EXHIBIT 10.24
TWELFTH AMENDMENT
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TWELFTH AMENDMENT (this "Amendment"), dated as of March 31, 1997, among
EXIDE CORPORATION, a Delaware corporation (the "Company"), the lenders party to
the Credit Agreement referred to below (each a "Bank" and, collectively, the
"Banks"), BANKERS TRUST COMPANY, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, AND BANK OF MONTREAL, as Agents (each, an "Agent" and,
collectively, the "Agents"), and BANKERS TRUST COMPANY as Administrative Agent.
All capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
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WHEREAS, the Company, the Banks, the Agents and the Administrative Agent
are parties to a Credit Agreement, dated as of August 30, 1994, as amended,
modified or supplemented by the First Amendment thereto, dated as of October 21,
1994, the Second Consent, Waiver and Agreement with respect thereto, dated as of
December 9, 1994, the Third Amendment thereto, dated as of February 3, 1995, the
Consent and Waiver with respect thereto, dated as of February 21, 1995, the
Fourth Amendment thereto, dated as of March 6, 1995, the Waiver with respect
thereto, dated as of March 31, 1995, the Fifth Amendment and Consent thereto,
dated as of April 18, 1995, the Sixth Amendment and Consent thereto, dated as of
April 21, 1995, the Seventh Amendment and Consent thereto, dated as of April 24,
1995, the Eighth Amendment and Consent thereto, dated as of August 17, 1995, the
Ninth Amendment and Consent thereto, dated as of November 22, 1995, the Tenth
Amendment Consent and Agreement thereto, dated as of March 28, 1996, the
Eleventh Amendment, Consent, Waiver and Agreement thereto, dated as of May 17,
1996, and the Consent and Waiver, dated as of December 2, 1996 (as so amended,
modified or supplemented, the "Credit Agreement");
WHEREAS, the Company, through its Wholly-Owned Subsidiary Exide Holding
Europe S.A., wishes to acquire 100% of the capital stock of DETA (as defined
below) for consideration in the form of cash and assumed debt (the "DETA
Acquisition");
WHEREAS, the Company wishes to tender for, repurchase and/or redeem
and retire an amount greater than 50% of the outstanding Senior Subordinated
Notes (the "Senior Subordinated Notes Redemption");
WHEREAS, the Company has requested certain amendments and
modifications to the Credit Agreement in order to consummate the transactions
described in the two preceding recitals and to effect certain other changes to
the Credit Agreement and the Security Agreement;
WHEREAS, the parties hereto wish to further amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments and Modifications to Credit Agreement
1. On and after the Twelfth Amendment Effective Date (as defined in
Section III(5) below), Section 1.01 of the Credit Agreement shall be amended by
inserting the following new clause (g) immediately at the end of said Section
1.01:
"(g) Subject to and upon the terms and conditions set forth herein,
each Bank with a Tranche D Term Loan Commitment severally agrees to make,
on each Tranche D Term Loan Borrowing Date, a term loan (each, a "Tranche D
Term Loan" and, collectively, the "Tranche D Term Loans") to the Company,
which Tranche D Term Loans made on any Tranche D Term Loan Borrowing Date
(i) shall be made and initially maintained as a single Borrowing of Base
Rate Loans (subject to the option to convert such Tranche D Term Loans
pursuant to Section 1.06) and (ii) by each Bank shall be in a principal
amount that does not exceed the Tranche D Term Loan Commitment of such Bank
as in effect on such Tranche D Term Loan Borrowing Date (before giving
effect to any reductions thereto on such date pursuant to Section
3.03(s)(i) or (ii) but after giving effect to any reductions thereto prior
to such date pursuant to Sections 3.03(s)(i) and (ii) and on or prior to
such date pursuant to Section 3.03(s)(iii)). At the time of each
incurrence of Tranche D Term Loans pursuant to this Section 1.01(g), the
Company shall certify that cash in an amount equal to the amount of the
CEAc Acquisition Corp. Repatriation has theretofore been (or will
concurrently with the utilization of proceeds of the Tranche D Term Loans
be) utilized to make payments in connection with the Senior Subordinated
Notes Redemption and that all proceeds of the Tranche D Term Loans then
being borrowed will, within one Business Day after the respective Borrowing
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pursuant to this Section 1.01(g), be used to make additional payments owing
in connection with the Senior Subordinated Notes Redemption or to reimburse
the Company for payments theretofore made by it in connection with the
Senior Subordinated Notes Redemption which exceed the amount of the CEAc
Acquisition Corp. Repatriation and the gross cash proceeds of all Tranche D
Term Loans theretofore incurred by the Company. Once repaid, Tranche D Term
Loans incurred hereunder may not be reborrowed."
2. On and after the Twelfth Amendment Effective Date, Section
1.03(a) of the Credit Agreement shall be amended by inserting the phrase ",
Tranche D Term Loans" immediately following the phrase "Tranche C Term Loans"
appearing in the second sentence thereof.
3. On and after the Twelfth Amendment Effective Date, Section
1.05(a) of the Credit Agreement shall be amended by (1) deleting the word "and"
appearing at the end of clause (v) thereof and inserting in lieu thereof a comma
and (2) inserting immediately prior to the period at the end thereof the
following new clause (vii):
"and (vii) if Tranche D Term Loans, by a promissory note duly executed and
delivered by the Company substantially in the form of Exhibit B-6, with
blanks appropriately completed in conformity herewith (each, a "Tranche D
Term Note" and, collectively, the "Tranche D Term Notes")".
4. On and after the Twelfth Amendment Effective Date, Section 1.05
of the Credit Agreement shall be further amended by inserting the following new
clause (h) immediately after clause (g) of said Section 1.05:
"(h) The Tranche D Term Note issued to each Bank shall (i) be executed
by the Company, (ii) be payable to the order of such Bank and be dated the
Initial Tranche D Term Loan Borrowing Date or, in the case of Tranche D
Term Notes issued thereafter, the date of the issuance thereof, (iii) be in
a stated principal amount equal to the sum of the Tranche D Term Loan
Commitment and, without duplication, the outstanding principal amount of
Tranche D Term Loans of such Bank on the date of the issuance of the
respective Tranche D Term Note and be payable in the principal amount of
the Tranche D Term Loans evidenced thereby from time to time, (iv) mature
on the Tranche D Term Loan Maturity Date, (v) bear interest as provided in
the appropriate clause of Section 1.08 in respect of the Base Rate Loans
and Eurodollar Loans, as the case may be, evidenced thereby, (vi) be
subject to mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents."
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5. On and after the Twelfth Amendment Effective Date, Section 1.06
of the Credit Agreement shall be amended by (1) inserting "(x)" immediately
prior to the phrase "Tranche C Loans" appearing therein and (2) inserting the
phrase "and (y) Tranche D Term Loans, the Tranche D Syndication Termination
Date" immediately following the phrase "Tranche C Syndication Termination Date"
appearing therein.
6. On and after the Twelfth Amendment Effective Date, Section 1.07
of the Credit Agreement shall be amended by deleting the first sentence
contained therein in its entirety and inserting in lieu thereof the following
new first sentence to said Section 1.07:
"All Borrowings of Tranche A Term Loans, Tranche B Term Loans, Tranche
C Term Loans, Tranche D Term Loans and Revolving Loans under this Agreement
shall be incurred from the Banks pro rata on the basis of their respective
Tranche A Term Loan Commitments, Tranche B Term Loan Commitments, Tranche C
Term Loan Commitments, Tranche D Term Loan Commitments or Revolving Loan
Commitments, as the case may be; provided, that all Borrowings of Revolving
Loans made pursuant to a Mandatory Borrowing shall be incurred from the
Banks with a Revolving Loan Commitment pro rata on the basis of their
Adjusted RL Percentages."
7. On and after the Twelfth Amendment Effective Date, Section 1.09
of the Credit Agreement shall be amended by deleting clause (vii) contained
therein in its entirety and inserting in lieu thereof the following new clause
(vii):
"(vii) no Interest Period in respect of any Borrowing of Tranche A
Term Loans, Tranche B Term Loans, Tranche C Term Loans or Tranche D Term
Loans, as the case may be, shall be selected which extends beyond any date
upon which a mandatory repayment of such Tranche of Term Loans will be
required to be made under Section 4.02(b), (c), (n) or (p), as the case may
be, if the aggregate principal amount of Tranche A Term Loans, Tranche B
Term Loans, Tranche C Term Loans or Tranche D Term Loans, as the case may
be, which have Interest Periods which will expire after such date will be
in excess of the aggregate principal amount of Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans or Tranche D Term Loans, as the
case may be, then outstanding less the aggregate amount of such required
prepayment; and".
8. On and after the Twelfth Amendment Effective Date, Section 1.13
of the Credit Agreement shall be amended by (1) relettering clause (i)(d) of the
proviso thereto as clause (i)(e), (2) inserting the phrase ", (d) the Tranche D
Term Loan
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Commitment, such Tranche D Term Loan Commitment" immediately prior to the phrase
"and/or" appearing in clause (i) of the proviso thereto, and (3) inserting the
phrase ", a Tranche D Term Loan Commitment" immediately after the phrase
"Tranche C Term Loan Commitment" appearing in clause (x) of the last sentence of
said Section 1.13.
9. On and after the Twelfth Amendment Effective Date, Section 3.01
of the Credit Agreement shall be amended by adding the following new clause (g)
at the end thereof:
"(g) The Company agrees to pay the Administrative Agent for
distribution to each Bank with a Tranche D Term Loan Commitment a
commitment commission (the "Tranche D Commitment Commission") for the
period from the Twelfth Amendment Effective Date to and including the
Tranche D Term Loan Commitment Termination Date (or such earlier date as
the Total Tranche D Term Loan Commitment is reduced to $0), computed at a
rate for each day equal to 1/2 of 1% on the daily average Tranche D Term
Loan Commitment of such Bank. Accrued Tranche D Commitment Commission shall
be due and payable quarterly in arrears on each Quarterly Payment Date and
on such date upon which the Total Tranche D Term Loan Commitment is
terminated."
10. On and after the Twelfth Amendment Effective Date, Section 3.02
of the Credit Agreement shall be amended by adding the following new clause (d)
at the end thereof:
"(d) Upon at least two Business Days' prior notice to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), the Company shall have
the right, at any time or from time to time, without premium or penalty, to
terminate the Total Tranche D Term Loan Commitment (and the Tranche D Term
Loan Commitment of each Bank) in whole or in part, in each case in integral
multiples of $5,000,000 in the case of partial reductions; provided that
(i) each such reduction shall apply proportionately to permanently reduce
the Tranche D Term Loan Commitment of each Bank with such a Commitment and
(ii) any partial reduction to the Total Tranche D Term Loan Commitment
shall apply to reduce the then remaining Tranche D Scheduled Repayments in
inverse order of maturity."
11. On and after the Twelfth Amendment Effective Date, Section 3.03
of the Credit Agreement shall be amended by inserting the following new clause
(s) immediately at the end thereof:
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"(s) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche D Term Loan Commitment shall (i)
terminate in its entirety on the Tranche D Term Loan Commitment Termination
Date (after giving effect to the making of any Tranche D Term Loans on such
date), (ii) on each Tranche D Term Loan Borrowing Date, be reduced by the
aggregate principal amount of Tranche D Term Loans being made on such date
(which reduction shall occur immediately after the making of such Tranche D
Term Loans) and (iii) on each date prior to the Tranche D Term Loan
Commitment Termination Date on which the repayment of principal of Tranche
D Term Loans would be required pursuant to the applicable provisions in
Section 4.02 in an amount (determined as if an unlimited principal amount
of Tranche D Term Loans were then outstanding) which exceeds the aggregate
principal amount of Tranche D Term Loans then outstanding, be reduced by an
amount equal to the amount of such excess. Each reduction to the Total
Tranche D Term Loan Commitment pursuant to this Section 3.03 shall be
applied proportionately to reduce the Tranche D Term Loan Commitment of
each Bank with such a Commitment. Any reductions to the Total Tranche D
Term Loan Commitment pursuant to this Section 3.03(s) shall apply to reduce
the Tranche D Scheduled Repayments in inverse order of maturity."
12. On and after the Twelfth Amendment Effective Date, Section 4.01
of the Credit Agreement shall be amended by (1) deleting clause (v) of clause
(a) contained in said Section 4.01 in its entirety and inserting in lieu thereof
the following new clause (v):
"(v) voluntary prepayments of Term Loans effected pursuant to this
Section 4.01 (except pursuant to the preceding clause (iv)) shall be
applied to the Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans and Tranche D Term Loans on a pro rata basis (based upon the then
outstanding principal amount of Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans and Tranche D Term Loans); and"
and (2) deleting the phrase "and Tranche C Term Loans" appearing in clause (b)
of said Section 4.01 and inserting in lieu thereof the phrase ", Tranche C Term
Loans and Tranche D Term Loans".
13. On and after the Twelfth Amendment Effective Date, Section
4.02(a)(vi) of the Credit Agreement shall be amended by deleting the number
"$20,000,000" contained in said Section 4.02(vi) and inserting in lieu thereof
the number "$50,000,000".
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14. On and after the Twelfth Amendment Effective Date, Section
4.02(e)(i) of the Credit Agreement shall be amended by (i) deleting the phrase
"(other than Tudor, CEAc and their respective Subsidiaries)" appearing therein
and by inserting in lieu thereof the phrase "(other than CEAc Acquisition Corp.
and its Subsidiaries)" and (ii) deleting the phrase "Exide European
Restructuring Date" appearing therein and by inserting in lieu thereof the
phrase "Twelfth Amendment Effective Date".
