EXHIBIT 10.17
Letter of Undertaking
Date: 24 May 2002
To: Batteries Funding Limited ("Batteries Funding "); and
Citibank, N.A., London Branch as Operating Agent and Servicer under the
Origination Agreements and Agent under the Facilities Agreement,
Dear Sirs
1. We refer to the following agreements:
(i) the Receivables Securitisation Deed dated as of the date hereof
between CMP Batteries Limited, Exide (Dagenham) Limited, Deta UK
Limited, Fulmen (U.K.) Limited (together with any additional
member of the Exide Europe Group acceding to the Receivables
Securitisation Deed after the date hereof, the "UK Originators"),
ourselves as Offer Agent, Batteries Funding and Citibank, N.A. as
Operating Agent (the "U.K. Origination Agreement");
(ii) (a) the Receivables Subrogation Agreement dated 6 June 1997 (as
amended on the date hereof) between Compagnie Europeenne
d'Accumulateurs S.A.S. (together with any additional member of
the Exide Europe Group acceding to the Receivables Subrogation
Agreement after the date hereof, the "French Originators"), Exide
Europe Funding Ltd. ("Exide Funding"), ourselves as Offer Agent
and Citibank, N.A. as Operating Agent and (b) the Onward
Receivables Sale Agreement dated as of the date hereof between
Exide Funding, ourselves as Offer Agent, Batteries Funding and
the Operating Agent (the "French Origination Agreements");
(iii) the Receivables Sale Agreement dated as of the date hereof
between Sociedad Espanola del Acumulador Tudor, S.A., Fulmen
Iberica S.L. (together with any additional member of the Exide
Europe Group acceding to such Receivables Sale Agreement after
the date hereof, (the "Spanish Originators"), ourselves as Offer
Agent, Batteries Funding and Citibank, N.A., as Operating Agent
(the "Spanish Origination Agreement");
(iv) (a) the Receivables Purchase Agreement dated 3 June 1997 (as
amended on the date hereof) between Societa Industriale
Accumulatori S.r.l. and Compagnia Generale Accumulatori S.p.A.
(now Exide Italia S.r.l.) (together with any additional member of
the Exide Europe Group acceding to the Receivables Sale Agreement
after the date hereof, the "Italian Originators"), ourselves as
Offer Agent, Archimede Securitisation s.r.l. and Citibank, N.A.
as the Operating Agent and (b) the Onward Sale Agreement dated as
of the date hereof between Archimede Securitisation s.r.l.,
Batteries Funding and the Operating Agent (the "Italian
Origination Agreements"); the Receivables Sale Agreement dated as
of the date hereof between Exide Automotive Batterie GmbH,
Deutsche Exide GmbH and Deutsche Exide Standby GmbH (together
with any additional member of the Exide Europe
(v) Group acceding to such Receivables Sale Agreement after the date
hereof, the "German Originators" and, together with the UK
Originators, the French Originators, the Spanish Originators and
the Italian Originators, the "Originators"), ourselves as Offer
Agent, Batteries Funding and Citibank, N.A. as Operating Agent
(the "German Origination Agreement" and, together with the UK
Origination Agreement, the French Origination Agreements, the
Spanish Origination Agreement and the Italian Origination
Agreements, the "Origination Agreements"); and
(vi) the Facilities Agreement dated the date hereof among Batteries
Funding, Citibank, N.A., London Branch as Agent and Arranger and
the lenders from time to time party to the Facilities Agreement
(the "Facilities Agreement").
2. Unless otherwise specified in this letter, terms defined in the Origination
Agreements shall have the same meanings when used herein.
3. Any reference in this letter to any other agreement or document shall,
unless the context otherwise requires, include that other agreement or
document as from time to time amended, supplemented or novated and any
document which amends, supplements or novates that other agreement or
document.
4. We hereby confirm to you that the Facilities Agreement and the Origination
Agreements, all their respective terms and conditions and all related
documents, fully meet our approval.
5. We are aware that the Facilities Agreement and the Origination Agreements
have been entered into on the condition that, inter alia, our indirect and
beneficial ownership of at least 80 % of the issued share capital of each
Originator and Exide Funding and we control each Originator and Exide
Funding. We are further aware that the Facilities Agreement and the
Origination Agreements have been entered into in reliance on this Letter of
Undertaking.
6. We confirm that we currently own indirectly and beneficially at least 80 %
of the issued share capital of each Originator and Exide Funding and that
we control each Originator and Exide Funding and we covenant, subject to
paragraph 6 below, that we will not reduce our percentage shareholding or
alter our control of each Originator and Exide Funding (so long as Exide
Funding is a party to any Relevant Document) until the Facilities Agreement
and the Origination Agreements have been terminated and all obligations
under the Origination Agreements to each of you have been met by the
Originators and Exide Funding.
