EXHIBIT 10.18
X X X X X X X X LIMITED LIABILITY PARTNERSHIP
C H A N C E
EXECUTION COPY
$177,500,000
FACILITIES AGREEMENT
dated 24 may 2002
for
BATTERIES FUNDING LIMITED
as Borrower
arranged by
CITIBANK, N.A., LONDON BRANCH
with
CITIBANK, N.A., LONDON BRANCH
acting as Agent
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TERM AND REVOLVING FACILITIES AGREEMENT
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CONTENTS
Clause Page
1. Definitions And Interpretation ......................................... 1
2. The Facilities ......................................................... 13
3. Purpose ................................................................ 13
4. Conditions Of Utilisation .............................................. 13
5. Utilisation ............................................................ 15
6. Repayment .............................................................. 17
7. Prepayment ............................................................. 17
8. Interest ............................................................... 19
9. Interest Periods ....................................................... 20
10. Changes To The Calculation Of Interest ................................. 20
11. Fees ................................................................... 21
12. Tax Gross Up And Indemnities .......................................... 23
13. Increased Costs ........................................................ 26
14. Other Indemnities ...................................................... 27
15. Costs And Expenses ..................................................... 28
16. Representations ........................................................ 30
17. Information Undertakings ............................................... 32
18. General Undertakings ................................................... 33
19. Events Of Default ...................................................... 35
20. Changes To The Lenders ................................................. 37
21. Changes To The Borrower ................................................ 39
22. Role Of The Agent And The Arranger ..................................... 40
23. Conduct Of Business By The Finance Parties ............................. 48
24. Sharing Among The Finance Parties ...................................... 48
25. Payment Mechanics ...................................................... 50
26. Set-Off ................................................................ 52
27. Notices ................................................................ 52
28. Calculations And Certificates .......................................... 54
29. Partial Invalidity ..................................................... 54
30. Remedies And Waivers ................................................... 54
31. Amendments And Waivers ................................................. 55
32. Counterparts ........................................................... 55
33. Limited Recourse And No Petition ....................................... 56
34. Governing Law .......................................................... 57
35. Enforcement ............................................................ 57
Schedule 1 The Original Parties ........................................... 58
Part I The Borrower .................................................... 58
Part II The Original Lenders ............................................ 59
Schedule 2 Conditions Precedent ........................................... 60
Schedule 3 Requests ....................................................... 62
Schedule 4 Mandatory Cost Formulae ........................................ 63
Schedule 5 Form Of Transfer Certificates .................................. 65
Part I .................................................................. 65
Part II Lma Transfer Certificate (Par) ................................. 66
Schedule 6 Lma Form Of Confidentiality Undertaking ........................ 70
Schedule 7 Timetables ..................................................... 75
Schedule 8 Application Of Payments ........................................... 76
Signatures ................................................................... 78
THIS AGREEMENT is dated 24 May 2002 and made between:
(1) BATTERIES FUNDING LIMITED (the "Borrower");
(2) CITIBANK, N.A., LONDON BRANCH (the "Arranger");
(3) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original
Parties) as lenders (the "Original Lenders"); and
(4) CITIBANK, N.A., LONDON BRANCH as agent of the other Finance Parties (the
"Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Additional Cost Rate" has the meaning given to it in Schedule 4 (Mandatory
Cost formulae).
"Administration Agreement" means the administration agreement dated on or
about the date hereof between the Borrower and the Administrator.
"Administrator" means AIB International Financial Services Limited as
administrator of the Borrower pursuant to the Administration Agreement;
"Affiliate" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that Holding
Company.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Availability Period" means in relation to Facility A or Facility B, the
period from and including the date of this Agreement to and including the
Termination Date.
"Available Commitment" means a Lender's Commitment minus:
(a) the amount of its participation in any outstanding Loans; and
(b) in relation to any proposed Utilisation (and without duplication of
paragraph (a)), the amount of its participation in any Loans that are
due to be made on or before the proposed Utilisation Date,
other than, that Lender's participation in any Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
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"Available Facility" means:
(a) in relation to Facility A, the lesser of (i) the aggregate for the
time being of each Lender's Available Commitment under Facility A and
(ii) the applicable Borrowing Base on such date; and
(b) in relation to Facility B, the lesser of (i) the aggregate for the
time being of each Lender's Available Commitment under Facility B less
the aggregate for the time being of each Lender's Available Commitment
under Facility A and (ii) the applicable Borrowing Base on such date.
"Borrowing Base" means, on each Settlement Date, the outstanding balance of
Eligible Receivables in existence as of (but excluding) the Reference Date
immediately preceding such Settlement Date (aggregated among all
Origination Agreements) less the aggregate of the applicable Reserves (as
aggregated among all Origination Agreements) on such Settlement Date.
"Break Costs" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period from
the date of receipt of all or any part of its participation in a Loan
or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan or Unpaid Sum, had the principal amount or Unpaid
Sum received been paid on the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the London interbank market for a
period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which banks
are open for general business in New York, London, Dublin, Paris, Frankfurt
am Main, Milan and Madrid and which is a TARGET Day.
"Charged Assets" means the assets of the Borrower which are subject to the
Deed of Charge.
"Commitment" means a Facility A Commitment or a Facility B Commitment.
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 6
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Borrower and the Agent.
"Currency Exchange Agreement" means the spot currency agreement and the
forward currency agreement to be entered into on or prior to the first
Utilisation Date
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by the Buyer and a counterparty rated at least A-1 and P-1 or its
equivalent by the Rating Agencies (the "Swap Counterparty") to exchange,
respectively, the amount in dollars received by the Buyer under this
Agreement into the currencies of the denomination of the Receivables
acquired by the Buyer under all Origination Agreements to which it is a
party and the currencies of the amount of collections payable to the Buyer
under all Origination Agreements to which it is a party into dollars.
"Deed of Charge" means the deed of charge dated on or about the date hereof
between the Borrower and the Security Trustee.
"Default" means an Event of Default or any event or circumstance specified
in Clause 19 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"Event of Default" means any event or circumstance specified as such in
Clause 19 (Events of Default).
"Exide Europe" means Exide Holding Europe, 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;
"Facility" means Facility A or Facility B.
"Facility A" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
"Facility A Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its name
under the heading "Facility A Commitment" in Part II of Schedule 1
(The Original Parties) and the amount of any other Facility A
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Facility A
Commitment transferred to it under and in accordance with this
Agreement,
to the extent not cancelled, reduced or transferred by it under and in
accordance with this Agreement.
"Facility A Loan" means a loan made or to be made under Facility A or the
principal amount outstanding for the time being of that loan.
"Facility B" means the revolving loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
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"Facility B Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its name
under the heading "Facility B Commitment" in Part II of Schedule 1
(The Original Parties) and the amount of any other Facility B
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Facility B
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Loan" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.
"Facility Office" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under this
Agreement.
"Fee Letter" means any letter or letters dated on or about the date of this
Agreement between Citibank, N.A. and Exide Europe.
"Final Repayment Date" means 15 June 2004.
"Finance Document" means this Agreement, the Deed of Charge and any other
document designated as such by the Agent and the Borrower.
"Finance Party" means the Agent, the Arranger or a Lender.
"GAAP" means generally accepted accounting principles in the Republic of
Ireland.
"Holding Company" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"Information Memorandum" means the document in the form approved by Exide
Europe concerning the Exide Europe Group which, at Exide Europe's request
and on its behalf, was prepared in relation to this transaction and
distributed by the Arranger to selected financial institutions before the
date of this Agreement.
"Interest Period" means, in relation to a Loan, each period determined in
accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 8.3 (Default
interest).
"Lender" means:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity which has
become a Party in accordance with Clause 20 (Changes to the Lenders),
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which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Letter of Undertaking" means the performance letter of undertaking issued
on the date hereof by Exide Europe.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for dollars or for the Interest Period
of that Loan) the arithmetic mean of the rates (rounded upwards to
four decimal places) as supplied to the Agent at its request quoted by
the Reference Banks to leading banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in dollars and for a period comparable to the Interest Period for that
Loan.
"Loan" means a Facility A Loan or a Facility B Loan.
"LMA" means the Loan Market Association.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 50% of the Total Commitments (or, if
the Total Commitments have been reduced to zero, aggregated more than
50% of the Total Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 50% of all the Loans then
outstanding
Provided that, for the purposes of this definition, if a Lender has entered
into a Sub-Participation Agreement(s), it shall be entitled to vote such
part or parts of its Commitments or participations in the Loans then
outstanding subject to such Sub-Participation Agreement(s) separately, in
accordance with such directions given by the relevant Sub-Participant and
be treated as a separate Lender for the purposes of each amount voted.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"Margin" means 3.75 per cent. per annum.
"Market Disruption Event" shall have the meaning specified in Clause
10.2(b).
"Material Adverse Effect" means a material adverse effect on:
(a) the business, condition (financial or otherwise), operations or
prospects of the Borrower;
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(b) the ability of the Borrower to perform its obligations under the
Transaction Documents; or
(c) the validity or enforceability of the Transaction Documents or the
rights or remedies of any Finance Party under the Finance Documents.
"Origination Agreements" means as of any time each agreement pursuant to
which a member of the Exide Group sells trade receivables originated in the
ordinary course of business of such member company and which has been
designated from time to time as such by the Agent. Until and unless a
designation has been made by the 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, Deta UK Limited, Fulmen (U.K.) Limited, Exide (Dagenham) Limited
(together with any additional member of the Exide Europe Group acceding to
the Receivables Sale Agreement after the date hereof, the "UK
Originators"), Exide Europe, the Borrower and the Agent, (ii) for France,
(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"), Exide Europe
and the Agent and (b) the Onward Receivables Sale Agreement dated as of the
date hereof between Exide Funding, the Borrower and the Agent, (iii) for
Spain, the Receivables Sale Agreement dated as of the date hereof between
Sociedad Espanola del Acumulador Tudor, S.A., Fulmen Iberica S.L. (together
with any additional member of the Exide Europe Group acceding to the
Receivables Sale Agreement after the date hereof, the "Spanish
Originators"), Exide Europe, the Borrower and the Agent, (iv) for Italy,
(a) the Receivables Purchase Agreement dated 3 June 1997 (as amended on the
date hereof) between Exide Italia S.r.l (together with any additional
member of the Exide Europe Group acceding to the Receivables Sale Agreement
after the date hereof, the "Italian Originators"), Exide Europe, Archimede
Securitisation s.r.l. ("Archimede") and the Agent, and (b) the Onward Sale
Agreement dated as of the date hereof between Archimede Securitisation
s.r.l., the Borrower and the Agent, and (v) for Germany, the German
Receivables Sale Agreement dated as of the date hereof between Exide
Automotive Batterie GmbH, Deutsche Exide GmbH and Deutsche Exide Standby
GmbH (together with any additional member of the Exide Europe Group
acceding to the Receivables Sale Agreement after the date hereof, the
"German Originators"), Exide Europe, the Borrower and the Agent.