15. On and after the Twelfth Amendment Effective Date, Section
4.02(e)(iii) of the Credit Agreement shall be amended by deleting the phrase
"Exide European Restructuring Date" appearing therein and by inserting in lieu
thereof the phrase "Twelfth Amendment Effective Date".
16. On and after the Twelfth Amendment Effective Date, Section
4.02(f)(iii) is hereby amended by (1) deleting the phrase "Exide European
Refinancing Facility Agreement as originally in effect" appearing therein and by
inserting in lieu thereof the phrase "Exide European Refinancing Facility
Agreement as in effect on the Twelfth Amendment Effective Date" and (2) deleting
the phrase "as in effect on the Exide European Restructuring Date" and inserting
in lieu thereof the phrase "as in effect on the Twelfth Amendment Effective
Date".
17. On and after the Twelfth Amendment Effective Date, Section
4.02(g)(ii) shall be amended by deleting the existing text thereof and by
inserting in lieu thereof the phrase "[INTENTIONALLY OMITTED]".
18. On and after the Twelfth Amendment Effective Date, Section
4.02(i) of the Credit Agreement shall be amended by deleting the existing text
thereof in its entirety and by inserting in lieu thereof the phrase
"[INTENTIONALLY OMITTED]".
19. On and after the Twelfth Amendment Effective Date, Section
4.02(m) shall be amended by (i) adding "(x)" immediately before the phrase
"result in a violation" appearing in the proviso to the second sentence thereof
and (ii) deleting the phrase ", the application pursuant to this sentence may be
delayed until the respective repatriations are permitted to be made" appearing
in the proviso to the second sentence thereof and by inserting in lieu thereof
the phrase "or (y) require that the Company deliver a guaranty as a result of
the receipt of such amounts pursuant to the terms of the Exide Holding Senior
Unsecured Note Documents as originally in effect (and so long as such documents
are in effect), the application pursuant to this sentence may be delayed until
the respective repatriations are permitted to be made without causing the
results described in preceding clauses (x) and (y)".
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20. On and after the Twelfth Amendment Effective Date, Section 4.02
of the Credit Agreement shall be further amended by inserting the following new
clause (p) immediately at the end of said Section 4.02:
"(p) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Company shall be required to repay that principal amount of Tranche D Term
Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections
3.03, 4.01 and 4.02(j), a "Tranche D Scheduled Repayment," and each such
date, a "Tranche D Scheduled Repayment Date"):
Tranche D
Scheduled Repayment Date Amount
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June 30, 1997 $125,000
September 30, 1997 $125,000
December 31, 1997 $125,000
March 31, 1998 $125,000
June 30, 1998 $125,000
September 30, 1998 $125,000
December 31, 1998 $125,000
March 31, 1999 $125,000
June 30, 1999 $125,000
September 30, 1999 $125,000
December 31, 1999 $125,000
March 31, 2000 $125,000
June 30, 2000 $125,000
March 31, 2001 $125,000
Tranche D Term Loan
Maturity Date $48,250,000".
21. On and after the Twelfth Amendment Effective Date, the Credit
Agreement shall be further amended by inserting the following new Section 6B
immediately after Section 6A contained therein:
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"SECTION 6B. Conditions Precedent to Initial Tranche D Term Loan
Borrowing Date. The obligation of each Bank to make Tranche D Term Loans on
the Initial Tranche D Term Loan Borrowing Date is subject, at the time of
the making of such Loans, to the satisfaction of the following conditions:
6B.01 Notes. On or prior to the Initial Tranche D Term Loan Borrowing
Date, there shall have been delivered to the Administrative Agent for the
account of each Tranche D Bank the appropriate Tranche D Term Note in the
amount, maturity and as otherwise provided herein.
6B.02 Officer's Certificate. On the Initial Tranche D Term Loan
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Tranche D Term Loan Borrowing Date and signed on behalf
of the Company by the President or the Chief Financial Officer of the
Company, stating that all of the conditions in Sections 6B.04, 6B.05,
6B.06, 6B.09, 6B.12, 6B.13, 7.01 and 7.03 have been satisfied on such date.
6B.03 Opinions of Counsel. On the Initial Tranche D Term Loan
Borrowing Date, the Administrative Agent shall have received from (i)
Xxxxxxxx & Xxxxx, U.S. counsel to the Company and its Subsidiaries, an
opinion addressed to the Administrative Agent, the Agents, the Collateral
Agent and each of the Banks and dated the Initial Tranche D Term Loan
Borrowing Date, which opinion shall cover matters, and shall be in form and
substance, satisfactory to each of the Agents and (iii) such local counsel
(satisfactory to the Agents), if any, as may have been requested by the
Agents, legal opinions each of which (x) shall be addressed to the
Administrative Agent, the Agents, the Collateral Agent and each of the
Banks and dated the Initial Tranche D Term Loan Borrowing Date, (y) shall
be in form and substance satisfactory to the Agents and (z) shall cover the
Tranche D Mortgage Amendments and such other matters incident to the
transactions contemplated herein as the Agents may reasonably request.
Without limiting the foregoing, the foregoing legal opinion of Xxxxxxxx &
Xxxxx shall be required to include its opinions, in form and substance
satisfactory to the Agents and the Required Banks and addressed to the
Banks, to the effect that (A) each Credit Event under this Agreement, as
amended through and including the date of the delivery of such opinion, may
occur without causing any violation of the Senior Notes Indenture or the
Senior Subordinated Notes Indenture or the 2005 Senior Unsecured Notes
Indenture, and (B) neither the execution, delivery nor performance by the
Company or any of its Subsidiaries of this Agreement and the other Credit
Documents, as this Agreement and such other Credit Documents have been
amended through and including the date of the delivery of such opinion,
will cause a violation under
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the Senior Notes Indenture, the Senior Subordinated Notes Indenture or the
2005 Senior Unsecured Notes Indenture.
6B.04 Corporate Documents; Proceedings, etc. All corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall
be reasonably satisfactory in form and substance to the Agents and the
Required Banks, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates
and bring-down telegrams or facsimiles, if any, which the Agents reasonably
may have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental
authorities.
6B.05 Adverse Change, etc. Since the Twelfth Amendment Effective Date,
nothing shall have occurred (and the Banks shall have become aware of no
facts, conditions or other information not previously known) which the
Agents, the Required Banks or the Required Tranche D Banks shall determine
could have a material adverse effect on the rights or remedies of the
Agents or the Banks, or on the ability of the Company, or the Company and
its Subsidiaries taken as a whole, to perform their respective obligations
to the Agents and the Banks or which could have a material adverse effect
on the business, property, assets, nature of assets, liabilities, condition
(financial or otherwise) or prospects of the Company or the Company and its
Subsidiaries taken as a whole.
6B.06 Litigation. On the Initial Tranche D Term Loan Borrowing Date,
no litigation or investigation by any entity (private or governmental)
shall be pending or threatened with respect to this Agreement or any
documentation executed in connection herewith or the transactions
contemplated hereby, or with respect to any material Indebtedness of the
Company or its Subsidiaries, or which the Agents, the Required Banks or the
Required Tranche D Banks shall determine could have a material adverse
effect on the business, property, assets, nature of assets, liabilities,
condition (financial or otherwise) or prospects of the Company or the
Company and its Subsidiaries taken as a whole.
6B.07 Mortgages. On the Initial Tranche D Term Loan Borrowing Date,
the Collateral Agent shall have received fully executed counterparts of
amendments (the "Tranche D Mortgage Amendments"), in form and substance
satisfactory to the Collateral Agent, to each of the Mortgages, together
with evidence that counterparts of each of the Tranche D Mortgage
Amendments
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have been delivered to the title company ensuring the Lien on the existing
Mortgages for recording in all places to the extent necessary or desirable,
in the judgment of the Collateral Agent, effectively to maintain a valid
and enforceable first priority mortgage lien on the Mortgaged Properties in
favor of the Collateral Agent for the benefit of the Secured Creditors, and
the Collateral Agent shall have received endorsements to the existing
Mortgage Policies assuring the Collateral Agent that each Mortgage, after
giving effect to the respective Tranche D Mortgage Amendment, is a valid
and enforceable first priority mortgage lien on the respective Mortgaged
Properties, free and clear of all defects and encumbrances except Permitted
Encumbrances.
6B.08 Projections; Pro Forma Financial Statements; Accountants'
Certificates. On or prior to the Initial Tranche D Term Loan Borrowing
Date, the Company shall have delivered to each Bank:
(i) projected financial statements for the Company and its
Subsidiaries for the period from March 31, 1997 to and including the
Tranche D Term Loan Maturity Date (the "Tranche D Projections"), which
Tranche D Projections (x) shall reflect the forecasted financial
condition and income and expenses of the Company and its Subsidiaries
after giving effect to the Senior Subordinated Notes Redemption
(assuming all Senior Subordinated Notes are repurchased or redeemed
and as if same had occurred on March 31, 1997) and the related
financing thereof (including, without limitation, the incurrence of
the Tranche D Term Loans) and the other transactions contemplated
hereby and thereby, (y) shall be certified by the chief financial
officer of the Company and (z) shall be reasonably satisfactory in
form and substance to the Agents and the Required Banks; and
(ii) pro forma financial statements (including a balance sheet
and income statement) for the Company and its Subsidiaries for the
period of four consecutive fiscal quarters (taken as one accounting
period) last ended prior to the Tranche D Term Loan Borrowing Date for
which financial information in respect thereof is available, assuming
the Senior Subordinated Notes Redemption was effected and all Senior
Subordinated Notes repurchased or redeemed on the first day of such
one year period, and such pro forma financial statements shall have
been certified by the chief financial officer of the Company, and the
Agents and the Required Banks shall be reasonably satisfied with such
pro forma financial statements;
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all of which shall be in form and substance satisfactory to the Agent and
the Required Banks.
6B.09 CEAc Acquisition Corp. Repatriation. On or prior to the Initial
Tranche D Term Loan Borrowing Date the Company shall have received at least
$20,000,000 in cash from CEAc Acquisition Corp. and/or its Subsidiaries
representing payments of accrued interest owed to the Company and/or
certain of its Wholly-Owned Subsidiaries (other than CEAc Acquisition Corp.
and its Subsidiaries), payments in connection with the purchase of accounts
receivable and inventory from the Company (the "CEAc Acquisition Corp.
Repatriation"), which amount shall be used to make payments in connection
with the Senior Subordinated Notes Redemption before or concurrently with
the use of any proceeds of Tranche D Term Loans for such purpose.
6B.10 Solvency Certificate. On the Initial Tranche D Term Loan
Borrowing Date, the Company shall cause to be delivered to the
Administrative Agent a certificate in form satisfactory to the Agents,
addressed to the Agents and each of the Banks and dated the Tranche D Term
Loan Borrowing Date, from the chief financial officer of the Company,
providing the opinion of the chief financial officer of the Company that,
after giving effect to the incurrence of all financings contemplated herein
(assuming the full utilization of the Total Tranche D Term Loan
Commitment), each of the Company, on a stand-alone basis, and the Company
and its Subsidiaries taken as a whole, is not insolvent and will not be
rendered insolvent by the indebtedness incurred in connection herewith,
will not be left with unreasonably small capital with which to engage in
its business and will not have incurred debts beyond its ability to pay
such debts as they mature and become due.
6B.11 Fees, etc. On the Initial Tranche D Term Loan Borrowing Date,
the Company shall have paid to the Administrative Agent, each Agent and
each Bank all costs, fees and expenses (including, without limitation,
legal fees and expenses) payable to the Administrative Agent, such Agent
and such Bank to the extent then due.
6B.12 Notices to Holders of Certain Indebtedness. (a) On the Initial
Tranche D Term Loan Borrowing Date, the Company shall have delivered to the
trustee under the Senior Note Indenture, notice to the effect that this
Agreement, as amended by the Twelfth Amendment, constitutes the "Amended
Credit Agreement" (as defined in such indenture), and the Company shall
have taken all other action as may be necessary or, in the opinion of the
Agents,
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desirable to ensure that this Agreement is entitled to all the rights and
benefits afforded the "Amended Credit Agreement" under such indenture.
(b) On the Initial Tranche D Term Loan Borrowing Date, the Company
shall have delivered to the trustee under the Senior Subordinated Note
Indenture, notice to the effect that this Agreement, as amended by the
Twelfth Amendment, constitutes the "Amended Credit Agreement" (as defined
in such indenture), and the Company shall have taken all other action as
may be necessary or, in the opinion of the Agents, desirable to ensure that
this Agreement is entitled to all the rights and benefits afforded the
"Amended Credit Agreement" under such indenture.
(c) On the Initial Tranche D Term Loan Borrowing Date, the Company
shall have delivered to the Administrative Agent evidence in form, scope
and substance satisfactory to the Agents that the matters set forth in this
Section 6B.12 have been satisfied as of such date.
