three month period, the average Dilution Ratio exceeds 20%; (12) for any three month period, the Loss to Liquidation Ratio exceeds 0.5%; (13) for any three month period, the average Programme Default Ratio exceeds 6%; (14) for any three month period, the average Programme Dilution Ratio exceeds 12%; (15) for any three month period, the average Programme Loss to Liquidation Ratio exceeds 0.5%; (16) a Programme Amortisation Event (as such terms is defined in any other Origination Agreement) occurs; (17) any amount owing under the US DIP Facility Agreement becomes immediately due and payable as a result of the occurrence of an Event of Default (as that term is defined in the US DIP Facility Agreement) thereunder; and (18) an Event of Default (as that term is defined under the Facilities Agreement) occurs. "Effective Date" means the date upon which the initial conditions precedent set forth in Schedule 5 have been satisfied and which has been designated as such by the Operating Agent, which day shall be a Thursday (or such other day as may be agreed by the Offer Agent (on behalf of the Sellers) and the Operating Agent) which is a Programme Business Day. "Eligible Receivable" means a Receivable: (1) the Account Debtor of which is a corporate body or corporate entity which is (according to the address specified in the related invoice) resident of an Approved Jurisdiction; (2) the Account Debtor of which is a Designated Account Debtor and is not an Affiliate of any party to this 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 -13- in the 2 years preceding the date that the invoice relating thereto is despatched; (5) which is not a Defaulted Receivable (A) at the date of Purchase (in respect of Existing Receivables) and (B) at the date on which such Receivables becomes a Paid Receivable (in respect of Future Receivables); (6) which, according to the Contract related thereto, is required to be paid in full on a date which falls (A) not earlier than the Purchase Date (in respect of Existing Receivables) and not earlier than the date on which such Receivables becomes a Paid Receivable (in respect of Future Receivables) and (B) within 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 Paid Receivables (as such term is used in each applicable Origination Agreement) owing by the same Account Debtor or any of its Affiliates under all Origination Agreements, does not exceed the Concentration Amount; (8) which is denominated and payable only in an Approved Currency; (9) which (A) arises under a form of Contract set out in Schedule 7 (or which otherwise has been duly authorised by the Operating Agent), which is stated to be, and is, governed 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 in respect of which Consumer Credit Act of 23 March 1995 (Ley de Credito al Consumo) does not apply to all or any part thereof and none of the records thereof constitutes "personal data" as defined in the Personal Data Protection Act of 13 December 1998 (Ley Organica de Proteccion de Datos de Caracter Personal) 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; -14- (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; (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; (17) for the payment of which, no action has been brought before any Court or Arbitrator by the Seller; and (18) The Account Debtor of which has, in respect of Purchased Receivables (other than Defaulted Receivables) falling due for payment on or after 31 August, 2002, paid in full the most recent Purchased Receivable owing by it directly to the credit of the Buyer Collection Account. "Enigma" means the proprietary computer software furnished by Citibank pursuant to the Enigma Licence Agreement, as such computer software may be modified, updated or replaced by Citibank from time to time. "Enigma Licence Agreement" means an agreement in the form of Schedule 12 hereto, duly executed by the Offer Agent. "Euro" means the single currency unit of the Participating Member States. "Euro Equivalent" of any sum and at any time means the amount of Euro that would be purchased under the Currency Exchange Agreement at the Spot Rate for such sum at such time. "Exide Europe" means Exide Holding Europe, S.A., a French societe anonyme. "Exide Europe Group" means Exide Europe and all of its Subsidiaries. "Exide Group" means Exide Technologies and all of its Subsidiaries. "Exide Technologies" means Exide Technologies, a Delaware Corporation. -15- "Existing Receivables" means all Receivables which are specified by (or on behalf of) the Sellers (i) in the initial Letter of Offer as being in existence in respect of Designated Account Debtors as at the Initial Reference Date and (ii) in any subsequent Letter of Offer, as being in existence in respect of Additional Designated Account Debtors as at the Reference Date immediately preceding the Offer Date in respect of such Letter of Offer. "Existing Receivables Purchase Price" means, on any Purchase Date, in respect of Existing Receivables comprised in a Group of Receivables, an amount in Euros equal to the Outstanding Balance of those of the Receivables which are Eligible Receivables as at the Reference Date immediately preceding the relevant Offer Date less the Discount applicable on the Purchase Date immediately succeeding such Offer Date, as calculated by the Operating Agent. "Facilities Agreement" means the agreement entered into on or about the date hereof among, inter alia, the Buyer and the Lenders. "Facility Fee" means 0.75% per annum of the positive difference between (i) the Facility Limit and (ii) Programme Capital (as such fee is calculated monthly in arrears and applied on each Settlement Date). "Facility Limit" means Dollars 177,500,000, as such amount may be reduced from time to time upon notice given by the Operating Agent to the Offer Agent (on behalf of the Sellers) as a result of the event specified in Clause 7.1 of the Facilities Agreement. "Fees Letter" means the fees letters dated as of the date hereof, between Exide Europe and the Operating Agent in respect of the calculation and payment of certain fees. "Foreign Currency Reserve" as of any Settlement Date will equal 5% of Programme Capital on such Settlement Date, or such other amount as determined by the Operating Agent (and notified in writing to the Offer Agent), acting reasonably (upon the written request of a Seller after any redetermination of the level of the Foreign Currency Reserve, the Operating Agent agrees to provide such Seller with information relating to the basis of such redetermination). "Future Receivables" means all Receivables owing by a Designated Account Debtor which are not Existing Receivables. "Future Receivables Purchase Price" means, on any Settlement Date, in respect of Future Receivables comprised in a Group of Receivables which have come into existence during any Reference Period, an amount in Euros equal to the Outstanding Balance of those of the Receivables which are Eligible Receivables as at the Reference Date immediately preceding such Settlement Date less the Discount applicable on such Settlement Date, as calculated by the Operating Agent. -16- "German Excess Loss Reserve" means the positive difference (if any) between (i) the aggregate of the German Sellers' Proportionate Share (as such term is defined under the German RSA) of the Loss Reserve and (ii) an amount equal to 9% of the Outstanding Balance of Paid Receivables which are Eligible Receivables (as each such term is defined in the German RSA) under the German RSA. "Group of Receivables" means, at any time, all Receivables purchased or to be purchased by the Buyer on a Purchase Date or, as appropriate, the Group of Receivables specified in a Letter of Offer. "Guarantee" means any guarantee, indemnity, letter of credit or any other obligation or irrevocable offer (whatever called and of whatever nature): (1) to pay or to purchase; (2) to provide funds (whether by the advance of money, the purchase of or subscription for shares or other securities, the purchase of assets, rights or services, or otherwise) for the payment or discharge of; (3) to indemnify against the consequences of default in the payment of; or (4) to be responsible otherwise for, an obligation or indebtedness of another person, a dividend, distribution, capital or premium on shares, stock or other interests, or the insolvency or financial condition of another person. "Holding Company" means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary. "Initial Offer Date" means the date which is two Programme Business Days before the Effective Date. "Initial Purchase" means the first Purchase completed under this Agreement. "Initial Reference Date" means 24 May 2002. "Interest Period" means initially, the period commencing on (and including) the Effective Date and ending on (but excluding) the following Settlement Date, and thereafter, each period beginning on (and including) the day following the last day of the immediately preceding Interest Period and ending on (but excluding) the following Settlement Date; provided however, if such day is not a Programme Business Day, the applicable Interest Period shall end on the next succeeding Programme Business Day. "La Caixa" means Caja de Ahorros y Pensiones de Barcelona, a credit entity incorporated and organised under the laws of Spain, acting for the purposes of this Agreement through its branch at Madre Antonia de Paris, 2, 28027 Madrid. -17- "Lenders" means any bank financial institution, trust, fund or other entity which is or may from time to time become a party to the Facility Agreement as a "Lender" thereunder. "Letter of Acceptance" has the meaning ascribed to that term in Clause 4(B). "Letter of Offer" has the meaning ascribed to that term in Clause 4(A). "Letter of Undertaking" means the Letter of Undertaking given by Exide Europe substantially in the form set out in Schedule 9 to this Agreement. "LIBOR" means (a) the applicable Screen Rate or (b) (if no Screen Rate is available one week Dollars) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Operating Agent at its request quoted by the Reference Banks to leading banks in the London interbank market, as of 11.00 a.m. London time on the Quotation Day for the offering of deposits in Dollars for a period comparable to the Interest Period. "Loan" means any loan to be made to the Buyer by the Lenders pursuant to the Facilities Agreement or, when made, the principal amount outstanding thereof. "Local Business Day" means any day (other than a Saturday or Sunday) on which banks and foreign exchange markets are open for business in 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 Reserve" as of any Settlement Date will equal: (PER minus DefR) x [max(DYN, FLOOR)] plus DefR where: DYN = SFl x LR x LHR FLOOR = CF Provided that the Loss Reserve shall never be less than an amount such that, when aggregated to the floor applicable to the Dilution Reserve is equal to the Euro Equivalent of Dollars 15,000,000 where : PER = The aggregate amount of Programme Eligible Receivables -18- DefR = the aggregate amount of Programme Eligible Receivables that are Defaulted Receivables (as defined in and aggregated among all Origination Agreements) SF1 = Stress Factor One = 2.25 LHR = Loss Horizon Ratio CF = Concentration Floor = 17% LR = Loss Ratio "Loss Horizon" equals the sum of 90 days plus the Weighted Average Term calculated among all Origination Agreements as of the Settlement Date. "Loss Horizon Ratio" equals the total sales giving rise to Programme Receivables for the Programme Sellers for the Loss Horizon divided by the outstanding balance of Programme Receivables as of the end of the most recent month. "Loss Ratio" as of any date equals the highest 3 month average Default Ratio aggregated among all Origination Agreements which has occurred in the 12 months immediately preceding such date. "Loss to Liquidation Ratio" as of any date, is equal to the ratio (expressed as a percentage) of (i) the Dollar Equivalent of the aggregate outstanding balance of all Receivables that were written off by the Sellers during the twelve month period most recently ended prior to such date to (ii) the aggregate amount of such total sales giving rise to Receivables less the Dollar Equivalent of the total Diluted Receivables during such twelve month period. "Mandatory Cost Rate" has the meaning ascribed to that term in the Facility Agreement. "Margin" means 3.75% per annum. "Offer Date" means, initially, the Initial Offer Date and, thereafter, each Determination Date. "Origination Agreement" means as of any time each agreement pursuant to which a member of the Exide Europe Group sells trade receivables originated in the ordinary course of business of such member company and which has been designated from time to time as such by the Operating Agent. Until and unless a designation has been made by the Operating Agent to the contrary, the Origination Agreements shall consist of (i) for the United Kingdom, the Receivables Securitisation Deed dated as of the date hereof between CMP Batteries Limited, Fulmen (U.K.) Limited, Exide (DAGENHAM) Limited, DETA UK Limited (the "U.K. Sellers"), the Buyer and the Operating Agent, (ii) for France, (a) the Receivables Subrogation Agreement dated 6 June 1997 (as amended on the date hereof) between Compagnie Europeenne -19- d'Accumulateurs S.A.S., (the "French Seller"), Exide Europe Funding Ltd. ("Exide Funding"), the Offer Agent and the Operating Agent (the "French RSA") and (b) the Onward Receivables Sale Agreement dated as of the date hereof between Exide Europe Funding Ltd., the Buyer, the Offer Agent and the Operating Agent (the "French ORSA"), (iii) for Spain, this Agreement, (iv) for Italy, (a) the Receivables Purchase Agreement dated 3 June 1997 (as amended on the date hereof) between Societa Industriale Accumulatori, S.r.l. and Compagnia Generale Accumulatori S.p.a. (now Exide Italia S.r.l.) (the "Italian Sellers"), Archimede Securitisation s.r.l., the Offer Agent and the Operating Agent ("Italian RSA") and (b) the Onward Sale Agreement dated as of the date hereof between Archimede Securitisation s.r.l., the Buyer and the Operating Agent (the "Italian OSA"), and (v) for Germany, the German Receivables Sale Agreement dated as of the date hereof between Exide Automotive Batterie GmbH, Deutsche Exide GmbH, Deutsche Exide Standby GmbH (the "German Sellers"), the Buyer, the Offer Agent and the Operating Agent (the "German RSA"). "Originator" means Tudor, Fulmen and any Additional Seller, in its capacity as Seller or Sub-Servicer, as the context may require. "Outstanding Balance" of any Receivable at any time means the then unpaid face amount thereof (including VAT) (except for purposes of determining the Default Ratio, where the unpaid face amount of any Paid Receivable which has been, or would be, written off or provided for in a Seller's books as uncollectible in accordance with the Credit and Collection Policy shall be deemed to be zero). "Paid Receivables" means all Purchased Receivables the Existing Receivables Purchase Price (in respect of Existing Receivables) and Future Receivables Purchase Price (in respect of Future Receivables) of which have been paid by the Buyer pursuant to the provisions of this Agreement. "Payment Notification Date" means 31 July 2002. "Person" means an individual, partnership, company, body corporate, corporation, trust, unincorporated association, joint venture, government, or governmental body or agency or other entity. "Programme" means the revolving sale of trade receivables originated by Exide and certain Subsidiaries of Exide Europe and the funding of such revolving sale pursuant to the funding arrangements established in relation to each Origination Agreement. "Programme Amortisation Event" means any Early Amortisation Event under each other Origination Agreement other than an Early Amortisation Event of the type described in any of paragraphs (5), (7), (10) (11) or (12) of the definition Early Amortisation Event hereunder; -20- "Programme Business Day" means any day (other than a Saturday or Sunday) on which banks are open for business in New York, London, Dublin, Paris, Frankfurt am Main, Milan and Madrid and which is a TARGET Day. "Programme Capital" equals, at any time, Capital aggregated among all Origination Agreements. "Programme Costs" means (i) the Facility Fee and (ii) all other fees set out in the Fees Letter. "Programme Default Ratio" as of any date, is equal to the weighted average of the Default Ratios calculated among all Origination Agreements; "Programme Dilution Ratio" as of any date, is equal to the weighted average of the Dilution Ratios calculated among all Origination Agreements. "Programme Eligible Receivables" means, on any Settlement Date, the aggregate Dollar Equivalent of the Outstanding Balance of Eligible Receivables (as that term is defined in each Origination Agreement), aggregated among all Origination Agreements which are Paid Receivables and which are to become Paid Receivables (as such term is defined in each Origination Agreement) on such Settlement Date, aggregated among all Origination Agreements. "Programme Loss to Liquidation Ratio" as of any date, is equal to the weighted average of the Loss to Liquidation Ratios calculated among all Origination Agreements. "Programme Receivables" means the aggregate Dollar Equivalent of Receivables (as defined in and aggregated among all Origination Agreements). "Programme Reserves" means the Reserves aggregated among all Origination Agreements. "Programme Sellers" means, collectively, all of the Affiliates of Exide Europe designated as Sellers or Originators pursuant to all of the Origination Agreements. "Proportionate Share" equals, at any time: (a) in respect of a Seller, the result of the formula: the Dollar Equivalent of all Eligible Receivables which are Paid Receivables from such Seller, divided by the Dollar Equivalent of all Eligible Receivables which are Paid Receivables; and (b) in respect of the Country, the result of the formula: the Dollar Equivalent of all Eligible Receivables which are Paid Receivables in the Country, divided by the Dollar Equivalent of all Eligible Receivables which are Paid Receivables (as such term is used in each Origination Agreement), aggregated among all Origination Agreements. -21- "Purchase" means a purchase or purported purchase by the Buyer of a Group of Receivables from a Seller pursuant to the acceptance of an offer in accordance with this Agreement. "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. "Purchased Receivable" means a Receivable (whether or not an Eligible Receivable) purchased or purported to be purchased by the Buyer pursuant to the acceptance of an offer in accordance with this Agreement. "Quarterly Settlement Date" means initially, the first Settlement Date falling in September 2002 and, thereafter, until the Termination Date, the first Settlement Date falling in the third calendar month following the calendar month of the immediately preceding Quarterly Settlement Date. "Quotation Day" means, in relation to any Interest Period, two Business Days before the first day of that period unless market practice differs in the London interbank market for Dollar, in which case the Quotation Day for that currency will be determined by the Operating Agent in accordance with market practice in the London interbank market (and if quotations would normally be given by leading banks in the London interbank market on more than one day, the Quotation Day will be the last of those days). "Rating Agencies" means Standard & Poor's Ratings Group, a division of the McGraw Hill Companies Inc. and Moody's Investors Service, Inc "Receivable" means the indebtedness owed or which will become owed by any Designated Account Debtor under a Contract arising from a sale or contract of sale of merchandise or provision or contract of provision of services by a Seller and representing part or all of the sale price of such merchandise or services and includes the right to payment of any interest or finance charges and other obligations of such Designated Account Debtor with respect thereto. "Reference Banks" means the principal London offices of Citibank, N.A., Barclays Bank PLC and The Royal bank of Scotland or such other banks as may be appointed by the Operating Agent. "Reference Date" means each Friday or any other later date (as may be agreed from time to time between the Offer Agent (on behalf of the Sellers) and the Operating Agent) falling immediately prior to the next succeeding Determination Date. "Reference Period" means, initially, the period beginning on (and including) the Initial Reference Date and ending on (but excluding) the next following Reference Date and thereafter, each period from (and including) a Reference Date to (but excluding) the next following Reference Date. -22- "Related Security" means with respect to any Receivable all of the Seller's interest in any goods and work in progress (including returned or repossessed goods and work in progress) relating to the sale creating such Receivable, and all insurance policies, security, deposits, guarantees, indemnities, letters of credit, bills of exchange, cheques, other negotiable instruments, warranties, retention of title and other agreements and arrangements not created or made by the Buyer supporting or securing payment of such Receivable. "Relevant Date" means the earlier of: (1) the date on which all Capital of all Groups of Receivables is reduced to zero; and (2) the date on which the Outstanding Balance of all Eligible Receivables which are Paid Receivables is reduced to zero. "Relevant Documents" means this Agreement, the Letter of Undertaking, the Account Bank Mandate and the Fees Letter. "Reserves" means as of any date, the Dollar Equivalent of the Country's Proportionate Share of the sum of the Loss Reserve, the German Excess Loss Reserve, the Dilution Reserve, the Special Dilution Reserve, the Yield Reserve and the Foreign Currency Reserve. "Screen Rate" means the British Bankers' Association Settlement Rate for one week Dollars displayed on the appropriate page of Telerate Screen. If the agreed page is replaced or service ceases to be available, the Operating Agent may specify another page or service displaying the appropriate rate. "Security Interest" means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security. "Sellers" means Tudor, Fulmen and any Additional Seller made party to this Agreement in accordance with Clause 19(D), and "Seller" means any of them. "Seller Collection Account" means in respect of each Seller, the account set opposite the relevant Seller's name in Schedule 1 Part 1, under the heading "Seller Collection Account", in each case in the name of the appropriate Seller, or such other account at such branch of such bank as each Seller may from time to time specify, with the prior written consent of the Operating Agent. "Seller Entitlement" means, at any time, in respect of the total amount standing to the credit of the Seller Collection Account or the Buyer Collection Account together with interest thereon, the portion thereof which is not attributable to or representing Collections. -23- "Seller Non-Transaction Account" means in