US GENERAL CONTINUING GUARANTY
Exhibit 10.3
EXECUTION VERSION
THIS US GENERAL CONTINUING GUARANTY (this “Guaranty”), dated as of January 25, 2011,
is executed and delivered by EXIDE TECHNOLOGIES, a Delaware corporation (the “Company”) and
any Additional Guarantor (as defined below) who may become a party to this Guaranty (the Company
and the Additional Guarantors, collectively, the “Guarantors”, and individually, a
“Guarantor”), in favor of XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability
company, as agent for the Lender Group and the Bank Product Providers (in such capacity, together
with its successors and assigns, if any, in such capacity, “Agent”), in light of the
following:
WHEREAS, the Company, the other US Borrowers, Exide Global Holding Netherlands C.V., a limited
partnership organized under the laws of the Netherlands (the “Foreign Borrower” and,
together with the Company and the other US Borrowers, the “Borrowers” and individually, a
“Borrower”), the Lenders, and Agent are, contemporaneously herewith, entering into that
certain Credit Agreement of even date herewith (as amended, restated, modified, renewed or extended
from time to time, the “Credit Agreement”);
WHEREAS, each Guarantor will directly benefit by virtue of the financial accommodations
extended to the Borrowers by the Lender Group; and
WHEREAS, in order to induce the Lender Group to enter into the Credit Agreement and the other
Loan Documents and to extend the loans and other financial accommodations to the Borrowers pursuant
to the Credit Agreement, and in consideration thereof, and in consideration of any loans or other
financial accommodations heretofore or hereafter extended by the below defined Lender Group to the
Borrowers pursuant to the Loan Documents, each Guarantor has agreed to guaranty the Guarantied
Obligations.
NOW, THEREFORE, in consideration of the foregoing, each Guarantor hereby agrees as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement. The following terms, as
used in this Guaranty, shall have the following meanings:
“Additional Guarantor” means each other Person that becomes a US Guarantor after the
Closing Date pursuant to Section 5.12(a) of the Credit Agreement.
“Agent” has the meaning set forth in the preamble to this Guaranty.
“Agreement Currency” has the meaning set forth in Section 21 of this Guaranty.
“Borrowers” has the meaning set forth in the recitals to this Guaranty.
“Credit Agreement” has the meaning set forth in the recitals to this Guaranty.
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“Foreign Borrower” has the meaning set forth in the recitals to this Guaranty.
“Guarantied Obligations” means all of the Obligations (including any Bank Product
Obligations) now or hereafter existing, whether for principal, interest (including any interest
that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or
allowable in whole or in part as a claim in any such Insolvency Proceeding), fees (including the
fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that
accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or
allowable in whole or in part as a claim in any such Insolvency Proceeding), or otherwise, and any
and all expenses (including reasonable counsel fees and expenses) incurred by Agent, the Lenders or
the Issuing Lender (or any of them) in enforcing any rights under this Guaranty. Without limiting
the generality of the foregoing, Guarantied Obligations shall include all amounts that constitute
part of the Guarantied Obligations and would be owed by the Borrowers to Agent, the Lenders or the
Issuing Lender but for the fact that they are unenforceable or not allowable, including due to the
existence of a bankruptcy, reorganization, other Insolvency Proceeding or similar proceeding
involving any Borrower or any other Guarantor.
“Guarantor” has the meaning set forth in the preamble to this Guaranty.
“Guaranty” has the meaning set forth in the preamble to this Guaranty.
“Judgment Currency” has the meaning set forth in Section 21 of this Guaranty.
“Record” means information that is inscribed on a tangible medium or which is stored
in an electronic or other medium and is retrievable in perceivable form.
“Voidable Transfer” has the meaning set forth in Section 9 of this Guaranty.
(b) Construction. Unless the context of this Guaranty clearly requires
otherwise, references to the plural include the singular, references to the singular include the
plural, the part includes the whole, the terms “includes” and “including” are not limiting, and
the term “or” has, except where otherwise indicated, the inclusive meaning represented by the
phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and other similar terms in
this Guaranty refer to this Guaranty as a whole and not to any particular provision of this
Guaranty. Section, subsection, clause, schedule, and exhibit references herein are to this
Guaranty unless otherwise specified. Any reference in this Guaranty to any agreement, instrument,
or document shall include all alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).