6B.13 Certain Documentation. On or prior to the Twelfth Amendment
Effective Date, the Company shall have delivered to the Administrative
Agent true and correct copies, certified as such by a financial officer of
the Company, of the following documentation as then in effect (or, to the
extent such documentation is not then in effect, the most recent drafts of
the respective documentation): (i) the European Receivables Facility and
all related documentation, (ii) the Exide Holding Senior Unsecured Notes
Documents, (iii) the DETA Acquisition Documents and, to the extent then
available to the Company, all documentation relating to any Indebtedness
which is, or is expected to become, DETA Acquisition Assumed Indebtedness,
(v) the Receivables Facility and (vi) the Exide European Refinancing
Facility Agreement. On the Initial Tranche D Term Loan Borrowing Date, the
Company shall have delivered to the Administrative Agent a certification to
the effect that there have been no modifications or additions (including as
a result of additional documentation being made available to the Company)
to the documentation previously delivered pursuant to the immediately
preceding sentence or, to the extent there have been any such modifications
or additions, attaching true and correct copies of the relevant documents.
All documentation delivered pursuant to this Section 6B.13 shall be
required to be in form and substance reasonably satisfactory to the
Required Banks and the Required Tranche D Banks.
The acceptance of the proceeds of the Tranche D Term Loans shall
constitute a representation and warranty by the Company to the Agents and
each of the Banks that all the conditions specified in this Section 6B and
Section 7 exist
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as of that time. All of the Tranche D Term Notes, certificates, legal
opinions and other documents and papers referred to in this Section 6B and
Section 7, unless otherwise specified, shall be delivered to the
Administrative Agent at the Notice Office for the account of each of the
Banks and, except for the Tranche D Term Notes, in sufficient counterparts
for each of the Tranche D Banks and shall be in form and substance
reasonably satisfactory to the Required Banks and the Required Tranche D
Banks."
22. On and after the Twelfth Amendment Effective Date, Section 8.08
of the Credit Agreement shall be amended by inserting the following new clause
(e) immediately following clause (d) contained in said Section 8.08:
"(e) All proceeds of the Tranche D Term Loans shall be used promptly
after the incurrence thereof by the Company to finance, in whole or in
part, the Senior Subordinated Notes Redemption, in each case in accordance
with the relevant certification required to be delivered at the time of the
incurrence of such Loans pursuant to Section 1.01(g)."
23. On and after the Twelfth Amendment Effective Date, Section 8.15
of the Credit Agreement shall be amended by deleting the second sentence thereof
in its entirety and by inserting in lieu thereof the following new sentence:
"Schedule XIV lists each Subsidiary of the Company, and shows the direct
and indirect ownership interests of the Company in each such Subsidiary, in
each case as of the Twelfth Amendment Effective Date."
24. On and after the Twelfth Amendment Effective Date, the Credit
Agreement shall be further amended by inserting the following new Section 8.27
immediately following existing Section 8.26:
"8.27 Special Purpose Corporation. (a) The Receivables Subsidiary was
formed for the purpose of purchasing, and receiving contributions of,
receivables from the Company and its Subsidiaries, and selling such
receivables to, or obtaining secured loans from, the Receivables Financier,
pursuant to the Receivables Facility and except in connection with the
foregoing (and activities reasonably incidental thereto), the Receivables
Subsidiary engages (and shall engage) in no business activities and has
(and will have) no significant assets or liabilities.
-14-
(b) The European Receivables Subsidiaries were formed for the purpose
of purchasing, and receiving contributions of, receivables from the CEAc
Acquisition Corp. and its Subsidiaries, and selling such receivables to, or
obtaining secured loans from, the European Receivables Financier, pursuant
to the European Receivables Facility and the making of intercompany loans
to CEAc Acquisition Corp. and its Subsidiaries to the extent permitted
hereby and by the Exide European Refinancing Facility Agreement, and except
in connection with the foregoing (and activities reasonably incidental
thereto), the European Receivables Subsidiaries engage (and shall engage)
in no business activities and have (and will have) no significant assets or
liabilities."
25. On and after the Twelfth Amendment Effective Date, Section
9.19(a) of the Credit Agreement shall be amended by deleting the existing text
thereof and by inserting in lieu thereof the following new text:
"With respect to each Subsidiary of the Company (other than CEAc
Acquisition Corp. and its Subsidiaries), the Company (directly or
indirectly through its Subsidiaries (other than CEAc Acquisition Corp. and
its Subsidiaries) shall at all times own at least that percentage of the
outstanding capital stock of such Subsidiary as is shown as being owned
(directly or indirectly) by the Company in Schedule XIV hereto. With
respect to CEAc Acquisition Corp. and its Subsidiaries, the Company (in the
case of CEAc Acquisition Corp.) and CEAc Acquisition Corp. (in the case of
such other Subsidiaries) shall (directly or indirectly) at all times own at
least that percentage of the outstanding capital stock of such Subsidiary
as is shown as being owned (directly or indirectly) by the Company in
Schedule XIV hereto."
26. On and after the Twelfth Amendment Effective Date, Section 9.20
of the Credit Agreement shall be amended by inserting the following new sentence
at the end thereof:
"Notwithstanding anything to the contrary contained above or elsewhere
in this Agreement, the Receivables Subsidiary shall be permitted to be
established and shall not be required to become a party to any Credit
Document, although 100% of the capital stock of the Receivables Subsidiary
shall be required to be pledged pursuant to the relevant Pledge Agreement."
27. On and after the Twelfth Amendment Effective Date, the Credit
Agreement shall be further amended by adding the following new Sections 9.21 and
9.22 immediately after existing Section 9.20 thereof:
-15-
"9.21 Completion of Senior Subordinated Notes Redemption. The
Company shall take all actions as may be required so that the Senior
Subordinated Notes Redemption shall be completed on, or within 90 days
after, the Initial Tranche D Term Loan Borrowing Date. All Senior
Subordinated Notes repaid, repurchased or redeemed pursuant to the Senior
Subordinated Notes Redemption shall be permanently retired (and shall not
thereafter be reissued).
9.22 Consummation of DETA Acquisition. The Company shall use its
best efforts to cause all of the conditions precedent to its ability to
consummate the DETA Acquisition, as specified in Section 10.02(xx), to be
satisfied on, or within 180 days after, the Twelfth Amendment Effective
Date and to cause the DETA Acquisition Date to occur on, or within 180 days
after, the Twelfth Amendment Effective Date. If the DETA Acquisition Date
does not for any reason occur on, or within 180 days after, the Twelfth
Amendment Effective Date, the consummation of the DETA Acquisition shall
not be permitted to occur thereafter unless the Required Banks (in their
sole discretion) specifically consent thereto in writing."
28. On and after the Twelfth Amendment Effective Date, Section 10.01
of the Credit Agreement shall be amended by (1) in clause (vi) thereof, deleting
the phrase "Section 10.05(ix)" and inserting in lieu thereof "Section
10.05(xi)", (2) in clause (xi) thereof, deleting the phrase "or (xix)" in each
place it appears therein and by inserting in lieu thereof the phrase ", (xix) or
(xx)", (3) in clause (xv) thereof, deleting the phrase "(xviii) or" appearing
therein and by inserting the phrase "or (xx)" immediately before the phrase
"shall be permitted" appearing therein, (4) deleting the word "and" appearing at
the end of clause (xvii) thereof, (5) deleting the period at the end of clause
(xviii) thereof and inserting a semi-colon in lieu thereof and (6) inserting at
the end thereof the following new clauses:
"(xix) Liens on accounts receivable and proceeds thereof, in each
case so long as said accounts receivable are sold pursuant to the European
Receivables Facility in accordance with the requirements of Section
10.02(xiv) and any European Receivables Facility Attributed Indebtedness at
such time is permitted pursuant to Section 10.05(xxvi); and
(xx) Liens securing DETA Acquisition Assumed Indebtedness incurred in
accordance with the requirements of Section 10.05(xxiv) and so long as such
Liens extend only to assets of CEAc Acquisition Corp. and its
Subsidiaries."
-16-
29. On and after the Twelfth Amendment Effective Date, Section 10.02
of the Credit Agreement shall be amended by (1) in clause (ii)(B) thereof,
deleting the phrase "originally in effect" and by inserting in lieu thereof the
phrase "in effect on the Twelfth Amendment Effective Date", (2) in clause (xiv)
thereof, (x) deleting the phrase "originally in effect" in both places it
appears therein and by inserting in lieu thereof the phrase "in effect on the
Twelfth Amendment Effective Date" and (y) inserting the phrase "(other than
those expressly consented to by the Administrative Agent and the Required
Banks)" immediately following the phrase "with respect thereto" both times such
phrase appears therein, (3) deleting the word "and" immediately at the end of
clause (xviii) thereof, (4) deleting the period at the end of clause (xix)
thereof and by inserting in lieu thereof "; and" (5) inserting the following new
clause immediately after clause (xix) thereof:
"(xx) The DETA Acquisition may be effected so long as: (I) no
Default or Event of Default is in existence at the time of the consummation
of the DETA Acquisition or immediately after giving effect thereto, (II)
the Company shall have delivered to the Administrative Agent and each of
the Banks true and correct copies, certified as true and complete by the
chief financial officer of the Company, of the DETA Acquisition Documents
and copies of all documentation relating to any DETA Acquisition Assumed
Indebtedness with a principal amount (or the Dollar Equivalent thereof) in
excess of $1,000,000, (III) all the terms and conditions of such DETA
Acquisition Documents and documentation relating to DETA Acquisition
Assumed Indebtedness are in form and substance reasonably satisfactory to
the Administrative Agent and the Required Banks, (IV) without limiting
preceding clause (III), none of the Company nor any of its Subsidiaries,
other than CEAc Acquisition Corp. and its Subsidiaries, shall have any
obligations or liabilities pursuant to the DETA Acquisition Documents or
with respect to the DETA Acquisition or any DETA Acquisition Assumed
Indebtedness, provided that the Company may have customary representations,
warranties and undertakings satisfactory to the Administrative Agent and
the Required Banks in the DETA Stock Agreement solely in connection with
the issuance of Company Common Stock as consideration and in a registration
rights agreement entered into in connection therewith, (V) the aggregate
consideration in connection with the DETA Acquisition shall be as set forth
in the DETA Acquisition Documents delivered as described above and, in any
event, shall not exceed DM 175,000,000, of which up to DM 60,000,000 may
be in the form of cash (all of which shall be paid by CEAc Acquisition
Corp. and/or its Subsidiaries, and not by the Company or any of its
Subsidiaries other than CEAc Acquisition Corp. and its Subsidiaries), up to
DM 115,000,000 may be in the form of DETA Acquisition Assumed Indebtedness
and the remainder shall be in the form of Company Common Stock, (VI) if the
DETA Acquisition
-17-
is not consummated on, or within 180 days after, the Twelfth Amendment
Effective Date, same shall not thereafter be permitted to occur unless the
Required Banks specifically consent thereto, (VII) at the time of such
consummation the Administrative Agent and the Banks shall have received,
and the Administrative Agent and the Required Banks shall be reasonably
satisfied with the form and substance of, financial statements with respect
to DETA and its Subsidiaries for the fiscal year then last ended and (VIII)
prior to such consummation CEAc Acquisition Corp. shall have received gross
cash proceeds of at least DM 140,000,000 from the Exide Holding Senior
Unsecured Notes Issuance."
30. On and after the Twelfth Amendment Effective Date, Section 10.03
of the Credit Agreement shall be amended by (1) deleting the word "and" at the
end of clause (v) thereof, (2) deleting the period at the end of clause (vi) and
inserting in lieu thereof "; and" and (3) inserting at the end of said Section
the following new clause (vii):
"(vii) so long as no Default or Event of Default then exists or would
exist after giving effect thereto, on any date after July 1, 1997, the
Company may repurchase Company Common Stock and/or options to purchase
Company Common Stock provided that, at the time of such repurchase and
after giving effect thereto and to any amounts expended on such date
pursuant to Section 10.12(c), the aggregate amount of cash Dividends paid
pursuant to this clause (vii) since the Twelfth Amendment Effective Date
(together with the aggregate amount of cash paid pursuant to Section
10.12(c) since the Twelfth Amendment Effective Date) shall not exceed
$20,000,000."
31. On and after the Twelfth Amendment Effective Date, Section 10.04
of the Credit Agreement shall be amended by inserting the following new clauses
(c) and (d) immediately at the end of Section 10.04:
"(c) The Receivables Subsidiary shall engage in no business
activities other than the purchase, acquisition, sale and pledge of
receivables (or interests therein) pursuant to the Receivables Facility and
borrowings thereunder and any business activities reasonably incidental
thereto, all in accordance with the Receivables Facility, and shall have no
assets or liabilities, other than receivables purchased from or contributed
by the Company, cash collections therefrom, any investments of such cash
collections and other assets and liabilities reasonably incidental to the
foregoing activities.
-18-
(d) The European Receivables Subsidiaries shall engage in no business
activities other than the purchase, acquisition, sale and pledge of
receivables (or interests therein) pursuant to the European Receivables
Facility and borrowings thereunder and any business activities reasonably
incidental thereto, all in accordance with the European Receivables
Facility, and shall have no assets or liabilities, other than receivables
purchased from or contributed by CEAc Acquisition Corp. and its
Subsidiaries, cash collections therefrom, any investments of such cash
collections and other assets and liabilities reasonably incidental to the
foregoing activities."