respect of each Seller, the account set opposite the relevant Seller's name in Schedule 1 Part 1, under the heading "Seller Non-Transaction Account", in each case in the name of the appropriate Seller, or such other account at such branch of such bank as each Seller may from time to time specify by written notice to the Operating Agent. "Servicer" means at any time the Person then authorised pursuant to this Agreement to service, administer and collect Purchased Receivables. "Settlement Date" means initially, the Effective Date and thereafter, each Thursday provided that in relation to a Thursday (or such other day as may be agreed from time to time between the Offer Agent (on behalf of the Sellers) and the Operating Agent) falling in a Specified Bank Holiday Period, the Settlement Date shall be the Thursday immediately succeeding such Thursday and provided further that, if any such day is not a Programme Business Day the Settlement Date shall be the next succeeding Programme Business Day. "Settlement Period" means any period beginning on (and including) a Settlement Date and ending on (but excluding) the next following Settlement Date. "Settlement Statement" means a statement, as of any Settlement Date, prepared by the Operating Agent substantially in the form of Schedule 3 showing (amongst other things) the amount of Receivables purchased by the Buyer during the last Settlement Period. "Special Dilution Reserve" means: (a) on each Settlement Date other than that falling immediately prior to a Deemed Settlement Date, an amount equal to the percentage, set opposite such settlement Date in Schedule 15, of the Programme Eligible Receivables on such date (including any Eligible Receivables sold or transferred on such date under or pursuant to each Origination Agreement); and (b) on each Settlement Date falling immediately prior to a Deemed Settlement Date, an amount determined by the Operating Agent (acting reasonably) as a reserve to cover the estimated excess of Collections to be received over Receivables which may be generated under all Origination Agreements during the two successive Reference Periods immediately succeeding such Settlement Date (such amount to be notified by the Operating Agent to the Offer Agent on the Determination Date immediately preceding such Settlement Date), provided however that the Special Dilution Reserve determined in paragraph (a) or (b) above may be adjusted from time to time by the Operating Agent (acting reasonably) on the basis of actual excess of Collections received over Receivables generated based on recent history of Collections' and Receivables' generation and any expected change in the sales pattern of any Seller (including, without limitation, a reduction of the number of Designated Account Debtors and a reduction of sales to designated Account -24- Debtors) (such adjustment amounts to be notified by the Operating Agent to the Offer Agent on the Determination Date immediately preceding such Settlement Date). "Specified Bank Holiday Period" means the relevant calendar week; (a) in which the 25th of December falls; (b) in which Easter falls; and (c) in which the 15th of August falls. "Spot Rate" means, as of any Settlement Date, the spot rate utilised under the Currency Exchange Agreement, as determined for such Settlement Date. "Stamp Duty" means any stamp duty, 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). "Sterling" and the sign "(pound)" each mean the lawful currency of the United Kingdom. "Subsidiary" means, in relation to any company or corporation, a company or corporation: (a) which is controlled, directly or indirectly, by the first-mentioned company or corporation; or (b) more than half the issued share capital of which is beneficially owned, directly or indirectly, by the first-mentioned company or corporation; (c) which is a Subsidiary of another Subsidiary of the first-mentioned company or corporation; and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body; or (d) where the context so requires, any equivalent concept under the laws of the relevant jurisdiction. "Summary Report" means a report as of each Determination Date or more frequently if requested by the Operating Agent, substantially in the form of Schedule 4, furnished by each Seller to the Operating Agent pursuant to Clause 11(E). "Summary Report Date" means each Determination Date or such other dates as the Operating Agent may request. "TARGET" means the Trans-European Automated Real-time Gross Settlement Express Transfer Payment System. -25- "TARGET Day" means any day on which TARGET is open for the settlement of payments in Euro. "Temporary Adjustment Account" means the sub-account held by the Buyer with Citibank, N.A., London branch, denominated in Sterling and utilised for the purposes set out in Clause 12(D), under the account number 60918971. "Termination Date" means the earliest to occur of (1) 15 February, 2004, (2) an Early Amortisation Event and (3) the US DIP Facility Termination Date. "Turnover Rate" means, as of any Purchase Date, the average of each of the three most recently ended months of the Dollar Equivalent of the aggregate outstanding balance of Paid Receivables (aggregated among all Origination Agreements) as of the last day of each such month, over the average or each of the three most recently ended months of the total sales giving rise to Programme Receivables as of the last day of each such month. "US DIP Facility Agreement" means the $250,000,000 secured superior priority debtor in possession credit agreement entered into on 15 April, 2002 between Exide Technologies and certain of its Subsidiaries as debtors and debtors-in-possession, Citicorp USA, Inc. as Administrative Agent, Collateral Monitoring Agent and Arranger (as such terms are defined in the US DIP Facility Agreement), Salomon Smith Barney Inc. as Sole Book Manager and Lead Manager (as such terms are defined in the US DIP Facility Agreement) and the lenders and issuers from time to time party thereto. "US DIP Facility Termination Date" means has the meaning given to "Scheduled Termination Date" in the US DIP Facility Agreement. "Weighted Average Term" means the weighted average term of all Paid Receivables, calculated on the basis of the formula: (original stated payment term of each invoice x amount of such invoice) / invoice amount. "Yield" will be calculated on the first Purchase Date and on each Settlement Date thereafter on the basis of the outstanding Capital as at such dates times the Yield Rate divided by 360 times the number of days elapsed in the relevant Interest Period. "Yield Rate" means the percentage rate per annum which is the aggregate of the applicable (i) Margin, (ii) LIBOR and (iii) the Mandatory Costs Rate (if any). "Yield Reserve" means, as of any Settlement Date, an amount equal to the sum of (a) the product of (i) the Programme Eligible Receivables less the Defaulted Receivables (aggregated among all Origination Agreements) and (ii) the Yield Reserve Rate and (b) the product of (i) the Dollar Equivalent of the Outstanding Balance of all Paid Receivables (as aggregated among all Origination Agreements) and (ii) 0.75% (substitute servicer reserve). -26- "Yield Reserve Rate" means as of any Settlement Date, the product of (1) two times the Turnover Rate for such date and (2) the sum of (a) 1 month LIBOR times 1.5 plus the Margin plus the Mandatory Costs Rate (if applicable); (b) the Currency Exchange Costs; (c) the Facility Fee; and (d) the other fees set out in the Fees Letter. (C) This 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 London time. (G) Time of Essence: Time shall be of the essence in this Agreement and all documents delivered pursuant to the terms of this Agreement, subject to the prior waiver of such timing by the affected party. (H) Limited Recourse Provisions under Facilities Agreement and Currency Exchange Agreement: Any amount payable hereunder by reference to amounts payable by the Buyer under the Facilities Agreement and the Currency Exchange Agreement shall be due and payable irrespective of whether the Buyer is liable to pay such amounts as a result of the limited resource provisions contained in the Facilities Agreement and the Currency Exchange Agreement. 2. FACILITY On the terms and conditions set out in this Agreement, each Seller commits, until the Termination Date, to offer to sell and assign the Receivables owed by it in respect of the Contracts to the Purchaser by submitting Letters of Offer and the Buyer commits, until the Termination Date, to purchase at a discount from each Seller full title and ownership in and to such Receivables by acceptance of the Letters of Offer. 3. CONDITIONS PRECEDENT (A) To Initial Purchase: -27- (1) the Initial Purchase in respect of each Seller is subject to the condition precedent that the Operating Agent receives on or before the date on which the first Letter of Offer is accepted the documents and information specified in Schedule 5, each in form and substance satisfactory to the Operating Agent; and (B) To All Purchases (including the Initial Purchase): Each Purchase (including the Initial Purchase) is subject to the further following conditions precedent: (1) On each Determination Date immediately prior to each proposed Purchase Date, the Offer Agent has delivered by electronic mail or facsimile to the Operating Agent each Accounts Receivables Trial Balance to be entered into Enigma and, as soon as practicable thereafter but before 11.00 a.m. London time on the relevant Determination Date, the relevant Accounts Receivables Listing. (2) On each Purchase Date the following statements must be true and correct (and each Seller will be deemed to have so certified on such date that): (a) the representations and warranties of each Seller contained in this 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) each Seller has delivered such certificate as may be required by the Operating Agent as to such Seller's solvency; (c) after the proposed Purchase the Outstanding Balance of Paid Receivables which are Eligible Receivables would be at least equal to the sum of (i) 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 a Seller of any of its Receivables out of the ordinary course of its business without the prior written consent of the Operating Agent; (f) in respect of the Purchase of Receivables whose Designated Account Debtors are resident in a European Union jurisdiction other than in Spain, after the proposed Purchase, Capital in respect of such Purchased Receivables which are Paid Receivables and Eligible Receivables does not exceed 15% of the Capital in respect of all Paid Receivables which are Eligible Receivables; and (g) after the proposed Purchase, Programme Capital would not exceed the Facility Limit. -28- (3) On or prior to each Settlement Date each Seller shall have complied with all of its reporting and other obligations under this Agreement, unless any such failure to comply has been waived by the Operating Agent in respect of such Settlement Date. (4) The Operating Agent has received such other approvals, legal opinions or documents as the Operating Agent may reasonably request. (5) The appointment of the Offer Agent by the Sellers is in full force and effect and has not been revoked or otherwise terminated. (6) the Buyer is able to obtain appropriate funds from its currency swap counterparty under the Currency Exchange Agreement. (C) To All Payments of Future Receivables Purchase Price: The payment by the Buyer of the Future Receivables Purchase Price in respect of Purchased Receivables on each Settlement Date in the manner contemplated in Clause 4 (D) is subject to the fulfilment of the following conditions precedent on the relevant Settlement Date: (1) on each Determination Date immediately prior to each proposed Settlement Date, the Offer Agent has delivered by electronic mail or facsimile to the Operating Agent each Accounts Receivables Trial Balance to be entered into Enigma and, as soon as practicable thereafter but before 11.00 a.m. London time on the relevant Determination Date, the relevant Accounts Receivables Listing. (2) after the payment of the Future Receivables Purchase Price, the Outstanding Balance of Paid Receivables which are Eligible Receivables would be at least equal to the sum of (i) aggregate outstanding Capital, (ii) applicable Accruals and (iii) Reserves in relation to outstanding Capital; (3) there has been no Early Amortisation Event which has not been waived by the Operating Agent in writing; (4) in respect of the payment for a Future Receivables Purchase Price of Receivables whose Designated Account Debtors are resident in a European Union jurisdiction other than in Spain, after the proposed payment, Capital in respect of such Paid Receivables which are Eligible Receivables does not exceed 15% of the Capital in respect of all Paid Receivables which are Eligible Receivables; and (5) after the payment of the Future Receivables Purchase Price, Programme Capital would not exceed the Facility Limit. (6) The appointment of the Offer Agent by the Sellers is in full force and effect and has not been revoked or otherwise terminated. -29- (7) On or prior to each Quarterly Settlement Date, the Operating Agent has received a Director's Certificate from each Seller. (8) the Buyer is able to obtain appropriate funds from its currency swap counterparty under the Currency Exchange Agreement. (D) To any Purchase and any payment for Future Receivables from the Payment Notification Date: Any purchase of Receivables and payment for Future Receivables from the Payment Notification Date is in addition to the conditions set out in Clause 3 (B) and 3 (C) subject to the following conditions precedent on the relevant Settlement Date: (1) each Seller has provided evidence to the Operating Agent that it has given to each Designated Account Debtor or Additional Designated Account Debtor by way of registered letter notice of the assignment and instructions in the form set out in Schedule 11 Part 1 to make all the payments in respect of Receivables to the credit of the Buyer Collection Account and that similar instructions to this effect in the form set out in Schedule 11 Part 3 have been inserted in each of the invoices to be addressed to such Designated Account Debtors. For the purposes of this Clause 3 (D)(1), the following shall constitute sufficient evidence: (a) a copy of the notice of assignment referred to above countersigned by the relevant Designated Account Debtor or Additional Designated Account Debtor; or (b) in the case of Designated Account Debtors or Additional Designated Account Debtors (i) with Receivables outstanding of Euro 100,000 or more; or (ii) in relation to which the Seller expects annual Receivables to be Euro 100,000 or more; or (iii) in relation to which Receivables have arisen in the period of twelve months ending on the date of this Agreement in an amount of Euro 100,000 or more, a copy of a certificate from a public notary (acta notarial) to the effect that such notice of assignment has been issued to such Designated Account Debtors or Additional Designated Account Debtors; or (c) in the case of Designated Account Debtors or Additional Designated Account Debtors other than those designated under (b) above in relation to which notices have been sent by certified mail with acknowledgment of receipt (carta certificada con acuse de recibo), a copy of the relevant postal acknowledgment (acuse de recibo) together with a copy of the relevant signed notice; and (2) the Buyer Collection Account has been opened with the Buyer Collection Account Bank and an Account Bank Mandate in a form satisfactory to the -30- Operating Agent has been entered into with respect to such Buyer Collection Account. (E) New Forms of Contract: The Operating Agent shall, as soon as reasonably practicable after submission to it of a form of Contract other than the form set out in Schedule 7, notify the relevant Seller as to whether it approves of the form for the purposes of paragraph (9) of the definition of "Eligible Receivable", such approval not to be unreasonably withheld. In considering whether to approve such other form of Contract, the Operating Agent may, as a condition of considering whether to give its approval, take such legal advice as it deems appropriate including, without limitation, advice from Spanish solicitors, and all related costs, charges, and expenses (including without limitation reasonable legal fees, disbursements and VAT thereon) shall be for the account of the relevant Seller. 4. PURCHASES (A) Making Offers: The Offer Agent may, on behalf of each Seller, by 11:00 a.m., London time: (1) On the Initial Offer Date, deliver to the Operating Agent, acting on behalf of the Buyer, a Letter of Offer by facsimile (and shall send the original Letter of Offer to an Operating Agent's office outside the United Kingdom (as the Operating Agent may direct to Offer Agent from time to time) by ordinary post on the day it is delivered by facsimile) substantially in the form of Schedule 6 Part 1 (a "Letter of Offer") in respect of the assignment of: (a) all Existing Receivables (if any) specified in such Letter of Offer as in existence as at (but excluding) the Initial Reference Date relating to each Designated Account Debtor on the Initial Offer Date; (b) all Future Receivables (if any) in respect of a Designated Account Debtor on the Initial Offer Date which are not specified in the Letter of Offer and which have come or will come into existence from (and including) the Initial Reference Date to (but excluding) the Effective Date; and (c) all Future Receivables (if any) in respect of a Designated Account Debtor which will come into existence from (and including) the Effective Date to (but excluding) the next Settlement Date, such Initial Letter of Offer to specify (i) the proposed Purchase Date of the Receivables in respect of which such Initial Letter of Offer is delivered and (ii) the then Outstanding Balance of the Receivables (if any) set out in (a) above and the Existing Receivables Purchase Price with respect thereto, as computed by the Operating Agent. The computation of the Existing Receivables Purchase Price by the Operating Agent shall, in the absence of manifest error, be deemed to be conclusive; -31- (2) On any Offer Date subsequent to the Initial Offer Date and falling prior to the Termination Date, nominate (unless otherwise agreed by the Operating Agent) any new Account Debtor to be a Designated Account Debtor (an "Additional Designated Account Debtor"). (3) On any Offer Date subsequent to the Initial Offer Date, deliver to the Operating Agent, acting on behalf of the Buyer, a Letter of Offer by facsimile (and shall send the original Letter of Offer to the Operating Agent's office outside the United Kingdom (as the Operating Agent may direct from time to time) by ordinary post on the day it is delivered by facsimile), substantially in the form of Schedule 6 Part 2 in respect of the assignment of: (a) all Future Receivables (if any) in respect of each Designated Account Debtor (including, for the avoidance of doubt, each Additional Designated Account Debtor) which will come into existence during the immediately succeeding Settlement Period; and (b) in relation to each Additional Designated Account Debtor on such Offer Date: (i) all Existing Receivables (if any) in respect of such Additional Designated Account Debtor specified in such Letter of Offer as in existence as at (but excluding) the immediately preceding Reference Date; and (ii) all Future Receivables (if any) in respect of an Additional Designated Account Debtor which are not specified in the Letter of Offer and which have come and will come into existence from (and including) the Reference Date immediately preceding such Offer Date to (but excluding) the immediately succeeding Settlement Date, such Letter of Offer to specify (i) the proposed Purchase Date of the Receivables in respect of which such Letter of Offer is delivered and (ii) the then Outstanding Balance of the Existing Receivables (if any) set out in (b)(i) above and the Existing Receivables Purchase Price with respect thereto. The Operating Agent shall compute the Existing Receivables Purchase Price in accordance with this Agreement and the computation of the Existing Receivables Purchase Price by the Operating Agent shall, in the absence of manifest error, be deemed to be conclusive. (B) Offer and Acceptance: The delivery of the Letter of Offer by facsimile shall be irrevocable and will constitute an offer by each relevant Seller to sell to the Buyer each of (i) the Existing Receivables (if any) designated pursuant to Clause 4(E) and the Related Security with respect thereto for the Existing Receivables Purchase Price applicable to such Existing Receivables (at least 10 Euros of which shall be paid in cash) as set out in the Letter of Offer and (ii) the Future Receivables (if any) and the -32- Related Security with respect thereto designated pursuant to Clause 4(E) for an amount of Euro 10 in cash (the "Acceptance Fee") plus the Future Receivables Purchase Price in accordance with Clause 4(D) of this Agreement. The Buyer, subject to the satisfaction of the conditions precedent as set out in Clause 3 above, will accept a Letter of Offer with respect to both (i) all Existing Receivables referred to in such Letter of Offer and (ii) all Future Receivables referred to in such Letter of Offer by sending a written (including by fax or email) letter of acceptance substantially in the form of Schedule 6 Part 2 (a "Letter of Acceptance"), not later that 11.00 am on the proposed Purchase Date. The Existing Receivables referred to in the Letter of Offer and the Related Security with respect thereto shall be transferred to the Buyer and title and ownership in and to those Receivables shall pass from the Seller to the Buyer after the Existing Receivables Purchase Price has been paid in full in accordance with Clause 4(C). The Future Receivables referred to in the Letter of Offer and the Related Security with respect thereto shall be transferred to the Buyer and title and ownership in and to those Receivables shall pass from the Seller to the Buyer after the Acceptance Fee which Acceptance has been fully paid in cash to the account referred to in accordance with Clause 4(C). (C) Method of Payment in relation to acceptance of a Letter of Offer: Upon acceptance of a Letter of Offer by the Buyer by sending a Letter of Acceptance, it will make payment in full of the Existing Receivables Purchase Price in respect of Existing Receivables (if any) referred to in such Letter of Offer and the Acceptance Fee in respect of Future Receivables referred to in such Letter of Offer on the immediately succeeding Settlement Date in the currency and funds specified in Clause 7(B) and (subject to the provisions of Clause 12(C) in respect of the Existing Receivables Purchase Price in relation to Existing Receivables offered on any Offer Date other than the Initial Offer Date) to the account specified in Clause 7(C). Within one Local Business Day of receipt of the Existing Receivables Purchase Price in respect of Existing Receivables or/and the Acceptance Fee in respect of