Neither this Guaranty nor any uncertainty or ambiguity herein shall be construed or resolved
against the Lender Group or the Borrowers, whether under any rule of construction or otherwise. On
the contrary, this Guaranty has been reviewed by all parties and shall be construed and interpreted
according to the ordinary meaning of the words used so as to accomplish fairly the purposes and
intentions of each Guarantor and Agent. Any reference herein to the satisfaction, repayment, or
payment in full of the Guarantied Obligations shall mean the repayment in full in cash or
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immediately available funds (or, (a) in the case of contingent reimbursement obligations with
respect to Letters of Credit, providing Letter of Credit Collateralization, and (b) in the case of
obligations with respect to Bank Products (other than Hedge Obligations), providing Bank Product
Collateralization) of all of the Guarantied Obligations (including the payment of any termination
amount then applicable (or which would or could become applicable as a result of the repayment of
the other Guarantied Obligations) under Hedge Agreements provided by Hedge Providers) other than
(i) unasserted contingent indemnification Guarantied Obligations, (ii) any Bank Product Obligations
(other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product
Provider to remain outstanding without being required to be repaid or cash collateralized, and
(iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to
remain outstanding without being required to be repaid. Any reference herein to any Person shall be
construed to include such Person’s successors and permitted assigns. Any requirement of a writing
contained herein shall be satisfied by the transmission of a Record and any Record transmitted
shall constitute a representation and warranty as to the accuracy and completeness of the
information contained therein. The captions and headings are for convenience of reference only and
shall not affect the construction of this Guaranty.
2. Guarantied Obligations. Each Guarantor hereby irrevocably and unconditionally
jointly and severally guarantees to Agent, for the benefit of the Lender Group and the Bank Product
Providers, as and for its own debt, until the final payment in full thereof, in cash, has been
made, (a) the due and punctual payment of the Guarantied Obligations, when and as the same shall
become due and payable, whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of each Guarantor that the guaranty set forth
herein shall be a guaranty of payment and not a guaranty of collection; and (b) the punctual and
faithful performance, keeping, observance, and fulfillment by the Borrowers of all of the
agreements, conditions, covenants, and obligations of the Borrowers contained in the Credit
Agreement and under each of the other Loan Documents.
As an original and independent obligation under this Guaranty, each Guarantor shall (a)
indemnify Agent, each member of the Lender Group and each Bank Product Provider and keep Agent,
each member of the Lender Group and each Bank Product Provider indemnified against any cost, loss,
expense or liability of whatever kind resulting from the failure by a Borrower to make due and
punctual payment of any of the Guarantied Obligations or resulting from any of the Guarantied
Obligations being or becoming void, voidable, unenforceable or ineffective against any Borrower
(including, but without limitation, all legal and other costs, charges and expenses incurred by
Agent, the Lender Group or the Bank Product Providers, or any of them in connection with preserving
or enforcing, or attempting to preserve or enforce its rights under this Guaranty); and (b) pay on
demand the amount of such cost, loss, expense or liability whether or not Agent, the Lender Group
or the Bank Product Providers have attempted to enforce any rights against any Borrower or any
other person or otherwise.
3. Continuing Guaranty. This Guaranty includes Guarantied Obligations arising under
successive transactions continuing, compromising, extending, increasing, modifying, releasing, or
renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied
Obligations have been satisfied in whole or in part. To the maximum extent
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permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future
Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver,
each Guarantor acknowledges and agrees that (a) no such revocation shall be effective until written
notice thereof has been received by Agent, (b) no such revocation shall apply to any Guarantied
Obligations in existence on the date of receipt by Agent of such written notice (including any
subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment
terms, or other terms and conditions thereof), (c) no such revocation shall apply to any Guarantied
Obligations made or created after such date to the extent made or created pursuant to a legally
binding commitment of the Lender Group in existence on the date of such revocation, (d) no payment
by any Guarantor, the Borrowers, or from any other source, prior to the date of Agent’s receipt of
written notice of such revocation shall reduce the maximum obligation of any Guarantor hereunder,
and (e) any payment by the Borrowers or from any source other than any Guarantor subsequent to the
date of such revocation shall first be applied to that portion of the Guarantied Obligations as to
which the revocation is effective and which are not, therefore, guarantied hereunder, and to the
extent so applied shall not reduce the maximum obligation of any Guarantor hereunder.