32. On and after the Twelfth Amendment Effective Date, Section 10.05
of the Credit Agreement shall be amended by (1) in clause (iii) thereof,
inserting the phrase "(x) not more than $54,999,999 in aggregate principal
amount of Senior Subordinated Notes shall be permitted to remain outstanding
after the occurrence of both the Initial Tranche D Term Loan Borrowing Date and
the Tranche D Term Loan Commitment Termination Date and (y)" immediately after
the phrase "provided further, that" appearing therein, (2) in clause (xii)
thereof, inserting the phrase ", Section 10.06(xiii)" immediately after the
phrase "10.06(vi) through (ix)" appearing therein, (3) in clause (xx) thereof,
inserting the following new proviso immediately after the phrase "remain
outstanding" appearing at the end thereof:
"; provided that, on the Exide Holding Senior Unsecured Notes Issuance
Date (only if same occurs), this clause (xx) shall automatically be
deemed modified by (i) deleting the number "2,825,900,000" appearing
in clause (a)(x) above and by inserting in lieu thereof the phrase
"2.489 billion" and (ii) inserting the phrase "after the permanent
prepayment of certain amounts under the Exide European Refinancing
Facility with proceeds of the European Receivables Facility as
required by the Exide European Refinancing Facility Agreement"
immediately after the phrase "Exide European Facility Agreement"
appearing in clause (a)(y) above".
, (4) in clause (xxi) thereof, inserting the phrase "and following clause
(xxiv)" immediately after the phrase "preceding clauses (xvii) and (xviii)"
appearing therein (5) in clause (xxi) thereof, deleting the phrase "(xvii) and
(xviii)" and inserting in lieu thereof the phrase "(xix) and (xx)" and (6)
inserting at the end thereof the following new clauses:
"(xxiv) DETA Acquisition Assumed Indebtedness incurred in accordance
with the requirements with Section 10.02(xx) and so long as (x) the
requirements of said Section are met, (y) none of the Company or any of its
Subsidiaries other than CEAc Acquisition Corp. and its Subsidiaries shall
at any time
-19-
have any obligations or liabilities pursuant to, or with respect to, the
DETA Acquisition Assumed Indebtedness and (z) the aggregate principal
amount of such Indebtedness does not exceed the principal amount thereof
originally assumed pursuant to the DETA Acquisition (in any event not to
exceed DM 175,000,000 at the time of the consummation of the DETA
Acquisition) less any permanent repayments thereof made after the
consummation of the Deta Acquisition;
(xxv) Indebtedness of CEAc Acquisition Corp. evidenced by the Exide
Holding Senior Unsecured Notes in an aggregate principal amount not to
exceed DM 175,000,000 less the aggregate principal amount of repayments
thereof actually made after the Exide Holding Senior Unsecured Notes
Issuance Date, which Indebtedness as described in this clause (xxv) shall
only be permitted so long as (1) on the date of the incurrence of such
Indebtedness, the Agents and the Banks shall have received a legal opinion
from Xxxxxxxx & Xxxxx, in form and substance satisfactory to the Agents and
the Required Banks and addressed to the Banks, to the effect that neither
the incurrence of the Exide Holding Senior Unsecured Notes nor the
execution, delivery and performance by Exide Holding of the Exide Holding
Senior Unsecured Notes Paying Agency Agreement and the other Exide Holding
Senior Unsecured Notes Documents will cause a violation of the Senior Notes
Indenture, the Senior Subordinated Notes Indenture or the 2005 Senior
Unsecured Notes Indenture, and (2) in no event (including pursuant to any
other clause of this Section 10.05 or other provision of this Agreement)
shall the Company or any of its Subsidiaries (other than CEAc Acquisition
Corp. and its Subsidiaries) be permitted at any time to execute or deliver
any guaranty with respect to any portion of any obligations of any Person
under the Exide Holding Senior Unsecured Note Paying Agency Agreement or
with respect to the Exide Holding Senior Unsecured Notes; and
(xxvi) Indebtedness of CEAc Acquisition Corp. and/or its Subsidiaries
which may be deemed to exist pursuant to the European Receivables Facility
as permitted by the Exide European Refinancing Facility Agreement and
consistent with Section 10.02(xiv), so long as such European Receivables
Facility does not violate the terms of any Indebtedness of the Company and
its Subsidiaries which is to remain outstanding after giving effect
thereto."
33. On and after the Twelfth Amendment Effective Date, Section 10.06
of the Credit Agreement shall be amended by (1) deleting the word "and"
appearing at the end of clause (xxii) thereof, (2) deleting the period at the
end of clause (xxiii) thereof and inserting in lieu thereof "; and" and (3)
inserting at the end thereof the following new clause:
-20-
"(xxiv) the Company may make additional Investments in Penske Auto
Centers Holding Corporation in the form of cash or Company Common Stock in
an aggregate amount, for all Investments made pursuant to this clause
(xxiv), not to exceed $1,750,000."
34. On and after the Twelfth Amendment Effective Date, Section 10.08
of the Credit Agreement shall be amended by (1) in clause (a)(ii) thereof,
deleting the phrase "(other than CEAc US Holdco, Tudor and their respective
Subsidiaries)" in each place it appears therein and by inserting in lieu thereof
the phrase "(other than CEAc Acquisition Corp. and its Subsidiaries)", (2) in
clause (a)(iii) thereof, deleting the phrase "CEAc US Holdco, Tudor and their
respective" appearing therein and by inserting in lieu thereof the phrase "CEAc
Acquisition Corp. and its" and (3) in clause (b)(iii) thereof, inserting the
phrase ", the DETA Acquisition" immediately after the phrase "CEAc Acquisition"
appearing therein.
35. On and after the Twelfth Amendment Effective Date, Section 10.09
of the Credit Agreement shall be amended by (1) deleting the ratios "1.00:1" and
"1.25:1" set forth in the chart therein and (2) inserting in lieu thereof (in
descending order) the ratios "0.50:1" and "1.00:1".
36. On and after the Twelfth Amendment Effective Date, Section 10.10
of the Credit Agreement shall be amended by (1)(x) deleting the table contained
in clause (a) thereof in its entirety and (y) inserting in lieu thereof the
following table:
"Period Amount
------ ------
From and including the last day
of the fiscal quarter ended in
March, 1996 to but excluding the
last day of the fiscal quarter
ended in June, 1996 $60,000,000
Thereafter from and including the
last day of the fiscal quarter
ended in June, 1996 to but excluding
the last day of the fiscal quarter
ended in September, 1996 $63,000,000
Thereafter from and including the
last day of the fiscal quarter
ended in September, 1996 to but
-21-
excluding the last day of the
fiscal quarter ended in
December, 1996 $65,000,000
Thereafter from and including the
last day of the fiscal quarter
ended in December, 1996 to but
excluding the last day of the
fiscal quarter ended in
March, 1997 $80,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in March, 1997
to but excluding the last day
of the fiscal quarter ended in
June, 1997 $70,000,000
Thereafter from and including the
last day of the fiscal quarter
ended in June, 1997 to but excluding
the last day of the fiscal quarter
ended in September, 1997 $55,000,000
Thereafter from and including the
last day of the fiscal quarter
ended in September, 1997 to but
excluding the last day of the
fiscal quarter ended in
December, 1997 $60,000,000
Thereafter from and including the
last day of the fiscal quarter
ended in December, 1997 to but
excluding the last day of the
fiscal quarter ended in
March, 1998 $65,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in March, 1998
-22-
to but excluding the last day
of the fiscal quarter ended in
March, 1999 $90,000,000
Thereafter $100,000,000"
and (2)(x) deleting the table in clause (b) thereof in its entirety and (y)
inserting in lieu thereof the following table:
"Period Amount
------ ------
Ended after April 1, 1995 to but
excluding the last day of the
fiscal quarter ended in
September, 1995 $150,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in September,
1995 to but excluding the
last day of the fiscal quarter
ended in December, 1995 $175,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in December,
1995 to but excluding the last
day of the fiscal quarter
ended in March, 1996 $200,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in March, 1996
to but excluding the last day
of the fiscal quarter ended
in December, 1996 $210,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in December, 1996
to but excluding the last day
-23-
of the fiscal quarter ended
in March, 1997 $230,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in March, 1997
to but excluding the last day
of the fiscal quarter ended
in June, 1997 $235,000,000
Thereafter from and including
the last day of the fiscal
quarter ended in June, 1997
to but excluding the last day
of the fiscal quarter ended
in March, 1998 $225,000,000
Thereafter from and including
the last day of the fiscal quarter
ended in March, 1998 to but
excluding the last day of the fiscal
quarter ended in March, 1999 $265,000,000
Thereafter $300,000,000".
37. On and after the Twelfth Amendment Effective Date, Section 10.11
of the Credit Agreement shall be amended by (1)(y) deleting the table contained
in clause (a) thereof in its entirety and (2) inserting in lieu thereof the
following table:
"Period Ratio
------ -----
From and including the
last day of the fiscal quarter
ended in March, 1996 to but excluding
the last day of the fiscal quarter
ended in June, 1996 10.75:1
Thereafter from and including the
last day of the fiscal quarter
ended in June, 1996 to but excluding
-24-
the last day of the fiscal quarter
ended in September, 1996 9.50:1
Thereafter from and including the
last day of the fiscal quarter
ended in September, 1996 to but
excluding the last day of the
fiscal quarter ended in
December, 1996 9.25:1
Thereafter from and including the
last day of the fiscal quarter
ended in December, 1996 to but
excluding the last day of the
fiscal quarter ended in
March, 1997 8.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in March, 1997 to but
excluding the last day of the
fiscal quarter ended in
June, 1997 10.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in June, 1997 to but
excluding the last day of the
fiscal quarter ended in
September, 1997 13.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in September, 1997 to but
excluding the last day of the
fiscal quarter ended in
December, 1997 12.00:1
From and including the last
day of the fiscal quarter
ended in December, 1997 to
-25-
but excluding the last day of
the fiscal quarter ended
in March, 1998 11.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in March, 1998 to but
excluding the last day of the
fiscal quarter ended in
March, 1999 7.50:1
Thereafter 6.75:1"
and (2)(x) deleting the table contained in clause (b) thereof and (y) inserting
in lieu thereof the following table:
"Period Ratio
------ -----
From and including the last
day of the fiscal quarter
ended in March, 1996 to
but excluding the last day of
the fiscal quarter ended
in June, 1996 7.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in June, 1996 to but
excluding the last day of the
fiscal quarter ended in September,
1996 7.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in September, 1996 to but
excluding the last day of the
fiscal quarter ended in December,
1996 7.00:1
Thereafter from and including the
last day of the fiscal quarter
-26-
ended in December, 1996 to but
excluding the last day of the
fiscal quarter ended in March,
1997 6.50:1
Thereafter from and including the
last day of the fiscal quarter
ended in March, 1997 to but
excluding the last day of the
fiscal quarter ended in June,
1997 6.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in June, 1997 to but
excluding the last day of the
fiscal quarter ended in September,
1997 8.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in September, 1997 to but
excluding the last day of the
fiscal quarter ended in
December, 1997 7.50:1
Thereafter from and including the
last day of the fiscal quarter
ended in December, 1997 to but
excluding the last day of the
fiscal quarter ended in March,
1998 7.00:1
Thereafter from and including the
last day of the fiscal quarter
ended in March, 1998 to but
excluding the last day of the
fiscal quarter ended in March,
1999 6.00:1
Thereafter 5.00:1".
-27-
38. On and after the Twelfth Amendment Effective Date, Section 10.12
of the Credit Agreement shall be amended by (1) inserting immediately following
the period at the end of the title thereof "(a)", (2) inserting the phrase "the
Exide Holding Senior Unsecured Notes Paying Agency Agreement, any Exide Holding
Senior Unsecured Note" immediately following the phrase "any 2005 Senior
Unsecured Note" contained in clause (i) thereof, (3) inserting the phrase "or
Exide Holdings Senior Unsecured Notes" immediately after the phrase "2005 Senior
Unsecured Notes" contained in clause (ii) thereof and (4) inserting at the end
thereof the following new clauses:
"(b) Notwithstanding anything to the contrary contained in clause (a)
above, the Company may on any date consummate, in whole or in part, the
Senior Subordinated Notes Redemption so long as (i) no Default or Event of
Default then exists or would on such date result therefrom, (ii) the
Company has received the CEAc Acquisition Corp. Repatriation in accordance
with the requirements of Section 6B.09 and (iii) the aggregate amount so
expended does not exceed $105,000,000 or, in the case of a partial
redemption or repayment of the Senior Subordinated Notes, an amount equal
to the aggregate principal amount of Senior Subordinated Notes so redeemed
or repurchased; provided that no proceeds of Revolving Loans may be
incurred to consummate any portion of the Senior Subordinated Notes
Redemption unless and until (1) the Initial Tranche D Term Loan Borrowing
Date has occurred and (2) the Total Tranche D Term Loan Commitment has been
terminated pursuant to Section 3.03(s)(ii) and all proceeds of Tranche D
Term Loans used as set forth in Section 8.08(e); and
(c) Notwithstanding anything to the contrary contained clause (a) and
in addition to anything permitted by clause (b) above, on any date after
July 1, 1997, the Company may repurchase Senior Notes, Senior Subordinated
Notes and/or 2005 Senior Unsecured Notes so long as (i) no Default or Event
of Default then exists or would result thereby and (ii) at the time of such
repurchase or redemption, and after giving effect thereto and to any
Dividends paid on such date pursuant to Section 10.03(vii), the aggregate
amount expended to make repurchases or redemptions pursuant to this clause
(c) since the Twelfth Amendment Effective Date (together with the aggregate
amount of cash Dividends paid pursuant to Section 10.03(vii) since the
Twelfth Amendment Effective Date) shall not exceed $20,000,000."