Future Receivables referred to in a Letter of Offer, Tudor shall provide to the Buyer a receipt substantially in the form set out in Schedule 6 Part 3 Section A. (D) Covenant for Payment in respect of Purchased Receivables which are Future Receivables: In consideration of the sale and assignment by the relevant Seller of Future Receivables (which Receivables have been automatically assigned pursuant to Clause 4 (B)), the Buyer shall (subject to the conditions set out in Clause 3), on each Settlement Date, pay in full the Future Receivables Purchase Price (as calculated by the Operating Agent) in respect of Future Receivables having come into existence during the Reference Period immediately preceding such Settlement Date in the currency and funds specified in Clause 7(B) and (subject to the provisions of Clause 12(C)) to the account specified in Clause 7(C). Within one Local Business Day of receipt of the Future Receivables Purchase Price, Tudor shall provide to the Buyer a receipt substantially in the form set out in Schedule 6 Part 3 Section B. -33- (E) Determination of Receivables: No later than 11:00 a.m. on the Initial Offer Date and thereafter on each Determination Date immediately preceding a Settlement Date, the Offer Agent will, on behalf of the Sellers, deliver to the Operating Agent (or as the Operating Agent may direct) the Accounts Receivables Listing generated in relation to such Settlement Date specifying, inter alios: (1) on the Initial Offer Date: (i) the Initial Reference Date; (ii) each Designated Account Debtor; (iii) each Existing Receivable which is the subject of the Letter of Offer delivered on the Initial Offer Date and the Seller thereof; (iv) each of such Existing Receivables which is an Eligible Receivable; (v) the Outstanding Balance of such Existing Receivables which are Eligible Receivables as at (but excluding) the Initial Reference Date and the Seller thereof; and (vi) the Seller of the Future Receivables referred to in the Letter of Offer delivered on the Initial Offer Date, (2) on each subsequent Determination Date: (i) the relevant Reference Date; (ii) each Additional Designated Account Debtor (if any) the Existing Receivables of which are subject of a Letter of Offer on such Determination Date; (iii) each Existing Receivable from such Additional Designated Account Debtor which are the subject of a Letter of Offer on such Determination Date and the Seller thereof; (iv) each of such Existing Receivables which is an Eligible Receivable; (v) the Outstanding Balance of such Existing Receivables which are Eligible Receivables as at (but excluding) the immediately preceding Reference Date and the Seller thereof; (vi) each Purchased Receivable which is a Future Receivable which has come into existence during the Reference Period immediately preceding such Determination Date and the Seller thereof; -34- (vii) each of such Purchased Receivables set out in (vi) above which is an Eligible Receivable as at (but excluding) the Reference Date immediately preceding such Determination Date; (viii) the Outstanding Balance of such Purchased Receivables which are Eligible Receivables as at (but excluding) the Reference Date immediately preceding such Determination Date and the Seller thereof; and (ix) the Seller of the Future Receivables referred to in any Letter of Offer delivered on such Determination Date. (F) Perfection: Each of the Seller, the Offer Agent and the Buyer will take all such steps and comply with all such formalities as may be required by the Buyer to perfect or more fully to evidence or secure title to the Receivables assigned (or purported to be assigned) pursuant to Clause 4. To the extent that title to the Related Security cannot be transferred by mere agreement between a Seller and the Buyer as provided above in this Clause, the Sellers and the Buyer agree that: (1) insofar as Related Security governed by Spanish law is concerned: (a) any transfer of possession necessary to transfer title in a Related Security, in particular in relation to cheques, bills of exchange, is replaced by, as the case may be: (i) the Seller holding Related Security in custody for the Buyer free of charge; and/or (ii) assigning hereby to the Buyer all claims for return gainst the relevant persons which are in actual possession of such instrument or movable; (b) any notice to be given in order to perfect or give effectiveness to the right of the Buyer to any such Related Security shall immediately be given by the Seller in such form as the Operating Agent requires and the Seller hereby agrees that if it fails to give such notice, the Operating Agent is hereby irrevocably authorised to give such notice on behalf of the Seller; and (c) any other thing to be done or form or registration to be effected shall be done and effected by the Seller at its own cost; and (2) insofar as Related Security governed by the laws of any other jurisdiction is concerned: -35- (a) the 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 (b) insofar as applicable law does allow, sub-paragraphs (F)(1)(a), (b) and (c) shall apply mutatis mutandis to such Related Security. (G) Delegation of Powers of Operating Agent: The Operating Agent hereby delegates to the Offer Agent and each Seller its obligations to compute the Existing Receivables Purchase Price and the Future Receivables Purchase Price under this Clause 4, which delegation is irrevocably accepted by the Offer Agent and each Seller. The Offer Agent shall notify the Operating Agent of all calculations made by it under this Clause 4. The Operating Agent may revoke this delegation in writing at any time. (H) Appointment of Offer Agent: (a) Exide Europe is hereby appointed by each Seller as Offer Agent to make offers to the Buyer on behalf of each such Seller pursuant to the terms hereof and perform all the related functions and Exide Europe hereby accepts such appointment as Offer Agent on the terms and subject to the conditions of this Agreement; (b) each Seller agrees that the Buyer and the Operating Agent shall be entitled to assume without further enquiry that performance by the Offer Agent purportedly on behalf of such Seller is duly authorised and undertaken on behalf of such Seller; (c) Exide Europe may not resign its appointment as Offer Agent without the consent of the Operating Agent on behalf of the Buyer. (I) Appointment of Tudor: (a) Tudor is hereby appointed by each other Seller as its agent to receive, for and on behalf of such Seller, any payment to be made hereunder by the Buyer which is attributable to such Seller and Tudor hereby accepts such appointment on the terms and subject to the conditions of this Agreement; (b) each Seller other than Tudor agrees that any payment made to Tudor shall constitute performance by the Buyer of its payment obligations and the Buyer shall not concern itself as to how Tudor deals with the payment to such Seller and how amounts paid in respect of any Letter of Offer are distributed between each such Seller. (c) Tudor may not resign from its appointment under this Clause 4 (I) without the consent of the Operating Agent. 5. COLLECTIONS AND SETTLEMENT (A) Collection of Receivables: -36- (1) Each Servicer shall: (a) on each Local Business Day prior to the Payment Notification Date, deposit and cause each Designated Account Debtors to deposit all Collections of Purchased Receivables to the Seller Collection Account; (b) on each Local Business Day from the Payment Notification Date, deposit and cause each Designated Account Debtors to deposit all Collections of Purchased Receivables to the Buyer Collection Account. (c) on each Settlement Date (subject to Clause 12(C)) transfer all Collections received since the last Settlement Date to the Buyer Account; (2) Upon demand of the Operating Agent, each Servicer shall set aside and hold for the account of the Buyer all Collection received by it and immediately deposit such Collections to the Buyer Account. (3) The Operating Agent shall issue a Settlement Statement to the Offer Agent (on behalf of the Sellers) within two Programme Business Days after each Settlement Date in relation to the Settlement Period which ended on that Settlement Date. (B) Settlement Procedures prior to Termination Date: Prior to the Termination Date the procedures described in this Clause 5(B) will be applicable: (1) On each Determination Date the Operating Agent shall calculate: (a) Capital as at the forthcoming Settlement Date; and (b) Yield and Programme Costs in respect of the Capital as at the forthcoming Settlement Date. (2) On each Settlement Date the Operating Agent shall cause to be paid from the Buyer Account, in the following order of priority: (a) to the Buyer, Yield and the Country's Proportionate Share Programme Costs in respect of the Interest Period ending on that Settlement Date; (b) to each Seller, (i) (on the date of the Initial Purchase) the Existing Receivables Purchase Price for the Existing Receivables offered for Purchase on the Initial Offer Date and the Acceptance Fee in respect of all Future Receivables offered for Purchase on such Initial Offer Date and (ii) (on any Settlement Date thereafter) the Acceptance Fee for all Future Receivables offered for Purchase on the immediately -37- preceding Offer Date and, to the extent such amounts are not satisfied by way of set-off pursuant to Clause 12 (C), the Existing Receivables Purchase Price for all Existing Receivables (if any) offered for Purchase on the immediately preceding Offer Date and the Future Receivables Purchase Price for all Purchased Receivables (which were Future Receivables) which have come or will come into existence during the immediately preceding Reference Period; (c) to the Buyer, such amounts as determined by the Operating Agent as are required to repay Programme Capital and result in the Programme Reserves being equal to the amount calculated pursuant to Clause 5(B)(3); and (d) to each Seller, its Proportionate Share of all amounts standing to the credit of the Buyer Account, after payment of the amounts set forth in (a), (b) and (c) above, by way of deferred purchase price for the Purchased Receivables. (3) On each Determination Date, the Operating Agent shall calculate the Reserves and the Programme Reserves required in respect of that Settlement Period commencing on the next following Settlement Date. (C) Settlement Procedures after Termination Date: On the Termination Date and each day thereafter, the procedures described in this Clause 5(C) will be applicable for all Purchased Receivables: (1) On each Settlement Date, the Operating Agent shall cause to be paid from the Buyer Account to the Buyer, all amounts standing to the credit of the Buyer Account. (2) When the Operating Agent notifies each Seller that Programme Capital has been reduced to zero and all Yield (as aggregated among all Origination Agreements), Programme Costs and other fees due under this Agreement (including the fees payable under the Fees Letter) have been paid, then an amount equal to the Seller's Proportionate Share of any future Collections on Purchased Receivables shall be remitted by the Buyer to each Seller by way of deferred purchase price for all of the Purchased Receivables. (D) Adjustments and Allowances: (1) If on any day the Outstanding Balance of any Paid Receivable is either (a) reduced or adjusted as a result of any defective, rejected, repossessed or returned goods or services or any cash discount (whether commercial, financial or otherwise), rebate or other adjustment made by the Seller or any other Person, or (b) reduced or cancelled as a result of a set off or by agreement in respect of any claim by the Designated Account Debtor thereof against any Seller or any other Person (whether such claim arises out of the -38- same or another transaction) (including without limitation any change in the due date for payment of any Paid Receivable otherwise than with the prior consent of the Operating Agent), such Seller will be deemed to have received on such day a Collection of such Paid Receivable in the amount of such reduction, adjustment or cancellation and shall credit such amount to the Buyer Account by way of indemnity. (2) If on any day any of the representations or warranties in Clause 8 is no longer true with respect to a Paid Receivable, the relevant Seller will be deemed to have received on such day a Collection of such Paid Receivable equal to its original Outstanding Balance less any Collections previously received with respect thereto and shall credit to the Buyer Account an amount equal to such deemed Collection by way of indemnity. (3) If any Existing Receivable expressed to be an Eligible Receivable in the relevant Accounts Receivables Listing was not an Eligible Receivable at the time of Purchase or any Future Receivable expressed to be an Eligible Receivable in the relevant Accounts Receivables Listing was not an Eligible Receivables on the Settlement Date on which the Future Receivable Purchase Price was paid in respect of such Future Receivable, on the date such fact becomes known to any Seller, such Seller will be deemed to have received a Collection of such Paid Receivable equal to its original Outstanding Balance less any Collections previously received with respect thereto and shall credit to the Buyer Account an amount equal to such deemed collection by way of indemnity. (4) If, following any payment in respect of a deemed Collection of a Purchased Receivable pursuant to Clause 5(D)(2) and 5(D)(3) above, the Buyer shall receive any further Collections in respect of such Purchased Receivable, the Buyer shall (provided the Termination Date has not yet occurred) pay to the relevant Seller an amount or amounts equal to such further Collections by way of repayment of indemnity. (E) Application of Collections: Any payment by a Designated Account Debtor in respect of any indebtedness owed by it to a Seller and any credits in respect of defective, rejected, repossessed or returned goods or other non cash items of a Designated Account Debtor will, except as otherwise specified in writing by such Account Debtor or otherwise required by contract or law and unless otherwise instructed by the Operating Agent, be applied as a Collection of Purchased Receivables of such Designated Account Debtor, in the order of the age of such Purchased Receivables, starting with the oldest such Purchased Receivables, to the extent of any amounts then due and payable thereunder before being applied to or in respect of any other indebtedness of such Designated Account Debtor. (F) Sellers' obligations joint and several: All obligations, covenants, indemnities, representations and warranties of, given or made by any Seller under the Relevant -39- Documents (in any of its capacities under the Relevant Documents) are joint and several with those of any other Seller (in any of its capacities under the Relevant Documents). 6. FEES, COSTS, STAMP DUTY AND TAXES (A) Servicer Fees: Until the later of the Termination Date and the Relevant Date, for any period during which a Seller or an Affiliate of the Seller is not a Servicer (or a Sub-Servicer), such Seller will pay the Buyer, upon its demand, a servicing fee as determined by the Operating Agent, not exceeding 110% of the fees, costs and expenses, plus value added tax (if applicable), charged by the substitute Servicer in performing such function. (B) Costs and Expenses: Each Seller agrees to pay on demand of the Operating Agent all reasonable costs and expenses incurred by the Operating Agent in connection with the preparation, execution and delivery of the Relevant Documents and the other documents to be delivered pursuant to the Relevant Documents or in connection therewith, such costs and expenses to include, without limitation, any notarial fees generated pursuant to 13(B), 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 the Relevant Documents, the other documents to be delivered pursuant to the Relevant Documents or in connection therewith and the Purchased Receivables. (C) Duties and Taxes: In addition, each Seller will pay on demand of the Operating Agent any sales, excise, registration and other taxes, duties and fees payable in connection with the execution, delivery, filing or recording of the Relevant Documents or the purchase, assignment or reassignment of Receivables under or pursuant to the Relevant Documents or the other documents to be delivered under the Relevant Documents or in any way connected with any transaction contemplated by the Relevant Documents. Each Seller agrees to indemnify the Operating Agent and the Buyer on demand of the Operating Agent against any liabilities with respect to or resulting from any delay in paying or omission to pay any such taxes, duties or fees. (D) Computations: All computations of interest and fees shall be made on the basis of a year of 360 days for any currency other than Euro and 365 days in the case of Euro for the actual number of days (including the first but excluding the last day) elapsed. (E) Computation of Time Periods: Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding". -4- 7. PAYMENTS AND COMPUTATIONS, ETC. (A) Mechanics: All amounts to be paid to or deposited with the Operating Agent for its own account or for the account of the Buyer by any Seller and/or the Servicer under this 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 a Seller and/or Servicer under this Agreement to the Operating Agent for its own account or for the account of the Buyer shall be paid in Euros or, where such payments relate to a Purchased Receivable, in the currency of such Purchased Receivable (or any other currency which is agreed from time to time between the Offer Agent and the Operating Agent). All amounts payable by the Buyer under this Agreement shall be paid in the currency specified herein and the Existing Receivables Purchase Price and Future Receivables Purchase Price amounts payable by the Buyer under this Agreement shall be paid in the currency of the Purchased Receivables. (C) Accounts: Any amounts payable under this Agreement shall be remitted to the following accounts: (1) if to a Seller, the relevant Seller Non-Transaction Account; (2) if to the Buyer, to the relevant Buyer Account; and (3) if to the Operating Agent for its own account, Account No. 83267 (Sort Code 18-50-08) with Citibank, 336 Strand, London WC2R 1HB. (D) Grossing Up: To the fullest extent permitted by law, each Seller (in each of its capacities under the Relevant Documents) will make all payments under this Agreement regardless of any defence or counterclaim. Further, if such Seller (in any of its capacities under the Relevant Documents), is compelled by law to make any deductions or withholdings from any payments pursuant to the Relevant Documents, including, without limitation, payments in respect of Receivables or Collections, such Seller will pay such additional amounts as may be necessary in order that the net amount received by the Operating Agent or the Buyer after such deductions or withholdings (including any required deduction or withholding on such additional amounts) will equal the amount that the Operating Agent or the Buyer (as appropriate) would have received had no such deductions or withholdings been made. Each relevant Seller will provide the Operating Agent with evidence satisfactory to the Operating Agent that it has paid such deductions or withholdings. (E) Appropriation of Payments: Regardless of any appropriation by any Seller or Servicer, the Operating Agent shall determine the appropriation of any payment to it for the account of the Buyer to any amount to be paid to or deposited with it for the account of the Buyer by such Seller and/or Servicer under this Agreement. -41- 8. REPRESENTATIONS AND WARRANTIES OF EACH SELLER AND EXIDE EUROPE Each of the Sellers (in each of its capacities under the Relevant Documents) and Exide Europe represents and warrants to the Buyer and the Operating Agent, in each case in relation to the matters relating to itself, as of the Effective Date, as follows: (A) Incorporation: Each Seller and Exide Europe is a company duly incorporated and validly existing under the laws of its jurisdiction of incorporation or organisation. (B) Seller Power and Authority: Each Seller has full power and authority to effect, and has taken all necessary action to authorise, the execution, delivery and performance by it of the Relevant Documents to which it is a party and all other instruments and documents to be delivered under the Relevant Documents to which it is a party, and the transactions contemplated by the Relevant Documents to which it is a party. (C) Exide Europe Power and Authority: Exide Europe has full power and authority to effect, and has taken all necessary action to authorise, the execution, delivery and performance by it of the Relevant Documents to which it is a party and all other instruments or documents to be delivered under the Relevant Documents to which it is a party, and the transactions contemplated by the Relevant Documents to which it is a party. (D) Non-Violation: The execution, delivery and performance by each Seller and Exide Europe of the Relevant Documents to which it is a party and all other instruments and documents to be delivered pursuant to the Relevant Documents to which it is a party and all transactions contemplated by the Relevant Documents to which it is a party: (1) do not contravene (a) any Seller's or Exide Europe's memorandum or articles of association (or analogous constitutive documents), (b) any law, rule or regulation applicable to any Seller or Exide Europe, (c) any material contractual restriction contained in any agreement or instrument binding on or affecting any Seller or its assets or Exide Europe or Exide Europe's assets, or (d) any order, writ, judgment, award, injunction or decree binding on or affecting any Seller, or any of the Seller's assets or Exide Europe or Exide Europe's assets; (2) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of the Seller's or Exide Europe's assets or undertaking; and (3) will not constitute a breach of, nor give rise to any actual or potential event of default under, any Debt of any member of the Exide 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, -42- delivery or performance by each Seller Exide Europe of the Relevant Documents to which it is a party or any other document to be delivered in connection with the Relevant Documents to which it is a party or for the transactions contemplated by the Relevant Documents to which it is a party. (F) Obligations Binding: Each of the Relevant Documents to which it is a party constitutes the legal, valid, binding and enforceable obligation of each Seller and Exide Europe. (G) Accounts: The most recent audited annual accounts of each Seller and Exide Europe, copies of which have been furnished to the Operating Agent, present a true and fair view of the financial condition of such Seller and its consolidated Subsidiaries (if any) or Exide Europe and its consolidated Subsidiaries (if any), as applicable, as at that date and the results of the operations of such Seller and those Subsidiaries, or Exide Europe and those Subsidiaries, as applicable, for the period ended on