4. Performance Under this Guaranty. In the event that any Borrower fails to make any
payment of any Guarantied Obligations, on or prior to the due date thereof, or if any Borrower
shall fail to perform, keep, observe, or fulfill any other obligation referred to in clause
(b) of Section 2 of this Guaranty in the manner provided in the Credit Agreement or any
other Loan Document, each Guarantor immediately shall cause, as applicable, such payment in respect
of the Guarantied Obligations to be made or such obligation to be performed, kept, observed, or
fulfilled.
5. Primary Obligations. This Guaranty is a primary and original obligation of each
Guarantor, is not merely the creation of a surety relationship, and is an absolute, unconditional,
and continuing guaranty of payment and performance which shall remain in full force and effect
without respect to future changes in conditions. Each Guarantor hereby agrees that it is directly,
jointly and severally with each other guarantor of the Guarantied Obligations, liable to Agent, for
the benefit of the Lender Group and the Bank Product Providers, that the obligations of each
Guarantor hereunder are independent of the obligations of any Borrower or any other guarantor, and
that a separate action or actions may be brought against each Guarantor, whether such action is
brought against any Borrower or any other guarantor or whether any Borrower or any other guarantor
is joined in such action or actions. Each Guarantor hereby agrees that its liability hereunder
shall be immediate and shall not be contingent upon the exercise or enforcement by any member of
the Lender Group or any Bank Product Provider of whatever remedies they may have against any
Borrower or any other guarantor, or the enforcement of any lien or realization upon any security by
any member of the Lender Group or any Bank Product Provider. Each Guarantor hereby agrees that any
release which may be given by Agent to any Borrower or any other guarantor, or with respect to any
property or asset subject to a Lien, shall not release such Guarantor. Each Guarantor consents and
agrees that no member of the Lender Group nor any Bank Product Provider shall be under any
obligation to marshal any property or assets of any Borrower or any other guarantor in favor of
such Guarantor, or against or in payment of any or all of the Guarantied Obligations.
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6. Waivers.
(a) To the fullest extent permitted by applicable Law, each Guarantor hereby
waives: (i) notice of acceptance hereof; (ii) notice of any loans or other financial accommodations
made or extended under the Credit Agreement, or the creation or existence of any Guarantied
Obligations; (iii) notice of the amount of the Guarantied Obligations, subject, however, to such
Guarantor’s right to make inquiry of Agent to ascertain the amount of the Guarantied Obligations at
any reasonable time; (iv) notice of any adverse change in the financial condition of any Borrower
or of any other fact that might increase such Guarantor’s risk hereunder; (v) notice of presentment
for payment, demand, protest, and notice thereof as to any instrument among the Loan Documents;
(vi) notice of any Default or Event of Default under any of the Loan Documents; and (vii) all other
notices (except if such notice is specifically required to be given to such Guarantor under this
Guaranty or any other Loan Documents to which such Guarantor is a party) and demands to which such
Guarantor might otherwise be entitled.
(b) To the fullest extent permitted by applicable Law, each Guarantor hereby
waives the right by statute or otherwise to require any member of the Lender Group or any Bank
Product Provider, to institute suit against any Borrower or any other guarantor or to exhaust any
rights and remedies which any member of the Lender Group or any Bank Product Provider, has or may
have against any Borrower or any other guarantor. In this regard, each Guarantor agrees that it is
bound to the payment of each and all Guarantied Obligations, whether now existing or hereafter
arising, as fully as if the Guarantied Obligations were directly owing to Agent, the Lender Group,
or the Bank Product Providers, as applicable, by such Guarantor. Each Guarantor further waives any
defense arising by reason of any disability or other defense (other than the defense that the
Guarantied Obligations shall have been fully and finally performed and indefeasibly paid in full in
cash, to the extent of any such payment) of any Borrower, any other guarantor or any other party or
by reason of the cessation from any cause whatsoever of the liability of any Borrower, any other
guarantor or any other party in respect thereof.