39. On and after the Twelfth Amendment Effective Date, Section 10.13
of the Credit Agreement shall be amended by (1) in clause (iii) thereof,
inserting the
-28-
phrase "Twelfth Amendment" immediately before the phrase the "Effective Date"
appearing therein and (2) deleting the text of clause (iv) thereof in its
entirety and by inserting in lieu thereof the following new text:
"restrictions contained in any other issue of Existing Indebtedness to the
extent such restrictions are described in Schedule VII, restrictions
contained in any issue of CEAc Existing Indebtedness to the extent such
restrictions are described on Schedule XVII and any restrictions contained
in the Exide European Refinancing Facility Agreement as in effect on the
Twelfth Amendment Effective Date, restrictions contained in the Exide
Holdings Senior Unsecured Note Documents so long as same are consistent
with the restrictions contained in the documentation furnished to the Banks
prior to the Twelfth Amendment Effective Date, restrictions contained in
the European Receivables Facility (so long as same relate only to the
assets transferred pursuant thereto by CEAc Acquisition Corp. and its
Subsidiaries, and to any Subsidiary of CEAc Acquisition Corp. formed in
connection with the European Receivables Facility) and restrictions
contained in any issue of DETA Acquisition Assumed Indebtedness (so long as
such restrictions only relate to DETA and its Subsidiaries),".
40. On and after the Twelfth Amendment Effective Date, Section 10.16
of the Credit Agreement shall be amended by (1) in the first sentence thereof,
inserting the phrase "the Receivables Subsidiary as a Wholly-Owned Subsidiary of
the Company (but not a Subsidiary of CEAc Acquisition Corp.), of the European
Receivables Subsidiaries as Wholly-Owned Subsidiaries of CEAc Acquisition Corp.,
of" immediately after the phrase "except for the creation of" appearing therein
and (2) in the first sentence thereof, deleting the phrase "and (xviii)"
appearing therein and by inserting in lieu thereof the phrase ", (xviii) and
(xx)".
41. On and after the Twelfth Amendment Effective Date, Section 10.19
of the Credit Agreement shall be amended by inserting, immediately after the
phrase "less (y)" appearing therein, the phrase "the sum of the aggregate
principal amount of Tranche D Term Loans then outstanding plus the sum of the
Total Tranche D Term Loan Commitment (if any) as then in effect and".
42. On and after the Twelfth Amendment Effective Date, Section 11 of
the Credit Agreement shall be amended by (1) inserting at the end of Section
11.11 thereof the word "or" and (2) inserting a immediately following Section
11.11 the following new Section 11.12:
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"11.12 Exide Holding Senior Unsecured Note Guaranty. The Company
shall have executed or delivered a guaranty of, or shall at any time be
required to guaranty, any portion of any obligations of any Person under
the Exide Holding Senior Unsecured Note Paying Agency Agreement or with
respect to the Exide Holding Senior Unsecured Notes;".
43. On and after the Twelfth Amendment Effective Date, the definition
of "Acquired Indebtedness" contained in Section 12 of the Credit Agreement shall
be amended by (1) inserting the phrase "DETA Acquisition Assumed Indebtedness,"
immediately prior to the phrase "Engitec Equipment Commitments" appearing
therein and (2) inserting the following new proviso immediately at the end of
the second sentence of such definition:
"; provided that no violation of Section 9.15(a) (including without
limitation as a result of the aggregate principal amount of DETA
Acquisition Assumed Indebtedness incurred in connection therewith) shall
result from the consummation of the DETA Acquisition in accordance with the
requirements of Section 10.02(xx), although the amount of Acquired
Indebtedness assumed or incurred as a result of the DETA Acquisition shall
be taken into account in determining whether Acquired Indebtedness may be
incurred or assumed in connection with Permitted Acquisitions effected
thereafter".
44. On and after the Twelfth Amendment Effective Date, the definition
of "Clean-Down Period" contained in Section 12 of the Credit Agreement shall be
amended by deleting the number "$20,000,000" appearing therein and inserting in
lieu thereof the number "$50,000,000".
45. On and after the Twelfth Amendment Effective Date, the definition
of "Combined Consolidated Indebtedness" contained in Section 12 of the Credit
Agreement shall be amended by inserting the phrase "and European Receivables
Facility Attributed Indebtedness" immediately following the phrase "Receivables
Facility Attributed Indebtedness" contained in clause (y) thereof.
46. On and after the Twelfth Amendment Effective Date, the definition
of "Combined Consolidated Interest Expense" contained in Section 12 of the
Credit Agreement shall be amended by (w) inserting the phrase "or European
Receivables Financier, as applicable," immediately following the phrase
"Receivables Financier" contained in clause (x) thereof, (x) inserting the
phrase "or any of its Subsidiaries" immediately following the phrase "to the
Company" contained in clause (x) thereof (y) inserting the phrase "or servicing"
immediately following the phrase "for the purchase" contained in clause (x)
thereof and (z) inserting the phrase "or the European
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Receivables Facility, as applicable," immediately following the phrase
"Receivables Facility" in clause (x) thereof.
47. On and after the Twelfth Amendment Effective Date, the definition
of "Company Consolidated Indebtedness" contained in Section 12 of the Credit
Agreement shall be amended by deleting the first parenthetical contained therein
in its entirety and inserting in lieu thereof the parenthetical "(excluding CEAc
Acquisition Corp. and its Subsidiaries)".
48. On and after the Twelfth Amendment Effective Date, the definition
of "Company Excess Cash Flow" contained in Section 12 of the Credit Agreement
shall be amended by (1) deleting the phrase "and (4)" appearing therein and by
inserting in lieu thereof the phrase ", (4) payments made pursuant to the Senior
Subordinated Notes Redemption and (5)", (2) deleting the phrase "or (n)"
appearing therein and by inserting in lieu thereof the phrase ", (n) or (p)" and
(3) inserting the phrase "or (vii) and payments made during such period pursuant
to Section 10.12(c)" immediately at the end of the first sentence thereof.
49. On and after the Twelfth Amendment Effective Date, the definition
of "Company Retained Excess Cash Flow Amount" contained in Section 12 of the
Credit Agreement shall be amended by inserting the parenthetical "(other than
the DETA Acquisition)" immediately following the phrase "any Permitted
Acquisition" contained in clause (iii) thereof.
50. On and after the Twelfth Amendment Effective Date, the definition
of "Permitted Acquisition" contained in Section 12 of the Credit Agreement shall
be amended by deleting the phrase "and (y)" appearing in the second sentence
thereof and by inserting in lieu thereof the phrase ", (y) the DETA Acquisition
may only be effected in accordance with the requirements of Section 10.02(xx) of
this Agreement and, so long as effected in accordance with said requirements,
same shall be deemed to constitute a Permitted Acquisition and the other
requirements contained above in this definition and in Section 9.15 shall not
apply thereto and (z) except as provided in preceding clause (y),".
51. On and after the Twelfth Amendment Effective Date, Section 12 of
the Credit Agreement shall be amended by deleting the following definitions
appearing therein in their entirety:
"Applicable Margin"
"Approved Incremental Financing"
"Borrowing Base"
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"CEAc Acquisition Corp."
"Commitment"
"Loan"
"Maturity Date"
"Note"
"Required Banks"
"Scheduled Repayments"
"Term Loan"
"Term Loan Commitment"
"Total Term Loan Commitment"
"Tranche"
52. On and after the Twelfth Amendment Effective Date, Section 12 of
the Credit Agreement shall be further amended by inserting in the appropriate
alphabetical order the following new definitions:
"Applicable Margin" shall mean a percentage per annum equal to (i)
(A) in the case of Loans other than Tranche B Term Loans and Tranche D Term
Loans which are maintained as Base Rate Loans, 1.25%, less the then
applicable Interest Reduction Discount, (B) in the case of Tranche B Term
Loans which are maintained as Base Rate Loans, 1.75%, and (C) in the case
of Tranche D Term Loans which are maintained as Base Rate Loans, 1.50% and
(ii) (A) in the case of Loans other than Tranche B Term Loans and Tranche D
Term Loans which are maintained as Eurodollar Loans, 2.50%, less the then
applicable Interest Reduction Discount, (B) in the case of Tranche B Term
Loans which are maintained as Eurodollar Loans, 3.00% and (C) in the case
of Tranche D Term Loans which are maintained as Eurodollar Loans, 2.75%.
"Approved Incremental Financing" shall mean the Company's 2.9%
Convertible Senior Subordinated Notes due 2005.
"Borrowing Base" shall mean, as at any date on which the amount
thereof is being determined, an amount equal to the remainder (but not less
than $0) of (1) the sum of (x) 75% of Eligible Receivables and (y) 60% of
Eligible Inventory and (z) $50,000,000 (representing the value of property,
plant and equipment), minus (2) the aggregate principal amount of Tranche D
Term Loans outstanding on such date. The Borrowing Base in effect at any
given time shall be the Borrowing Base derived from the Borrowing Base
Certificate most recently delivered in compliance with Section 9.01(n), but
adjusted for the actual principal amount of Tranche D Term Loans from time
to time outstanding; provided that, so long as the most recent Borrowing
Base Certificate required
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to be delivered has not been so delivered, the Borrowing Base in effect
will be zero.
"CEAc Acquisition Corp." shall mean Exide Holding Europe S.A., a
corporation organized under the laws of the Republic of France.
"CEAc Acquisition Corp. Repatriation" shall have the meaning provided
in Section 6B.09.
"Commitment" shall mean any of the commitments of any Bank, i.e.,
whether the Tranche A Term Loan Commitment, Tranche B Term Loan Commitment,
Tranche C Term Loan Commitment, Tranche D Term Loan Commitment or Revolving
Loan Commitment.
"Company Common Stock" shall have the meaning provided in Section
8.14(a)(i).
"DETA" shall mean DETA Akkumulatorenwerk GmbH, a German corporation,
MAREG Accumulatoren GmbH, a German corporation, and FRIWO Silberkraft GmbH,
a German corporation.
"DETA Acquisition" shall mean the acquisition by CEAc Acquisition
Corp. or a Wholly-Owned Subsidiary thereof of 100% of the capital stock of
DETA in accordance with the terms hereof.
"DETA Acquisition Assumed Indebtedness" shall mean the Indebtedness of
DETA and its Subsidiaries which is to remain outstanding after the
consummation of the DETA Acquisition; provided that such Indebtedness shall
not constitute an obligation of the Company and its Subsidiaries (other
than CEAc Acquisition Corp. and its Subsidiaries) after giving effect to
the DETA Acquisition.
"DETA Acquisition Date" shall mean the date on which the DETA
Acquisition is consummated in accordance with the terms hereof.
"DETA Acquisition Documents" shall mean the DETA Stock Purchase
Agreement, all agreements and instruments executed in connection therewith
and all of the annexes, schedules and exhibits to any of the foregoing.
"DETA Stock Purchase Agreement" shall mean the stock purchase
agreement with respect to the DETA Acquisition to be entered into between
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CEAc Acquisition Corp. (and/or one or more of its Subsidiaries) and the
respective seller or sellers pursuant to the DETA Acquisition, and all of
the annexes, schedules and exhibits thereto.
"DM" shall mean Deutsche Marks.
"European Receivables Facility" shall mean the receivables purchase or
financing agreements among CEAc Acquisition Corp. and/or its Subsidiaries
and one or more European Receivables Financiers. No recourse shall be
provided to the Company or any of its Subsidiaries (other than CEAc
Acquisition Corp. and its Subsidiaries) pursuant to the European
Receivables Facility or any documentation related thereto (and no
representations, warranties, undertakings or assurances shall be provided
by the Company or any of its Subsidiaries (other than CEAc Acquisition
Corp. and its Subsidiaries) in connection therewith.
"European Receivables Facility Attributed Indebtedness" at any time
shall mean the aggregate amount theretofore paid to CEAc Acquisition Corp.
and/or its Subsidiaries in respect of the receivables sold by any of them
pursuant to the European Receivables Facility, in each case to the extent
the respective receivables have not yet been repaid by the respective
account debtor or repurchased by CEAc Acquisition Corp. and/or its
Subsidiaries (it being the intent of the parties that the amount of
European Receivables Facility Attributed Indebtedness at any time
outstanding approximate as closely as possible the principal amount of
indebtedness which would be outstanding at such time under the European
Receivables Facility if same were structured as a secured lending
agreement).
"European Receivables Financier" at any time shall mean any purchaser,
lender or provider of credit (excluding CEAc Acquisition Corp. and its
Subsidiaries) pursuant to the European Receivables Facility as then in
effect.
"European Receivables Subsidiaries" shall mean two Wholly-Owned
Subsidiaries of CEAc Acquisition Corp. which engage in no activities other
than in connection with the financing of accounts receivable and which are
designated (as provided below) as European Receivables Subsidiaries (a) no
portion of the Indebtedness or any other obligations (contingent or
otherwise) of which (i) is guaranteed by the Company or any other
Subsidiary of the Company (excluding guarantees of obligations (other than
the principal of, and interest on, Indebtedness)) pursuant to Standard
Securitization Undertakings, (ii) is recourse to or obligates the Company
or any other Subsidiary of the Company in any way (other than pursuant to
Standard Securitization Undertakings) or (iii) subjects
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any property or asset of the Company or any other Subsidiary of the
Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof (other than pursuant to Standard Securitization
Undertakings), (b) with which neither the Company nor any of its
Subsidiaries has any contract, agreement, arrangement or understanding
(other than pursuant to the European Receivables Facility (including with
respect to fees payable in the ordinary course of business in connection
with the servicing of accounts receivable and related assets)) on terms
less favorable to the Company or such Subsidiary than those that might be
obtained at the time from persons that are not Affiliates of the Company,
and (c) to which neither the Company nor any other Subsidiary of the
Company has any obligation to maintain or preserve either such entity's
financial condition or cause such entity to achieve certain levels of
operating results. Any such designation shall be evidenced to the
Administrative Agent by filing with the Administrative Agent an officer's
certificate of the Company certifying that, to the best of such officer's
knowledge and belief after consultation with counsel, such designation
complied with the foregoing conditions.