that date, all in accordance with generally accepted accounting principles consistently applied. (H) No Material Adverse Change to Seller: Since the date of this Agreement, there has been no change in the business or financial condition of the Seller which may materially adversely affect the ability of such Seller to perform its obligations under the Relevant Documents. (I) No Material Adverse Change to Exide Europe Group: Since the date of this Agreement, there has been no change in the business or financial condition of the Exide Europe Group which may materially adversely affect the ability of Exide Europe to perform its obligations under the Relevant Documents to which it is a party. (J) No Litigation: There are no actions, suits or proceedings current or pending, or to the knowledge of any Seller threatened, against or affecting such Seller or its Subsidiaries (if any) or any of their respective assets, or Exide Europe or Exide Europe's assets, in any court, or before any arbitrator of any kind, or before or by any governmental body, which may materially adversely affect the financial condition of such Seller and its Subsidiaries taken as a whole or Exide Europe, or materially adversely affect the ability of such Seller or Exide Europe to perform its obligations under the Relevant Documents to which it is a party. (K) No Default: No Seller nor Exide Europe, or any of its Subsidiaries is in default with respect to any order of any court, arbitrator or governmental body, excluding defaults with respect to orders of governmental agencies which are not material to the business or operations of such Seller, Exide Europe or any of its Subsidiaries, and would not materially adversely affect the ability of such Seller, Exide Europe or any of its Subsidiaries to perform its obligations under the Relevant Documents to which it is a party. (L) No Adverse Claim: Each Receivable will, together with the Contract related thereto, at all times be owned by such Seller free and clear of any Adverse Claim, and upon -43- each Purchase the Buyer will acquire full equitable and beneficial title and ownership to and of such Receivable, the Collections and the Related Security then existing or thereafter arising free and clear of any Adverse Claim. (M) Performance of Contracts: All goods and services to which each Purchased Receivable relates have been delivered and performed, and all requirements of such Contract concerning the nature, amount, quality, condition or delivery of the goods or services, or upon which payment of the Purchased Receivable may be dependent, have been fulfilled in all material respects. (N) Information: None of the information and reports (including but not limited to each portfolio profile and each Summary Report) furnished or to be furnished (whether by way of computerised data or otherwise) by such Seller (in any of its capacities under the Relevant Documents) or Exide Europe, to the Operating Agent or Exide Europe, as applicable, is inaccurate in any material respect (except as otherwise disclosed to the Operating Agent at the time of delivery) as of the date so furnished, or contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not materially misleading. (O) Place of Business: The principal place of business and registered office of each Seller is as set forth in Schedule 1 or at such other location(s) approved by the Operating Agent (such approval not to be unreasonably withheld or delayed). (P) Location of Books: The offices where each Seller keeps all its books, records and documents evidencing Receivables or the related Contracts are at the locations set forth in Schedule 1 or at such other location(s) approved by the Operating Agent (such approval not to be unreasonably withheld or delayed). (Q) Location of Bank Accounts: The bank accounts to which each Seller has directed the Designated Account Debtors to remit payments for the Receivables are (a) prior to the Payment Notification Date, the Seller Collection Account and (b) on and following the Payment Notification Date, the Buyer Collection Account. (R) No Winding-Up: No step has been taken or is intended by any Seller, Exide Europe or to the best of such Seller's or Exide Europe's knowledge by any other Person for such Seller's or Exide Europe's winding-up, liquidation, insolvency (including quiebra and suspension de pagos), dissolution, administration, merger or consolidation or for the appointment of a receiver or administrator of such Seller or Exide Europe all or any of its assets. (S) No Breach: There has been no breach by any Seller of any of its obligations under the Relevant Documents to which it is a party or by Exide Europe of any of its obligations under the Letter of Undertaking. (T) Eligibility: Each (i) Existing Receivable the subject of a Letter of Offer which is expressed to be an Eligible Receivable in the relevant Accounts Receivables Listing is an Eligible Receivable as at the time of Purchase and (ii) each Future Receivable the -44- subject of a Letter of Offer which is expressed to be an Eligible Receivable in the relevant Accounts Receivable Listing is an Eligible Receivable as at the Settlement Date immediately succeeding the Reference Period in which such Future Receivable has come into existence. (U) Exide Europe Group: Each of the Sellers, the French Seller, the German Sellers, the Italian Seller, the U.K. Sellers and Exide Funding (and each entity acceding as a "Seller" to any Origination Agreement) is a member of Exide Europe Group. (V) Aggregate Amount of Receivables: The amount of Receivables aggregated among all Origination Agreements (other than the Italian RSA and the Italian OSA) is such that the purchase price amounts paid by the Buyer in respect of such Receivables under each Origination Agreement to which it is a party (other than the Italian OSA) in the three month period commencing on the date of the Initial Purchase is not less than Euro 12,700,000. Each of the Sellers and Exide Europe further represents and warrants that the representations and warranties in this Clause 8 shall be true and correct on and as of each Settlement Date as though made on each such date and by reference to the then-existing circumstances. 9. AFFIRMATIVE COVENANTS OF EACH SELLER Until the later of the Termination Date and the Relevant Date, each Seller will (in each of its capacities under the Relevant Documents), unless the Operating Agent otherwise consents: (A) Compliance with Law: Comply in all material respects with all applicable laws, rules, regulations and orders binding on it, its business and assets and all Receivables and related Contracts, except where non-compliance would not have a material adverse effect on its ability to perform its obligations hereunder. (B) Maintain Existence: Preserve and maintain its corporate existence. (C) Access: Upon reasonable prior notice, permit the Operating Agent, or its agents or representatives, to visit the offices of such Seller during normal office hours and examine and make and take away copies of all books, records and documents relating to the Receivables and to discuss matters relating to the Receivables or such Seller's performance hereunder with any of the officers or employees of such Seller having knowledge of such matters and co-operate in the reconstruction of the Accounts Receivable Trial Balance pursuant to Clause 13(C). (D) Maintain Records: Maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records in the event of their destruction), and keep and maintain, all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the identification on each -45- Purchase Date of each new Purchased Receivable and the daily identification of all Collections of and adjustments to each existing Purchased Receivable). (E) Perform Contracts: Timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by it under the Contracts relating to the Purchased Receivables. (F) Priority: Ensure that at all times the claims against it under this Agreement rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred by any bankruptcy, insolvency or other similar laws of general application. (G) Credit and Collection Policy: Comply in all material respects with its Credit and Collection Policy with respect to each Receivable purchased or to be offered for purchase pursuant to this Agreement and the related Contract. (H) Value Added Tax: Make all relevant value added tax or other applicable tax payments in respect of supplies of goods or services pursuant to a Contract or which otherwise relate to Purchased Receivables, and pay all value added tax (if any) payable in respect of any value added tax supply made, or input value added tax suffered, by the Buyer, the Operating Agent or any of the Operating Agent's Affiliates with respect to supplies of goods or services by the Seller pursuant to a Contract or which otherwise relates to Purchased Receivables. (I) Collections: If such Seller is not acting as Sub-Servicer, (1) give all reasonable assistance (including the provision of information) to any Servicer in accordance with the provisions of this Agreement, and (2) remit any Collections on Purchased Receivables to the Servicer within one Local Business Day after the receipt or deemed receipt thereof. (J) Payment Instructions: (i) instruct, no later than on the Payment Notification Date, the Designated Account Debtor to make payments in respect of Purchased Receivables to the relevant Buyer Collection Account and (ii) instruct each Additional Designated Account Debtor which has become a Designated Debtor following the Payment Notification Date, to make payments in respect of Purchased Receivables as of the Purchase Date immediately succeeding the Offer Date on which the relevant Account Debtor has become an Additional Designated Account Debtor to the relevant Buyer Collection Account, in each case by way of letter (substantially in the form set out in Schedule 11) and by the insertion of a payment instruction to this effect in each invoice relating to a Designated Account Debtor. (K) Bank Accounts: (i) prior to the Payment Notification Date, instruct all Designated Account Debtors to pay all Collections into the Seller Collection Account referred to in Clause 8(Q) and (ii) on and following the Payment Notification Date, instruct all Designated Debtors to pay all Collections into the relevant Buyer Collection Account referred to in Clause 8 (Q) -46- (L) Audit Costs: Each Seller shall pay the fees and expenses for up to four audits to be carried out by such accounting firm as is selected by the Operating Agent in respect of the Receivables (the scope of which to be determined by the Operating Agent, acting reasonably) in each financial year of such Seller, plus the costs of one additional audit to be conducted within 4 months after the execution of this Agreement. Except for such additional audit, any further additional audit(s) that may be required by the Operating Agent during any such financial year shall be for the Operating Agent's own account. (M) Provision of Information to Exide Europe: Each Seller shall promptly provide Exide Europe with computerised information regarding the Purchased Receivables on the dates shown, and containing the information set forth in Schedule 8 of its Accounts Receivables Trial Balance and all such different or other information as the Operating Agent may reasonably determine from time to time to properly allow Exide Europe and/or the Operating Agent to identify all required information in respect of Account Debtors and Receivables. 10. NEGATIVE COVENANTS OF EACH SELLER AND EXIDE EUROPE Until the later of the Termination Date and the Relevant Date, neither a Seller (in each of its capacities under the Relevant Documents) and (in respect of paragraph (F) below), Exide Europe will, without the consent of the Operating Agent: (A) No Disposal of Receivables: Except as otherwise provided herein, sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to, any Receivable purchased or to be offered for purchase under this Agreement or the related Contract, or assign any right to receive income in respect thereof. (B) No Transfer of Business: 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 and Contracts: No Seller shall create nor permit to subsist any Security Interest on any of its Receivables and related Contracts. (D) No Amendment to Receivables: Extend, amend or otherwise modify the terms of any Purchased Receivable, or amend, modify or waive any term or condition of any Contract related thereto, or commence or settle any legal action to enforce collection of any Purchased Receivable without the prior written consent of the Operating Agent. (E) No Change to Credit and Collection Policy: Make any change in the character of its business or in the Credit and Collection Policy, which change would or might, in either case, materially impair the collectability of any Receivable purchased or to be offered for purchase under this Agreement or the enforcement of any related Contract -47- against the related Designated Account Debtor or any other relevant Person the operation of this Agreement without the prior written consent of the Operating Agent. (F) Cross Indemnity: Neither Exide Europe nor any Seller shall amend or otherwise change the Deed of 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 EACH SELLER Until the later of the Termination Date and the Relevant Date, each of the Sellers and Exide Europe (in each case in relation to matters relating to itself) will, unless the Operating Agent otherwise consents, furnish to the Operating Agent: (A) Annual Accounts of Seller: As soon as available and in any event within 180 days after the end of each of each Seller's financial years, a copy of such Seller's 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 or lapse of time or both, would constitute one of such events, the statement of the chief financial officer or chief accounting officer of such Seller or, as the case may be, Exide Europe, setting out details of that event and the action which such Seller or, as the case may be, Exide Europe, proposes to take with respect to that event: (1) such Seller or Exide Europe fails to pay any principal of or premium or interest on any Debt in excess (in the aggregate) of the Euro Equivalent of $5,000,000 when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the -48- agreement or instrument relating to such Debt, or any other default under any agreement or instrument relating to any Debt, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such default or event is to accelerate or to permit the acceleration of the maturity of such Debt, or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof, or any present or future mortgage, charge or other security interest on or over any assets of such Seller or Exide Europe becomes enforceable; (2) a resolution is passed or a petition is presented or an order made for the insolvency (including quiebra and suspension de pagos), winding up, liquidation, dissolution, merger or consolidation of such Seller or Exide Europe (except for the purposes of a bona fide reconstruction or amalgamation with the consent of the Operating Agent), or a petition is presented or an order made for the appointment of an administrator in relation to such Seller, Exide Europe or a receiver, administrative receiver or manager is appointed over any part of the assets or undertaking of such Seller or Exide Europe or any event analogous, to any of the foregoing occurs (except, in the case where a petition is presented (i) the proceeding is frivolous or vexatious and (ii) the Originator or Exide Europe is solvent and is contesting the proceeding in good faith); or (3) an Early Amortisation Event occurs; or (4) an Event of Default (as such term is defined in the US DIP Facility Agreement) occurs under the US DIP Facility Agreement. (E) Summary Report: Promptly, from time to time, such other information, documents, records or reports respecting the Receivables or the condition or operations, financial or otherwise, of such Seller or any member of the Exide Europe Group, as the Operating Agent may from time to time reasonably request in order to protect the interests of the Buyer or the Operating Agent, including, prior to 10:00 am, London time, on each Summary Report Date, a Summary Report (with, among other things, the information necessary to determine the Default Ratio). (F) Designated Account Debtors: Within two calendar weeks after the end of each calendar quarter (or such more frequent time as the Operating Agent may request in writing), each Seller shall deliver to the Operating Agent a current list of all Designated Account Debtors in respect of Purchased Receivables and the addresses of such Designated Account Debtors. The obligations of each Seller to deliver reports or similar information to the Buyer pursuant to this Agreement may be delegated by each Seller to Exide Europe, and the performance by Exide Europe of such obligations hereunder shall be deemed to be the -49- performance by each Seller of such obligations; provided however, that such Seller shall remain liable for any non-performance of such obligations. 12. SERVICER, COLLECTIONS AND BUYER ACCOUNT (A) Designation of Servicer: The servicing, administering and collection of the Receivables shall be conducted by Citibank, N.A., London Branch (the "Servicer") or such other Person so designated from time to time pursuant to this Clause 12(A). Until the Operating Agent gives notice to the Servicer of a designation of a new Servicer, Citibank, N.A., London Branch is designated as, and agrees, subject to the provisions of this paragraph (A), to perform the duties and obligations of a Servicer pursuant to the terms of this Agreement. The Servicer hereby delegates to each Seller in respect of the Purchased Receivables originated by such Seller, its duties and obligations as Servicer and each such Seller (each a "Sub-Servicer") hereby agrees to perform the duties and obligations of the Servicer pursuant to the terms of this Agreement in relation to the Purchased Receivables originated by it. The delegation hereby granted to each Sub-Servicer may not be terminated by the Sub-Servicer without the prior written consent of the Servicer and may be terminated at any time and without a cause by the Servicer and, for so long as a Seller is acting as Sub-Servicer pursuant to the terms of this Agreement, (i) it shall perform the duties and obligations of the Servicer in respect of the Purchased Receivables originated by it and (ii) all duties, obligations and indemnities expressed to be those of a "Servicer" pursuant to Clause 5 and this Clause 12 shall be regarded for all purposes as those of the relevant Sub-Servicer. The Servicer shall not be liable for the performance of the duties and obligations of any Sub-Servicer under this Agreement and each Sub-Servicer shall be liable to the Operating Agent and the Buyer for the performance of its duties and obligations as Sub-Servicer under this Agreement. Each Sub-Servicer may, with the prior written consent of the Operating Agent, subcontract with any other Person for servicing, administering or collecting the Purchased Receivables; provided, however, that such Sub-Servicer (a) procures to the Operating Agent that its sub-contractor shall not delegate the servicing duties and obligations sub contracted to it by the Sub-Servicer without the prior written consent of the Operating Agent and (b) will remain liable for the performance of its duties and obligations of Sub-Servicer under this Agreement. The Operating Agent may at any time designate as Servicer any Person to succeed the Servicer (which designation shall, for the avoidance of doubt, automatically terminate the delegation hereby granted to the Sub-Servicer) or any successor Servicer, on the condition in each case that any such Person agrees to perform the duties and obligations of Servicer pursuant to the terms of this Agreement. (B) Duties of Servicer: Each Servicer: (1) will take or cause to be taken all such actions as may be necessary or advisable to collect each Purchased Receivable, all in accordance with -50- applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy and the instructions of the Operating Agent. Each of the Seller and the Buyer hereby appoints the Servicer as its agent to enforce its respective rights and interests in and under the Purchased Receivables, the Related Security and the Contracts; (2) will (i) prior to the Payment Notification Date, pay all Collections to be paid directly by all Designated Account Debtors in the relevant Seller Collection Account and deposit to the Seller Collection Account, immediately upon receipt, any Collection received not paid to such Seller Collection Account and (ii), no later than on the Payment Notification Date and on each Local Business Day thereafter, pay all Collections to be paid directly by all Designated Account Debtors in the Buyer Collection Account and deposit to the Buyer Collection Account, immediately upon receipt, any Collection received and not paid to such Buyer Collection Account; (3) (i) may, unless and until instructed otherwise by the Operating Agent, deposit in the Seller Collection Account monies other than Collections; and (ii) will not deposit in the Buyer Collection Account monies other than Collections. (4) confirms that, in accordance with the Account Bank Mandate, the Buyer Collection Account Bank and the Buyer will be instructed to make available to such Servicer information showing amounts received on each Local Business Day and standing to the credit of the Buyer Collection Account as at the close of business on that day; (5) upon receipt of the information referred to in (4) above the Servicer shall, on behalf of the Buyer and the relevant Seller, make all such determinations and calculations as are necessary in order to determine, in respect of amounts standing to the credit of the Seller Collection Account on each Local Business Day, the Buyer Entitlement and the Seller Entitlement in relation to the Seller Collection Account, and shall direct (subject to Clause 12 (C)) the relevant Collection Account Bank or the Buyer Collection Account Bank, prior to 12:00 noon on each Local Business Day, to transfer to the Buyer Account the Buyer Entitlement in relation to the Seller Collection Account and all monies standing to the credit of the Buyer Collection Account; (6) other than the transfers referred to in paragraph (5) above, Clause 5(A) and Clause 12 (C) no Servicer shall, without the prior written consent of the Operating Agent, withdraw funds from the relevant Seller Collection Account or the Buyer Collection Account or direct the Collection Account Bank or the Buyer Collection Account Bank to make any transfers from such Seller Collection Account or Buyer Collection Account, except for withdrawals or transfers of cleared funds standing to the credit of the Seller Collection Account or the Buyer Collection Account which represent the Seller Entitlement and provided that any such withdrawal or transfer would not -51- cause such Seller Collection Account or the Buyer Collection Account to become overdrawn; (7) may not extend, amend, modify or waive the terms