(c) To the fullest extent permitted by applicable Law, each Guarantor hereby
waives: (i) any right to assert against any member of the Lender Group or any Bank Product
Provider, any defense (legal or equitable), set-off, counterclaim, or claim which such Guarantor
may now or at any time hereafter have against any Borrower, any other guarantor or any other party
or any other party liable to any member of the Lender Group or any Bank Product Provider; (ii) any
defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly
from the present or future lack of perfection, sufficiency, validity, or enforceability of the
Guarantied Obligations or any security therefor; (iii) any right or defense arising by reason of
any claim or defense based upon an election of remedies by any member of the Lender Group or any
Bank Product Provider including any defense based upon an impairment or elimination of such
Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of such Guarantor
against any Borrower, any other guarantor, sureties or any other party; (iv) the benefit of any
statute of limitations affecting such Guarantor’s liability hereunder or the enforcement thereof,
and any act which shall defer or delay the operation of any statute of limitations applicable to
the Guarantied Obligations shall similarly operate to defer or delay the operation of such statute
of limitations applicable to such Guarantor’s liability hereunder.
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(d) Until the Obligations have been indefeasibly paid in full in cash, (i) each
Guarantor hereby postpones and agrees not to exercise any right of subrogation such Guarantor has
or may have as against any Borrower with respect to the Obligations; (ii) each Guarantor hereby
postpones and agrees not to exercise any right to proceed against any Borrower or any other Person
now or hereafter liable on account of the Obligations for contribution, indemnity, reimbursement,
or any other similar rights (irrespective of whether direct or indirect, liquidated or contingent);
and (iii) each Guarantor hereby postpones and agrees not to exercise any right it may have to
proceed or to seek recourse against or with respect to any property or asset of any Borrower or any
other Person now or hereafter liable on account of the Obligations. Notwithstanding anything to
the contrary contained in this Guaranty, each Guarantor shall not exercise any rights of
subrogation, contribution, indemnity, reimbursement or other similar rights against, and shall not
proceed or seek recourse against or with respect to any property or asset of, any Borrower or any
other guarantor (including after payment in full of the Obligations) if all or any portion of the
Obligations have been satisfied in connection with an exercise of remedies in respect of the Stock
of any Borrower or such other guarantor whether pursuant to the Security Agreement or otherwise.
(e) If any of the Guarantied Obligations or the obligations of any Guarantor under
this Guaranty at any time are secured by a mortgage or deed of trust upon real property, any member
of the Lender Group or any Bank Product Provider may elect, in its sole discretion, upon a default
with respect to the Guarantied Obligations or the obligations of any Guarantor under this Guaranty,
to foreclose such mortgage or deed of trust judicially or nonjudicially in any manner permitted by
Law, before or after enforcing this Guaranty, without diminishing or affecting the liability of
such Guarantor hereunder. Each Guarantor understands that (a) by virtue of the operation of
antideficiency law applicable to nonjudicial foreclosures, an election by any member of the Lender
Group or any Bank Product Provider to nonjudicially foreclose on such a mortgage or deed of trust
probably would have the effect of impairing or destroying rights of subrogation, reimbursement,
contribution, or indemnity of such Guarantor against any Borrower, any other guarantor, sureties or
any other Person, and (b) absent the waiver given by any Guarantor herein, such an election would
estop any member of the Lender Group and the Bank Product Providers from enforcing this Guaranty
against any Guarantor. Understanding the foregoing, and understanding that each Guarantor is
hereby relinquishing a defense to the enforceability of this Guaranty, each Guarantor hereby waives
any right to assert against any member of the Lender Group or any Bank Product Provider any defense
to the enforcement of this Guaranty, whether denominated “estoppel” or otherwise, based on or
arising from an election by any member of the Lender Group or any Bank Product Provider to
nonjudicially foreclose on any such mortgage or deed of trust or as a result of any other exercise
of remedies, whether under a mortgage or deed of trust or under any personal property security
agreement. Each Guarantor understands that the effect of the foregoing waiver may be that such
Guarantor may have liability hereunder for amounts with respect to which such Guarantor may be left
without rights of subrogation, reimbursement, contribution, or indemnity against any Borrower, any
other guarantors, sureties or any other Person.