"Origination Documents" means the Origination Agreements and the Letter of
Undertaking.
"Originators" means the UK Originators, the French Originators, the Spanish
Originators, the Italian Originators, the German Originators and any other
member of the Exide Group which is a party as a "Seller" to an Origination
Agreement
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designated as such by the Agent following the date hereof and "Originator"
means any of them.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Community relating to Economic
and Monetary Union.
"Party" means a party to this Agreement.
"Qualified Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 66 2/3% of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated more
than 66 2/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 66 2/3% of all the Loans
then outstanding,
Provided that, for the purposes of this definition, if a Lender has entered
into a Sub-Participation Agreement(s), it shall be entitled to vote such
part or parts of its Commitments or participations in the Loans then
outstanding subject to such Sub-Participation Agreement(s) separately, in
accordance with such directions given by the relevant Sub-Participant and
be treated as a separate Lender for the purposes of each amount voted.
"Qualifying Lender" has the meaning given to it in Clause 12 (Tax gross-up
and indemnities).
"Quotation Day" means, in relation to any period for which an interest rate
is to be determined, two Business Days before the first day of that period
unless market practice differs in the London interbank market for dollars,
in which case the Quotation Day for dollars will be determined by the 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 Xxxxx'x Investors Service, Inc.
"Receivable" means the indebtedness owed or which will become owed by
identified debtors under a contract arising from a sale or contract of sale
of merchandise or provision or contract of provision of services by an
Originator and representing part or all of the sale price of such
merchandise or services and includes the right to payment of any interest
or finance charges and other obligations of such debtor with respect
thereto.
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"Reference Banks" means the principal London offices of Citibank, N.A.,
Barclays Bank PLC and The Royal Bank of Scotland plc or such other banks as
may be appointed by the Agent.
"Repeating Representations" means each of the representations set out in
Clause 16 (Representations).
"Rollover Loan" means one or more Facility B Loans:
(a) made or to be made on the same day that a maturing Facility B Loan is
due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Facility B Loan; and
(c) made or to be made for the purpose of refinancing a maturing Facility
B Loan.
"Screen Rate" means the British Bankers' Association Interest Settlement
Rate for dollars and the Interest Period displayed on the appropriate page
of the Telerate screen. If the agreed page is replaced or service ceases to
be available, the Agent may specify another page or service displaying the
appropriate rate after consultation with the Borrower and the Lenders.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Security Trustee" means Citibank, N.A., London branch or any permitted
successors or assigns.
"Settlement Date" means initially, the first Utilisation Date and,
thereafter, each Thursday (or such other day as may from time to time be
agreed between the Agent and the Originators under the Origination
Agreements) provided that in relation to a Thursday falling in a Specified
Bank Holiday Period, the Settlement Date shall be the Thursday immediately
succeeding such Thursday and provided further that if any such day is not a
Business Day, the Settlement Date shall be the next succeeding Business
Day.
"Special Qualified Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 75% of the Total Commitments (or, if
the Total Commitments have been reduced to zero, aggregated more than
75% of the Total Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 75% of all the Loans then
outstanding,
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Provided that, for the purposes of this definition, if a Lender has entered
into a Sub-Participation Agreement(s), it shall be entitled to vote such
part or parts of its Commitments or participations in the Loans then
outstanding subject to such Sub-Participation Agreement(s) separately, in
accordance with such directions given by the relevant Sub-Participant and
be treated as a separate Lender for the purposes of each amount voted.
"Specified Bank Holiday Period" means the relevant calendar week:
(a) in which the 25/th/ of December falls;
(b) in which Easter falls; and
(c) in which the 15/th/ of August falls.
"Specified Time" means a time determined in accordance with Schedule 7
(Timetables).
"Sub-Participant" means any bank, financial institution, trust, fund or
other entity which has entered into a Sub-Participation Agreement.
"Sub-Participation Agreement" means any agreement between a Lender and a
Sub-Participant under which the Sub-Participant agrees to fund all or part
of that Lender's obligations under this Agreement.
"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;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly by the first mentioned company or
corporation; or
(c) which is a Subsidiary of another Subsidiary of the first mentioned
company or corporation,
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement of
payments in euro.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
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"Taxes Act" means the Income and Corporation Taxes Xxx 0000.
"Termination Date" means the earlier of (i) 15 February 2004 and (ii) the
US DIP Facility Termination Date.
"Total Commitments" means the aggregate of the Total Facility A Commitments
and the Total Facility B Commitments, being $177,500,000 at the date of
this Agreement.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being $110,000,000 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being $67,500,000 at the date of this Agreement.
"Transaction Documents" means the Finance Documents and the Origination
Documents.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower under
the Finance Documents.
"US DIP Facility Agreement" means the $250,000,000 secured super priority
debtor-in-possession credit agreement entered into on 15 April 2002
between, inter alios, Exide Technologies and certain of its Subsidiaries as
debtors and debtors-in-possession, Citicorp USA, Inc. as Administrative
Agent, Collateral Monitoring Agent and Arranger, Xxxxxxx Xxxxx Xxxxxx Inc.
as Sole Book Manager and Lead Arranger 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.
"Utilisation" means a utilisation of Facility A or Facility B.
"Utilisation Date" means the date of a Utilisation, being the date on which
the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out in
Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Xxx 0000
and any other tax of a similar nature.
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1.2 Construction
(a) Unless a contrary indication appears any reference in this Agreement
to:
(i) the "Agent", the "Arranger", any "Finance Party", any "Lender",
the "Borrower" or any "Party" shall be construed so as to
include its successors in title, permitted assigns and
permitted transferees;
(ii) "assets" includes present and future properties, revenues and
rights of every description;
(iii) a "Finance Document" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(iv) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(v) a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any association,
trust or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
(vi) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(vii) a provision of law is a reference to that provision as amended
or re-enacted; and
(viii) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any
Finance Document has the same meaning in that Finance Document or
notice as in this Agreement.
(d) Any term used in this Agreement and which is not defined herein has
the meaning ascribed to that term in the Origination Documents.
(e) A Default (other than an Event of Default) is "continuing" if it has
not been remedied or waived and an Event of Default is "continuing" if
it has not been waived.
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1.3 Currency Symbols and Definitions
"$" and "dollars" denotes lawful currency of the United States of America
and "EUR" and "euro" means the single currency unit of the Participating
Member States.
1.4 Third party rights
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of
this Agreement.
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SECTION 2
THE FACILITY
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement, the Lenders make available to the
Borrower:
(a) a dollar term loan facility in an aggregate amount equal to the Total
Facility A Commitments (Facility A); and
(b) a dollar revolving loan facility in an aggregate amount equal to the
Total Facility B Commitments (Facility B).
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations under
the Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is responsible for
the obligations of any other Finance Party under the Finance
Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from the
Borrower shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.
3. PURPOSE
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under Facility A and
Facility B towards funding the purchase of Receivables originated by the
Originators pursuant to the terms and subject to the conditions of the
Origination Agreements to which the Borrower is a party.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 2
(Conditions precedent) in form and substance satisfactory to the Agent. The
Agent shall notify the Borrower and the Lenders promptly upon being so
satisfied.
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4.2 Further conditions precedent
(a) The Borrower may not deliver a Utilisation Request under Facility B
if:
(i) on the date of such Utilisation Request, a Utilisation Request
has not been delivered for a Facility A Loan (1) in an aggregate
amount equal to the Total Facility A Commitments or (2) in an
amount which, when aggregated with any outstanding Facility A
Loan, is equal to the Total Facility A Commitments; or
(ii) on the proposed Utilisation Date, the aggregate amount of
Facility A Loans is less than the Total Facility A Commitments.
(b) The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default is
continuing or would result from the proposed Loan; and
(ii) in the case of any other Loan, no (1) Default is continuing or
would result from the proposed Loan and (2) no Programme
Amortisation Event is continuing or would result from the
proposed Loan; and
(iii) the Repeating Representations to be made by the Borrower are
true in all material respects.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
The Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period;
(iii) the currency and amount of the Utilisation comply with Clause
5.3 (Currency and amount);
(iv) the proposed Interest Period complies with Clause 9 (Interest
Periods); and
(v) it identifies the Origination Agreement in respect of which the
Utilisation is to be made.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be dollars;
(b) The amount of the proposed Loan must be:
(i) in relation to Facility A, for the first Utilisation Date, the
amount of the Total Facility A Commitments and, thereafter, if a
Facility A Loan is subject to mandatory prepayment pursuant to
Clause 7.2, any amount that is less than or equal to the
Available Facility for Facility A; or
(ii) in relation to Facility B, any amount that is less than or equal
to the Available Facility for Facility B.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available by the Utilisation
Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be equal
to the proportion borne by its Available Commitment to the Available
Facility immediately prior to making the Loan.
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(c) The Agent shall notify each Lender of the amount of each Loan and the
amount of its participation in that Loan, in each case by the
Specified Time.
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SECTION 4
REPAYMENT AND PREPAYMENT
6. REPAYMENT
6.1 Repayment of Facility A Loans
The Borrower shall repay the Facility A Loans made to it in full on the
Final Repayment Date.
6.2 REPAYMENT OF FACILITY B LOANS
The Borrower shall:
(a) subject to paragraph (b) below, repay each Facility B Loan on the last
day of its Interest Period; and
(b) with respect to any Facility B Loan which is outstanding on the
Termination Date, repay such Facility B Loan on the Final Repayment
Date.
7. PREPAYMENT
7.1 Illegality
If, at any time, it becomes unlawful in any applicable jurisdiction for a
Lender to perform any of its obligations as contemplated by this Agreement
or to fund or maintain its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Borrower in writing, the Commitment of
that Lender will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the Loans made
to the Borrower on the last day of the relevant Interest Period
falling not earlier than 10 Business Days following receipt by the
Borrower of the written notice specified in paragraph (b),
Provided, however that this Clause 7.1 shall also apply in respect of any
similar event occurring in respect of any Sub-Participant of the relevant
Lender in which case the cancellation of the Commitment of the
participating Lender shall be in respect of such portion of the Commitment
participated by the relevant Lender to such Sub-Participant and the
repayment of such Lender's participation in the Loans shall be in respect
of such portion of its participation in the Loans participated to such
Sub-Participant.
7.2 Mandatory Prepayment of Facility A Loans prior to Termination Date
If, on any Settlement Date falling prior to the Termination Date, the
aggregate amount of Facility A Loans is in excess of the Programme Capital
on such date, the Borrower shall, on such Settlement Date, prepay such part
of the Facility A Loans as is equal to such excess.
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7.3 Mandatory Prepayment of Facility B Loans on and prior to Termination Date
If, on any Settlement Date falling on or prior to the Termination Date, the
aggregate amount of the Facility B Loans is in excess of an amount equal to
Programme Capital less the aggregate amount of the Facility A Loans on such
date, the Borrower shall, on such Settlement Date, prepay such part of the
Facility B Loans as is equal to such excess.