of any Purchased Receivable or amend, modify or waive any term or condition of any Contract related thereto where such extension, amendment, modification or waiver would prejudicially affect such Purchased Receivable, unless the Operating Agent shall have otherwise consented in writing. Each Seller shall deliver to the relevant Servicer (if such Seller has ceased to be a Sub-Servicer) all documents, instruments and records which evidence or relate to the Purchased Receivables which the Operating Agent may reasonably request; (8) if other than a Seller (and such Seller has ceased to be a Sub-Servicer), will provide to the relevant Seller all such information as the Seller may require for purposes of the Summary Report and will as soon as practicable following receipt pay to or to the order of such Seller the collections of any Receivable which is not a Purchased Receivable; (9) if other than a Seller (and such Seller has ceased to be a Sub-Servicer), will as soon as practicable upon demand make available or (if so demanded) deliver to such Seller all documents, instruments and records in its possession which evidence or relate to Receivables of such Seller other than Purchased Receivables, and copies of documents, instruments and records in its possession which evidence or relate to Purchased Receivables which the Operating Agent may reasonably request; and (10) if other than a Seller (and such Seller has ceased to be a Sub-Servicer), and notwithstanding anything to the contrary contained in this Agreement, will have no obligation to collect, enforce or take any other action described in this Agreement with respect to any Receivable that is not a Purchased Receivable other than to turn over, make available or deliver to the relevant Seller the collections and documents with respect to any such Receivable as described in (8) and (9) above. (C) Advance Payments: The Sellers may, from time to time on any Local Business Day prior to the Termination Date unless and until the Operating Agent directs otherwise withdraw, by way of advance payment on account of such Existing Receivables Purchase Price and Future Receivables Purchase Price as will or may be payable to the Sellers on the next following Settlement Date, any amount or amounts standing to the credit of the Seller Collection Account (prior to the Payment Notification Date) and the Buyer Collection Account (on and following the Payment Notification Date) representing Collections. Any amount so withdrawn (an "Advance Payment") during each Reference Period shall be set off pro tanto against the Buyer's obligation (if any) to pay Existing Receivables Purchase Price and Future Receivables Purchase Price payable on the next following Settlement Date and, to the extent the amount of the Advance Payments made during such Reference Period exceeds the amount of the -52- Existing Receivables Purchase Price and Future Receivables Purchase Price (or, where no Existing Receivables Purchase Price and Future Receivables Purchase Price is payable), be refunded by the Sellers in full by the transfer of cleared funds to the Buyer Account, not later than 12:00 noon on the next following Settlement Date; provided always that any Advance Payment shall be refunded by the Sellers by the transfer of cleared funds to the Buyer Account, immediately upon the demand of the Operating Agent. The Sellers shall not be obliged to pay interest on any Advance Payment. (D) Failure to Report: If there is a failure at any time by a Servicer to report and quantify the amount of Collections received or the amounts of any Advance Payments and/or the funds standing to the credit of the Seller Collection Account, Buyer Collection Account or Buyer Account in respect of any Settlement Period such that the amounts due by any Seller and the Buyer pursuant to Clauses 4(B), 4(C) and 12(C) cannot be accurately determined (in the Operating Agent's reasonable opinion), there will fall due from the relevant Seller to the Buyer on the Settlement Date at the end of such Settlement Period (on account of repayment of Advance Payments) an amount equal to the anticipated Collections in respect of such Settlement Period as determined by the Operating Agent, acting reasonably. For the purposes of this Clause 12(D), it shall be considered reasonable for the Operating Agent to anticipate that all Collections due during such Settlement Period were received by the relevant Servicer during such Settlement Period. The Buyer shall deposit such amount into the Temporary Adjustment Account. Upon the Operating Agent becoming satisfied that a proper assessment of the amounts due by way of repayment of Advance Payments has been made, there shall be an adjustment in accordance with such assessment, by way of repayment from the Buyer (provided the Termination Date has occurred) or by way of further payment by the relevant 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 relevant Servicer does not last longer than two consecutive Settlement Periods and the provisions of this Clause 12(D) are complied with, such failure shall not by itself constitute an Early Amortisation Event. 13. PROTECTION OF THE BUYER'S RIGHTS (A) Notice of Sale: the Operating Agent may at any time (and each Seller following the Operating Agent's request shall) notify the Designated Account Debtors, or any of them, of Purchased Receivables of the Buyer's ownership of the Purchased Receivables and the Collections of the Purchased Receivables and direct (or cause each Seller to direct) all the Designated Account Debtors of Purchased Receivables, or any of them, that payment of all amounts payable under any such Purchased Receivable be made directly to the Operating Agent or its designee. (B) Assignment effective against third parties: Each Seller shall, if requested by the Operating Agent, forthwith execute any required documents (including but not limited to, the execution of a public deed (escritura publica or poliza) intervened by a Spanish -53- Notary Public in relation to any assignment of Receivables pursuant to this agreement) to establish an assignment effective against third parties, and will give notices of assignment to the relevant Designated Account Debtors (and any guarantors) in respect of the Receivables (and any Related Security) of the assignment thereof to the Buyer. (C) Reconstruction of Accounts Receivable Trial Balance: If at any time a Seller does not (i) generate an Accounts Receivable Trial Balance on the Determination Date immediately preceding each Settlement Date or (ii) provide the information to Exide Europe enumerated in Clause 9(M), the Operating Agent will have the right to reconstruct that Accounts Receivable Trial Balance or such information so that a determination of the Purchased Receivables can be made, and such reconstruction will be conclusive (in the absence of manifest error) for the purposes of determining Purchased Receivables. (D) Operating Agent's Right to Perform: If the Originator or the Offer Agent fails to perform any of its agreements or obligations under this 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 Seller irrevocably constitutes and appoints the Buyer and the Operating Agent, which hereby accept such appointment 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 and/or the Lenders and/or the Operating Agent and/or to perfect title to any of the Purchased Receivables, or Related Security, including the redirection of mail and the endorsement of drafts, cheques and other payment media, to perform any agreement or obligation of such Seller under or in connection with this Agreement and/or under the Account Bank Mandate, and to exercise all other remedies of such Seller under this Agreement or existing at law. In furtherance of the power herein granted, the Originator will assist and co-operate with the Operating Agent and provide such facilities as the Operating Agent may request. The power of attorney hereby granted is given by way of security, is coupled with an interest, and is irrevocable and will extend to and be binding upon the successors and assigns of each Seller. The Sellers hereby agree that they shall execute the power of attorney substantially in the form set out in Schedule 13 in respect of its obligations under this Clause 13(E). The Buyer and the Operating Agent are hereby released from the restrictions under Article 267 of the Spanish Commercial Code (restriction on self-dealing). 14. RESPONSIBILITIES OF EACH SELLER Anything herein to the contrary notwithstanding: -54- (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 nor the Operating Agent will have any obligation or liability with respect to any Purchased Receivables, any Related Security or related Contracts, nor will the Buyer or the Operating Agent be obliged to perform any of the obligations of any Seller thereunder. (C) Custody: Until the Operating Agent requests otherwise, each Seller will hold in custody for the sole benefit of the Buyer the Contracts and other documentary items relating to the uncollected Purchased Receivables at its address specified in this Agreement. To the extent that the Contracts or other documentary items also relate to Receivables that are not Purchased Receivables, such Seller will hold them in custody for the account of both the Buyer and itself to the extent of the respective rights of the Buyer and itself therein unless possession thereof is required by the Buyer to enforce its ownership rights. Each Seller will deliver such Purchased Receivables, Contracts and documents to the Operating Agent (or as it may direct), if so directed by the Operating Agent and the Operating Agent will make them available to the relevant Seller to the extent that they contain material or information that does not relate to Purchased Receivables and to the extent that the Buyer's interests are not thereby compromised. (D) Marking: Each Seller will mark clearly and unambiguously its ordinary business records, including without limitation its master data processing records, relating to the Purchased Receivables with a legend acceptable to the Operating Agent indicating that such Purchased Receivables are owned by the Buyer. Each Seller agrees that from time to time it will promptly execute and deliver all instruments and documents, and take all further action that the Operating Agent may reasonably request in order to perfect, protect or more fully evidence the Buyer's ownership interest in the Purchased Receivables, the Collections and the Related Security and pending such time will keep an up to date record of all Purchased Receivables. (E) Third Party Servicer: At any time following the designation of a Servicer other than Citibank, N.A., London Branch or the termination of the delegation granted to any Sub-Servicer pursuant to Clause 12(A): (1) The relevant Seller will, at the Operating Agent's request, (a) assemble all the documents, instruments and other records (including, without limitation, computer tapes and disks) which evidence the Purchased Receivables, and the related Contracts and Related Security, or which are otherwise necessary or desirable to collect such Purchased Receivables, and will make the same available to the Operating Agent at a place selected by the Operating Agent or its designee or (if so requested) deliver the same to the Operating Agent (or as -55- it may direct), and (b) segregate all cash, cheques and other instruments received by it from time to time constituting Collections of Purchased Receivables in a manner acceptable to the Operating Agent and will, promptly upon receipt, remit all such cash, cheques and instruments, duly endorsed or with duly executed instruments of transfer, to the Operating Agent or its designee. (2) The relevant Seller authorises the Operating Agent to take any and all steps in such Seller's name and on behalf of such Seller necessary or desirable, in the determination of the Operating Agent, to collect all amounts due under any and all Purchased Receivables, including, without limitation, endorsing such Seller's name on cheques and other instruments representing Collections and enforcing such Purchased Receivables and the related Contracts and Related Security. (F) Value Added Tax: For the purpose of ensuring recoupment of any value added tax forming part of a Purchased Receivable: (1) all or part of which remains unpaid after the statutory period for purposes of claiming bad debt relief has elapsed; or (2) (without prejudice to Clause 5(D)) which or the Outstanding Balance of which is, or would be, reduced, adjusted or cancelled by any Seller and/or any other Person whether as a result of the matters in Clause 5(D) or for any other reason; each Seller will use its reasonable endeavours to recover such value added tax (or the appropriate part thereof) from the appropriate tax authorities, as agent of the Buyer, and promptly remit it to the Buyer and, until so remitted, will hold for the account of the Buyer any dividend received or value added tax recovered by such Seller in respect thereof (and any such dividend or recovery will be and be treated as a Collection). Each Seller will make such accounting write-offs and transfers and raise 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, INDEMNITIES AND TAX CO-OPERATION (A) Agency: In acting under this Agreement the Operating Agent shall have only such duties, obligations and responsibilities as are expressly set out in this Agreement (and such other duties, obligations and responsibilities as are reasonably incidental) and acts solely as agent of the Buyer. However, without prejudice to the generality of the foregoing, only the Operating Agent shall be entitled to receive and retain fees and -56- other amounts (including indemnification under this Clause 15) payable to the Operating Agent for its own account. (B) Indemnities by Sellers and Exide Europe: The Sellers and (in relation to matters relating to itself) Exide Europe agree to indemnify the Buyer, the Operating Agent and their respective Affiliates and any Servicer (if a Seller has ceased to be a Sub-Servicer) from and against any and all damages, losses, claims, liabilities and related reasonable costs and expenses, including attorneys' fees and disbursements together with VAT thereon (all of the foregoing being collectively referred to as "Indemnified Amounts") awarded against or incurred by any of them arising out of or relating to this 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 any Seller (in any of its capacities under the Relevant Documents) or Exide Europe under or in connection with this Agreement, or any other information or report delivered by such Seller (in any of its capacities under the Relevant Documents) pursuant to this Agreement, which shall have been false or incorrect in any material respect when made or deemed made or delivered (to the extent that such amounts have not already been recovered by the applicable indemnified party pursuant to Clause 5(D)); (2) the failure by any Seller (in any of its capacities under the Relevant Documents) or Exide Europe to comply with any term, provision or covenant contained in this 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; (4) any dispute, claim, offset or defence (other than discharge in bankruptcy or winding up by reason of insolvency or analogous event of the Designated Account Debtor) of the Designated Account Debtor to the payment of any Receivable which is, or is purported to be, a Purchased Receivable (including, without limitation, a defence based on such Receivable or the related Contract not being a legal, valid, binding and enforceable obligation of such Designated Account Debtor), or any other claim resulting from the sale of the goods or -57- services related to such Receivable or the furnishing or failure to furnish such goods or services; (5) any failure of any Seller (in any of its capacities under the Relevant Documents) or Exide Europe, to perform its duties or obligations in accordance with the provisions of this Agreement; (6) the Buyer makes a request for a Loan and/or contracts for a foreign exchange transaction to fund any anticipated Purchase following the delivery of a Letter of Offer or to make a Future Receivables Purchase Price payment in the manner contemplated in this Agreement and such Purchase not taking place or such Future Receivables Purchase Price payment not being made as a result of the operation of Clause 3 or any other provision of this Agreement, or a sale of Receivables not being effected in relation to a Letter of Offer or a Future Receivables Purchase Price payment not being made by reason of any event described in Clause 11(D)(1), (2) (3) or (4) or any breach by any Seller (in whatever capacity) or Exide Europe of any of its obligations under or in connection with this Agreement; (7) any products liability claim, or personal injury or property damage claim, or other similar or related claim or action of whatever sort arising out of or in connection with goods, merchandise or services which are the subject of any Receivable or Contract; and (8) the payment of the Existing Receivables Purchase Price or the Future Receivables Purchase Price of any Receivable other than an Eligible Receivable (to the extent that such amounts have not already been recovered by the applicable indemnified party pursuant to Clause 5(D)). The Operating Agent will provide each Seller with a certificate or certificates showing in reasonable detail the basis for the calculation of Indemnified Amounts claimed under this Clause 15(B) provided, for the avoidance of doubt, that the provision of such certificate or certificates shall not be a condition for the making of any claim under this Clause 15(B). (C) Costs, increased costs and gross-up for withholding tax under the Facilities Agreement and the Currency Exchange Agreement: The Sellers hereby agree from time to time to indemnify the Buyer for, and to pay to it on demand of the Operating Agent, an amount equal to the Country's Proportionate Share of (i) all costs, increased costs, indemnities, tax, tax gross-up, tax indemnities, default interest and all other amounts (other than interest and principal payments) which are required to be paid by the Buyer under and in accordance with the terms of the Facilities Agreement and (ii) all costs, indemnities, tax, tax gross-up and terminations costs which are required to be paid by the Buyer under and in accordance with the Currency Exchange Agreement. -58- (D) Judgment Currency: Each reference in this Agreement to a specific currency is of the essence. The obligation of each Seller (in any of its capacities under the Relevant Documents) (individually, or as the Servicer) or Exide Europe in respect of any sum due from it to the Operating Agent or the Buyer under this Agreement will, notwithstanding any judgment in any other currency, or any bankruptcy or winding up by reason of insolvency (including quiebra and suspension de pagos) or analogous event of such Seller or Exide Europe, be discharged only to the extent that on the Local Business Day following receipt by the Operating Agent or the Buyer of any sum adjudged or determined to be so due in such other currency, the Operating Agent could in accordance with normal banking procedures purchase the currency specified in this Agreement with such other currency. If the amount of currency so purchased is less than the amount of the specified currency originally due to the Operating Agent or the Buyer, each of the Sellers and Exide Europe agrees, as a separate obligation and notwithstanding any such judgment, bankruptcy, winding up or analogous event, to indemnify the Operating Agent and the Buyer against such loss. (E) Payment: Any amounts subject to the indemnification provisions of Clause 15(B), (C) or (D) shall be paid by the Sellers or Exide Europe to the Operating Agent within two Programme Business Days following the Operating Agent's demand therefor. (F) After Tax Amount: In the event that any taxing authority seeks to charge to tax any sum paid to the Buyer or the Operating Agent or any of their respective Affiliates as a result of the indemnities or other obligations contained herein, or impose a requirement on the payer of such indemnity to deduct tax, then the amount so payable shall be grossed up by such amount as will ensure that after payment of the tax so charged there shall be left a sum equal to the amount that would otherwise be payable under such indemnity or obligation. (G) General Tax Co-operation: Each of (a) the Buyer and (b) the Seller shall co-operate in completing any procedural formalities under, as applicable: (1) the Convention between Ireland and Spain for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital signed on 10 February, 1994 (the "Ireland/Spain DTC"); and/or (2) the domestic law of Spain; necessary to obtain exemption or relief (whether in full or in part) from any deduction or withholding for or on account of tax applicable to any payment made to the Buyer pursuant to this Agreement. In particular (and without qualification of the foregoing), the Buyer shall, prior to the first payment to be made to the Buyer pursuant to this Agreement, use its reasonable endeavours to supply to the Offer Agent for the Seller a certificate of residence issued by the appropriate tax authorities in Ireland providing confirmation that the Buyer is resident in Ireland for Irish tax purposes (without prejudice to the form of certificate delivered by the appropriate tax authorities). As -59- any certificate required under the domestic law of Spain is, at the date hereof, valid only for a period of one year from issue, the Buyer shall use its reasonable endeavours (for so long as it is a requirement of the domestic law of Spain for a further certificate to be obtained by the Buyer in order that any payments made to the Buyer pursuant to this Agreement may be made free and clear of any deduction or withholding for or on account of tax) supply a further certificate to the Offer Agent for the Seller prior to the Settlement Date immediately succeeding the first anniversary of the delivery of the previous certificate to the Offer Agent for the Seller. 16. AMENDMENTS, ETC. (A) Amendments and Waivers: No amendment or waiver of any provision of this Agreement nor consent to any departure by any Seller therefrom shall in any event be effective unless the same shall be in writing and signed by (1) such Seller, the Buyer and the Operating Agent with respect to an amendment, or (2) such Seller, the Buyer or the Operating Agent, as the case may be, with respect to a waiver or consent by it, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. (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 (other than in respect of a Letter of Offer delivered pursuant to Clause 4(A)), (i) in the case of written notice, five days after being deposited in the post, or (ii) in the case of notice by telex, when telexed against receipt of answer back, or (iii) in the case of notice by fax, at the time of transmission unless served on a day which is not a Local Business Day or after 5.00pm at the place in which the recipient is located, in which case it will be effective at 9.00am at the place in which the recipient is located on the following Local Business Day. In each case notice must be addressed as aforesaid. 