(f) Without limiting the generality of any other waiver or other provision set
forth in this Guaranty, each Guarantor waives all rights and defenses that such Guarantor may have
if all or part of the Guarantied Obligations are secured by real property. This means, among other
things:
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(i) Any member of the Lender Group or any Bank Product Provider may collect from
each Guarantor without first foreclosing on any real or personal property collateral that may be
pledged by such Guarantor, the Borrowers, or any other guarantor.
(ii) If any member of the Lender Group or any Bank Product Provider forecloses on
any real property collateral that may be pledged by any Guarantor, any Borrower or any other
guarantor:
| (A) | The amount of the Guarantied Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price. | ||
| (B) | Agent may collect from each Guarantor even if any member of the Lender Group or any Bank Product Provider, by foreclosing on the real property collateral, has destroyed any right such Guarantor may have to collect from any Borrower or any other Guarantor. |
This is an unconditional and irrevocable waiver of any rights and defenses each Guarantor may
have if all or part of the Guarantied Obligations are secured by real property.
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET
FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF
REMEDIES BY ANY MEMBER OF THE LENDER GROUP OR ANY BANK PRODUCT PROVIDER, EVEN THOUGH SUCH ELECTION
OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR THE GUARANTIED
OBLIGATIONS, HAS DESTROYED SUCH GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST ANY
BORROWER BY THE OPERATION OF APPLICABLE LAW.
(h) Without limiting the generality of any other waiver or other provision set
forth in this Guaranty, each Guarantor hereby also agrees to the following waivers:
(i) Agent’s right to enforce this Guaranty is absolute and is not contingent upon
the genuineness, validity or enforceability of the Guarantied Obligations or any of the Loan
Documents. Each Guarantor agrees that Agent’s rights under this Guaranty shall be enforceable even
if the Borrowers had no liability at the time of execution of the Loan Documents or the Guarantied
Obligations are unenforceable in whole or in part, or the Borrowers cease to be liable with respect
to all or any portion of the Guarantied Obligations.
(ii) Each Guarantor agrees that Agent’s rights under the Loan Documents will
remain enforceable even if the amount guaranteed hereunder is larger in amount and more burdensome
than that for which the Borrowers are responsible. The enforceability of this Guaranty against
each Guarantor shall continue until all sums due under the Loan Documents have been paid in full
and shall not be limited or affected in any way by any impairment or any diminution or loss of
value of any security or collateral for Borrowers’ obligations under the Loan Documents, from
whatever cause, the failure of any security interest in any such security or
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collateral or any disability or other defense of any Borrower, any other guarantor of the
Borrowers’ obligations under any other Loan Document, any pledgor of collateral for any Person’s
obligations to Agent or any other Person in connection with the Loan Documents.
(iii) Each Guarantor waives the right to require Agent to (A) proceed against any
Borrower, any guarantor of the Borrowers’ obligations under any Loan Document, any other pledgor of
collateral for any Person’s obligations to Agent or any other Person in connection with the
Guarantied Obligations, (B) proceed against or exhaust any other security or collateral Agent may
hold, or (C) pursue any other right or remedy for such Guarantor’s benefit, and agrees that Agent
may exercise its right under this Guaranty without taking any action against any Borrower, any
other guarantor of Borrowers’ obligations under the Loan Documents, any pledgor of collateral for
any Person’s obligations to Agent or any other Person in connection with the Guarantied
Obligations, and without proceeding against or exhausting any security or collateral Agent holds.
7. Releases. Each Guarantor consents and agrees that, without notice to or by such
Guarantor and without affecting or impairing the obligations of each Guarantor hereunder, any
member of the Lender Group or any Bank Product Provider may, by action or inaction, compromise or
settle, shorten or extend the Maturity Date or any other period of duration or the time for the
payment of the Obligations, or discharge the performance of the Obligations, or may refuse to
enforce the Obligations, or otherwise elect not to enforce the Obligations, or may, by action or
inaction, release all or any one or more parties to, any one or more of the terms and provisions of
the Credit Agreement or any of the other Loan Documents or may grant other indulgences to the
Borrowers or any other guarantor in respect thereof, or may amend or modify in any manner and at
any time (or from time to time) any one or more of the Obligations, the Credit Agreement or any
other Loan Document (including any increase or decrease in the principal amount of any Obligations
or the interest, fees or other amounts that may accrue from time to time in respect thereof), or
may, by action or inaction, release or substitute any Borrower or any guarantor of the Guarantied
Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for
the Guarantied Obligations or any other guaranty of the Guarantied Obligations, or any portion
thereof.