7.4 Mandatory Prepayment of Facility A Loans and Facility B Loans after
Termination Date
If, on any Settlement Date falling after the Termination Date, the
aggregate amount of the Facility A Loans and the Facility B Loans is in
excess of an amount equal to Programme Capital on such date, the Borrower
shall, on such Settlement Date, prepay on a pari passu basis and pro rata
to the Facility A Loans and the Facility B Loans, such part of the Facility
A Loans and the Facility B Loans as is equal in aggregate to such excess.
7.5 Restrictions
(a) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(b) Unless a contrary indication appears in this Agreement, any part of a
Facility which is prepaid may be reborrowed in accordance with the
terms of this Agreement.
(c) The Borrower shall not repay or prepay all or any part of the Loans
except at the times and in the manner expressly provided for in this
Agreement.
(d) No amount of the Total Commitments cancelled under this Agreement may
be subsequently reinstated.
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SECTION 5
COSTS OF UTILISATION
8. INTEREST
8.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
8.2 Payment of interest
On the last day of each Interest Period the Borrower shall pay accrued
interest on the Loan to which that Interest Period relates.
8.3 Default interest
(a) If the Borrower fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and
after judgment) at a rate which, subject to paragraph (b) below is 2
per cent higher than the rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount for successive Interest
Periods, each of a duration selected by the Agent (acting reasonably).
Any interest accruing under this Clause 8.3 shall be immediately
payable by the Borrower on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which became
due on a day which was not the last day of an Interest Period relating
to that Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that
first Interest Period shall be 2 per cent. higher than the rate
which would have applied if the overdue amount had not become
due.
(c) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and
payable.
8.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
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9. INTEREST PERIODS
9.1 Interest Periods for Facility A Loans
Each Facility A Loan shall be divided into successive Interest Periods,
with the first Interest Period commencing on (and including) its
Utilisation Date and ending on (but excluding) the following fourth
Settlement Date and, thereafter, each period commencing on (and including)
the day following the last day of the immediately preceding Interest Period
and ending on (but excluding) the following fourth Settlement Date provided
that no Interest Period shall extend beyond the Final Repayment Date.
9.2 Interest Period for Facility B Loans
(a) Subject to paragraph (b) below, the Interest Period in respect of each
Facility B Loan will be the period commencing on its Utilisation Date
and ending on (but excluding) the following Settlement Date; and
(b) in respect of any Facility B Loan which is outstanding on the
Termination Date, initially the Interest Period set out in paragraph
(a) above and thereafter each period commencing on (and including) the
day following the first day of the immediately preceding Interest
Period and ending on (but excluding) the following Settlement Date
provided that no Interest Period shall extend beyond the Final
Repayment Date.
9.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next succeeding Business
Day.
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 Absence of quotations
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined by
reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
10.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share of
that Loan for the Interest Period shall be the rate per annum which is
the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be paid in
respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever source it may reasonably
select; and
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(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of
the Reference Banks supplies a rate to the Agent to determine
LIBOR for dollars and the Interest Period; or
(ii) before close of business in London on the Quotation Day for the
relevant Interest Period, the Agent receives notifications from
a Lender or Lenders (whose participations in a Loan exceed 50
per cent. of that Loan) that the cost to it of obtaining
matching deposits in the London interbank market would be in
excess of LIBOR.
10.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations
(for a period of not more than thirty days) with a view to agreeing a
substitute basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Borrower, be binding
on all Parties.
10.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all
or any part of a Loan or Unpaid Sum being paid by the Borrower on a
day other than the last day of an Interest Period for that Loan or
Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by
the Agent, provide a certificate confirming the amount of its Break
Costs for any Interest Period in which they accrue.
11. FEES
11.1 Upfront Commitment Fee
The Borrower shall pay to the Agent (for the account of each Lender) on the
first Utilisation Date a fee in dollars of:
(a) in relation to Lenders which are not lenders under the DIP Facility
Agreement, 2 per cent. of the aggregate Commitments of such Lenders;
and
(b) in relation to Lenders which are lenders under the DIP Facility
Agreement, 2.50 per cent. of the aggregate Commitments of such
Lenders.
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11.2 Ongoing Commitment fee
(a) The Borrower shall pay to the Agent (for the account of each Lender) a
fee in dollars computed at the rate of 0.75 per cent. per annum on:
(i) that Lender's Available Commitment under Facility A for the
Availability Period;
(ii) that Lender's Available Commitment under Facility B for the
Availability Period.
(b) The accrued commitment fee is payable on the last day of each relevant
Interest Period which ends during the Availability Period, on the last
day of the Availability Period and, if cancelled in full, on the
cancelled amount of the relevant Lender's Available Commitment at the
time the cancellation is effective.
11.3 Structuring fee
Exide Europe has agreed to pay to the Arranger no later than on the first
Utilisation Date a structuring fee in the amount agreed in the Fees Letter.
11.4 Agency fee
The Borrower shall pay or cause to be paid to the Agent (for its own
account) an agency fee in the amount and at the times agreed in the Fees
Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12. TAX GROSS UP AND INDEMNITIES
12.1 Definitions
(a) In this Agreement:
"Protected Party" means a Finance Party which is or will be subject to
any liability, or required to make any payment, for or on account of
Tax in relation to a sum received or receivable (or any sum deemed for
the purposes of Tax to be received or receivable) under a Finance
Document.
"Qualifying Lender" means a Lender which is beneficially entitled to
interest payable to that Lender in respect of an advance under a
Finance Document and is:
(i) a financial institution which is licensed, pursuant to Section 9
of the Central Bank Act, 1971 to carry on banking business in
Ireland and whose facility office is located in Ireland and who
is carrying on a bona fide banking business in Ireland for the
purposes of Section 246(3)(a) of the Taxes Consolidation Act,
1997; or
(ii) an entity which is an authorised credit institution under the
terms of the Second European Union Banking Directive and has
duly established a branch in Ireland or has made all necessary
notifications to its home state competent authorities required
thereunder in relation to its intention to carry on banking
business in Ireland and such financial institution is recognised
by the Revenue Commissioners of Ireland as carrying on a bona
fide banking business in Ireland for the purposes of Section
246(3) of the Taxes Consolidation Act, 1997 of Ireland and has
its facility office located in Ireland; or
(iii) a company (within the meaning of Section 4 of the Taxes
Consolidation Act, 1997) resident in a country with which
Ireland has a double taxation treaty (a "Treaty") or resident in
a member state of the European Union (other than Ireland)
provided such company does not provide its commitment through a
branch in Ireland; or
(iv) a person in respect of which an authorisation granted by the
Revenue Commissioners of Ireland is subsisting entitling the
Borrower to pay to such Lender interest without deduction of
income tax, by virtue of an applicable double taxation treaty
between Ireland and the country in which such Lender is resident
for the purposes of such treaty, where such double taxation
treaty specifies that no withholding tax is to be made on
payments of interest.
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"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document. "Tax Payment" means an
increased payment made by the Borrower to a Finance Party under Clause
12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).
12.2 Tax gross-up
(a) The Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) The Borrower shall promptly upon becoming aware that it must make a
Tax Deduction (or that there is any change in the rate or the basis of
a Tax Deduction) notify the Agent accordingly. Similarly, a Lender
shall notify the Agent on becoming so aware in respect of a payment
payable to that Lender. If the Agent receives such notification from a
Lender it shall notify the Borrower.
(c) Subject to paragraph (d) below, if a Tax Deduction is required by law
to be made by the Borrower, the amount of the payment due from the
Borrower shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have been
due if no Tax Deduction had been required.
(d) The Borrower is not required to make an increased payment to a Lender
under paragraph (c) above for a Tax Deduction in respect of tax
imposed by Ireland from a payment of interest on a Loan, if on the
date on which the payment falls due the payment could have been made
to the relevant Lender without a Tax Deduction if it was a Qualifying
Lender, but on that date that Lender is not or has ceased to be a
Qualifying Lender other than as a result of any change after the date
it became a Lender under this Agreement in (or in the interpretation,
administration, or application of) any law or Treaty, or any published
practice or concession of any relevant taxing authority.
(e) If the Borrower is required to make a Tax Deduction, it shall make
that Tax Deduction and any payment required in connection with that
Tax Deduction within the time allowed and in the minimum amount
required by law.
(f) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower shall
deliver to the Agent for the Finance Party entitled to the payment an
original receipt (or certified copy thereof) evidencing to that
Finance Party that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority.
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12.3 Tax indemnity
(a) The Borrower shall (within three Business Days of demand by the Agent)
pay to a Protected Party an amount equal to the loss, liability or
cost which that Protected Party determines will be or has been
(directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(A) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be
received or receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under Clause 12.2
(Tax gross-up); or
(B) would have been compensated for by an increased payment
under Clause 12.2 (Tax gross-up) but was not so compensated
solely because the exclusion in paragraph (d) of Clause 12.2
(Tax gross-up) applied.
(c) A Protected Party making, or intending to make a claim under paragraph
(a) above shall promptly notify the Agent of the event which will
give, or has given, rise to the claim, following which the Agent shall
notify the Company.
(d) A Protected Party shall, on receiving a payment from the Borrower
under this Clause 12.3, notify the Agent.
12.4 Tax Credit
If the Borrower makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and fully retained that Tax
Credit on an affiliated group basis,
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the Finance Party shall pay an amount to the Borrower which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by
the Borrower.
12.5 Stamp taxes
The Borrower shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
12.6 Value added tax
(a) All consideration expressed to be payable under a Finance Document
by any Party to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable on any supply made by any Finance
Party to any Party in connection with a Finance Document, that Party
shall pay to the Finance Party (in addition to and at the same time
as paying the consideration) an amount equal to the amount of the
VAT.
(b) Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also at the same
time pay and indemnify the Finance Party against all VAT incurred by
the Finance Party in respect of the costs or expenses to the extent
that the Finance Party reasonably determines that it is not entitled
to credit or repayment of the VAT.
13. INCREASED COSTS
13.1 Increased costs
(a) Subject to Clause 13.3 (Exceptions) the Borrower shall, within three
Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that
Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii)
compliance with any law or regulation made after the date of this
Agreement provided that any reference in this Clause 13.1 to a
Finance Party shall include a Sub-Participant in respect of
Increased Costs incurred by it in relation to its obligations under
the relevant Sub-Participation Agreement and provided further that
any claim for Increased Costs of a Sub-Participant shall be made via
the relevant participating Lender.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital; or
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
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which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance Party
having entered into its Commitment or funding or performing its
obligations under any Finance Document.
13.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 13.1
(Increased costs) shall notify the Agent of the event giving rise to
the claim, following which the Agent shall promptly notify the
Borrower.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Agent, provide a certificate confirming the amount and cause of its
Increased Costs.