18. NO WAIVER: REMEDIES (A) No Waiver: No failure on the part of the Buyer, any Seller (in any of its capacities under the Relevant Documents) or the Operating Agent to exercise, and no delay in -60- exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The remedies in this Agreement are cumulative and not exclusive of any remedies provided by law. (B) Set Off: Without limiting the provisions of Clause 18(A) the Buyer and the Operating Agent are hereby authorised (except in relation to the payment of the Acceptance Fee) by the Sellers and Exide Europe at any time after any of the Sellers or Exide Europe is in default of its obligations under this Agreement or an Early Amortisation Event has occurred, to set off and apply, and/or to instruct Citibank or any of Citibank's Affiliates to set off and apply, any and all deposits at any time held and other indebtedness at any time owing (whether general or special, time or demand, provisional or final and in whatever currency) by the Buyer, the Operating Agent, Citibank or, as the case may be, any such Affiliate to or for the credit or the account of any Seller against any and all of the obligations of any Seller or Exide Europe (in any of its capacities under the Relevant Documents), now or hereafter existing under this 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, Exide Europe and any of their successors and permitted assignees in accordance with Clause 19(B); (2) the Buyer and also in relation to the benefit, but not the burden of this Agreement, each Person to whom the Buyer has for the time being in accordance with Clause 19(C) (2) or (3) granted or assigned (or agreed to grant or assign) all or part of any Purchased Receivable (or any participation or interest, whether proprietary or contractual, in or in respect of all or part of any Purchased Receivable) and/or all or any of its rights, benefits and interest in or under this Agreement and their respective successors and assignees; and (3) Citibank and its successors as Operating Agent (and the terms "Seller", "Exide Europe", "Buyer" and "Operating Agent" shall be construed accordingly). (B) Sellers and Exide Europe: Neither a Seller nor Exide Europe may assign any of its rights, benefits or interest in or under this Agreement except with the prior consent of the Operating Agent. (C) The Buyer: The Buyer may assign all or part of any Purchased Receivables and/or all or any of its rights, benefits and interest in or under this Agreement to any Lender. (D) Additional Sellers: The Operating Agent may, in its sole and absolute discretion, at the request of Exide Europe, admit a member of the Exide Europe Group as a Seller under this 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 -61- Operating Agent, the admission the Additional Seller shall also be subject to the following conditions precedent: (1) the Operating Agent receives the documents and information specified in Schedule 5 in respect of the Additional Seller, each in form and substance satisfactory to the Operating Agent; (2) the Additional Seller, each Seller and the Buyer have delivered to the Operating Agent a duly completed and executed Admission of Additional Seller in the form attached as Schedule 2 (together with confirmation of due execution and delivery, in form and substance satisfactory to the Operating Agent) and the Operating Agent has indicated its consent by execution of the Admission of Additional Seller; and (3) Exide Europe shall have confirmed in writing to the Operating Agent that the Letter of Undertaking shall apply, on the terms stated therein, to all of the obligations of the Additional Seller under the Programme; upon which time the Additional Seller shall be deemed to be a party to this 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 a "Sub-Servicer". 20. FURTHER ASSURANCE-RESTRUCTURING Each of the Sellers and Exide Europe hereby agrees that: (A) in the event that it receives notice from the Operating Agent for the purpose of amending the existing Programme on the basis that: (1) the Receivables which are the subject of the French RSA will be first purchased from the French Sellers by a French fonds commun de creances (the "FCC"), such purchases to be funded by the subscription or purchase by the Buyer of units issued by the FCC; (2) the Receivables which are the subject of the Italian RSA will be first purchased by a company set up pursuant to law 130 of 30 April 1999 in Italy (the "Law 130 Company"), such purchases to be funded by the subscription or purchase by the Buyer of notes issued by the Law 130 Company, upon commercial terms consistent with those applicable under the existing Programme (save in relation to additional costs arising as a result of the involvement of a FCC, each of the Sellers and Exide Europe undertakes to the Operating Agent and the Buyer that it will enter into such arrangements, documents and agreements as are necessary or desirable, in the opinion of the Operating Agent (acting reasonably), for the purposes of giving effect to the transactions set out in paragraphs (1) and (2) and -62- ensuring consistency between such transactions and the other transactions contemplated under the Programme. (B) if, by reason of any change (a) in any law or regulation or in its interpretation or application or (b) in the generally recognised market practice after the date hereof (in each case as evidenced by legal advice from a reputable law firm delivered by the Operating Agent to Exide Europe), the Operating Agent determines that the interest of the Buyer and/or the Operating Agent under the Programme may be affected as a result of such change, then the parties to this Agreement, acting in good faith, shall cooperate with a view to restructuring this Agreement, the other Relevant Documents and the transactions contemplated herein and therein upon such terms and conditions as would result in the interests of the Buyer and/or the Operating Agent to be protected, to the best extent possible under applicable law, in the same manner as if that change had not occurred. (C) All the fees, cost and expenses (including legal fees) arising as a result of any of the events described in paragraphs (A) and (B) will be borne by the Sellers. 21. TERMINATION This Agreement will create and constitute the continuing obligations of the parties in accordance with its terms, and will remain in full force and effect until such time, after the Termination Date, as all Programme Capital of all Groups of Receivables has been reduced to zero and all Yield (as aggregated among all Originator Agreements), Programme Costs and other fees due under this Agreement or the Fees Letter have been paid; provided, however, that the rights and remedies with respect to any breach of any representation and warranty made by any Seller in or pursuant to this Agreement, the provisions of Clause 21 and the indemnification and payment provisions of this Agreement will be continuing and will survive any termination of this Agreement. 22. NO PROCEEDINGS Each Seller, Exide Europe, the Offer Agent (if not Exide Europe) and the Operating Agent each hereby agree that they will not institute against the Buyer any bankruptcy, insolvency or similar proceeding until all amounts owing by the Buyer under the Facilities Agreement and the Currency Exchange Agreement have been paid in full and that no recourse shall be had for the payment of any amount owing hereunder or claims arising out of or based upon the Relevant Documents against any member, equity holder, employee, officer, director or affiliate of the Buyer. 23. EXECUTION IN COUNTERPARTS: SEVERABILITY (A) Counterparts: This 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. -63- (B) Severability: If any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations under this Agreement, or of such provision or obligation in any other jurisdiction, shall not be affected or impaired thereby. 24. CONFIDENTIALITY (A) Unless otherwise required by applicable law or regulation, or as requested by any regulator or tribunal with competent jurisdiction over, or over any business of, the relevant party, and subject to Clause 24(B) below, each of the parties agrees to maintain the confidentiality of this Agreement in its communications with third parties and otherwise. (B) The provisions of Clause 24(A) shall not apply: (1) to the disclosure of any information which is or becomes public knowledge other than as a result of the conduct of the recipient; (2) to the disclosure of any information to the Finance Parties (as defined in the Facilities Agreement) under the Facilities Agreement (including any participant, potential participant or potential Lender thereunder), the Swap Counterparty and any secured party under the Deed of Charge (as defined in the Facilities Agreement), any FCC (including the custodian and the management company thereof) and/or Law 130 Company set-up pursuant to Clause 20 and the Rating Agencies (including their officers, employees, agents and advisers), provided that such Persons will hold that information confidential on the same basis as the Operating Agent; (3) to the disclosure of any written consent of the parties hereto. 25. GOVERNING LAW AND JURISDICTION (A) Governing Law: This Agreement is governed by, and shall be construed in accordance with, the laws of 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 Spain 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 Sellers and the Buyer also irrevocably consent to the service of any and all process in any such action or proceeding by the delivery of copies of such process to the Sellers, Exide Europe or the Buyer, as applicable, at the address designated for notices under this Agreement. The Sellers, Exide Europe and the Buyer agree that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on -64- the judgment or in any other manner provided by law. Nothing shall affect the right to serve process in any other manner permitted by law. IN WITNESS WHEREOF, the parties have executed this Agreement on the date specified on the first page of this document. -65- SCHEDULE 1 Part 1 Offices of the Sellers/Seller Collection Account/Seller Non-Transaction Account
-66- Part 2 Buyer Account Account Number: 10123765 Currency: Euro Sort Code: 18-50-08 Bank: Citibank, N.A., London Bank Swift Code: CITIGB21 -67- SCHEDULE 2 FORM OF ADMISSION OF ADDITIONAL SELLER To: Citibank, N.A. Copy to: Exide Holding Europe 336 Strand 5-7 Allee des Pierres Mayettes WC2R 1HB 92636 Gennevilliers Cedex U.K. France ADMISSION OF ADDITIONAL SELLER Pursuant to the Receivables Sale Agreement dated 24 May 2002 (the "Agreement") among inter alia, you, Batteries Funding Limited , Fulmen Iberica, S.L. and Sociedad Espanola del Acumulador Tudor, S.A. 1. Terms defined in the Agreement shall, subject to any contrary indication, have the same meanings herein. 2. The Additional Seller hereby requests the Operating Agent to accept this Admission of Additional Seller pursuant to and for the purposes of Clause 19(D) of the Agreement so as to take effect in accordance with the terms thereof. 3. The Additional Seller confirms that it has received a copy of the Agreement together with such other information as it has required in connection with this transaction and that it has not relied and will not hereafter rely on the Operating Agent to check or enquire on its behalf into the legality, validity, effectiveness, adequacy, accuracy or completeness of any such information and further agrees that it has not relied and will not rely on the Operating Agent to assess or keep under review on its behalf the financial condition, creditworthiness, condition, affairs, status or nature of Batteries Funding Limited or any Seller. 4. The Additional Seller hereby undertakes with the Operating Agent and each of the other parties to the Agreement that it will perform in accordance with their terms all those obligations which by the terms of the Agreement will be assumed by it after acceptance of this Admission of Additional Seller by the Operating Agent and satisfaction of the conditions precedent subject to which this Admission of Additional Seller is expressed to take effect. 5. The Operating Agent makes no representation or warranty and assumes no responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of the Agreement or any document relating thereto and assumes no responsibility for the financial condition of Batteries Funding Limited or any Seller or -68- for the performance and observance by Batteries Funding Limited or any Seller of any of their respective obligations under the Agreement or any document relating thereto and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded. 6. The Additional Seller requests that in respect of references to any Seller in the Agreement, the following information be inserted in respect of the Additional Seller: ================================================================================ (i) Number of days in respect of the payment of [.] days invoices for the purposes of paragraph (6) of the definition of "Eligible Receivable" ================================================================================ (ii) Date of most recent audited annual accounts for [.] the purposes of Clause 8(H) ================================================================================ (iii) principal place of business of Additional [.] Seller for the purposes of Clause 8(O) and Schedule 1 ================================================================================ (iv) Seller Non-Transaction Account for the purposes [.] of Schedule 1 ================================================================================ 7. This Admission of Additional Seller and the rights, benefits and obligations of the parties hereunder is governed by and shall be construed in accordance with Spanish law. [ADDITIONAL SELLER] By: Address: Attention: Telefax: Date: AGREED TO BY: [RELEVANT ADDITIONAL SELLER] SOCIEDAD ESPANOLA DEL ACUMULADOR TUDOR, S.A. -69- By: By: FULMEN IBERICA, S.L. BATTERIES FUNDING LIMITED By: By: CONSENTED TO THIS ______ DAY OF __________, ________: Citibank, N.A., London Branch By: -70- SCHEDULE 3 FORM OF SETTLEMENT STATEMENT -71- [GRAPHIC] -72- SCHEDULE 4 FORM OF SUMMARY REPORT Batteries Funding Limited Seller : Spain Currency : Total Spanish Peseta Portfolio in EURO Summary Report Date 02/05/19 Summary Report for period ended 02/05/18 ========================================================================= Capital Requested at next purchase -----> Sold Portfolio Ageing by invoice due date : Current - Due beyond 91 -----> 4.475.689,91 10,739% Current - Due in 90 days -----> 9.647.867,61 23,150% Current - Due in 60 days -----> 9.831.254,58 23,590% Current - Due in 30 days -----> 12.232.341,47 29,351% 1 - 30 days Overdue -----> 3.547.455,94 8,512% 31 - 60 days Overdue -----> 482.780,67 1,158% 61 - 90 days Overdue -----> 709.046,01 1,701% 91 - 120 days Overdue -----> -70.447,43 -0,169% 121 - 150 days Overdue -----> 94.147,06 0,226% 151 - 180 days Overdue -----> 77.577,39 0,186% 181 + days Overdue -----> 648.410,72 1,556% ------------------ Total -----> 41.676.123,93 Estimated Cash Days 1 - 30 -----> 17.721.311,83 Collections in Days 31 - 60 -----> 9.831.254,58 future periods Days 61 - 90 -----> 9.647.867,61 Days 91 + -----> 4.475.689,91 ------------------ Total -----> 41.676.123,93 Collections in current period Received by due date -----> 205.932,32 by due date : Received 30 days after due date ---> 1.047.355,42 Received 60 days after due date ---> 23.451,19 Received 90 days after due date ---> 148.560,96 Received 91+ days after due date --> 200.906,22 ------------------ Total Collections -----> 1.626.206,11 Total new receivables sold this month -----> 325.264,73 Sold Credit Notes Outstanding --------> 4.920.436,70 10,560% Credit Notes issued in last 30 days ------> 635.698,04 1,502% Total Credit Notes Outstanding --------> 4.962.670,45 10,089% Credit Notes issued in last 30 days ------> 635.698,04 1,417% Total Invoices sold --------> 22.815 Total New Invoices sold --------> 0 Total delinquent receivables in sold portfolio ---> 1.941.514,42 Total delinquent receivables (Sold + Unsold) -----> 1.987.165,57 Total defaulted receivables in sold portfolio ----> 749.687,74 Total defaulted receivables (Sold + Unsold) ------> 790.322,08 -73- Batteries Funding Limited Seller : Spain Currency : Total Spanish Peseta Portfolio in EURO Summary Report Date 02/05/19 Summary Report for period ended 02/05/18 ========================================================================= Average Credit Terms (Sold Portfolio) --------> 0,000 Average Credit Terms (Total Portfolio) --------> 0,000 Weighted Credit Terms (Sold Portfolio) --------> 0,000 Weighted Credit Terms (Total Portfolio) --------> 0,000 Net invoices issued in the last seven days ------> 521.303,31 Total Portfolio Ageing (Sold + Unsold) by invoice due date Current -----> 38.690.275,87 87,480% 1 - 30 Days Overdue -----> 3.550.335,44 8,027% 31 - 60 Days Overdue -----> 483.551,10 1,093% 61 - 90 Days Overdue -----> 713.292,39 1,613% 91 - 120 Days Overdue -----> -69.751,49 -0,158% 121 - 150 Days Overdue -----> 94.147,06 0,213% 151 - 180 Days Overdue -----> 77.577,39 0,175% 181 + Days Overdue -----> 688.349,12 1,556% ---------------- Total Receivables -----> 44.227.776,88 ========================================================================= ALL INFORMATION HEREIN IS TRUE AND ACCURATE ____________________ ____________________ Authorised Signature Authorised Signature -74- SCHEDULE 5 INITIAL CONDITIONS PRECEDENT (a) A certificate issued by the Secretary of the Board of Directors and endorsed by the Chairmen of the resolutions of the board of directors (or analogous body) of the Seller approving this Agreement and the other documents to be delivered by it and the transactions contemplated in this Agreement. (b) Copies of the statutes (Estatutos) of the Seller (certified by the Secretary of the Board of Directors of the Seller to be a true and up to date copy). (c) A certificate of an appropriate officer of each Seller certifying the names and true signatures of the officers authorised on its behalf to sign or, as appropriate, witness the sealing of this Agreement and the other documents to be delivered by it (on which certificate the Operating Agent may conclusively rely until such time as the Operating Agent receives from the Seller a revised certificate meeting the requirements of this paragraph (c)). (d) A favourable opinion of legal advisers to the Operating Agent as to sale of Receivables and other relevant matters, in such form as the Operating Agent may reasonably require. (e) A favourable opinion of legal advisers to the Sellers as to capacity and corporate powers of each Seller in such form as the Operating Agent may reasonably require. (f) Letter of Undertaking from Exide Europe in a form acceptable to the Operating Agent, plus a favourable opinion of legal advisers satisfactory to the Operating Agent as to the execution and enforceability of the Letter of Undertaking. (g) A favourable opinion of legal advisers to Exide Europe as to capacity and corporate powers of Exide Europe in such form as the Operating Agent may reasonably require. (h) A Directors' Certificate from the directors of each Seller in relation to the solvency of such Seller and a certificate from the directors of Exide Europe in relation to the solvency of Exide Europe in form and substance acceptable to the Operating Agent. (i) Execution of the Relevant Documents (as defined in each of the Origination Agreements) (excluding, for the avoidance of doubt, the Bank Account Mandate in respect of the Buyer Collection Account) and all documentation to be delivered therewith. (j) Satisfactory review by the Operating Agent of each Seller's billing and collection operations and reporting systems and implementation of any additional receivable tracking and reporting systems in form and substance satisfactory to the Operating Agent. -75- (k) Preparation of a written Credit and Collection Policy by each Seller, in form and substance satisfactory to the Operating Agent. (l) The Operating Agent has received such other approvals, opinions or documents as it may reasonably request. (m) A direction from Exide Europe or the Seller with regard to the payment of Citibank's (on its own behalf), the Operating Agent's and Batteries Funding's reasonable legal costs (together with disbursements and VAT) in form and substance satisfactory to the Operating Agent. (n) Enigma Licence Agreement duly executed by Exide Europe. (o) Satisfaction of all initial conditions precedent set forth in Schedule 2 to the Facility Agreement. (p) Duly registered copy of the relevant application form including the Financial Number (Numero de Operacion Financiera, NOF) granted by the Central Bank (Banco de Espana) in connection with this Agreement. (q) Execution of the Currency Exchange Agreement. -76- SCHEDULE 6 FORMS FOR OFFER/ACCEPTANCE/RECEIPT Part 1 Section A Form of Letter of Offer on Initial Offer Date From: Exide Europe Funding Ltd c/o Exide Holding Europe 5-7 Allee des Pierres Mayettes 92636 Gennevilliers Cedex-France To: Batteries Funding Limited West Block International Financial Services Centre Dublin 1 Copy to: Citibank, N.A. Citicorp Centre 33 Canada Square Canary Wharf London E14 5LB Attention: Date: SUBJECT TO CONTRACT Dear Sirs, 1. Pursuant to the Receivables Sale Agreement dated 24 May 2002 (as from time to time amended, supplemented or novated) (the "Agreement") among, inter alios, you, Citibank, N.A., the undersigned, [name of the Seller/s] (the "Sellers") concerning the purchase of Receivables from the Seller as beneficial owner we, on behalf of [name of Seller] hereby offer to you an assignment of: (i) Existing Receivables with an Outstanding Balance of [.] (being the Existing Receivables identified for you pursuant to Clause 4(E) of the Agreement) on the next Settlement Date for an Existing Receivables Purchase Price calculated in accordance with the Agreement of [.]; (ii) (a) Future Receivables which have come and will come into existence between (and including) the Initial Reference Date and (but excluding) the next -77- Effective Date in respect of [name of the Designated Account Debtors]; and (b) Future Receivables with respect to [name of the Designated Account Debtors] which will come into existence during the next Settlement Period for an Acceptance Fee of Euro 10. 2. The provisions of the Agreement will apply to this letter and the related Purchase by the Buyer, and except as otherwise provided herein, capitalised terms in this letter will have the meaning ascribed to them in the Agreement. 3. The Discount computed for the Group of Receivables (which are Existing Receivables and Eligible Receivables) the subject of this letter is [.]. 4. The offer made under this letter constitutes an irrevocable offer by [name of the Sellers], binding upon them to assign and to sell to you the ownership interest in the Receivables to in this Letter of Offer and the Related Security. 