8. No Election. The Lender Group and the Bank Product Providers shall have the right
to seek recourse against each Guarantor to the fullest extent provided for herein and no election
by any member of the Lender Group or any Bank Product Provider to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a waiver of the Lender
Group’s or any Bank Product Provider’s right to proceed in any other form of action or proceeding
or against other parties unless Agent, on behalf of the Lender Group or the Bank Product Providers,
has expressly waived such right in writing. Specifically, but without limiting the generality of
the foregoing, no action or proceeding by the Lender Group or the Bank Product Providers under any
document or instrument evidencing the Guarantied Obligations shall serve to diminish the liability
of each Guarantor under this Guaranty except to the extent that the Lender Group and the Bank
Product Providers finally and unconditionally shall have realized indefeasible payment in full of
the Guarantied Obligations by such action or proceeding.
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9. Revival and Reinstatement. If the incurrence or payment of the Guarantied
Obligations or the obligations of any Guarantor under this Guaranty by such Guarantor or the
transfer by any Guarantor to Agent of any property of such Guarantor should for any reason
subsequently be declared to be void or voidable under applicable Law relating to creditors’ rights,
including provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or
other voidable or recoverable payments of money or transfers of property (collectively, a
“Voidable Transfer”), and if the Lender Group is required to repay or restore, in whole or
in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel,
then, as to any such Voidable Transfer, or the amount thereof that the Lender Group is required or
elects to repay or restore, and as to all reasonable costs, expenses, and attorneys fees of the
Lender Group related thereto, the liability of each Guarantor automatically shall be revived,
reinstated, and restored and shall exist as though such Voidable Transfer had never been made.
10. Financial Condition of the Borrowers. Each Guarantor represents and warrants to
the Lender Group and the Bank Product Providers that it is currently informed of the financial
condition of the Borrowers and of all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment of the Guarantied Obligations. Each Guarantor further
represents and warrants to the Lender Group and the Bank Product Providers that it has read and
understands the terms and conditions of the Credit Agreement and each other Loan Document. Each
Guarantor hereby covenants that it will continue to keep itself informed of the Borrowers’
financial condition, the financial condition of other guarantors, and of all other circumstances
which bear upon the risk of nonpayment or nonperformance of the Guarantied Obligations.
11. Payments; Application. All payments to be made hereunder by any Guarantor shall
be made in Dollars, in immediately available funds in full, without set-off or counterclaim and
without deduction for any taxes, levies, duties, fees, deductions, withholdings, restrictions or
conditions of any nature whatsoever and shall be applied to the Guarantied Obligations in
accordance with the terms of the Credit Agreement.
12. Attorneys Fees and Costs. Each Guarantor agrees to pay, on demand, all attorneys
fees and all other costs and expenses which may be incurred by Agent or the Lender Group in
connection with the enforcement of this Guaranty or in any way arising out of, or consequential to,
the protection, assertion, or enforcement of the Guarantied Obligations (or any security therefor),
irrespective of whether suit is brought.
13. Notices. All notices and other communications hereunder to Agent shall be in
writing and shall be mailed, sent, or delivered in accordance Section 11 of the Credit
Agreement. All notices and other communications hereunder to the Guarantors shall be in writing
and shall be mailed, sent, or delivered in care of the Company in accordance with Section
11 of the Credit Agreement.
14. Cumulative Remedies. No remedy under this Guaranty, under the Credit Agreement,
or any other Loan Document is intended to be exclusive of any other remedy, but each and every
remedy shall be cumulative and in addition to any and every other remedy given under this Guaranty,
under the Credit Agreement, or any other Loan Document, and those
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provided by law. No delay or omission by the Lender Group or Agent on behalf thereof to
exercise any right under this Guaranty shall impair any such right nor be construed to be a waiver
thereof. No failure on the part of the Lender Group or Agent on behalf thereof to exercise, and no
delay in exercising, any right under this Guaranty shall operate as a waiver thereof; nor shall any
single or partial exercise of any right under this Guaranty preclude any other or further exercise
thereof or the exercise of any other right.
15. Severability of Provisions. Each provision of this Guaranty shall be severable
from every other provision of this Guaranty for the purpose of determining the legal enforceability
of any specific provision.