13.3 Exceptions
(a) Clause 13.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made by
the Borrower;
(ii) compensated for by Clause 12.3 (Tax indemnity) (or would have
been compensated for under Clause 12.3 (Tax indemnity) but was
not so compensated solely because the exclusion in paragraph (b)
of Clause 12.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance Party
or its Affiliates of any law or regulation.
(b) In this Clause 13.3, a reference to a "Tax Deduction" has the same
meaning given to the term in Clause 12.1 (Definitions).
14. OTHER INDEMNITIES
14.1 Currency indemnity
(a) If any sum due from the Borrower under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in relation to a
Sum, has to be converted from the currency (the "First Currency") in
which that Sum is payable into another currency (the "Second
Currency") for the purpose of:
(i) making or filing a claim or proof against the Borrower; or
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three Business
Days of demand, indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or as a result of
the conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum
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from the First Currency into the Second Currency and (B) the rate or
rates of exchange available to that person at the time of its
receipt of that Sum.
(b) The Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency or currency
unit other than that in which it is expressed to be payable.
14.2 Other indemnities
The Borrower shall, within three Business Days of demand, indemnify each
Finance Party against any cost, loss or liability incurred by that
Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Borrower to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 24 (Sharing among
the Finance Parties); or
(c) funding, or making arrangements to fund, its participation in a
Loan requested by the Borrower in a Utilisation Request but not made
by reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by
that Finance Party alone).
14.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
15. COSTS AND EXPENSES
15.1 Transaction expenses
The Borrower shall pay or cause the Originators to pay promptly on demand
to the Agent and the Arranger the amount of all costs and expenses
(including legal fees) reasonably incurred by any of them in connection
with the negotiation, preparation, printing, execution and syndication
of:
(a) this Agreement; and
(b) any other Finance Documents executed on or after the date of this
Agreement.
15.2 Amendment costs
If (a) the Borrower requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 25.9 (Change of currency), the
Borrower shall, within three Business Days of demand, pay or cause the
Originators to reimburse the Agent for the amount of all costs and
expenses (including legal fees) reasonably incurred by the Agent in
responding to, evaluating, negotiating or complying with that request or
requirement.
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15.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay or cause
the Originators to pay to each Finance Party the amount of all costs and
expenses (including legal fees) incurred by that Finance Party in
connection with the enforcement of, or the preservation of any rights
under, any Finance Document.
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SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
16. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 16 to each Finance Party on the date of this Agreement.
16.1 Status
(a) It is a limited liability company, duly incorporated and validly
existing under the law of Ireland.
(b) It has the power to own its assets and carry on its business as it is
being conducted.
16.2 Binding obligations
The obligations expressed to be assumed by it in each Transaction Document
are, subject to any general principles of law as at the date of this
Agreement limiting its obligations which are specifically referred to in
any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation), legal, valid, binding and enforceable obligations.
16.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated
by, the Transaction Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its assets.
16.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Transaction Documents to which it is a party and the transactions
contemplated by those Transaction Documents.
16.5 Validity and admissibility in evidence
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations under the Transaction Documents to which it is a
party; and
(b) to make the Transaction Documents to which it is a party admissible
in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
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16.6 Governing law and enforcement
(a) The choice of English law as the governing law of the Finance
Documents (other than the Deed of Charge) will be recognised and
enforced in its jurisdiction of incorporation and the choice of Irish
law as the governing law of the Deed of Charge will be recognised and
enforced in its jurisdiction of incorporation.
(b) Any judgment obtained in England in relation to this Agreement will
be recognised and enforced in its jurisdiction of incorporation.
16.7 Deduction of Tax
Subject to the qualifications set out in the legal opinions, it is not
required under the law of its jurisdiction of incorporation to make any
deduction for or on account of Tax from any payment it may make under any
Finance Document.
16.8 No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court
or other authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents except (i) that nominal
stamp duty may be payable in Ireland in the event that the original
documents are executed in or later brought within the jurisdiction, and
(ii) that prescribed particulars of the Deed of Charge are required to be
submitted to the Registrar of Companies in Ireland together with the Form
C1.
16.9 No default
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding on
it or to which its assets are subject which might have a Material
Adverse Effect.
16.10 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally.
16.11 No proceedings pending or threatened
No litigation, arbitration, investigation or administrative proceedings of
or before any court, arbitral body or agency which, if adversely
determined, might reasonably be expected to have a Material Adverse Effect
have (to the best of its knowledge and belief) been started or threatened
against it.
16.12 Taxation
(a) It has duly and punctually paid and discharged all Taxes imposed upon
it or its assets within the time period allowed without incurring
penalties (save to the
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extent that (i) payment is being contested in good faith, (ii) it has
maintained adequate reserves for those Taxes and (iii) payment can be
lawfully withheld).
(b) It is not materially overdue in the filing of any Tax returns.
(c) No claims are being or are reasonably likely to be asserted against it
with respect to Taxes.
16.13 Solvency
(a) The Borrower is able and has not admitted inability to pay its debts
as they fall due and has not suspended making payments on any of its
debts or, by reason of actual or anticipated financial difficulties,
commenced negotiations with one or more of its creditors with a view
to rescheduling any of its indebtedness.
(b) The value of the assets of the Borrower is not less than the
liabilities of the Borrower (taking into account contingent and
prospective liabilities).
(c) A moratorium has not been declared in respect of any of the
indebtedness of the Borrower.
16.14 No Security
The Borrower has not created any Security over its assets other than the
Security created pursuant to the Deed of Charge.
16.15 Repetition
The Repeating Representations are deemed to be made by the Borrower (by
reference to the facts and circumstances then existing) on the date of
each Utilisation Request and the first day of each Interest Period.
17. INFORMATION UNDERTAKINGS
The undertakings in this Clause 17 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
17.1 Financial statements
The Borrower shall supply to the Agent in sufficient copies for all the
Lenders as soon as the same become available, but in any event within 90
days after the end of each of its financial years its audited financial
statements for that financial year.
17.2 Requirements as to financial statements
(a) Each set of financial statements delivered by the Borrower pursuant to
Clause 17.1 (Financial statements) shall be certified by a director of
the relevant company as fairly representing its financial condition as
at the date as at which those financial statements were drawn up.
(b) The Borrower shall procure that each set of financial statements
delivered pursuant to Clause 17.1 (Financial statements) is prepared
using GAAP.
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17.3 Financial Information in respect of Exide Europe and Originators
The Borrower shall supply to the Agent in sufficient copies for all the
Lenders any financial information received by the Borrower under the
Origination Documents in relation to Exide Europe and each Originator as
soon as practicable after the same is received by the Borrower.
17.4 Notification of default
(a) The Borrower shall notify the Agent of any Default and any Early
Amortisation Event under any Origination Document and the steps, if
any, being taken to remedy it promptly upon becoming aware of its
occurrence.
(b) Promptly upon a request by the Agent, the Borrower shall supply to the
Agent a certificate signed by two of its directors or senior officers
on its behalf certifying that no Default is continuing (or if a
Default is continuing, specifying the Default and the steps, if any,
being taken to remedy it).
18. GENERAL UNDERTAKINGS
The undertakings in this Clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
18.1 Authorisations
The Borrower shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of any
Finance Document.
18.2 Compliance with laws
The Borrower shall comply in all respects with all laws to which it may be
subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.
18.3 Negative pledge
The Borrower shall not create or permit to subsist any Security over any
of its assets other than any Security created pursuant to the Deed of
Charge.
18.4 Disposals
The Borrower shall not enter into a single transaction or a series of
transactions (whether related or not) and whether voluntary or involuntary
to sell, lease, transfer or otherwise dispose of any asset otherwise than
as contemplated under the Transaction Documents.
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18.5 Merger
The Borrower shall not enter into any amalgamation, demerger, merger or
corporate reconstruction.
18.6 Restrictions on Activities
The Borrower shall not, unless otherwise agreed by the Agent:
(a) engage in any activity whatsoever which is not incidental to or
necessary in connection with any of the activities in which the
Transaction Documents provide or envisage that the Borrower will
engage;
(b) have any Subsidiaries, employees or premises (other than any premises
at its head office in Dublin); and (c) open any account (without the
consent of the Agent) other than the accounts expressed to be opened
under the Transaction Documents.
18.7 Taxation
The Borrower shall duly and punctually pay and discharge all Taxes imposed
upon it or its assets within the time period allowed without incurring
penalties (save to the extent that (i) payment is being contested in good
faith, (ii) adequate reserves are being maintained for those Taxes and
(iii) payment can be lawfully withheld).
18.8 Dividends
Except to the extent required by applicable laws, the Borrower shall not
pay, make or declare any dividend or other distribution in respect of any
financial year.
18.9 Exercise of rights under Origination Documents
The Borrower undertakes to the Finance Parties that it shall:
(a) make or cause requests or demands to be made for the payment of
amounts owing to it under the Origination Documents; and
(b) take or cause to be taken such actions and exercise or cause to be
exercised such rights under the Origination Documents as permitted by
applicable laws and the terms of the Origination Documents in
accordance with the directions of the Operating Agent.
18.10 Priority of Payments
The Borrower undertakes to the Finance Parties that it shall, prior to its
receiving a notice pursuant to Clause 19.11, pay all amounts received by
it under the Origination Documents to which it is a party in the order of
priority referred to in Schedule 8.
18.11 Qualifying Company
The Borrower shall take all steps to ensure that it is and continues to be
a qualifying company as defined in, and for the purpose of, Section 110 of
the Irish Taxes Consolidation Act.
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19. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 19 is an Event of
Default.
19.1 Non-payment
The Borrower does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical error; and
(b) payment is made within 5 Business Days of its due date.
19.2 Other obligations
The Borrower does not comply with any provision of the Finance Documents
(other than those referred to in Clause 19.1 (Non-payment)) unless such
failure to comply is capable of remedy and is remedied within 5 Business
Days.
19.3 Misrepresentation
Any representation or statement made or deemed to be made by the Borrower
in the Finance Documents or any other document delivered by or on behalf
of the Borrower under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made.
19.4 Insolvency
(a) The Borrower is unable or admits inability to pay its debts as they
fall due, suspends making payments on any of its debts or, by reason
of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
(b) The value of the assets of the Borrower is less than its liabilities
(taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of the
Borrower.
19.5 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration, examination or reorganisation
(by way of voluntary arrangement, scheme of arrangement or otherwise)
of the Borrower;
(b) a composition, assignment or arrangement with any creditor of the
Borrower; or
(c) the appointment of a liquidator, receiver, administrator,
administrative receiver, examiner, compulsory manager or other similar
officer in respect of the Borrower or any of its assets,
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or any analogous procedure or step is taken in any jurisdiction.
19.6 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of the Borrower.
19.7 Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its
obligations under the Transaction Documents.
19.8 Repudiation
The Borrower repudiates a Transaction Document or evidences an intention
to repudiate a Transaction Document.