5 This Letter of Offer shall be governed by Spanish law. The Purchase Date relevant to this Purchase is [.] Yours faithfully, EXIDE HOLDING EUROPE, acting on behalf of [Sellers] By: Authorised Signatory -78- Section B Form of Letter of Offer on Any Subsequent Offer Date From: Exide Europe Funding Ltd c/o Exide Holding Europe 5-7 Allee des Pierres Mayettes 92636 Gennevilliers Cedex-France To: Batteries Funding Limited West Block International Financial Services Centre Dublin 1 Copy to: Citibank, N.A. Citicorp Centre 33 Canada Square Canary Wharf London E14 5LB Attention: Date: SUBJECT TO CONTRACT Dear Sirs, 1. Pursuant to the Receivables Sale Agreement dated 24 May 2002 (as from time to time amended, supplemented or novated) (the "Agreement") among, inter alios, you, Citibank, N.A., the undersigned and [name of the Seller/s] (the "Sellers") concerning the purchase of Receivables from the Seller as beneficial owner we, on behalf of [name of Seller/s], hereby offer to you an assignment of: [(i)] all Future Receivables with respect to [name of the Designated Account Debtors] which will come into existence during the next Settlement Period for an Acceptance Fee of Euro 10; [in the event only of Additional Designated Account Debtors offering Receivables for the first time: (ii) all Existing Receivables with respect to [name of the Additional Designated Account Debtors] with an Outstanding Balance of [.] (being the Existing Receivables identified for you pursuant to Clause 4(E) of the Agreement) on -79- the next Settlement Date for an Existing Receivables Purchase Price calculated in accordance with the Agreement of [.]; and (iii) all Future Receivables with respect to [name of the Additional Designated Account Debtors] which have come and will come into existence between (and including) the Reference Date preceding this Offer Date and (but excluding) the next Settlement Date for the Acceptance Fee] 2. The provisions of the Agreement will apply to this letter and the related Purchase by the Buyer, and except as otherwise provided herein, capitalised terms in this letter will have the meaning ascribed to them in the Agreement. [3. The Discount computed for the Group of Receivables (which are Existing Receivables and the Eligible Receivables) the subject of this letter is [.].] [3/4] The offer made under this letter constitutes an irrevocable offer by [name of the Sellers], binding upon them to assign and to sell to you the ownership interest in the Receivables to in this Letter of Offer and the Related Security. [4/5] This Letter of Offer shall be governed by Spanish law. The Purchase Date relevant to this Purchase is [.]. Yours faithfully EXIDE HOLDING EUROPE, acting on behalf of [Sellers] By: Authorised Signatory -80- Part 2 Form of Letter of Acceptance From: Batteries Funding Limited West Block International Financial Services Centre Dublin 1 To: Exide Holding Europe 5-7 Allee des Pierres Mayettes 92636 Gennevilliers Cedex-France Copy to: Citibank, N.A. Citicorp Centre 33 Canada Square Canary Wharf London E14 5LB Dated: [ ] 1. We refer to the Letter of Offer dated [ ] (the "Letter of Offer") in relation to a receivables purchase agreement (such receivables purchase agreement, as from time to time amended, supplemented or novated being herein called the "Agreement") dated May 24, 2002 and originally made between, among other, ourselves and yourselves as Offer Agent on behalf of the Sellers. (a) Terms defined in the Agreement shall bear the same meaning herein. (b) We hereby accept to purchase from the Seller[s], pursuant to the Agreement, the Group of Receivables and the Related Security subject of the Letter of Offer at the Existing Receivables Purchase Price and Future Receivables Purchase Price calculated in accordance with the Agreement and confirm that we will pay such Existing Receivables Purchase Price and Future Receivables Purchase Price less any set-offs made pursuant to the Agreement, into the below account: Credit entity: [ ] SWIFT: [ ] Beneficiary: [ ] (c) We hereby confirm our acceptance of the assignment of the Group of Receivables and the Related Security specified in your Letter of Offer. -81- All the above, in accordance with Article 1527 et seq. of the Spanish Civil Code and Article 347 et seq. of the Spanish Commercial Code. Yours faithfully, ______________________________ for and on behalf of Batteries Funding Limited -82- Part 3 Section A Form of Receipt of the Existing Receivables Purchase Price and the Acceptance Fee From: Sociedad Espanola del Acumulador Tudor, S.A. To: Batteries Funding Limited West Block International Financial Services Centre Dublin 1 Copy to: Citibank, N.A. Citicorp Centre 33 Canada Square Canary Wharf London E14 5LB Dated: [.] Dear Sirs, 1. We refer to the receivables purchase agreement (such receivables purchase agreement, as from time to time amended, supplemented or novated being herein called the "Agreement") dated May 24, 2002 and originally made between, among other, ourselves and yourselves as Offer Agent on behalf of the Sellers. 2. Terms defined in the Agreement shall bear the same meaning herein. This Receipt is given pursuant to Clause 4(C) of the Agreement. 3. We hereby acknowledge receipt of: (i) the Existing Receivables Purchase Price in the amount of [.] on the [specify date] in respect of the Existing Receivables subject of the Letter of Offer dated [.]; and (ii) the Acceptance Fee in the amount of Euro 10 on the [specify date] in respect of the Future Receivables identified in the Letter of Offer dated [.]; calculated in accordance with the Agreement less the amount of [.] which was set off by you in accordance with the Agreement. All the above, in accordance with Article 1527 et seq. of the Spanish Civil Code and Article 347 et seq. of the Spanish Commercial Code. Yours faithfully, _____________________ -83- for and on behalf of Exide Holding Europe as Offer Agent -84- Section B Form of Receipt of the Future Receivables Purchase Price From: Sociedad Espanola del Acumulador Tudor, S.A. To: Batteries Funding Limited West Block International Financial Services Centre Dublin 1 Copy to: Citibank, N.A. Citicorp Centre 33 Canada Square Canary Wharf London E14 5LB Dated: [.] Dear Sirs, 1. We refer to the receivables purchase agreement (such receivables purchase agreement, as from time to time amended, supplemented or novated being herein called the "Agreement") dated May 24, 2002 and originally made between, among other, ourselves and yourselves as Offer Agent on behalf of the Sellers. 2. Terms defined in the Agreement shall bear the same meaning herein. This Receipt is given pursuant to Clause 4(D) of the Agreement. 3. We hereby acknowledge receipt of: (i) the Future Receivables Purchase Price in the amount of [.] on the [specify Settlement Date] in respect of the Future Receivables having come into existence during the Reference Period preceding such date and listed in the Accounts Receivables Listing attached hereto, calculated in accordance with the Agreement less the amount of [.] which was set off by you in accordance with the Agreement. All the above, in accordance with Article 1527 et seq. of the Spanish Civil Code and Article 347 et seq. of the Spanish Commercial Code. Yours faithfully, _____________________________ for and on behalf of -85- Exide Holding Europe as Offer Agent -86- SCHEDULE 7 FORM OF CONTRACT -87- -88- -89- SCHEDULE 8 Part 1 Information to be Provided to Exide Europe 1. On the last Local Business Day in each calendar week prior to each Purchase Date: a computerised download containing the following fields: - number, which identifies the applicable Seller - customer number - customer name - customer type - location of customer (country) - invoice number - journal number - issue date of invoice - due date of invoice - currency of invoice - currency amount of invoice - type of invoice and other fields which may vary from applicable Seller to applicable Seller and which are necessary for Enigma to select Eligible Receivables. 2. On or before the third Determination Date of each calendar month, the information requested in Part 2 of this Schedule 8 in respect of the previous calendar month. 3. On or before the third Determination Date of each of the calendar months of March, June, September and December (or such more frequent time as the Operating Agent may request in writing in accordance with Clause 11(G) of the Agreement): a computerised download containing the addresses of the Account Debtors listed in paragraph 1 above, containing the following specific information: - full customer name -90- - address field 1 - address field 2 - address field 3 - town - area code - country of address AND ALL OTHER INFORMATION WHICH MIGHT BE NECESSARY FOR THE CORRECT IDENTIFICATION BY THE OPERATING AGENT AND/OR EXIDE EUROPE OF THE ACCOUNT DEBTOR/CUSTOMER AND INVOICE. -91- Part 2 Form of Monthly Summary To: Charles Prowse - Citibank [Fax: +44 ###-###-####] CC: Claire Berdou - Exide Europe Headquarters [Fax: +33 1 4121 2697] Seller: _____________________________________ Date Prepared: _____________________________________ For month: _____________________________________ All information relates to 3rd party domestic customers. 1.Total value of sales (incl. VAT): _________________________________ 2. Total value of Write-offs in the month (overdue 90 days or less): _________________________________ 3. Total value of Credit Notes (Disputes/Claims/invoicing errors etc, incl. VAT): _________________________________ 4. Level of accruals for volume rebates: _________________________________ 5. Amount of credit notes issued for volume rebates in the month: _________________________________ 6. Expenses for warrantly claims during the month: _________________________________ 7. Prompt payment discounts paid during the month: _________________________________ Receivable Ageing - Month-end Ledger (only necessary if the downloaded file does not contain all 3rd party domestic customers, e.g. Italy) - ------------------------------------------------------------------------------- Days Past Due Amounts in Ledger Currency - ------------------------------------------------------------------------------- -92- - -------------------------------------------------------------------------------- Current - -------------------------------------------------------------------------------- 1 - 30 - -------------------------------------------------------------------------------- 31 - 60 - -------------------------------------------------------------------------------- 61 - 90 - -------------------------------------------------------------------------------- 91 - 120 - -------------------------------------------------------------------------------- 121 + - -------------------------------------------------------------------------------- We certify that all information contained in this summary is true and accurate [SELLER NAME] ____________________________ Name -93- SCHEDULE 9 LETTER OF UNDERTAKING [EXIDE HOLDING EUROPE, S.A. LETTERHEAD] Letter of Undertaking Date:[.] May 2002 To: Batteries Funding Limited ("Batteries Funding"); and Citibank, N.A., London Branch ("Citibank") as Operating Agent and Servicer under the Origination Agreements and Agent under the Facilities Agreement. Dear Sirs, 1. We refer to the following agreements: (i) the Receivables Securitisation Deed dated as of the date hereof between CMP Batteries Limited, Exide (Dagenham) Limited, Fulmen (U.K.) Limited, DETA UK Limited (together with any additional member of the Exide Group acceding to the Receivables Securitisation Deed after the date hereof, the "U.K. Originators"), ourselves as Offer Agent, Batteries Funding and Citibank, N.A. as Operating Agent (the "U.K. Origination Agreement"); (ii) (a) the Receivables Subrogation Agreement dated 6 June 1997 (as amended on the date hereof) between Compagnie Europeenne d'Accumulateurs, S.A.S. (together with any additional member of the Exide Europe Group acceding to the Receivables Subrogation Agreement after the date hereof, the "French Originators"), Exide Europe Funding Ltd. ("Exide Funding"), ourselves as Offer Agent and Citibank, N.A. as Operating Agent and (b) the Onward Receivables Sale Agreement dated as of the date hereof between Exide Funding, ourselves as Offer Agent, Batteries Funding and the Operating Agent (the "French Origination Agreements"); (iii) the Receivables Sale Agreement dated as of the date hereof between Sociedad Espanola del Acumulador Tudor, S.A. and Fulmen Iberica, S.L. (together with any additional member of the Exide Europe Group acceding to such Receivables Sale Agreement after the date hereof, (the "Spanish Originators"), ourselves as Offer Agent, Batteries Funding and Citibank, N.A., as Operating Agent (the "Spanish Origination Agreement"); (iv) (a) the Receivables Purchase Agreement dated 3 June 1997 (as amended on the date hereof) between Societa Industriale Accumulatori, S.r.l. and Compagnia Generale Accumulatori S.p.a. (now Exide Italia S.r.l.) (together with any additional member of the Exide Europe Group acceding to the -94- Receivables Sale Agreement after the date hereof, the "Italian Originators"), ourselves as Offer Agent, Archimede Securitisation s.r.l. and Citibank, N.A. as the Operating Agent and (b) the Onward Sale Agreement dated as of the date hereof between Archimede Securitisation s.r.l., Batteries Funding and the Operating Agent (the "Italian Origination Agreements"); (v) the Receivables Sale Agreement dated as of the date hereof between Exide Automotive Batterie GmbH, Deutsche Exide GmbH and Deutsche Exide Standby GmbH (together with any additional member of the Exide Group acceding to such Receivables Sale Agreement after the date hereof, the "German Originators" and, together with the U.K. Originators, the French Originators, the Spanish Originators and the Italian Originators, the "Originators"), ourselves as Offer Agent, Batteries Funding and Citibank, N.A. as Operating Agent (the "German Origination Agreement") and, together with the U.K. Origination Agreement, the French Origination Agreements, the Spanish Origination Agreement and the Italian Origination Agreements (the "Origination Agreements"); and (vi) the Facilities Agreement dated the date hereof among Batteries Funding, Citibank, N.A., London Branch as Agent and Arranger and the lenders from time to time party to the Facilities Agreement (the "Facilities Agreement"). 2. Unless otherwise specified in this letter, terms defined in the Origination Agreements shall have the same meanings when used herein. 3 Any reference in this letter to any other agreement or document shall, unless the context otherwise requires, include that other agreement or document as from time to time amended, supplemented or novated and any document which amends, supplements or novates that other agreement of document. 4. We hereby confirm to you that the Facilities Agreement and the Origination Agreements, all their respective terms and conditions and all related documents, fully meet our approval. 5. We are aware that the Facilities Agreement and the Origination Agreements have been entered into on the condition that, inter alia, our indirect and beneficial ownership of at least 80% of the issued share capital of each Originator and Exide Funding and we control each Originator and Exide Funding. We are further aware that the Facilities Agreement and the Origination Agreements have been entered into in reliance on this Letter of Undertaking. 6. We confirm that we currently own indirectly and beneficially at least 80% of the issued share capital of each Originator and Exide Funding and that we control each Originator and Exide Funding and we covenant, subject to paragraph 6 below, that we will not reduce our percentage shareholding or alter our control of each Originator and Exide Funding until the Facilities Agreement and the Origination Agreements have been -95- terminated and all obligations under the Origination Agreements to each of you have been met by the Originators and Exide Funding. 7. We undertake to you that in the event that our percentage shareholding in any Originator falls below 80% of the issued share capital of such Originator or that we cease to control such Originator, we shall ensure that (a) you (or, as the case may be, Archimede or Exide Funding) will receive from such Originator, prior to the date on which our shareholding falls below 80% of the issued share of such Originator or we cease to control such Originator, an amount equal to the Outstanding Balance of the Receivables which have been purchased from such Originator (such amount to be treated as a Collection for the purpose of the relevant Origination Agreement) and that such Originator will cease to offer to sale Receivables under the terms of the Origination Agreement to which it is a party. 8. We further covenant to ensure that each Originator and Exide Funding (in each of their capacities under the Originor Agreements) at all times duly perform and comply with all their obligations to each of you under or in connection with the Origination Agreements and, in particular, that we will at all times take all measures necessary or desirable to ensure that the billing, credit and collection policies and procedures of such Originator and Exide Funding are not changed in any way that may materially adversely affect the interests of either of you under the Origination Agreements. We further covenant that we will comply with our obligations in this paragraph 7 even if any of the relevant obligations of the Originators or Exide Funding under the Origination Agreements are determined by a court of competent jurisdiction to be invalid or unenforceable. 9. Without limiting our covenant in paragraph 7 above, we further covenant to either ensure that: (i) each Originator and Exide Funding will at all times duly perform and comply with or (ii) we will perform and comply with, on behalf of each Originator and Exide Funding, all reporting, documentary and calculation requirements of the Originators and Exide Funding under the Origination Agreements and that the same are met in a timely fashion. 10. We further covenant to provide you with immediate notice upon becoming aware of any breach by any Originator or Exide Funding of any of its obligations under the Origination Agreements and any of the events described in (A), (B) or (C) below or any event which, with the giving of notice or lapse of time or both, would constitute one of such events: (A) Any Originator or Exide Funding fails to pay any principal of or premium or interest on any debt, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such debt, or any other default under any agreement or instrument relating to any debt, or any other event, shall occur and shall continue after the applicable grace period, if any, -96- specified in such agreement or instrument, if the effect of such default or event is to accelerate or to permit the acceleration of the maturity of such debt, or any such debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof, or any present or future mortgage, charge or other security interest on or over any assets of such Originator or Exide Funding becomes enforceable; (B) a resolution is passed or a petition is presented or an order made for the winding up, liquidation, dissolution, merger or consolidation of such Originator or Exide Funding (except for the purposes of a bona fide reconstruction or amalgamation with your consent), or a petition is presented or an order made for the appointment of an administrator in relation to any Originator or Exide Funding, or a receiver, administrative receiver or manager is appointed over any part of the assets or undertaking of any Originator or Exide Funding, or any event analogous, to any of the foregoing occurs (except, in the case where a petition is presented (i) the proceeding is frivolous or vexatious and (ii) such Originators or Exide Funding is solvent and is contesting the proceeding in good faith); or (C) an Early Amortisation Event under any of the Origination Agreements occurs. 11. We undertake that we will provide to Citibank all documents which Exide Technologies, ourselves or any European Affiliate of Exide Technologies is required to provide under the US DIP Facility Agreement in relation to ourselves and such European Affiliate as and when the same are provided under the US DIP Facility Agreement. 