EXHIBIT 10.26
Confidential materials omitted and filed separately with the Securities and
Exchange Commission pursuant to a request for confidential treatment. Asterisks
denote such omissions.
AMENDMENT NO. 2 TO SUPPLY CONTRACTS
This Agreement ("Amendment No. 2") is entered into this 11th day of July,
2002 by and between Daramic, Inc. ("Daramic") and Exide Technologies (formerly
known as Exide Corporation) and all of its worldwide Affiliates ("Exide").
RECITALS:
A. Exide and Daramic are parties to a Supply Agreement known as the North
American, Australian and New Zealand Supply Agreement for automotive separators
(the "NA Agreement"), the Automotive and Industrial Supply Agreement and the
Golf Cart Separator Supply Agreement. The NA Agreement was amended the first
time on the __ day of July, 2001 pursuant to an amendment agreement between the
parties.
B. Exide and Daramic now desire to further amend the terms and conditions
of the NA Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Delivery Terms.
(A) Section 8.2 of the NA Agreement is amended by deleting that section
and substituting the following subparagraph therefor:
Daramic will use its commercially reasonable efforts to ensure that
all domestic, North American, Austral-Asian, and European orders,
scheduled for pick up or delivery, will be available for pick up or
delivered on the dates reasonably requested by Exide. Further, Daramic
will use its commercially reasonable efforts to continue to maintain
inventories of Exide specific products in order to meet the delivery
schedules reasonably requested by Exide. Exide shall make required
forecasts and shall order product in amounts reasonably consistent
with prior ordering volumes and Exide's business requirements.
However, in no event shall the above standards be construed to be at a
level greater than historically practiced by Daramic on behalf of
Exide. Further, any inventory produced by Daramic on behalf of Exide
which is reasonably consistent with Exide's prior ordering volumes and
Exide's forecasts will be purchased by Exide pursuant to the payment
terms of this Agreement, should Exide discontinue the need for any
such specific product(s) maintained in inventory by Daramic on behalf
of Exide. Exide shall promptly notify Daramic upon Exide's
discontinuing the need for any such specific product(s). However, in
no event shall Exide be required to purchase any inventory maintained
by Daramic on Exide's behalf, after such notification by Exide, in
excess of a [*****] supply of any product type, which shall be
determined by taking the average [*****] actual purchases by Exide
over the previous six-month period or the average forecasts by Exide
over the previous six-month period, whichever is greater. If Daramic
is unable to deliver product ordered by Exide pursuant to this
Agreement, then Daramic will provide Exide with as much notice as
possible of its inability to do so, and Exide will have the right to
buy the affected volumes from an alternative source. These outside
purchases will be counted toward satisfaction of Exide's Minimum
Purchase Requirement. The parties agree that they shall work together
in good faith to obtain for Exide battery separators which the parties
mutually agree to be the best available substitute for the Separators
to be provided by Daramic pursuant to this Agreement during such
period as Daramic is
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unable to deliver product ordered by Exide pursuant to this Agreement.
[*****]. Once Daramic is again capable of producing and supplying the
required volumes on a timely basis, Exide shall resume its purchases
from Daramic in accordance with this Agreement.
(B) Section 10.2 of the Automotive and Industrial Supply Agreement is
amended by deleting the first two sentences therein and substituting the
following subparagraph therefor:
Daramic will use its commercially reasonable efforts to ensure that
all domestic, North American, Austral-Asian, and European orders,
scheduled for pick up or delivery, will be available for pick up or
delivered on the dates reasonably requested by Exide. Further, Daramic
will use its commercially reasonable efforts to continue to maintain
inventories of Exide specific products in order to meet the delivery
schedules reasonably requested by Exide. Exide shall make required
forecasts and shall order product in amounts reasonably consistent
with prior ordering volumes and Exide's business requirements.
However, in no event shall the above standards be construed to be at a
level greater than historically practiced by Daramic on behalf of
Exide. Further, any inventory produced by Daramic on behalf of Exide
which is reasonably consistent with Exide's prior ordering volumes and
Exide's forecasts will be purchased by Exide pursuant to the payment
terms of this Agreement, should Exide discontinue the need for any
such specific product(s) maintained in inventory by Daramic on behalf
of Exide. Exide shall promptly notify Daramic upon Exide's
discontinuing the need for any such specific product(s). However, in
no event shall Exide be required to purchase any inventory maintained
by Daramic on Exide's behalf, after such notification by Exide, in
excess of a [*****] supply of any product type, which shall be
determined by taking the average [*****] actual purchases by Exide
over the previous six-month period or the average forecasts by Exide
over the previous six-month period, whichever is greater.