19.9 Material adverse change
Any event or circumstance occurs which the Majority Lenders reasonably
believe might have a material adverse effect on the ability of the
Borrower to perform or comply with its obligations under the Transaction
Documents.
19.10 Failure to comply with Final Judgment
The Borrower fails to comply with or pay any sum due from it under any
final judgment or any final order made or given by any court of competent
jurisdiction.
19.11 Acceleration
(a) On and at any time after the occurrence of an Event of Default or a
Programme Amortisation Event (which has not been waived) the Agent
may, and shall if so directed by the Majority Lenders, by notice to
the Borrower:
(i) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(ii) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
(iii) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
(b) In the event that a notice is given pursuant to paragraph (a) above as
result of the occurrence of an Event of Default, the Agent may, and
shall if so instructed by the Majority Lenders, instruct the Security
Trustee to enforce the Security constituted pursuant to the Deed of
Charge.
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SECTION 8
CHANGES TO PARTIES
20. CHANGES TO THE LENDERS
20.1 Assignments and transfers by the Lenders
Subject to this Clause 20, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "New Lender").
20.2 Conditions of assignment or transfer
(a) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same
obligations to the other Finance Parties as it would have been under
if it was an Original Lender.
(b) A transfer will only be effective if the procedure set out in Clause
20.5 (Procedure for transfer) is complied with.
20.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee to be agreed
under a separate letter.
20.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other documents;
(ii) the financial condition of the Borrower, Archimede, the
Originators, Exide Funding, Exide Europe, Exide Technologies or
any of their Affiliates;
(iii) the performance and observance by the Borrower, Archimede, the
Originators, Exide Funding, Exide Europe, Exide Technologies or
any of their Affiliates of their obligations under the
Transaction Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made
in or in connection with any Transaction Document or any other
document,
and any representations or warranties implied by law are excluded.
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(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Borrower, Archimede, the Originators, Exide
Funding, Exide Europe, Exide Technologies, any of their
Affiliates and the Exide Group in connection with its
participation in this Agreement and has not relied exclusively on
any information provided to it by the Existing Lender in
connection with any Transaction Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Borrower, Archimede, the Originators,
Exide Funding, Exide Europe, Exide Technologies, any of their
Affiliates and the Exide Group related entities whilst any amount
is or may be outstanding under the Transaction Documents or any
Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 20; or
(ii) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by the Borrower,
Archimede, any Originator, Exide Funding, Exide Europe or Exide
Technologies of its obligations under the Transaction Documents
or otherwise.
20.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 20.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender
and the New Lender. The Agent shall, as soon as reasonably practicable
after receipt by it of a duly completed Transfer Certificate appearing
on its face to comply with the terms of this Agreement and delivered
in accordance with the terms of this Agreement, execute that Transfer
Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and obligations
under the Finance Documents the Borrower and the Existing Lender
shall be released from further obligations towards one another
under the Finance Documents and their respective rights against
one another shall be cancelled (being the "Discharged Rights and
Obligations");
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(ii) each of the Borrower and the New Lender shall assume obligations
towards one another and/or acquire rights against one another
which differ from the Discharged Rights and Obligations only
insofar as the Borrower and the New Lender have assumed and/or
acquired the same in place of the Borrower and the Existing
Lender;
(iii) the Agent, the Arranger, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Arranger and the
Existing Lender shall each be released from further obligations
to each other under this Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
20.6 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to, this
Agreement or the Borrower; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about the Borrower, Archimede, the Originators, Exide
Funding, Exide Europe, Exide Technologies, the Transaction Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking.
21. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Transaction Documents (other than the
rights assigned under the Deed of Charge).
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SECTION 9
THE FINANCE PARTIES
22. ROLE OF THE AGENT AND THE ARRANGER
22.1 Appointment of the Agent
(a) Each other Finance Party appoints the Agent to act as its agent under
and in connection with the Finance Documents.
(b) Each other Finance Party authorises the Agent to exercise the rights,
powers, authorities and discretions specifically given to the Agent
under or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions.
22.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a copy of
any document which is delivered to the Agent for that Party by any
other Party.
(b) The Agent shall not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the other Finance
Parties.
(d) If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than
the Agent or the Arranger) under this Agreement it shall promptly
notify the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
22.3 Role of Agent under the Origination Documents
(a) Each of the Lenders acknowledges and agrees that the Agent is acting
as "Operating Agent" under the Origination Documents.
(b) The Agent, in its capacity as Operating Agent, agrees and
acknowledges that, in acting as Operating Agent under the Origination
Documents, it shall take such actions and exercise such rights as
permitted by applicable laws and the terms of the Origination
Documents as it deems necessary or desirable in order to protect the
interests of the Lenders under the Finance Documents.
(c) Subject to paragraphs (i) to (iv) below, each of the Lenders agrees
and acknowledges that the Agent in its capacity as Operating Agent
reserves the right, in its sole discretion, to exercise any rights
and remedies under the Origination Documents or pursuant to
applicable law, and also to agree to any amendment, modification or
waiver of any Origination Document or any
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instrument or document delivered pursuant thereto. Notwithstanding the
foregoing, the Agent, acting as the Operating Agent, agrees that it shall
not:
(i) without the prior written consent of each Lender:
(1) agree to any amendment of the definition of "Eligible
Receivable" or "Defaulted Receivable" or increase the
then-existing Concentration Limit;
(2) amend, modify or waive any provision of any Origination
Document in any way which would (1) reduce the amount of
Capital, Yield or (to the extent of such fees are for the
account of the Lenders) any fees that is payable on account
of any Purchased Receivable or delay any scheduled date for
payment thereof or (2) increase the Facility Limit;
(3) reduce fees or other amounts payable under the Origination
Documents which relate to payments to the Lenders or delay
any scheduled date for payment thereof;
(4) release Exide Europe from any of its obligations under the
Letter of Undertaking;
(5) amend the definition of "Termination Date"; or
(6) amend the definition of Early Amortisation Event (other than
those amendments set out in paragraph (iv) below).
(ii) without the prior written consent of the Special Qualified Majority
Lenders, terminate any Advance Payments or Withdrawals made pursuant
to any Origination Agreement prior to the occurrence of an Early
Amortisation Event;
(iii) without the prior written consent of the Qualified Majority Lenders:
(1) designate any Origination Agreement after the date hereof;
(2) consent to the accession of any member of the Exide Europe Group
as an "Originator" under any Origination Agreement after the
date hereof; or
(3) agree to the replacement of the Origination Agreements set out
in items (ii) and (iv) of the definition of Origination
Agreements by such other origination agreement or agreements as
are necessary or advisable for the Receivables which are
purchased from the French Originator to be purchased by a French
fonds commun de creances and the Receivables which are purchased
from the Italian Originator to be purchased by a company set up
pursuant to Italian Law 130 of 30 April 1999.
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(iv) without the prior written consent of the Majority Lenders:
(1) amend the definitions of Default Ratio, Dilution Ratio,
Loss to Liquidation Ratio, Programme Default Ratio,
Programme Dilution Ratio or Programme Loss to Liquidation
Ratio;
(2) amend the Early Amortisation Events to increase or decrease
the maximum permitted Default Ratio, Dilution Ratio, Loss
to Liquidation Ratio, Programme Default Ratio, Programme
Dilution Ratio, Programme Loss to Liquidation Ratio;
(3) waive violations of the Default Ratio, the Dilution Ratio,
the Programme Default Ratio or the Programme Dilution Ratio
that exceed the maximum permitted levels for the Programme
Default Ratio or the Programme Dilution Ratio (1) for more
than two consecutive months or (2) by more than 10% (of
such permitted percentage) for any time;
(4) waive a violation of the Loss to Liquidation Ratio or the
Programme Loss to Liquidation Ratio that exceeds the
maximum permitted levels for the Programme Loss to
Liquidation Ratio (1) for more than two consecutive months
or (2) by more than 10% (of such maximum permitted level)
for any time;
(5) waive any Early Amortisation Event other than those
described in subparagraphs (3) and (4) above; or
(6) amend the definition of Programme Reserves or that of any
reserve forming part of the Programme Reserves.
(d) The Agent does not make any representation or warranty or assume any
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Origination Documents
or the execution, legality, validity, enforceability, genuineness or
sufficiency of the Origination Documents or any instrument or document
furnished pursuant thereto, (ii) the value or collectability of any
Purchased Receivables under any Origination Document, or (iii) the
financial condition of the Borrower, Archimede, the Originators, Exide
Funding, Exide Europe, Exide Technologies or any of their Affiliates or
the performance or observance by the Borrower, Archimede, the
Originators, Exide Funding, Exide Europe, Exide Technologies or any of
their Affiliates of their respective obligations under the Origination
Documents.
(e) The Agent agrees that:
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(i) for so long as any amount payable by the Borrower hereunder is
outstanding, it shall not resign from its role as Operating
Agent under the Origination Documents unless:
(1) it becomes unlawful in any applicable jurisdiction for the
Operating Agent to fulfil its role of Operating Agent; or
(2) it has given notice of resignation to the other Finance
Parties and a successor Operating Agent satisfactory to the
Majority Lenders has been appointed under the Origination
Documents;
(ii) the retiring Operating Agent shall, at its own cost, make
available to the successor Operating Agent such documents and
records and provide such assistance as the successor Operating
Agent may reasonably request for the purpose of performing its
functions as Operating Agent under the Origination Agreements.
22.4 Role of the Arranger
Except as specifically provided in the Transaction Documents, the Arranger
has no obligations of any kind to any other Party under or in connection
with any Transaction Document.
22.5 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Arranger as a
trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger shall be bound to account to any
Lender for any sum or the profit element of any sum received by it
for its own account.
22.6 Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with the
Borrower, Archimede or any member of the Exide Group.
22.7 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
(b) The Agent may assume (unless it has received notice to the contrary
in its capacity as agent for the Lenders) that:
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(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 19.1 (Non-payment)); and
(ii) any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been exercised.
(c) The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Transaction Documents through
its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under the Transaction
Documents.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger is obliged to do or omit
to do anything if it would or might in its reasonable opinion
constitute a breach of any law or a breach of a fiduciary duty or
duty of confidentiality.
22.8 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the Agent
shall (i) exercise any right, power, authority or discretion vested
in it as Agent in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders,
refrain from exercising any right, power, authority or discretion
vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in
accordance with an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Finance Parties.
(c) The Agent may refrain from acting in accordance with the instructions
of the Majority Lenders (or, if appropriate, the Lenders) until it
has received such security as it may require for any cost, loss or
liability (together with any associated VAT) which it may incur in
complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
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22.9 Responsibility for documentation
Neither the Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Arranger, the Borrower, Archimede, the Originators, Exide Funding,
Exide Europe, Exide Technologies or any other person given in or in
connection with any Transaction Document or the Information
Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Transaction Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Transaction Document.