"Exide Holding Preliminary Offering Memorandum" shall mean the
Preliminary Offering Memorandum, dated as of April 3, 1997, providing for
the issuance by CEAc Acquisition Corp. of an aggregate principal amount of
DM 175,000,000 of the Exide Holding Senior Unsecured Notes, as in effect on
the Twelfth Amendment Effective Date and with any amendments, modifications
or supplements thereto as are reasonably satisfactory to the Administrative
Agent and Required Banks.
"Exide Holding Senior Unsecured Notes" shall mean the senior unsecured
promissory notes issued pursuant to the Exide Holding Senior Unsecured
Notes Paying Agency Agreement.
"Exide Holding Senior Unsecured Notes Documents" shall mean all
documents or agreements related to the consummation of the Exide Holding
Senior Unsecured Notes Issuance, including, without limitation, the Exide
Holding Senior Unsecured Notes Paying Agency Agreement, the Exide Holding
Preliminary Offering Memorandum and all other documents and agreements
entered into in connection therewith.
"Exide Holding Senior Unsecured Notes Issuance" shall mean the
issuance of the Exide Holding Senior Unsecured Notes pursuant to the terms
contained in the Exide Holding Preliminary Offering Memorandum.
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"Exide Holding Senior Unsecured Notes Issuance Date" shall mean the
first date on which any Exide Holding Senior Unsecured Note is issued or
sold.
"Exide Holding Senior Unsecured Notes Paying Agency Agreement" shall
mean the Fiscal and Paying Agency Agreement to be entered into by CEAc
Acquisition Corp., pursuant to which the Exide Holding Senior Unsecured
Notes are to be issued, in form and substance satisfactory to the
Administrative Agent and the Required Banks.
"Initial Tranche D Term Loan Borrowing Date" shall mean the first
Tranche D Term Loan Borrowing Date to occur after the Twelfth Amendment
Effective Date.
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan,
each Tranche C Term Loan, each Tranche D Term Loan, each Revolving Loan and
each Swingline Loan.
"Maturity Date" shall mean, with respect to any Tranche of Loans, the
Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date,
the Tranche C Term Loan Maturity Date, the Tranche D Term Loan Maturity
Date or the Revolving Loan Maturity Date, as the case may be.
"Note" shall mean each Tranche A Term Note, each Tranche B Term Note,
each Tranche C Term Note, each Tranche D Term Note, each Revolving Note and
the Swingline Note.
"Receivables Subsidiary" shall mean a Wholly-Owned Subsidiary of the
Company which engages in no activities other than in connection with the
financing of accounts receivable and which is designated (as provided
below) as the Receivables Subsidiary (a) no portion of the Indebtedness or
any other obligations (contingent or otherwise) of which (i) is guaranteed
by the Company or any other Subsidiary of the Company (excluding guarantees
of obligations (other than the principal of, and interest on,
Indebtedness)) pursuant to Standard Securitization Undertakings, (ii) is
recourse to or obligates the Company or any other Subsidiary of the Company
in any way (other than pursuant to Standard Securitization Undertakings) or
(iii) subjects any property or asset of the Company or any other Subsidiary
of the Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof (other than pursuant to Standard Securitization
Undertakings), (b) with which neither the Company nor any of its
Subsidiaries has any contract, agreement, arrangement or understanding
(other than pursuant to the Receivables Facility (including with
-36-
respect to fees payable in the ordinary course of business in connection
with the servicing of accounts receivable and related assets)) on terms
less favorable to the Company or such Subsidiary than those that might be
obtained at the time from persons that are not Affiliates of the Company,
and (c) to which neither the Company nor any other Subsidiary of the
Company has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating
results. Any such designation shall be evidenced to the Administrative
Agent by filing with the Administrative Agent an officer's certificate of
the Company certifying that, to the best of such officer's knowledge and
belief after consultation with counsel, such designation complied with the
foregoing conditions.
"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
outstanding Tranche A Term Loans and TL Percentages of Tranche A Letter of
Credit Outstandings, Tranche B Term Loans, Tranche C Term Loans (or, if
prior to the Tranche C Term Loan Borrowing Date, Tranche C Term Loan
Commitments), Tranche D Term Loans and, if prior to the termination
thereof, Tranche D Term Loan Commitments and Revolving Loan Commitments (or
after the termination thereof, outstanding Revolving Loans and Adjusted RL
Percentages of Swingline Loans and Revolving Letter of Credit Outstandings)
represent an amount greater than 50% of the sum of all outstanding Tranche
A Term Loans and Tranche A Letter of Credit Outstandings of Non-Defaulting
Banks, all outstanding Tranche B Term Loans of Non-Defaulting Banks, all
outstanding Tranche C Term Loans (or, if prior to the Tranche C Term Loan
Borrowing Date, Tranche C Term Loan Commitments), Tranche D Term Loans and,
if prior to the termination thereof, Tranche D Term Loan Commitments of
Non-Defaulting Banks and the Adjusted Total Revolving Loan Commitment (or
after the termination thereof, the sum of the then total outstanding
Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted RL
Percentages of all Non-Defaulting Banks of the total outstanding Swingline
Loans and Revolving Letter of Credit Outstandings at such time).
"Required Tranche D Banks" shall mean Non-Defaulting Banks, the sum of
whose outstanding Tranche D Term Loans and, if prior to the termination
thereof, Tranche D Term Loan Commitments, represent an amount greater than
50% of the sum of all outstanding Tranche D Term Loans and, if prior to the
termination thereof, Tranche D Term Loan Commitments of Non-Defaulting
Banks.
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"Scheduled Repayments" shall mean the Tranche A Scheduled Repayments,
the Tranche B Scheduled Repayments, the Tranche C Scheduled Repayments and
the Tranche D Scheduled Repayments.
"Senior Subordinated Notes Redemption" shall mean the repurchase
(whether by means of tender offer, open market purchases or otherwise)
and/or redemption by the Company of an amount greater than 50% of its
Senior Subordinated Notes outstanding on the Twelfth Amendment Effective
Date, in each case to the extent that the respective repurchases and/or
redemptions are effected after the Twelfth Amendment Effective Date and on
or prior to the Tranche D Term Loan Commitment Termination Date.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary thereof in connection with the Receivables Facility or the
European Receivables Facility which are reasonably customary in an accounts
receivable transaction.
"Term Loan" shall mean any Tranche A Term Loan, Tranche B Term Loan,
Tranche C Term Loan or Tranche D Term Loan.
"Term Loan Commitment" shall mean each Tranche A Term Loan Commitment,
Tranche B Term Loan Commitment, Tranche C Term Loan Commitment and Tranche
D Term Loan Commitment, with the Term Loan Commitment of any Bank at any
time to equal the sum of its Tranche A Term Loan Commitment, Tranche B Term
Loan Commitment, Tranche C Term Loan Commitment and Tranche D Term Loan
Commitment, as then in effect.
"Total Term Loan Commitment" shall mean at any time the sum of the
Total Tranche A Term Loan Commitment, the Total Tranche B Term Loan
Commitment, the Total Tranche C Term Loan Commitment and the Total Tranche
D Term Loan Commitment.
"Total Tranche D Term Loan Commitment" shall mean, at any time, the
sum of the Tranche D Term Loan Commitments of each of the Banks.
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being six separate Tranches, i.e.,
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D
Term Loans, Revolving Loans and Swingline Loans.
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"Tranche D Bank" shall mean each Bank with a Tranche D Term Loan
Commitment or an outstanding Tranche D Term Loan.
"Tranche D Commitment Commission" shall have the meaning provided in
Section 3.01(g).
"Tranche D Mortgage Amendments" shall have the meaning provided in
Section 6B.07.
"Tranche D Projections" shall have the meaning provided in Section
6B.08.
"Tranche D Scheduled Repayment" shall have the meaning provided in
Section 4.02(p).
"Tranche D Scheduled Repayment Date" shall have the meaning provided
in Section 4.02(p).
"Tranche D Syndication Termination Date" shall mean the earlier of (x)
the 90th day after the Initial Tranche D Term Loan Borrowing Date or (y)
that date upon which BTCo determines in its sole discretion (and notifies
the Company) that the primary syndication (and resultant addition of
institutions as Banks pursuant to Section 14.04) relating to Tranche D Term
Loan Commitments and outstanding Tranche D Term Loans, if any, has been
completed.
"Tranche D Term Loan" shall have the meaning provided in Section
1.01(g).
"Tranche D Term Loan Borrowing Date" shall mean each date on which a
Borrowing of Tranche D Term Loans occurs pursuant to Section 1.01(g).
"Tranche D Term Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I hereto directly below the
column entitled "Tranche D Term Loan Commitment", as the same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 11 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Sections 1.13 and/or 14.04.
"Tranche D Term Loan Commitment Termination Date" shall mean May 30,
1997.
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"Tranche D Term Loan Maturity Date" shall mean June 15, 2001.
"Tranche D Term Note" shall have the meaning provided in Section
1.05(a).
"Twelfth Amendment" shall mean the Twelfth Amendment to this
Agreement, dated as of March 31, 1997.
"Twelfth Amendment Effective Date" shall have the meaning provided in
the Twelfth Amendment."
53. On and after the Twelfth Amendment Effective Date, Section
14.17(b) of the Credit Agreement is hereby amended by (1) deleting the phrase
"such limitations shall cease to apply at such time, if any, as no Senior Notes
remain outstanding," appearing at the end of the first sentence thereof and by
inserting in lieu thereof the following new text:
"such limitations shall cease to apply on the Twelfth Amendment Effective
Date and shall thereafter have no further force or effect. From and after
the Twelfth Amendment Effective Date, the entire principal amount of Loans
outstanding from time to time hereunder, as well as all other Obligations
under this Agreement and the other Credit Documents, shall be fully
secured, without limitation, by the Restricted Collateral".
and (2) by deleting the text of clause (d) thereof in its entirety and by
inserting in lieu thereof the phrase "[INTENTIONALLY OMITTED]".
54. On and after the Twelfth Amendment Effective Date, the Credit
Agreement shall be further amended by adding the following new Section 14.21
immediately after Section 14.20 appearing therein:
"14.21 Agreement by Signatories to Twelfth Amendment for Benefit of
Tranche D Banks. Each Bank which executes and delivers a copy of the
Twelfth Amendment, by its execution and delivery thereof, agrees (which
agreement shall be binding only on such Bank and its successors), for the
benefit of each Tranche D Bank, that it will not agree to any change,
waiver, modification or amendment of Section 4.02(p) (as added pursuant to
the Twelfth Amendment) unless the respective change, waiver, modification
or amendment receives the consent of those Tranche D Banks which would
constitute the Required Tranche D Banks if the percentage "50%" appearing
in the definition thereof instead read "66-2/3%"."
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55. On and after the Twelfth Amendment Effective Date, the Credit
Agreement shall be amended by (i) deleting Schedules I and XIV, and Exhibits A
and Q, in their entirety and replacing such Schedules and Exhibits with Schedule
I, Schedule XIV, Exhibit A and Exhibit Q, respectively, attached to this
Amendment and (ii) adding new Exhibit B-6 in the respective form attached to
this Amendment.
56. It is acknowledged and agreed that the documents relating to the
Receivables Facility in the form of (1) the Receivables Purchase Agreement,
dated as of March 31, 1997, among Exide U.S. Funding Corporation, as seller, and
Three Rivers Funding Corporation, as buyer, and the Company, as servicer, (2)
the Receivables Repurchase Agreement, dated as of March 31, 1997, between the
Company and Three Rivers Funding Corporation, (3) the Sale Agreement, dated as
of March 31, 1997, between the Company, as seller, and Exide U.S. Funding
Corporation, as buyer, and (4) the Buyer Note, dated as of March 31, 1997, from
Exide U.S. Funding Corporation to the Company, shall be considered changes to
the Receivables Facility approved by the Required Banks to the extent such
approval is required by the definition of Receivables Facility.
II. Amendments to Security Agreement.
--------------------------------
1. On and after the Twelfth Amendment Effective Date, Section 1.1 of
the Security Agreement shall be amended by inserting at the end of said Section
1.1 the following new clause (c):
"(c) Notwithstanding anything to the contrary contained above or
elsewhere herein, the Collateral shall at no time include any Excluded
Receivables Facility Assets."
2. On and after the Twelfth Amendment Effective Date, the definition
of "Excluded Receivables" contained in Article IX of the Security Agreement
shall be deleted in its entirety.
3. On and after the Twelfth Amendment Effective Date, the definition
of "Receivables" contained in Article IX of the Security Agreement shall be
amended by deleting the phrase "Excluded Receivable" contained in the last
sentence thereof and inserting in lieu thereof the phrase "Excluded Receivables
Facility Assets".