Also, Section 10.2 of the Automotive and Industrial Supply Agreement is further
amended by deleting the fourth sentence therein (beginning with "If Daramic is
unable....") and substituting the following therefor:
If Daramic is unable to deliver Qualified Products ordered by Exide
pursuant to this Agreement, then Daramic will within 24 hours provide
Exide with notice of its inability to do so.
(C) Section 9.2 of the Golf Cart Separator Supply Agreement is hereby
amended by deleting the first two sentences therein and substituting the
following subparagraph therefor:
Daramic will use its commercially reasonable efforts to ensure that
all domestic, North American, Austral-Asian, and European orders,
scheduled for pick up or delivery, will be available for pick up or
delivered on the dates reasonably requested by Exide. Further, Daramic
will use its commercially reasonable efforts to continue to maintain
inventories of Exide specific products in order to meet the delivery
schedules reasonably requested by Exide. Exide shall make required
forecasts and shall order product in amounts reasonably consistent
with prior ordering volumes and Exide's business requirements.
However, in no event shall the above standards be construed to be at a
level greater than historically practiced by
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Daramic on behalf of Exide. Further, any inventory produced by Daramic
on behalf of Exide which is reasonably consistent with Exide's prior
ordering volumes and Exide's forecasts will be purchased by Exide
pursuant to the payment terms of this Agreement, should Exide
discontinue the need for any such specific product(s) maintained in
inventory by Daramic on behalf of Exide. Exide shall promptly notify
Daramic upon Exide's discontinuing the need for any such specific
product(s). However, in no event shall Exide be required to purchase
any inventory maintained by Daramic on Exide's behalf, after such
notification by Exide, in excess of a [*****] supply of any product
type, which shall be determined by taking the average [*****] actual
purchases by Exide over the previous six-month period or the average
forecasts by Exide over the previous six-month period, whichever is
greater.
Also, Section 9.2 of the Golf Cart Separator Supply Agreement is further amended
by deleting the fourth sentence therein (beginning with "If Daramic is unable .
.. .") and substituting the following therefor:
If Daramic is unable to deliver Separators ordered by Exide pursuant
to this Agreement, then Daramic will within 24 hours provide Exide
with notice of its inability to do so.
2. Lump Sum Credits. Section 2.7 of the NA Agreement is amended as
follows: The Lump Sum Credit for calendar year 2002 shall be [*****]. The Lump
Sum Credits for each of calendar years 2003 through 2009 shall be [*****]. The
balance of Section 2.7 shall remain unchanged.
3. Payment Terms. Section 5 of the NA Agreement shall be amended by
adding the following: Exide's total global worldwide credit limit for all
products purchased and other sums due to Daramic under both the NA Agreement and
any other supply relationship, including without limitation, the Golf Cart
Separator Supply Contract dated __ day of July, 2001 between Daramic and Exide
(the "Golf Cart Agreement") and the Automotive and Industrial Supply Contract
dated __ day of July 2001 by and between Daramic and Exide (the "AI Agreement"),
shall not exceed [*****] U.S. Dollars ("Credit Line Cap") during the period that
Exide is operating pursuant to and under Title 11 of the United States
Bankruptcy Code. [*****] Once Exide is no longer operating pursuant to and under
Title 11 of the United States Bankruptcy Code, the Credit Line Cap shall be
increased from [*****] U.S. Dollars to [*****] U.S. Dollars.
[*****]
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4. Miscellaneous. Capitalized forms used in this Amendment but not defined
herein shall have the meanings set forth in the NA Agreement, the Automotive and
Industrial Supply Agreement and the Golf Cart Separator Supply Agreement. Except
as modified by this Amendment No. 2, the NA Agreement, the Automotive and
Industrial Supply Agreement, and the Golf Cart Separator Supply Agreement shall
remain in full force and effect as modified previously.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above mentioned.
EXIDE TECHNOLOGIES, for itself DARAMIC, INC.
and on behalf of all of its present and
future, direct and indirect, parent, By: [Illegible]
subsidiary, and affiliated entities on a --------------------
worldwide basis Its: ___________________
By: [Illegible]
----------------------------
Its: ___________________________
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