16. Entire Agreement; Amendments. This Guaranty constitutes the entire agreement
between the Guarantors and the Lender Group pertaining to the subject matter contained herein.
This Guaranty may not be altered, amended, or modified, nor may any provision hereof be waived or
noncompliance therewith consented to, except by means of a writing executed by any Guarantor and
Agent, on behalf of the Lender Group. Any such alteration, amendment, modification, waiver, or
consent shall be effective only to the extent specified therein and for the specific purpose for
which given. No course of dealing and no delay or waiver of any right or default under this
Guaranty shall be deemed a waiver of any other, similar or dissimilar, right or default or
otherwise prejudice the rights and remedies hereunder.
17. Successors and Assigns. This Guaranty shall be binding upon each Guarantor and
its successors and assigns and shall inure to the benefit of the successors and assigns of the
Lender Group and the Bank Product Providers; provided, however, each Guarantor
shall not assign this Guaranty or delegate any of its duties hereunder without Agent’s prior
written consent and any unconsented to assignment shall be absolutely null and void. In the event
of any assignment, participation, or other transfer of rights by the Lender Group or the Bank
Product Providers, the rights and benefits herein conferred upon the Lender Group and the Bank
Product Providers shall automatically extend to and be vested in such assignee or other transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit of each
member of the Lender Group, each Bank Product Provider, and each of their successors and assigns
and may not be relied on by any other Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
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THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK., STATE OF NEW YORK., PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE
TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 19.
EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVES THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH GUARANTOR AND EACH MEMBER OF THE LENDER GROUP
REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
SECTION MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
20. Counterparts; Telefacsimile Execution. This Guaranty may be executed in any
number of counterparts and by different parties on separate counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of which, when taken together,
shall constitute but one and the same Guaranty. Delivery of an executed counterpart of this
Guaranty by telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this Guaranty but the failure
to deliver an original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Guaranty.
21. Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking procedures Agent could
purchase the first currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each Guarantor in respect of any such sum due from it
to Agent or any Lender hereunder shall, notwithstanding any judgment in a currency (the
“Judgment Currency”) other than that in which such sum is denominated in accordance with
the applicable provisions of this Guaranty (the “Agreement Currency”), be discharged only
to the extent that on the Business Day following receipt by Agent or such Lender, as the case may
be, of any sum adjudged to be so due in the Judgment Currency, Agent or such Lender, as the case
-11-
may be, may in accordance with normal banking procedures purchase the Agreement Currency with
the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum
originally due to Agent or any Lender from any Guarantor in the Agreement Currency, such Guarantor
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify Agent or such
Lender, as the case may be, against such loss. If the amount of the Agreement Currency so
purchased is greater than the sum originally due to Agent or any Lender in such currency, Agent or
such Lender, as the case may be, agrees to return the amount of any excess to such Guarantor (or to
any other Person who may be entitled thereto under applicable Law).
22. Agreement to be Bound. Each Guarantor hereby agrees to be bound by each and all
of the terms and provisions of the Credit Agreement applicable to such Guarantor. Without limiting
the generality of the foregoing, by its execution and delivery of this Guaranty, each Guarantor
hereby: (a) makes to the Lender Group each of the representations and warranties set forth in the
Credit Agreement applicable to such Guarantor fully as though such Guarantor were a party thereto,
and such representations and warranties are incorporated herein by this reference, mutatis
mutandis; and (b) agrees and covenants (i) to do each of the things set forth in the Credit
Agreement that each Borrower agrees and covenants to cause any Guarantor to do, and (ii) to not do
each of the things set forth in the Credit Agreement that each Borrower agrees and covenants to
cause any Guarantor not to do, in each case, fully as though each Guarantor was a party thereto,
and such agreements and covenants are incorporated herein by this reference, mutatis mutandis.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as of the date first
written above.
| EXIDE TECHNOLOGIES, a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name Xxxx X. Xxxxxx | ||||
| Title: | Vice President,
Deputy General Counsel and Corporate Secretary |
|||
| XXXXX FARGO CAPITAL FINANCE, LLC, as Agent |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |||
| Name Xxxxxxxx Xxxxxxxxx | ||||
| Title: | Director | |||