4. On and after the Twelfth Amendment Effective Date, Article IX of
the Security Agreement shall be further amended by inserting in the appropriate
alphabetical order the following new definition:
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"Excluded Receivables Facility Assets" shall mean any Receivable (as
defined herein, but without regard to the second sentence of said
definition), account or general intangible in which the Receivables
Subsidiary or the Receivables Financier has acquired an interest for so
long, and to the extent, the same has been transferred to the Receivables
Subsidiary or to the Receivables Financier pursuant to or as contemplated
by the Receivables Facility, including (in each case to the extent arising
therefrom or related thereto) all contract rights, property rights
(including without limitation intellectual property rights), chattel paper,
instruments, computer programs, proprietary information and all other
rights, powers and privileges arising therefrom or related thereto, and all
security interests, guaranties, insurance policies and property securing or
supporting payment thereof, all records and rights in the merchandise
relating thereto and all proceeds and products of any of the foregoing;
provided that at such time, if any, as, and to the extent that, any such
Receivable, account or general intangible set forth above is repurchased by
an Assignor, it (and the respective related assets described above) shall
cease to constitute Excluded Receivables Facility Assets."
III. Miscellaneous Provisions
------------------------
1. In order to induce the Agent and the Banks to enter into this
Amendment, the Company hereby (i) makes each of the representations, warranties
and agreements contained in Section 8 of the Credit Agreement on the Twelfth
Amendment Effective Date, both before and after giving effect to this Amendment
and (ii) represents and warrants that no Default or Event of Default is in
existence on the Twelfth Amendment Effective Date, both before and after giving
effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement, the Security Agreement or any other provision of any other Credit
Document.
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Company and the Administrative Agent.
4. This Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
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5. This Amendment shall become effective as of the date first written
above on the date (the "Twelfth Amendment Effective Date") when the Company,
each Domestic Subsidiary Guarantor, the Required Banks, and each of the Tranche
D Banks shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent and approval of
implementation of the changes with respect to the Receivables Facility set forth
in Paragraph 55 starting March 31, 1997 shall become effective as of such date.
6. The Company and each Domestic Subsidiary Guarantor, by its
execution and delivery of a counterpart hereof, hereby agrees that all
Obligations (including, without limitation, the principal of, and interest on,
all Tranche D Term Loans) shall be entitled to the benefits of the Domestic
Subsidiaries Guaranty and shall be secured by the Security Documents in
accordance with the respective terms thereof.
7. To induce the Agents and the Banks to enter into the Twelfth
Amendment, the Company hereby agrees that (x) none of the Agents nor any Bank
shall be responsible or liable to the Company or any of its Subsidiaries for any
consequential damages which may be alleged as a result of the entering into of
the Twelfth Amendment or the making of any determinations or the taking of any
actions by the Agents or any Bank pursuant to, or with respect to, the Credit
Agreement as amended thereby (including, without limitation, pursuant to Section
6B of the Credit Agreement), and (y) none of the Agents nor any Bank shall have
any responsibility or liability to any other Person as a result of the entering
into of the Twelfth Amendment or the making of any determinations or the taking
of any actions by the Agents or any Bank pursuant to the Credit Agreement.
* * *
-43-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
EXIDE CORPORATION
By /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Title: VP & TREASURER
BANKERS TRUST COMPANY,
Individually, as an Agent and as
Administrative Agent
By
-------------------------------
Title:
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
EXIDE CORPORATION
By
----------------------------
Title:
BANKERS TRUST COMPANY,
Individually, as an Agent and as
Administrative Agent
By /s/ Xxxxxxxx Xxxxx
----------------------------
Title: Vice President
BANK OF MONTREAL,
Individually and as Agent
By /s/ Xxxxxxx X. Xxxxx
----------------------------
Title: Director
BANK POLSKA KASA OPIEKI, S.A.
By /s/ Xxxxxxx X. Xxxx
----------------------------
Title: Vice President
Senior Lending Officer
CAISSE NATIONALE DE CREDIT
AGRICOLE
By /s/ Xxxxx Xxxxx, F.V.P.
----------------------------
Title: Head of Corporate Banking
Chicago
CITIBANK, N.A.
By /s/ Xxxx X. Xxxxxxxxxxx
----------------------------
Title: Vice President
COMERICA BANK
By /s/ Xxxx X. Xxxxxx
----------------------------
Title: Vice President
CORESTATES BANK, N.A.
By /s/ Corestates Bank, N.A.
----------------------------
Title:
ISTITUTO BANCARIO SAN PAOLO DI
TORINO LTD., NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxx
----------------------------
Title: Deputy General Manager
By /s/ Xxxxxx Xxxxxxx
----------------------------
Title: First Vice President
XXXXXX COMMERCIAL PAPER, INC.
By /s/ Xxxxxxx Xxxxxxx
----------------------------
Title: Authorized Signatory
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxx Guaranty Trust
Company of New York
----------------------------
Title:
ORIX USA CORPORATION
By /s/ Orix USA Corporation
------------------------------
Title:
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By /s/ Transamerica Business
Credit Corporation
------------------------------
Title:
ACKNOWLEDGMENT AND AGREEMENT
----------------------------
The undersigned, each being a Guarantor, hereby acknowledges and
agrees to the provisions (including, without limitation, Section 6 of Part III
thereof) of the Twelfth Amendment to the Credit Agreement (as well as the
previous amendments to the Credit Agreement referenced in the recitals to the
Twelfth Amendment), which precedes this Acknowledgment and Agreement.
GBC, INC.
By /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Title: Assist. Secretary
GENERAL BATTERY CORPORATION
By /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Title: Assist. Secretary
XXXXX METALS COMPANY
By /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Title: Assist. Secretary
-46-
SCHEDULE I
----------
COMMITMENTS AND TERM LOANS OUTSTANDING AS OF MARCH 31, 1997
-----------------------------------------------------------
Aggregate Aggregate Aggregate
Principal Amount Principal Amount Principal Amount
of Outstanding of Outstanding of Outstanding Tranche D
Revolving Loan Tranche A Tranche B Tranche C Term Loan
Bank Commitment Term Loans Term Loans Term Loan Commitment
---- ---------- ---------- ---------- --------- ----------
Bankers Trust Company $130,401.30 -- -- -- $50,000,000
Bank of America $11,691,076.60 -- -- -- --
National Trust and
Savings Association
Bank of Montreal $8,993,135.85 -- -- -- --
Bank Polska Kasa $1,861,778.06 -- -- -- --
Opieki, S.A.
Banque Francaise du $5,277,309.28 -- -- -- --
Commerce Exterieur
The Bank of Tokyo- $5,277,309.28 -- -- -- --
Mitsubishi, Limited
The Bank of Tokyo- $3,518,206.17 -- -- -- --
Mitsubishi Trust
Company
Caisse Nationale de $5,277,309.28 -- -- -- --
Credit Agricole
Citibank, N.A. $8,091,874.24 -- -- -- --
Comerica Bank $3,518,206.17 -- -- -- --
Corestates Bank, N.A. $5,277,309.28 -- -- -- --
Girocredit Bank A.G. $3,518,206.17 -- -- -- --
Der Sparkassen, Grand
Cayman Island Branch
Instituto Bancario $2,167,657.44 -- -- -- --
San Paolo di Torino
Ltd., New York
Branch
Kredietbank N.V. $5,277,309.28 -- -- -- --
Xxxxxx Commercial $16,656,125.39 -- -- -- --
Paper, Inc.
Mellon Bank, N.A. $ 8,091,874.24 -- -- -- --
The Mitsubishi Trust and $ 5,277,309.28 -- -- -- --
Banking Corporation
Mitsui Leasing (U.S.A.) $ 5,277,309.28 -- -- -- --
Inc.
Xxxxxx Guaranty Trust $ 2,167,657.47 -- -- -- --
Company of New York
Orix USA Corporation $ 2,462,744.34 -- -- -- --
PNC Bank, National $ 8,091,874.24 -- -- -- --
Association
Societe Generale, $ 7,098,017.36 -- -- -- --
Chicago Branch
Transamerica Business $25,000,000.00 -- -- -- --
Credit Corporation
TOTAL $150,000,000.00 -0- -0- -0- $50,000,000
-47-
31/12/1996
SCHEDULE XIV
-------------------------
EXIDE HOLDING EUROPE S.A.
FRANCE
-------------------------
-----------------------------------------------------------------------------------------
17.00
--------------------- ----------------- ------------------ -----------------
EURO EXIDE CORP. LTD. EXIDE FRANCE S.A. 83.00 CEAC S.A. S.E.A. XXXXX X.X.
---->
UK FRANCE FRANCE SPAIN
--------------------- ----------------- ------------------ -----------------
-------------------------------------------------------------------
-------------------------- ---------------------- ----------------------
TUDOR A.B. EXIDE SONNAK A.S. EXIDE OY
----- -----
SWEDEN NORWAY FINLAND
-------------------------- ---------------------- ----------------------
-------------------------- ---------------------- ----------------------
EXIDE DANMARK A.S. ANKER DEFENSE A.S. LYAC HOLDING A.S.
-----> ----->
DENMARK NORWAY DENMARK
-------------------------- ---------------------- ----------------------
-------------------------- ----------------------
CMP BATTERIER A.S. CMP BATTERIER A.S.
-----> ----->
DENMARK NORWAY
-------------------------- ----------------------
--------------------------
CMP BATTERIER A.B.
----->
SWEDEN
--------------------------
Ownership interests in each legal entity is represented by a single class of
common shares.
Unless otherwise noted, the legal entities are 100% owned by Exide or an Exide
subsidiary as listed.
31/12/1996
--------------------------- ------------------------
EURO EXIDE CORPORATION LTD. EURO EXIDE Nominees LTD.
U.K. 9900 U.K.
--------------------------- ------------------------
|
---------------------------------- 8150
| |
------------------------- ---------------------
OMP BATTERIES LTD. EXIDE BATTERIES LTD. c
U.K. U.K.
------------------------- ---------------------
------------------------- --------------------- -------------------------
FULMEN UK LTD BIG BATTERIES LTD. GEMALA IRELAND
(HOLDINGS) LTD.
U.K. U.K.
------------------------- --------------------- U.K.
------------------------- --------------------- -------------------------
EUROBAT INTERNAT. LTD BIG BATTERIES GEMALA IRELAND COMPANY
DISTRIBUTION LTD. LTD.
U.K.
------------------------- U.K. IRELAND
--------------------- -------------------------
------------------------- --------------------- -------------------------
SPITFIRE BATTERIES LTD. BIG BATTERIES FRANCE EXIDE BATTERIES (IRELAND)
SARL LTD.
U.K.
------------------------- FRANCE IRELAND
--------------------- -------------------------
------------------------- --------------------- -------------------------
9000 O.H.E. LTD. A BIG ESPANA S.A. GEMALA DISTRIBUTORS LTD.
U.K. SPAIN IRELAND
------------------------- --------------------- -------------------------
------------------------- --------------------- -------------------------
T.S. BATTERIES LTD EXIDE (HOLDINGS) LTD. GEMALA IGNITON COMPANY
LTD.
U.K. U.K.
------------------------- --------------------- IRELAND
------------------------- --------------------- -------------------------
9900 OMP BATTERIES PENS, LTD. B EXIDE (DAGENHAN) LTD. ALL BATTERIES LTD.
U.K. U.K. IRELAND
------------------------- --------------------- -------------------------
---------------------
EXIDE BATTERIES A.B.
SWEDEN
---------------------
---OTHER SHAREHOLDERS---------------------------------------------- ---OTHER INVESTMENTS----------------------------------------
A: CEAC: 10.00 a: 1 share of EURO EXIDE CORPORATION LTD.
B: CEAC S.A. 1.00 1 share of CMP BATTERIES LTD.
C: P.T. SAPTA: 16.50
------------------------------------------------------------------- ------------------------------------------------------------
Ownership interests in each legal entity are represented by a single class of
common shares. Unless otherwise noted, the legal entities are 100% owned by
Exide or an Exide subsidiary as listed.
-49-
31/12/1996
---------------------------
CEAC S.A.
FRANCE
---------------------------
------------------- ----------------------- ----------------- -------------------------
97.77 EXIDE AUTOMOTIVE A SINAC S.R.L. 50.00 INCI-CEAC L'ACCUMULAT. FULMEN SARL
BELGIUM a ITALY TURKEY FRANCE c
------------------- ----------------------- ----------------- -------------------------
------------------- ----------------------- ----------------- -------------------------
??.?? AIM GmbH COMP. GEN. ACCUMULA SPA 96.05 CENTRA SA ATSA FRANCE S.A.
GERMANY ITALY POLAND FRANCE
------------------- ----------------------- ----------------- -------------------------
63.16 36.81
---------------------- ----------------------- ----------------- -------------------------
99.94 CMP BATTERLIEN NV B T.S. BATTERUE S.R.L. ??.?? INITIATIVE S.A. b SFAT S.A.
BELGIUM ITALY LUXEMBURG b FRANCE
---------------------- ----------------------- ----------------- -------------------------
---------------------- ----------------------- ----------------- -------------------------
XXXXX B.V. 99.13 I.C.S. c 20.00 DAISA S.A. 99.99 SOC.EXPL ACC. XXXXXX SARL f
NETHERLANDS ITALY SPAIN FRANCE
---------------------- ----------------------- ----------------- -------------------------
---------------------- ----------------------- ----------------- -------------------------
ANKER ACCU, BENELUX B.V. ACC. SONNENSCHEIN GmbH ?0.00 DAIMA SRL T.S. BATTERIES S.A.