22.10 Exclusion of liability
(a) Without limiting paragraph (b) below, the Agent will not be liable
for any action taken by it under or in connection with any
Transaction Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Party (other than the Agent) may take any proceedings against any
officer, employee or agent of the Agent in respect of any claim it
might have against the Agent or in respect of any act or omission of
any kind by that officer, employee or agent in relation to any
Transaction Document and any officer, employee or agent of the Agent
may rely on this Clause.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Transaction Documents to be paid by the Agent if the Agent has
taken all necessary steps as soon as reasonably practicable to comply
with the regulations or operating procedures of any recognised
clearing or settlement system used by the Agent for that purpose.
22.11 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the
Transaction Documents (unless the Agent has been reimbursed by the
Borrower pursuant to a Transaction Document).
22.12 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting through
an office in the United Kingdom as successor by giving notice to the
other Finance Parties and the Borrower.
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(b) Alternatively the Agent may resign by giving notice to the other
Finance Parties and the Borrower, in which case the Qualified
Majority Lenders (after consultation with the Borrower) may appoint
a successor Agent.
(c) If the Qualified Majority Lenders have not appointed a successor
Agent in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation with
the Borrower) may appoint a successor Agent (acting through an office
in the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) The Agent's resignation notice shall only take effect upon the
acceptance of appointment by a successor. Upon the appointment of a
successor, the retiring Agent shall be discharged from any further
obligation in respect of the Finance Documents but shall remain
(f) entitled to the benefit of this Clause 22. Its successor and each of
the other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an
original Party.
(g) After consultation with the Borrower, the Qualified Majority Lenders
may, by notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
22.13 Confidentiality
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of the
Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
22.14 Relationship with the Lenders
The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than five Business Days prior notice from that Lender to
the contrary in accordance with the terms of this Agreement.
22.15 Credit appraisal by the Lenders
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Transaction
Document, each Lender confirms to the Agent and the Arranger that it has
been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks
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arising under or in connection with any Transaction Document including but
not limited to:
(a) the financial condition, status and nature of the Borrower, Archimede,
the Originators, Exide Funding, Exide Europe, Exide Technologies or
any Affiliate thereof;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Transaction Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Transaction Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Transaction Document, the transactions
contemplated by the Transaction Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Transaction Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any Party
or by any other person under or in connection with any Transaction
Document, the transactions contemplated by the Transaction Documents
or any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Transaction Document.
22.16 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Borrower) appoint another Lender or an Affiliate of
a Lender to replace that Reference Bank.
22.17 Agent's Management Time
Any amount payable to the Agent under Clause 14.3 (Indemnity to the
Agent), Clause 15 (Costs and expenses) and Clause 22.11 (Lenders'
indemnity to the Agent) shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as the Agent may notify to the
Borrower and the Lenders, and is in addition to any fee paid or payable to
the Agent under Clause 11 (Fees).
22.18 Deduction from amounts payable by the Agent
If there is an amount then due and owing to the Agent under the Finance
Documents the Agent may, after giving notice to that Party, deduct an
amount not exceeding that amount from any payment to that Party which the
Agent would otherwise be obliged to make under the Finance Documents and
apply the amount deducted in or towards satisfaction of the amount owed.
For the purposes of the Finance Documents that Party shall be regarded as
having received any amount so deducted.
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23. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
24. SHARING AMONG THE FINANCE PARTIES
24.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers any
amount from the Borrower other than in accordance with Clause 25 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Finance Party shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Finance Party would have been paid had
the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 25 (Payment mechanics), without
taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which the
Agent determines may be retained by the Recovering Lender as its share
of any payment to be made, in accordance with Clause 25.5 (Partial
payments).
24.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
Borrower and distribute it between the Finance Parties (other than the
Recovering Finance Party) in accordance with Clause 25.5 (Partial
payments).
24.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 24.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Finance Party is not able to
rely on its rights under paragraph (a) above, the Borrower shall be
liable to the Recovering Finance Party for a debt equal to the Sharing
Payment which is immediately due and payable.
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24.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Lender which has received a share of the relevant Sharing Payment
pursuant to Clause 24.2 (Redistribution of payments) shall, upon
request of the Agent, pay to the Agent for account of that Recovering
Finance Party an amount equal to the appropriate part of its share of
the Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Finance Party for its proportion of any
interest on the Sharing Payment which that Recovering Finance Party is
required to pay); and
(b) that Recovering Finance Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the Borrower will be liable
to the reimbursing Finance Party for the amount so reimbursed.
24.5 Exceptions
(a) This Clause 24 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the Borrower.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified that other Finance Party of the legal or arbitration
proceedings; and
(ii) that other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as soon
as reasonably practicable having received notice and did not take
separate legal or arbitration proceedings.
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SECTION 10
ADMINISTRATION
25. PAYMENT MECHANICS
25.1 Payments to the Agent
(a) On each date on which the Borrower or a Lender is required to make a
payment under a Finance Document, the Borrower or Lender shall make
the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the time
and in such funds specified by the Agent as being customary at the
time for settlement of transactions in the relevant currency in the
place of payment.
(b) Payments from the Borrower shall be made to such account in London
with such bank as the Agent specifies and payments from each Lender
shall be made to such account in London or New York with such bank
as the Agent specifies.
25.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 25.3 (Distributions to the
Borrower), Clause 25.4 (Clawback) and Clause 22.18 (Deduction from
amounts payable by the Agent) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency.
25.3 Distributions to the Borrower
The Agent may (with the consent of the Borrower or in accordance with
Clause 26 (Set-off)) apply any amount received by it for the Borrower in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from the Borrower under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
25.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the
Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to
the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent
to reflect its cost of funds.
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25.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by the Borrower under the
Finance Documents, the Agent shall apply that payment towards the
obligations of the Borrower under the Finance Documents in the
following order:
(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Arranger under the
Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by
the Borrower.
25.6 No set-off by the Borrower
All payments to be made by the Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim unless so determined by the Agent pursuant
to sections 22.18 or 25.3 or by a Finance Party pursuant to Clause 26.
25.7 Business Days
(a) Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day.
(b) During any extension of the due date for payment of any principal or
Unpaid Sum under this Agreement interest is payable on the principal
or Unpaid Sum at the rate payable on the original due date.
25.8 Currency of account
Except in respect of costs, expenses or Taxes which shall be paid in the
currency in which the costs, expenses or Taxes are incurred, dollar is
the currency of account and payment for any sum from the Borrower under
any Finance Document.
25.9 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
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(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Borrower); and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Borrower) specifies to be necessary, be
amended to comply with any generally accepted conventions and market
practice in the London interbank market and otherwise to reflect the
change in currency.
26. SET-OFF
A Finance Party may set off any matured obligation due from the Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to the Borrower, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
27. NOTICES
27.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
27.2 Addresses
The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name below;
(b) in the case of each Lender, that notified in writing to the Agent on
or prior to the date on which it becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than
five Business Days' notice.
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27.3 Delivery
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address;
and, if a particular department or officer is specified as part of
its address details provided under Clause 27.2 (Addresses), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent and then
only if it is expressly marked for the attention of the department
or officer identified with the Agent's signature below (or any
substitute department or officer as the Agent shall specify for this
purpose).
(c) All notices from or to the Borrower shall be sent through the Agent.
27.4 Notification of address and fax number
Promptly upon receipt of notification of an address, fax number and telex
number or change of address, fax number or telex number pursuant to
Clause 27.2 (Addresses) or changing its own address, fax number or telex
number, the Agent shall notify the other Parties.
27.5 Electronic communication
(a) Any communication to be made between the Agent and a Lender under or
in connection with the Finance Documents may be made by electronic
mail or other electronic means, if the Agent and the relevant
Lender:
(i) agree that, unless and until notified to the contrary, this is
to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail address
and/or any other information required to enable the sending
and receipt of information by that means; and
(iii) notify each other of any change to their address or any other
such information supplied by them.
(b) Any electronic communication made between the Agent and a Lender
will be effective only when actually received in readable form and
in the case of any electronic communication made by a Lender to the
Agent only if it is addressed in such a manner as the Agent shall
specify for this purpose.
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27.6 English language
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied
by a certified English translation and, in this case, the
English translation will prevail unless the document is a
constitutional, statutory or other official document.
28. CALCULATIONS AND CERTIFICATES
28.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
28.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
28.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the London interbank market differs, in accordance with that
market practice.
29. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
30. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise of
any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
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31. AMENDMENTS AND WAIVERS
31.1 Required consents
(a) Subject to Clause 31.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Borrower and any such amendment or waiver
will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
31.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders", "Qualified Majority
Lenders" or "Special Qualified Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrower;
(vi) any provision which expressly requires the consent of all the
Lenders; or
(vii) Clause 2.2 (Finance Parties' rights and obligations), Clause
20 (Changes to the Lenders) or this Clause 31;
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of
the Agent or the Arranger may not be effected without the consent of
the Agent or the Arranger.
32. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
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SECTION 11
LIMITED RECOURSE OBLIGATIONS OF THE BORROWER
33. LIMITED RECOURSE AND NO PETITION
33.1 Limited Recourse
Notwithstanding anything in the Finance Documents to the contrary, each
of the Finance Parties hereby acknowledges and agrees to limit its
recourse against the Borrower under the Finance Documents as follows:
(a) all amounts payable or expressed to be payable by the Borrower on,
under or in respect of its obligations and liabilities under the
Finance Documents, including, without limitation, any payment
obligations of the Borrower pursuant to the Finance Documents shall
be recoverable only from and to the extent of:
(i) sums received in respect of the Charged Assets; and
(ii) the proceeds of any realisation or enforcement of the Deed of
Charge in accordance with the terms thereof;
(b) each of the Finance Parties agrees that it will look solely to such
sums and proceeds for payment of all amounts payable or expressed to
be payable to it by the Borrower under the Finance Documents
(provided that to the extent that no such sums or proceeds exist the
Borrower shall not be liable to make payment of the aforementioned
amounts); and
(c) in addition, each of the Finance Parties hereby agrees that no
amount owing by the Borrower under this Agreement shall constitute a
claim against the Borrower unless the Borrower has received amounts
in respect of the Charged Assets sufficient to pay such amounts. No
recourse shall be had for the payment of any amount owing under the
Finance Documents or claim against the Borrower arising out of or
based upon the Finance Documents, against any member, equity holder,
employee, officer, director, or affiliate thereof.
33.2 No Petition
Notwithstanding anything in the Finance Documents to the contrary, each
of the Finance Parties hereby agrees with the Borrower that it shall not
take any steps to initiate or join any person in initiating any
insolvency proceedings in relation to the Borrower or the appointment of
any insolvency officer in connection to the initiation or conduct of
insolvency proceedings in relation to the Borrower or in relation to the
whole or any substantial part of the undertakings or assets of the
Borrower.
33.3 Clause to survive termination
The provisions of this Clause 33 shall survive termination of the
Agreement.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
34. GOVERNING LAW
This Agreement is governed by English law.