7. We undertake to you that in the event that our percentage shareholding in
any Originator falls below 80% of the issued share capital of such
Originator or that we cease to control such Originator, we shall ensure
that (a) you (or, as the case may be, Archimede or Exide Funding) will
receive from such Originator, prior to the date on which our shareholding
falls below 80% of the issued share of such Originator or we cease to
control such Originator, an amount equal to the Outstanding Balance of the
Receivables which have been purchased from such Originator (such amount to
be treated as a Collection for the purpose of the relevant Origination
Agreement) and that such Originator will cease to
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offer to sell Receivables under the terms of the Origination Agreement to
which it is a party.
8. We further covenant to ensure that each Originator and Exide Funding (in
each of their capacities under the Origination Agreements) at all times
duly perform and comply with all their obligations to each of you under or
in connection with the Origination Agreements and, in particular, that we
will at all times take all measures necessary or desirable to ensure that
the billing, credit and collection policies and procedures of such
Originator and Exide Funding are not changed in any way that may materially
adversely affect the interests of either of you under the Origination
Agreements. We further covenant that we will comply with our obligations in
this paragraph 8 even if any of the relevant obligations of the Originators
or Exide Funding under the Origination Agreements are determined by a court
of competent jurisdiction to be invalid or unenforceable.
9. Without limiting our covenant in paragraph 7 above, we further covenant to
either ensure that: (i) each Originator and Exide Funding will at all times
duly perform and comply with or (ii) we will perform and comply with, on
behalf of each Originator and Exide Funding, all reporting, documentary and
calculation requirements of the Originators and Exide Funding under the
Origination Agreements and that the same are met in a timely fashion.
10. We further covenant to provide you with immediate notice upon becoming
aware of any of any breach by any Originator or Exide Funding of any of its
obligations under the Origination Agreements and any of the events
described in (A), (B) or (C) below or any event which, with the giving of
notice or lapse of time or both, would constitute one of such events:
(A) Any Originator or Exide Funding fails to pay any principal of or
premium or interest on any debt, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such debt, or any other default under any
agreement or instrument relating to any debt, or any other event,
shall occur and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
default or event is to accelerate or to permit the acceleration of the
maturity of such debt, or any such debt shall be declared to be due
and payable or required to be prepaid (other than by a regularly
scheduled required prepayment) prior to the stated maturity thereof,
or any present or future mortgage, charge or other security interest
on or over any assets of such Originator or Exide Funding becomes
enforceable;
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(B) a resolution is passed or a petition is presented or an order made for
the winding up, liquidation, dissolution, merger or consolidation of
such Originator or Exide Funding (except for the purposes of a bona
fide reconstruction or amalgamation with your consent), or a petition
is presented or an order made for the appointment of an administrator
in relation to any Originator or Exide Funding,or a receiver,
administrative receiver or manager is appointed over any part of the
assets or undertaking of any Originator or Exide Funding, or any event
analogous, to any of the foregoing occurs (except, in the case where a
petition is presented (i) the proceeding is frivolous or vexatious and
(ii) such Originators or Exide Funding is solvent and is contesting
the proceeding in good faith); or
(C) an Early Amortisation Event under any of the Origination Agreements
occurs.
11. We undertake that we will provide to the Operating Agent all documents
which Exide Technologies, ourselves or any European Affiliate of Exide
Technologies is required to provide under the US DIP Facility Agreement in
relation to ourselves and such European Affiliate as and when the same are
provided under the US DIP Facility Agreement.
12. This Letter of Undertaking is governed by the laws of England. We hereby
irrevocably and for your benefit submit to the jurisdiction of the courts
of England in any action or proceeding arising out of or relating to this
letter, and hereby irrevocably agree that all claims in respect of such
action or proceeding may be heard and determined in such courts. We hereby
irrevocably waive, to the fullest extent that we may effectively do so, the
defence of an inconvenient forum to the maintenance of such action or
proceeding. We agree that a final judgement in any action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgement or in any other manner provided by law. We irrevocably
appoint the Person specified against our signature to accept any service of
any process on our behalf and further undertake that we will at all times
during the continuance of this letter maintain the appointment of some
Person in England as its agent for the service of process and irrevocably
agree that the service of any writ, notice or other document for the
purposes of any suit, action or proceeding in the courts of England shall
be duly served upon it if delivered or sent to the address of such
appointee (or to such other address in England as that party may notify to
the other parties hereto).
Yours faithfully
__________________________ Process Agent:
EXIDE HOLDING EUROPE S.A. CMP Batteries Limited
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