12. This Letter of Undertaking is governed by the laws of England. We hereby irrevocably and for your benefit submit to the jurisdiction of the courts of England in any action or proceeding arising out of or relating to this letter, and hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such courts. We hereby irrevocably waive, to the fullest extent that we may effectively do so, the defence of an inconvenient forum to the maintenance of such action or proceeding. We agree that a final 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. We irrevocably appoint the Person specified against our signature to accept any service of any process on our behalf and further undertake that we will at all times during the continuance of this letter maintain the appointment of some Person in England as its agent for the service of process and irrevocably agree that the service of any writ, notice or other document for the purposes of any suit, action or proceeding in the courts of England shall be duly served upon it if delivered or sent to the address of such appointee (or to such other address in England as that party may notify to the other parties hereto). Yours faithfully, -97- ______________________________ Process Agent: EXIDE HOLDING EUROPE, S.A. CMP Batteries Limited P.O. Box 1 Salford Road Over Hulton Bolton BL5 1DD -98- SCHEDULE 10 LIST OF ACCOUNT DEBTORS OTHER THAN DESIGNATED ACCOUNT DEBTORS FIAT -99- SCHEDULE 11 NOTICE OF ASSIGNMENT Part 1 Form of Notice of Assignment [ENCABEZAMIENTO DEL VENDEDOR] [DATE] A: [Designated Account Debtor] Muy Sres. Mios: Por la presente le notificamos: (i) que hemos cedido a Batteries Funding Limited, sociedad con domicilio en [incluir domicilio], todos nuestros derechos e intereses sobre todos los recibos que usted nos adeuda a fecha de hoy y aquellos recibos que usted nos adeude hasta [.] en relacion con [Contratos pertinentes]; en consecuencia, se le requiere para que, a partir del 30 de Junio de 2002, efectue todos los pagos en relacion con dichos recibos en la cuenta de Batteries Funding Limited [detalles de la Buyer Collection Account] con [.] y todos los pagos que en relacion con dichos recibos efectue mediante cheque, letra de cambio, pagare u otros documentos bancarios los libre a favor de Batteries Funding Limited y remita dichos cheques, letras de cambio, pagares u otros documentos bancarios a [.]; y (ii) que es nuestra intencion ceder a Batteries Funding Ltd., todos nuestros derechos e intereses sobre todos los recibos que usted nos adeude en el futuro por razon de nuestras operaciones. En consecuencia, salvo que otra cosa se disponga en la factura, la emision y envio a ustedes de dicha factura debe ser considerado: (a) una notificacion de la cesion de los derechos, intereses y derechos accesorios que resulten de la misma; y (b) una instruccion de realizar, a partir del 30 de Junio de 2002, los futuros pagos en relacion con dichos recibos de la manera dispuesta en el parrafo anterior o de la manera que se le indique en la factura relacionada con tales recibos. Atentamente, [RAZON SOCIAL DEL SELLER] Acuse de recibo: -100- Mediante la firma de la copia adjunta y remision de la misma a [.], confirmamos haber sido notificados de la cesion de los derechos, intereses y derechos accesorios que resulten de las facturas recibidas de [Seller] que no establezcan otra cosa y consentimos la cesion de los mismos a todos los efectos (incluyendo los del Articulo 1198 del Codigo Civil), con efectos a partir de la recepcion de cada una de las facturas anteriormente referidas. [RAZON SOCIAL DEL DESIGNATED ACCOUNT DEBTOR] -101- Part 2 Translation into English for information purposes [Date] To: [Designated Account Debtor] Dear Sirs, We hereby give you notice you that: (i) we have assigned to Batteries Funding Limited, a company domiciled at [include address] all our rights, title and interest in all receivables owing to us by you as of this date and those which you will be owing to us up to [.] in relation to [relevant Contracts] and that, as a result, as from 30 June 2002, you are required to make all payments in respect of such receivables to the account of Batteries Funding Limited [Buyer Collection Account details] with [.] and to make all your payments by cheque, bill of exchange, promissory note or other banking document, in respect of such receivables to the order of Batteries Funding Limited and to remit such cheques, bills of exchange, promissory notes or other banking documents to [.]; and (ii) we are intending to assign to Batteries Funding Ltd. in all our rights, title and interest in all [other] receivables which you will be owing to us in the course of our businesses. Accordingly, and except as otherwise provided in the relevant invoices, the issuance and remittance to you of such invoice must be considered as (a) a notice of the assignment of the indebtedness, interests and benefits arising thereof; and (b) an instruction to make all your further payments as from 30 June, 2002 in respect of such receivables in the manner set out above or as otherwise instructed to you in the invoice related to such receivables. Kindest regards, [NAME OF THE SELLER] Acknowledgement of Receipt By signing the enclosed copy and returning the same to [.], we do hereby acknowledge receipt of the notice of assignment of the indebtedness, interests and benefits arising from any invoices received from [Seller] which do not expressly provide otherwise and consent to the assignment thereof to all effects (including those of Section 1198 of the Spanish Civil Code) and with effect from the date of reception of each of the aforesaid invoices. [NAME OF THE DESIGNATED ACCOUNT DEBTOR] -102- Part 3 (to be inserted in each invoice) Please ensure that all your payments are made to the credit of [details of the Buyer Collection Account] with [Buyer Collection Account Bank]. -103- SCHEDULE 12 ENIGMA LICENCE AGREEMENT Attention: Company Secretary and Financial Director Enigma Licence Agreement [.] May 2002 Dear Sirs, In connection with the preparation of certain date required to be delivered under the origination agreements dated (or amended) as of the date hereof between certain of your European subsidiaries, Batteries Funding Limited, yourselves and ourselves (together with any other origination agreement which may be entered after the date hereof, the "Agreements") we are making available to you certain proprietary computer software and related documentation collectively known as "Enigma". Enigma has been developed by us, on the basis of commercially available software which we purchased, to help manage the securitisation of trade receivables portfolios. This letter is to confirm the terms on which we are licensing your use of Enigma. Acknowledging that Enigma is an shall remain the property of Citibank, N.A., you shall be entitled to sue Enigma solely in connection with the performance of your obligations under the Agreements. Only those of your personnel responsible for such performance will be allowed to have access to Enigma and the use thereof. You will keep Enigma confidential and not copy or divulge any of its content to any third parties and shall return to us or destroy all copies of Enigma in your possession upon the termination of the Agreements. Should Enigma fail accurately to produce information required under the Agreements from adequate and accurate input, we will (i) provide all assistance you reasonably request to enable the timely production of such information using alternative methods, (ii) immediately commence efforts to identify and correct the cause of such failure, and (iii) should the foregoing prove unsuccessful, co-operate fully with you in devising alternative solutions, taking into account the actual circumstances, and in obtaining any required approval thereof from other parties. Further, we will promptly update your version of Enigma with any future program improvements. Except as provided above and in the Agreements, we shall have no responsibility whatever arising out of any Enigma failure, do not in any manner warrant or guaranty its performance and in no event shall we have monetary liability in connection with such failure or such performance or the consequences thereof, you having acknowledged that our foregoing commitment of assistance and co-operation is appropriate in the circumstances and your sole remedy. -104- Please acknowledge your acceptance of the foregoing in the place provided below. Very truly yours, CITIBANK, N.A., London Branch By: Title: Vice President Agreed and accepted EXIDE HOLDING EUROPE By: Name: Title: By: Name: Title: -105- SCHEDULE 13 FORM OF POWER OF ATTORNEY Part 1 MODELO DE PODER NOTARIAL IRREVOCABLE A FAVOR DE BATTERIES FUNDING LIMITED Y CITIBANK, N.A. NUMERO [.] En la ciudad de [.], a [.] de 2002. Ante mi, D. [.], Notario del Ilustre Colegio de [.], debidamente autorizado y en ejercicio de mis funciones notariales, COMPARECE El Sr. [.], mayor de edad, de nacionalidad [.], domiciliado en [.]. INTERVIENE En nombre y representacion de [Name of the Seller] entidad con domicilio social en [.] (en lo sucesivo, la "Sociedad") [Datos relativos a la facultad del otorgante para otorgar el Poder] Identifico al otorgante por sus datos personales y su firma y yo, el Notario, doy fe de que los mismos coinciden con los datos personales y la firma que aparecen en este documento. EXPONE I. Que, de conformidad con un contrato de cesion de creditos, suscrito con el nombre de "Receivables Sale Agreement" (en lo sucesivo, el "RSA") en fecha proxima al 24 de Mayo de 2002 o en dicha fecha, [entre otros,] por la Sociedad como Vendedor (Seller), Exide Holding Europe como Agente Oferente (Offer Agent), Citibank, N.A. como Agente de Operacion (Operating Agent) y Batteries Funding Limited, como Comprador (Buyer), la Sociedad ofrecera periodicamente al Comprador ciertos derechos de credito (en lo sucesivo, los "Recibos" (Receivables), junto con los Derechos Accesorios a los mismos, documentados en las correspondientes facturas presentadas por el Vendedor, y el Comprador podra aceptar la cesion en su favor de tales Recibos. II. Que los Recibos, Cobros (Collections) y Derechos Accesorios (Related Security) asi adquiridos que no hubieran sido readquiridos o cobrados en su totalidad por el -106- Vendedor seran referidos en la presente escritura como "Recibos Adquiridos" (Purchased Receivables). La Sociedad, de conformidad con la Clausula 13(E) del RSA, otorga, con caracter irrevocable, un poder a favor de Batteries Funding Limited y Citibank, N.A., en los terminos expuestos en el presente Poder, y en garantia del cumplimiento por aquella de las obligaciones asumidas con estos en el marco del RSA y en relacion con los Recibos Adquiridos. III. Los terminos en castellano cuya traduccion al ingles se acompana entre parentesis tendran el mismo significado que en el RSA. OTORGA PRIMERO.- En nombre y representacion de la Sociedad, confiere poder, tan amplio en derecho como fuera necesario, a favor de Batteries Funding Limited (en lo sucesivo, "Batteries Funding" o el "Comprador"), con domicilio en West Block, International Financial Services Centre, Dublin 1, Irlanda, y Citibank, N.A., actuando a traves de su Sucursal de Londres (en lo sucesivo, "Citibank" o el "Agente de Operacion"), con domicilio en 336 Strand, Londres WC2R 1HB, Reino Unido, para que, cada uno de ellos indistintamente, actuando solidariamente, en nombre y representacion de dicha Sociedad, puedan a traves de personas autorizadas: (a) Ejercitar cuantos derechos, facultades y acciones correspondan a la Sociedad en relacion con los Recibos Adquiridos y los Derechos Accesorios a los mismos; (b) Otorgar, firmar, sellar y enviar cuantos documentos, asi como realizar cualquier otro acto o cosa (incluyendo la elevacion a publico de las cesiones de Recibos), que fueren necesarios, adecuados o convenientes para la plena y efectiva atribucion, cesion o para lograr su efectividad frente a terceros de los Recibos Adquiridos y los Derechos Accesorios a los mismos en o a favor del Comprador, cualquier sucesor en la titularidad de los mismos, o cualesquiera otra persona o personas que tuvieran derecho a su beneficio (como pudiera ser el caso), en virtud y de acuerdo con el RSA; (c) Notificar a los correspondientes Deudores Designados de los Recibos Adquiridos (Designated Account Debtors of Purchased Receivables) todas las cesiones de Recibos que hayan tenido lugar o que tengan lugar, entre el Comprador y el Vendedor al amparo del RSA, asi como otorgar y remitir cuantos documentos publicos y privados sean necesarios para la constancia en documento publico de cada una de dichas cesiones; (d) Reclamar judicial y extrajudicialmente y cobrar cualesquiera cantidades vencidas y exigibles por razon de los Recibos Adquiridos y los Derechos Accesorios a los mismos, asi como pagar dichas cantidades a las partes con derecho a ello en virtud del RSA;. -107- (e) Una vez cobradas las cantidades, o parte de las mismas, a que se refiere la letra (d) anterior, dar a sus pagadores carta de pago eficaz por dichas cantidades, expidiendo los recibos y otorgando los documentos publicos y privados y realizando las retrocesiones, cesiones posteriores o liberaciones que fueren necesarias o aconsejables. (f) Cobrar, descontar, endosar y, en general, disponer de cualquier letra de cambio, cheque, pagare o instrumento de pago analogo, cumplir cualquier obligacion o acuerdo asumido por la Sociedad en virtud de o en relacion con el RSA, y ejercer todos los derechos y acciones que correspondan a la Sociedad en virtud del RSA o cualesquiera otros previstos legalmente. (g) Sustituir y/o delegar el ejercicio de las facultades conferidas en virtud del presente Poder (incluida asimismo la facultad de delegacion y sustitucion) en cualquier persona fisica o juridica que considere conveniente; y (h) Llevar a cabo cuantas actuaciones y suscribir cuantos documentos estime necesarios o convenientes para el ejercicio de las facultades conferidas en las letras (a) a (g) antecedentes. Las facultades antedichas se conceden incluso para los supuestos de autocontratacion, aun a favor de terceros. SEGUNDO.- La Sociedad se obliga a partir de ahora a ratificar y confirmar cuantas actuaciones, y/o documentos que Batteries Funding Limited o Citibank, N.A. (o sus sustitutos o delegados) hubieren causado, llevado a cabo u otorgado en el marco del presente Poder (Power of Attorney), en la medida en que la Sociedad pueda realizar dichas actuaciones y las mismas se encuentren contempladas en el presente Poder; la Sociedad indemnizara a Batteries Funding Limited o Citibank, N.A (o sus sustitutos o delegados) por cualesquiera perdidas, reclamaciones, gastos o responsabilidades en que incurriesen en relacion con el presente Poder, salvo que concurriese negligencia, incumplimiento culpable o mala fe por parte de estas. TERCERO.- El presente Poder tiene el caracter de mandato irrevocable por cuanto los derechos y obligaciones derivados del RSA interesan no solo la Sociedad sino tambien al Comprador y a determinadas terceras personas, exigiendo la ejecucion y el cumplimiento del RSA la irrevocabilidad del presente Poder con la finalidad de evitar la imposibilidad de consecucion de los objetivos perseguidos por las partes con el RSA. CUARTO.- El presente Poder se regira por, y sera interpretado de acuerdo con, la ley espanola. Todos los actos que, en el marco del presente Poder, sean llevadas a cabo por el Comprador o por el Agente de Operaciones (o sus sustitutos o delegados) se regiran por la ley espanola. En Madrid a [.] de [.] de 2002. -108- Part 2 (English Translation for information purposes) FORM OF IRREVOCABLE NOTARIAL POWER OF ATTORNEY IN FAVOUR OF BATTERIES FUNDING LIMITED AND CITIBANK, N.A. NUMBER [.] In the town of [.], on this [.] day of [.] of 2002. Before me, Mr [.], Notary public of [.], duly commissioned and in exercise of my notarial duties. APPEARS Mr [.], of legal age of [nationality] nationality, domiciled at [address] HE ACTS In the name and on behalf of [Name of the Seller], a company with registered office at [.] (hereinafter, the "Company") [Details regarding the authority of the grantor] The grantor exhibits his personal details and signature, and, I the Notary, certify that the personal details and signature which appear in this document coincide with them. WHEREAS I. Pursuant to a receivables sale agreement denominated "Receivables Sale Agreement" (the "RSA") dated 24 May, 2002 made by and between, among other, the Company as Seller, Exide Holding Europe as Offer Agent, Citibank, N.A. as the Operating Agent and Batteries Funding Limited as the Buyer, the Company will from time to time offer to sell to the Buyer certain receivables (the "Receivables") and the Related Security thereto evidenced by invoices rendered by the Seller and the Buyer may accept an assignment of all such Receivables for its benefit. II. Receivables, Collections and Related Assets so acquired and not subsequently reacquired by the Seller or collected in full are referred to herein as the "Purchased Receivables". The Company, pursuant to Clause 13(E) of the RSA, appointed Batteries Funding Limited and Citibank, N.A., as its attorneys on the terms hereinafter appearing irrevocably and by way of security for the performance of certain of the Company' respective obligations to the Buyer under the RSA in respect of the Purchased Receivables. -109- III. Spanish Terms which are translated into English shall have the meaning ascribed to such terms in the RSA. NOW THEREFORE, he agrees as follows: FIRST: In the name and on behalf of the Company, he grants a power of attorney, as wide as in law might be necessary, to Batteries Funding Limited ("Batteries Funding" or the "Buyer") with registered office at West Block, International Financial Services Centre, Dublin 1, Ireland and Citibank, N.A., acting trough its London branch ("Citibank" or the "Operating Agent") and with registered office in London WC2R 1HB at 336 Strand, United Kingdom so that any of them indistinctly acting through authorised persons, jointly and severally may, acting in the name and on behalf of the Company: (a) exercise its rights, powers and discretions in respect of the Purchased Receivables and in respect of the related benefit of any Related Security; (b) execute, sign, seal and deliver any document and to do any other act or thing (including the notarisation of any assignment of Receivables) which it may deem to be necessary, proper or expedient for fully and effectively vesting or transferring the Purchased Receivables or achieve the effectiveness vis a vis third parties of such assignment, the Related Security thereto in or to the Buyer or its successors in title or other Person or Persons entitled to the benefit thereof (as the case may require) pursuant to and in accordance with the RSA; (c) give notice to the relevant Designated Account Debtors of Purchased Receivables of all the existing or future assignments of Receivables between the Buyer and the Seller made under the RSA, as well as execute and deliver as many deeds or documents as may be deemed necessary for all the assignments of Receivables to be raised to a public status. (d) demand, sue for and receive all moneys due or payable under or in respect of the Purchased Receivables and the Related Security thereto and pay such moneys to the Persons to whom such moneys are required to be paid under the RSA; (e) upon receipt of such moneys as referred to in paragraph (d) above or of any part thereof, give to the payer thereof good receipts and discharges for the same and execute such receipts, releases, re-assignments, retransfers, instruments and deeds as may be requisite or advisable; (f) collect payment, discount, endorse and, in general, dispose of any bills of exchange, cheques, promissory notes or similar payment instruments, perform any agreement or obligation of the Company under or in connection with the RSA and exercise all other remedies of the Company under the RSA or existing at law; (g) substitute and/or delegate the exercise of the powers granted by virtue of this power of attorney (including likewise the power of delegation and substitution) in favour of any individual or corporation as it may deem convenient; and -110- (h) take such actions and execute and deliver such documents as may be required or convenient in its sole discretion for the exercise of the powers in sections (a) to (g) above. The aforementioned powers are granted even for the cases of self-contracting, even in favour of third parties. SECOND: The Company hereby agrees at all times hereafter to ratify and confirm any act, matter or deed whatsoever Batteries Funding Limited and Citibank, N.A. (or any of its substitutes or delegates) shall lawfully do or cause to be done under or pursuant to this Power of Attorney to the extent that such act or acts and execution are within the power of the Company and within the contemplation of this Power of Attorney and the Company shall indemnify the Buyer or the Operating Agent (or any of its substitutes or delegates) in respect of any loss, claim, cost, expense or liability in connection with this Power of Attorney save to the extent that the same arises out of their gross negligence, wilful default or bad faith. THIRD: This Power of Attorney is granted as an irrevocable mandate as the rights and obligations under the RSA interest not only the Company but the Buyer and certain third parties, requiring it to be irrevocable in order to avoid the frustration of the objectives pursued by the parties under the RSA. FOURTH: This Power of Attorney shall be governed by and construed in accordance with Spanish law, which shall apply to all acts of the Buyer or the Operating Agent (or any of its substitutes or delegates) carried out under the terms hereof. In Madrid, on [DD][MM] 2002 -111- SCHEDULE 14 FORM OF DIRECTORS' CERTIFICATE To: BATTERIES FUNDING LIMITED Citibank, N.A. Date: [.] IN RELATION TO THE SALE OF TRADE RECEIVABLES ORIGINATED BY [Name of the Seller] (the "Company") I, the undersigned having considered the Receivables Sale Agreement (the "RSA") dated on or about 24 May, 2002 between, among other, the Company, Exide Holding Europe, Batteries Funding Limited, Citibank, N.A. and the latest audited financial statements of the Company dated as of [.], HEREBY CERTIFY that, having made all due enquiry: 1. To the best of my/our knowledge and belief (based upon due enquiry) the Company is not unable to pay its debts as they fall due within the meaning of Article 874 et seq. of the Spanish Commercial Code and to the best of my/our knowledge and belief the Company would not become unable to do so in consequence of the periodic sale of trade receivables during the term of the SRPA. 2. To the best of my/our knowledge and belief, no order has been made or resolution passed for the liquidation of the Company and no court order for the opening of bankruptcy, composition or similar insolvency proceedings (including, for the avoidance of doubt, quiebra and suspension de pagos) in relation to the Company has been made and no opening of bankruptcy proceedings in relation to the Company has been registered pursuant to the applicable laws, and, to the best of my/our knowledge and belief: (a) no petition for the liquidation of the Company or bankruptcy or insolvency petition or a petition for the making of an administration order has been presented; (b) the Seller is not dissolved or extinguished, and is not subject to dissolving or extinguishment; and (d) no insolvency administrator, receiver, administrative receiver, administrator or receiver and manager and/or sequester has been appointed in relation to the Company. 3. In my/our opinion the value of the consideration which would be received for the sale of the Receivables from time to time calculated in accordance with the RSA would in all the circumstances be fair and reasonable. -112- 4. To the best of my/our knowledge and belief the sale of Receivables to Batteries Funding Limited from time to time under the RSA and all matters concerning the Company, would, to the extent to which these were carried out by the Company, be effected by the Company in good faith and in connection with its business, and in my/our opinion there are reasonable grounds for believing that the sale of Receivables and all related matters contemplated by the RSA would benefit the Company. 5. In authorising the submission of Letters of Offer the Company has not, to the best of my/our knowledge and belief, been influenced by a desire to prefer Batteries Funding Limited as a creditor over any other creditors of the Company; and 6. No Early Amortisation Event has occurred. Words and expressions defined in the RSA shall, unless the context otherwise requires, bear the same meanings when used herein. This certificate is given on behalf of the Company by: _________________________ __________________________ [Director] [Director] -113- SCHEDULE 15 SPECIAL DILUTION RESERVE
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* If the date set out in the column below is not a Programme Business Day, the Settlement Date shall be the next succeeding Programme Business Day. -115- EXECUTION PAGES SELLERS: Sociedad Espanola de Acumulador Tudor, S.A. By: Address: Condesa de Venadito, 1 28027 Madrid Attention: Carlos Parra Telefax: +34 91 403 20 34 Fulmen Iberica, S.L. By: Address: C/Miquel Torello i Pages, 11-13 Pol. Ind. El Pla, 08750 Molins de Rei Barcelona Attention: Jaume Carbonell / Jordi Pla Telefax: +34 93 680 25 45 BUYER: Batteries Funding Limited By: Address: West Block Building International Financial Services Centre Dublin 1 Attention: The Directors Telefax:: +353 1 ###-###-#### -116- OFFER AGENT: Exide Holding Europe By: Address: 5-7 Allee des Pierres Mayettes 92636 Gennevilliers Cedex France Attention: Dr. Albrecht Leuschner Telefax: 33 1 47 92 74 81 Phone Number: 33 1 41 21 23 00 OPERATING AGENT: Citibank, N.A., London Branch By: Address: Citicorp Centre 33 Canada Square 5th Floor Canary Wharf London E14 5LB Attention: Nigel Kilvington / Charles Prowse Telefax: + 44 (0) 207 ###-###-#### -117-