35. ENFORCEMENT
35.1 Jurisdiction of English courts
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and accordingly
no Party will argue to the contrary.
(c) This Clause 35.1 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties may
take concurrent proceedings in any number of jurisdictions.
35.2 Service of process
Without prejudice to any other mode of service allowed under any relevant
law, the Borrower:
(a) irrevocably appoints Xxxxxxxx Secretaries Limited, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX as its agent for service of process in
relation to any proceedings before the English courts in connection
with any Finance Document; and
(b) agrees that failure by a process agent to notify it of the process
will not invalidate the proceedings concerned.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Borrower
Name of Borrower Registration number (or equivalent, if any)
Batteries Funding Limited 355020
Registered Office:
West Block
International Financial Services Centre
Xxxxxx 0
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Part II
The Original Lenders
Name of Original Lender Facility A Facility B
Commitment Commitment
Citibank, N.A. $ 45,000,000 $ 20,000,000
Bank of America, N.A. $ 28,000,000 $ 7,000,000
Bear, Xxxxxxx & Co. Inc $ 7,000,000 $ 18,000,000
The CIT Group/Commercial Services Inc. $ 20,000,000 N/A
BNP Paribas N/A $ 12,500,000
The Foothill Group, Inc. $ 10,000,000 N/A
Bank Espirito Santo, S.A. N/A $ 5,000,000
The Governor and Company of The N/A $ 5,000,000
Bank of Ireland
------------- ------------
Total $110,000,000 $ 67,500,000
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SCHEDULE 2
CONDITIONS PRECEDENT
Conditions precedent to initial Utilisation
1. Obligors
(a) A copy of the constitutional documents of the Borrower.
(b) A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated by,
the Transaction Documents to which it is a party and resolving
that it execute the Transaction Documents to which it is a
party;
(ii) authorising a specified person or persons to execute the
Transaction Documents to which it is a party on its behalf; and
(iii) authorising a director, on its behalf, to sign and/or despatch
all documents and notices (including, if relevant, any
Utilisation Request) to be signed and/or despatched by it under
or in connection with the Transaction Documents to which it is
a party.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) A certificate of an authorised signatory of the Borrower certifying
that each copy document relating to it specified in this Schedule 2 is
correct, complete and in full force and effect as at a date no earlier
than the date of this Agreement.
(e) A certificate of a duly authorised officer of the Borrower setting out
the names, home and business addresses, occupations and date of birth
of the directors and secretary and such other information as any Bank
may require to comply with the Criminal Justice Act, 1994 or other
analogous legislation.
(f) A solvency certificate from the Borrower.
2. Legal opinions
(a) A legal opinion of Xxxxxxxx Chance, legal advisers to the Arranger and
the Agent in England, substantially in the form distributed to the
Original Lenders prior to signing this Agreement.
(g) A legal opinion of Xxxxxx Xxx, substantially in the form distributed
to the Original Lenders prior to signing this Agreement.
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3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 35.2 (Service of
process) has accepted its appointment.
(h) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable (if
it has notified the Borrower accordingly) in connection with the entry
into and performance of the transactions contemplated by any Finance
Document or for the validity and enforceability of any Finance
Document.
(i) Evidence that the fees, costs and expenses then due pursuant to Clause
11 (Fees) and Clause 15 (Costs and expenses) have been paid or will be
paid by the first Utilisation Date.
(j) All initial conditions precedents set out in each of the Origination
Agreements have been met.
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SCHEDULE 3
Requests
Utilisation Request
From: Batteries Funding Limited
To: Citibank, N.A., London Branch
Dated:
Dear Sirs
Batteries Funding Limited - [.] Facilities Agreement
dated [.] (the "Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Facility A]/[Facility B]*
Currency of Loan: $
Amount: [ ]
Interest Period: [ ]
Origination Agreement: [ ]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
---------------------------------
Director/Duly authorised agent of
[name of Borrower]
.. delete as appropriate
-62-
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate in relation to the
cost of compliance with (a) the requirements of the Financial Services
Authority (or, any other authority which replaces all or any of its
functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") in accordance with the paragraphs set out below.
The Mandatory Cost will be calculated by the Agent by reference to the
Agent's own Additional Cost Rate and will be expressed as a percentage rate
per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage determined by the Agent
as the cost of complying with the minimum reserve requirements of the
European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is the rate of charge payable by the Agent to the Financial Services
Authority pursuant to the Fees Rules (calculated for this purpose by
the Agent as being the average of the Fee Tariffs applicable to the
Agent) and expressed in pounds per (pound)1,000,000 of the Tariff Base
of the Agent.
5. For the purposes of this Schedule:
(a) "Fees Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance
of deposits;
(b) "Fee Tariffs" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or
zero rated fee required pursuant to the Fees Rules but taking into
account any applicable discount rate); and
(c) "Tariff Base" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender.
-63-
7. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
8. The Agent may from time to time, after consultation with the Borrower and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the
Financial Services Authority or the European Central Bank (or, in any case,
any other authority which replaces all or any of its functions) and any
such determination shall, in the absence of manifest error, be conclusive
and binding on all Parties.
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
Part I
To: Citibank, N.A., London Branch as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
Batteries Funding Limited - [.] Facilities Agreement
dated [.] (the "Agreement")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in
the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.
2. We refer to Clause 20.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 20.5 (Procedure for transfer).
(d) The proposed Transfer Date is [ ].
(e) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 27.2 (Addresses)
are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 20.4 (Limitation of
responsibility of Existing Lenders).
4. This Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on a
single copy of this Transfer Certificate.
5. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
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[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
Part II
LMA Transfer Certificate (Par)
BANK:
Date:
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"Sale Agreement") evidenced by the Confirmation dated between the Bank and the
Transferee (acting directly or through their respective agents) and (ii) the
Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the Credit Agreement shall become
effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated in the
Sale Agreement;
(ii) the terms and conditions annexed hereto; and
(iii) the schedule annexed hereto,
all of which are incorporated herein by reference.
The Bank The Transferee
[ ] [ ]
By: By:
-66-
The Schedule
Credit Agreement Details:
Borrower(s): ___________________________________
Credit Agreement Dated ___________________________________
Guarantor(s): ___________________________________
Agent Bank: ___________________________________
Security: [_] No [_]Yes (specify) ____________
Total Facility Amount: ___________________________________
Governing Law: ___________________________________
Additional Information: ___________________________________
Transfer Details:
Name of Tranche Facility: _________________ ______________
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit, Other): _________________ ______________
Final Maturity: _________________ ______________
Participation Transferred
Commitment transferred/1/ _________________ ______________
Drawn Amount (details below):/1/ _________________ ______________
Undrawn Amount:/1/ _________________ ______________
Settlement Date: _________________
Details of outstanding Credits/1/
Specify in respect of each Credit: _________________
Transferred Portion (amount): _________________
Tranche/Facility: _________________
Nature: [-] Term [_] Revolver [_] Acceptance
[_] Guarantee/Letter of Credit
[_] Other (specify) _______________
[_] Details of other Credits are set out on the attached sheet
Administration Details
Bank's Receiving Account: _________________________
Transferee's Receiving Account: _________________________
Addresses
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref: Attn/Ref:
/1/ As at the date of the Transfer Certificate
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TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "Transfer Certificate") to which they are
annexed.
1. Interpretation
In these Terms and Conditions words and expressions shall (unless otherwise
expressly defined herein) bear the meaning given to them in the Transfer
Certificate, the Credit Agreement or the Sale Agreement.
2. Transfer
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the Bank
under the Credit Agreement as is set out in the relevant part of the
Transfer Certificate under the heading "Participation Transferred" (the
"Purchased Assets") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice specified
in the Credit Agreement. On the Transfer Date the Transferee shall pay to
the Bank the Settlement Amount as specified in the pricing letter between
the Bank and the Transferee dated the date of the Transfer Certificate
(adjusted, if applicable, in accordance with the Sale Agreement) and
completion of the transfer will take place.
3. Effectiveness of Transfer
The Transferee hereby requests the Agent to accept the Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of the
Credit Agreement so as to take effect in accordance with the terms of the
Credit Agreement on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4. Transferee's Undertaking
The Transferee hereby undertakes with the Agent and the Bank and each of
the other parties to the Credit Documentation that it will perform in
accordance with its terms all those obligations which by the terms thereof
will be assumed by it after delivery of the Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which the
Transfer Certificate is to take effect.
5. Payments
5.1 Place
All payments by either party to the other under the Transfer Certificate
shall be made to the Receiving Account of that other party. Each party may
designate a different account as its Receiving Account for payment by
giving the other not less than five Business Days notice before the due
date for payment.
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5.2 Funds
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times
and in such funds as are customary at the time for settlement of
transactions in that currency.
6. The Agent
The Agent shall not be required to concern itself with the Sale Agreement
and may rely on the Transfer Certificate without taking account of the
provisions of such agreement.
7. Assignment of Rights
The Transfer Certificate shall be binding upon and ensure to the benefit
of each party and its successors and permitted assigns provided that
neither party may assign or transfer its rights thereunder without the
prior written consent of the other party.
8. Counterparts
This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts
were on a single copy of this Transfer Certificate.
9. Governing Law and Jurisdiction
The Transfer Certificate (including, without limitation, these Terms and
Conditions) shall be governed by and construed in accordance with the
laws of England, and the parties submit to the non-exclusive jurisdiction
of the English courts.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for
any reason the appointing party shall notify the other party and shall
promptly appoint another person incorporated within England and Wales to
act as its process agent.
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SCHEDULE 6
LMA FORM OF CONFIDENTIALITY UNDERTAKING
[Letterhead of Seller/Seller's agent/broker]
To:
============================================
[insert name of Potential
Purchaser/Purchaser's agent/broker]
============================================
Re: The Agreement
============================================
Borrower: Batteries Funding Limited
Date: May 0000
Xxxxxx: $177,500,000
Agent: Citibank, N.A., London Branch
============================================
Dear Sirs
We understand that you are considering [acquiring]/a/[arranging the acquisition
of]/b/ an interest in the Agreement (the "Acquisition"). In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care that
would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)]/c/
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of the
Borrower or any member of the Exide Group or any of their officers,
directors, employees or professional advisers relating directly or
indirectly to the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
/a/ delete if addressee is acting as broker or agent.
/b/ delete if addressee is acting as principal.
/c/ delete as applicable.
-70-
(a) to members of the Purchaser Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Purchaser Group;
[(b) subject to the requirements of the Agreement, in accordance
with the Permitted Purpose so long as any prospective
purchaser has delivered a letter to you in equivalent form to
this letter;]
[(b/c)]/c/ subject to the requirements of the Agreement, to any person
to (or through) whom you assign or transfer (or may
potentially assign or transfer) all or any of the rights,
benefits and obligations which you may acquire under the
Agreement or with (or through) whom you enter into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, the Agreement or the Borrower or any member
of the Exide Group so long as that person has delivered a
letter to you in equivalent form to this letter; and
[(c/d)]/c/ (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Purchaser Group are listed or
(iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of
the Purchaser Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)]/c/ or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or permanently
erase all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2[(c)/(d)]/c/ above.