NETHERLANDS GERMANY SPAIN FRANCE
---------------------- ----------------------- ----------------- -------------------------
---------------------- ----------------------- ----------------- -------------------------
T.S. ACCU. WACHT B.V. 50.00 SONNENSC LITHIUM GmbH ??.?? FULMEN IBERICA BA BATTERIE XXXXX X.X.
NETHERLANDS GERMANY SPAIN FRANCE
---------------------- ----------------------- ----------------- -------------------------
---------------------- -----------------------
CMP BATTERIJEN BV 10.00 SUNSHINE BATTERIES
NETHERLANDS NIGERIA
---------------------- -----------------------
----------------------
ATSA BATTERIJEN BV
NETHERLANDS
----------------------
----------------------
FTS B.V.
NETHERLANDS
----------------------
----------------------------------------------------------- ----------------------------------------------------------------------
OTHER SHAREHOLDERS OTHER INVESTMENTS
A: INITIATIVE SA: 2.05 D: EXIDE AUTOMOTIVE: 0.02 a: INITIATIVE S.A. : 0.02 c: FULMEN IBERICA S.A.: 0.25
B: CEAC SA: 0.06 E: L'ACCUMULATEUR FULMEN: 0.25 b: EXIDE AUTOMOTIVE: 2.05 SOC. EXPL ACC. XXXXXX SARL: 0.01
C: INITIATIVE: 0.87 F: L'ACCUMULATEUR FULMEN: 0.01 ?????? EXIDE AUTOMOIVE (Belgium): 0.001
----------------------------------------------------------- ----------------------------------------------------------------------
Ownership interests in each legal entity are represented by a single class of
common shares. Unless otherwise noted, the legal entities are 100% owned by
Exide or an Exide subsidiary as listed.
62
------------------------
S.E.A. TUDOR
SPAIN 31/12/1996
------------------------
---------------------------- ---------------------------- ------------------- --------------------------
TERRENOS Y CONSTRUCCIONES GAZTAMBIDE S.A. S.P.A.T. EXIDE
S.A. VERWALTUNGSGESELLOHAFT
SPAIN SPAIN PORTUGAL GmbH
---------------------------- ---------------------------- ------------------- --------------------------
---------------------------- ---------------------------- ------------------- --------------------------
ELECTRO MERCANTIL INDUSTRIAL AMISGAR CIDAILIDA EXIDE AUTOMOTIVE
S.A. BATTERIE GmbH
SPAIN SPAIN PORTUGAL GERMANY
---------------------------- ---------------------------- ------------------- --------------------------
---------------------------- ---------------------------- ------------------- --------------------------
TUDOR ELECTRONICA S.A. ESPACO 2000 LTDA AZAILDA XXXXX BATTERIE AG
SPAIN PORTUGAL PORTUGAL GERMANY
---------------------------- ---------------------------- ------------------- --------------------------
---------------------------- ---------------------------- ------------------- --------------------------
MEGORSA RENOVACION URBANA LTD. SORICOL EXIDE BATTERIEWERKE GmbH
SPAIN PORTUGAL PORTUGAL AUSTRIA
---------------------------- ---------------------------- ------------------- --------------------------
---------------------------- ---------------------------- ------------------- --------------------------
PRODESA NERCOLEC SONALUR U-XXXXX XXXXX
SPAIN LUXEMBURG PORTUGAL GERMANY
---------------------------- ---------------------------- ------------------- --------------------------
---------------------------- ---------------------------- ------------------- --------------------------
TUDOR SERVICIOS INDUSTRIALES MERCOLEC TUDOR B.V. COMTUDOR S.A. ACCU.-FABRIK TUDOR
SPAIN NETHERLANDS PORTUGAL GERMANY
---------------------------- ---------------------------- ------------------- --------------------------
---------------------------- ---------------------------- ------------------- --------------------------
RUCOMEX TUDOR HELLENIC GEOFINANCA X.X. XXXXX HOLDING OY.
SPAIN GREECE PORTUGAL FINLAND
---------------------------- ---------------------------- ------------------- --------------------------
---------------------------- ---------------------------- -------------------
XXXXX X.X. INTRA DEVELOPMENT CROVAM S.A.
SPAIN DENMARK PORTUGAL
---------------------------- ---------------------------- -------------------
---------------------------- ---------------------------- -------------------
METALLURGICA DE XXXXX X.X. TUDOR INDIA EMACEL
SPAIN INDIA ANGOLA
---------------------------- ---------------------------- -------------------
Ownership interests in each legal entity are represented by a single class of
common shares.
----------OTHER SHAREHOLDERS------------------------- ------------OTHER INVESTMENTS -----------------------------
A: TERRENOS: 28.00 E: MERCOLEC: 20.00 a: ESPACO 2000 LTDA: 28.00 d: CIDAI: 25.00
B: TERRENOS: 29.00 SONALUR: 10.00 RENOVACION URBANA: 29.00 SONALUR: 15.00
C: SONALUR: 0.06 F: CIDAI: 50.00 GATZAMBIDE: 0.0001 e: S.P.A.T.: 0.05
S.P.A.T: 10.00 G: S.E.A. TUDOR: 20.00 b: AZAI: 20.00 AZAI: 10.00
D: AZAI: 25.00 AZAI: 15.00 c: SORICOL: 50.00 f: SONALUR: 20.00
H: CIDAI: 50.00 COMTUDOR: 60.00
----------------------------------------------------- -----------------------------------------------------------
Unless otherwise noted, the legal entities are 100% owned by Exide or an
Exide subsidiary as listed.
EXHIBIT A
---------
NOTICE OF BORROWING
[Date]
Bankers Trust Company, as
Administrative Agent for
the Banks party to the Credit
Agreement referred to below
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________________
Gentlemen:
The undersigned, Exide Corporation (the "Company"), refers to the
Credit Agreement, dated as of August 30, 1994 (as amended, modified or
supplemented from time to time, the "Credit Agreement"; except as otherwise
defined herein, the terms defined therein being used herein as therein defined),
among the Company, various Banks from time to time party thereto, Bankers Trust
Company, Bank of America National Trust and Savings Association and Bank of
Montreal, as Agents, and you, as Administrative Agent for such Banks, and hereby
gives you notice, irrevocably, pursuant to Section 1.03(a) of the Credit
Agreement, that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 1.03(a) of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _________,
19__./1/
(ii) The aggregate principal amount of the Proposed Borrowing is
U.S. $___________.
-----------------------
/1/ Shall be a Business Day at least one Business Day in the case of Base Rate
Loans and three Business Days in the case of Eurodollar Rate Loans, in each
case, after the date hereof.
EXHIBIT A
Page 2
(iii) The Proposed Borrowing is to consist of [Tranche A Term Loans]
[Tranche B Term Loans] [Tranche C Term Loans] [Tranche D Term Loans]
[Revolving Loans].
(iv) The Loans to be made pursuant to the Proposed Borrowing shall
be initially maintained as [Base Rate Loans] [Eurodollar Loans]./2/
[(v) The initial Interest Period for the Proposed Borrowing is ___
month(s).]/3/
The undersigned hereby certifies that the following statements are
true and correct on the date hereof, and will be true and correct on the date of
the Proposed Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and
correct in all material respects, both before and after giving effect to
the Proposed Borrowing and to the application of the proceeds thereof, as
though made on such date (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects as
of such specified date); and
(B) no Default or Event of Default has occurred and is continuing, or
would result from such Proposed Borrowing or from the application of the
proceeds thereof.
Very truly yours,
EXIDE CORPORATION
By____________________________
Name:
Title:
-------------------
/2/ Eurodollar Loans may not be incurred prior to the Syndication Termination
Date.
/3/ To be included for a Proposed Borrowing of Eurodollar Loans.
EXHIBIT B-6
-----------
TRANCHE D TERM NOTE
U.S. $________________ New York, New York
_________ __, 199_
FOR VALUE RECEIVED, EXIDE CORPORATION, a Delaware corporation (the
"Company"), hereby promises to pay to the order of _____________________ or its
registered assigns (the "Bank"), in lawful money of the United States of America
in immediately available funds, at the office of Bankers Trust Company (the
"Administrative Agent"), initially located at Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, on the Tranche D Term Loan Maturity Date (as defined in the
Agreement referred to below) the principal sum of _______________ U.S. DOLLARS
or, if less, the then unpaid principal amount of all Tranche D Term Loans (as
defined in the Agreement) made by the Bank pursuant to the Agreement.
The Company promises also to pay interest on the unpaid principal
amount hereof in like money at said office from the date hereof until paid at
the rates and at the times provided in Section 1.08 of the Agreement.
This Note is one of the Tranche D Term Notes referred to in the Credit
Agreement, dated as of August 30, 1994, among the Company, the lenders from time
to time party thereto (including the Bank), Bankers Trust Company, Bank of
America National Trust and Savings Association, and Bank of Montreal, as Agents,
and Bankers Trust Company as the Administrative Agent (as amended, modified or
supplemented from time to time, the "Agreement"), and is entitled to the
benefits thereof and of the Domestic Subsidiaries Guaranty (as defined in the
Agreement). This Note is secured by the Security Documents (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the Tranche D Term Loan Maturity
Date, in whole or in part.
This Tranche D Term Note may not be transferred except in accordance
with the terms and conditions of the Agreement. Transfers of this Tranche D
Term Note must be recorded in the Register maintained by the Administrative
Agent pursuant to the terms of the Agreement.
EXHIBIT B-6
Page 2
In case an Event of Default (as defined in the Agreement) shall occur
and be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in the
Agreement.
The Company hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
EXIDE CORPORATION
By_____________________________
Title:
EXHIBIT O
---------
BORROWING BASE CERTIFICATE AS OF [DATE]
---------------------------------------
To: The Banks party to the Credit Agreement, dated
as of August 30, 1994, among Exide Corporation
(the "Company"), the financial institutions party
thereto and Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of
Montreal, as Agents, and Bankers Trust Company as
Administrative Agent, as amended (the "Credit Agreement")
1. Accounts Receivable Amount
------
Total face amount of the
receivables of the Company and
its Domestic Wholly-Owned
Subsidiaries which are party to
the Security Agreement
(excluding any receivables
which are in any way subject to
the Receivables Facility) which
conform to the representations
and warranties contained in the
Security Agreement (including, $__________
without limitation, that the
Collateral Agent shall have and
maintain a first priority
perfected security interest in
all such receivables), and at
all times continue to be
acceptable to the Collateral
Agent in its reasonable judgment
Less:
Returns, discounts, claims,
credits and allowances of any
nature (whether issued, owing, ($_________)
granted or outstanding)
Reserves for any other matter
affecting the creditworthiness
of account debtors with respect ($_________)
to the receivables:
Xxxx and hold (deferred ($_________)
shipment) transactions
Contracts or sales to any
Affiliate of the Company or ($_________)
any governmental entity
All receivables which have not
been paid in full within 90
days after the due date thereof
or the amount of such ($_________)
receivables which have been
disputed by the account debtor
Receivables of any account
debtor of which 50% or more of
the aggregate outstanding
receivables of such account
debtor owed to the Company and ($_________)
its Domestic Wholly-Owned
Subsidiaries would be excluded
pursuant to the preceding item
Sales to account debtors
residing or located outside the ($_________)
United States
Receivables of any account
debtor with respect to which
any action or event of the
types described in Section ($_________)
11.05 of the Credit Agreement
has occurred
To the extent that the receivables of
any account debtor exceed 20% of the
total outstanding receivables of all
account debtors owed to the Company
and its Domestic Wholly-Owned ($_________)
Subsidiaries, that portion of such
receivables in excess of such 20%
Receivables of any account ($_________)
debtor arising
out of a consignment arrangement
2. Eligible Receivables
(Net Amount of No. 1) $__________
3. 75% of Eligible Receivables $__________
4. Inventory
Gross dollar value (valued at
the lower of cost (determined
on a first in-first out basis)
or market value) of the
inventory of the Company and
its Domestic Wholly-Owned
Subsidiaries which are party to
the Security Agreement which
conforms to the representations
and warranties contained in the
Security Agreement including,
without limitation, that
the Collateral Agent shall have
and maintain a first priority
perfected security interest in
all such inventory, which
inventory constitutes raw
materials, work-in-progress or
finished goods and which is
not, in the Company's good
faith opinion and consistent
with past practice, excess,
obsolete or unmerchantable $__________
Less:
Any supplies (other than raw
materials), spare parts and ($_________)
goods returned to suppliers
Inventory subject to any Lien
other than the Liens created
under the Security Documents ($_________)
Any market reserves maintained
by the Company and its
Subsidiaries ($_________)
5. Eligible Inventory (Net Amount
No. 4) $__________
6. 60% of Eligible Inventory $__________
7. Value of property, plant and
equipment $50,000,000
8. Aggregate principal amount of
Tranche D Term
Loans outstanding $__________
9. Borrowing Base
(Remainder (but not less than $__________
$0) of (1) the sum of Xx. 0,
Xx. 0 and No. 7, minus (2)
No. 8)
10. Outstanding Principal
Amount of Revolving Loans,
Swingline Loans and Revolving
Letter of Credit Outstandings $__________
11. Borrowing Base Surplus
(Deficiency)
(No. 9 minus No. 10) $__________
70
The undersigned hereby certifies that all of the information provided
above is true and correct as of the date first above written.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this
__ day of ____________, 19__.
EXIDE CORPORATION
By_________________________
Name:
Title: Chief Financial Officer
71