5. Continuing Obligations The obligations in this letter are continuing and,
in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in this letter shall cease (a) if you become a party to
or otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in the Agreement or (b) twelve months after you have
returned all Confidential Information supplied to you by us and destroyed
or permanently erased all copies of Confidential Information made by you
(other than
-71-
any such Confidential Information or copies which have been disclosed
under paragraph 2 above (other than sub-paragraph 2(a)) or which,
pursuant to paragraph 4 above, are not required to be returned or
destroyed).
6. No Representation; Consequences of Breach, etc You acknowledge and agree
that:
(a) neither we, [nor our principal]/d/, nor the Borrower, nor any
member of the Exide Group nor any of our or their respective
officers, employees or advisers (each a "Relevant Person") (i)
make any representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or
completeness of any of the Confidential Information or any other
information supplied by us or the assumptions on which it is based
or (ii) shall be under any obligation to update or correct any
inaccuracy in the Confidential Information or any other
information supplied by us or be otherwise liable to you or any
other person in respect to the Confidential Information or any
such information; and
(b) we [or our principal]/d/ or the Borrower or members of the Exide
Group may be irreparably harmed by the breach of the terms hereof
and damages may not be an adequate remedy; each Relevant Person
may be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter by
you.
7. No Waiver; Amendments, etc This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising any right,
power or privilege hereunder will operate as a waiver thereof nor will
any single or partial exercise of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power or
privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between
us.
8. Inside Information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter
are given to us and (without implying any fiduciary obligations on our
part) are also given for the benefit of [our principal,]d the Borrower
and each member of the Exide Group.
10. Third party rights
(a) Subject to paragraph 10 and to paragraphs 6 and 9, a person who is
not a party to this letter has no right under the Contracts
(Rights of Third Parties)
/d/ delete if letter is sent out by the Seller rather than the Seller's
broker or agent.
-72-
Xxx 0000 (the "Third Parties Act") to enforce or to enjoy the
benefit of any term of this letter.
(b) The Relevant Persons may enjoy the benefit of the terms of
paragraphs 6 and 9 subject to and in accordance with this
paragraph 10 and the provisions of the Third Parties Act.
(c) The parties to this letter do not require the consent of the
Relevant Persons to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by
and construed in accordance with the laws of England and the parties
submit to the non-exclusive jurisdiction of the English courts.
12. Definitions In this letter (including the acknowledgement set out below)
terms defined in the Agreement shall, unless the context otherwise
requires, have the same meaning and:
"Confidential Information" means any information relating to the
Borrower, the Exide Group, the Agreement and/or the Acquisition provided
to you by us or any of our affiliates or advisers, in whatever form, and
includes information given orally and any document, electronic file or
any other way of representing or recording information which contains or
is derived or copied from such information but excludes information that
(a) is or becomes public knowledge other than as a direct or indirect
result of any breach of this letter or (b) is known by you before the
date the information is disclosed to you by us or any of our affiliates
or advisers or is lawfully obtained by you thereafter, other than from a
source which is connected with the Borrower or the Exide Group and which,
in either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
"Exide Group" means Exide Technologies and all its Subsidiaries (as
defined in the Agreement);
"Permitted Purpose" means [subject to the terms of this letter, passing
on information to a prospective purchaser for the purpose of]/b/
considering and evaluating whether to enter into the Acquisition; and
"Purchaser Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
... ....................
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For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower
Exide Technologies
We acknowledge and agree to the above:
... .......................
For and on behalf of
[Potential Purchaser/Purchaser's agent/broker]
-74-
SCHEDULE 7
TIMETABLES
Loans in dollars
Delivery of a duly completed Utilisation U-2
Request (Clause 5.1 (Delivery of a Utilisation 12.00 noon
Request)
Agent notifies the Lenders of the Loan in U-2
accordance with Clause 5.4 (Lenders' 3.00pm
participation)
LIBOR is fixed Quotation Day as of 11:00 a.m.
London time
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
-75-
Schedule 8
APPLICATION OF PAYMENTS
The Borrower shall, prior to its receiving notice pursuant to Clause 19.11 of
the Agreement following the occurrence of an Event of Default, apply or cause to
be applied all amounts received by it under the Origination Documents to which
it is a party and otherwise in respect of the Charged Assets in the following
order of priority (to the extent not otherwise paid (whether pursuant to any
Fees Letter or otherwise)):
(a) prior to Termination Date:
(i) first, to the payment, pari passu, of the fees and expenses due to
the Finance Parties under this Agreement, the Swap Counterparty
under the Currency Exchange Agreement and the Administrator under
the Administration Agreement;
(ii) second, to the payment, pari passu, of (1) interest on the Loans
due but unpaid under this Agreement and (2) scheduled payments due
under the Currency Exchange Agreement;
(iii) third, to the payment of the purchase price of the Receivables
acquired by the Borrower pursuant to the Origination Documents to
which it is a party;
(iv) fourth, to the prepayment (if any) of any Loan in the manner set
out in Clause 7.1 of this Agreement;
(v) fifth, to the prepayment (if any) of the Loans in the manner set
out in Clause 7.2 and 7.3 of this Agreement;
(vi) sixth, to the payment, pari passu, of any increased costs,
termination costs, indemnity or gross up payments due under this
Agreement and the Currency Exchange Agreement;
(vii) seventh, to the payment of any third party costs which are due (to
the extent not otherwise paid);
(viii) eighth, to the cash collateralisation of reserves and the payment
of deferred consideration to Exide Funding, Archimede, the UK
Originators, the Spanish Originators and the German Originators
under or pursuant to the Origination Documents to which the
Borrower is a party, and
(b) on and following the Termination Date:
(i) first, to the payment, pari passu, of the fees and expenses due to
the Finance Parties under this Agreement, the Swap Counterparty
under the Currency Exchange Agreement and the Administrator under
the Administration Agreement;
-76-
(ii) second, to the payment, pari passu, of (1) interest on the Loans
due but unpaid under this Agreement and (2) scheduled payments due
under the Currency Exchange Agreement;
(iii) third, to the repayment of the Loans in the manner set out in
Clause 7.4 of this Agreement;
(iv) fourth, to the payment, pari passu, of any increased costs,
termination costs, indemnity or gross up payments due under this
Agreement and the Currency Exchange Agreement;
(v) fifth, to the payment of any third party costs which are due (to
the extent not otherwise paid);
(vi) sixth, after all amounts have been paid in full under this
Agreement, the Currency Exchange Agreement and the Administration
Agreement and all cost, fee and expenses owing by the Borrower
have been paid in full, to the payment of deferred consideration
to Exide Funding, Archimede, the UK Originators, the Spanish
Originators and the German Originators under or pursuant to the
Origination Documents to which it is a party.
-77-
SIGNATURES
THE BORROWER
BATTERIES FUNDING LIMITED
By:
Address: West Block
International Financial Services Centre
Xxxxxx 0
Tel: + 000 0 000 0000
Fax: + 000 0 000 0000
Attention: The Directors
THE ARRANGER
CITIBANK, N.A., LONDON BRANCH
By:
Address: Citicorp Centre
33 Canada Square
0/xx/ Xxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel: + 00 (0)000 000 0000
Fax: + 00 (0)000 000 0000
Attention: Ruiynton Dinshaw
Email: xxxxxxxx.xxxxxxx@xxxx.xxx
THE AGENT
CITIBANK, N.A., LONDON BRANCH
By:
Address: Citicorp Centre
33 Canada Square
0/xx/ Xxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel: + 00 (0)000 000 0000
Fax: + 00 (0)000 000 0000
Attention: Xxxxx Xxxxxxxxxx/Xxxxxxx Xxxxxx
Email: xxxxx.xxxxxxxxxx@xxxx.xxx/
xxxxxxx.xxxxxx@xxxx.xxx
-78-
THE ORIGINAL LENDERS
CITIBANK, N.A., LONDON BRANCH
By:
Address: Citicorp Centre
33 Canada Square
0/xx/ Xxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Tel: + 00 (0)000 000 0000
Fax: + 00 (0)000 000 0000
Attention: Xxxxx Xxxxxxxxxx/Xxxxxxx Xxxxxx
Email: xxxxx.xxxxxxxxxx@xxxx.xxx/
xxxxxxx.xxxxxx@xxxx.xxx
BANK ESPIRITO SANTO, S.A.
By:
Address: 00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: + 00 (0)000 0000000
Fax: + 00 (0)000 0000000
Attention: Xxxx Xxxxx
Email: xxxx.xxxxx@xxxxx.xx.xx
BNP PARIBAS
By:
Address: 00 xxx Xxxxxx
00000 Xxxxxxxxx-Xxxxxx
Tel: x00 (0) 0000 0000/23/30
Fax: x00 (0) 0000 0000/x00 (0) 0000 0000
Attention: Xxxxxx Xxxxxxx/Xxxxxxxxx Lapalus/Xxxx-Xxxxx Xxxxxxx
Email: xxxxxx.xxxxxxx@xxxxxxxxxx.xxx
xxxxxxxxx.xxxxxxx@xxxxxxxxxx.xxx
xxxx-xxxxx.xxxxxxx@xxxxxxxxxx.xxx
-00-
XXXX XX XXXXXXX, N.A.
By:
Address: New Xxxxx Xxxxxx Xxxxx
00 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: x00 (0)000 000 0000
Fax: x00 (0)000 000 0000
Attention: Xxxxxxx Xxxxx
Email: xxxxxxx.x.xxxxx@xxxxxxxxxxxxx.xxx
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By:
Address: P O Box 2386
La Touche House
Custom House Docks IFSC
Xxxxxx 0
Tel: + 0000 000 0000
Fax: + 000 0000 0000
Attention: Xxxx X'Xxxxx
Email: xxxxx.x'xxxxx@xxx.xx
BEAR, XXXXXXX & CO. INC.
By:
Address: 000 Xxxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: + 000 000 0000
Fax: + 000 000 0000
Attention: Xxxxxxxx Xxxxxxxxxx
Email: xxxxxxxxxxx@xxxx.xxx
THE CIT GROUP/COMMERCIAL SERVICES INC.
By:
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx
Xxx Xxxx 00000
Tel: x000 000 0000
Fax: x000 000 0000
Attention: Xxx Xxxxxxxx
-80-
Email: xxx.xxxxxxxx@xxx.xxx
THE FOOTHILL GROUP, INC.
By:
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx Xxxxxx
XX 00000
Tel: x000 000 0000/7387
Fax: x000 000 0000
Attention: Xxxxxx Xxxxxxxx/Xxxxxxxxx Xxxx
Email: xxxxxxx@xxxxxxxxxxxxxx.xxx
Xxxx@xxxxxxxxxxxxxxx.xxx
-81-
