Exhibit 10.7
General Unsecured Loan Agreement
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THE ASAHI BANK, LTD.
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
The Asahi Bank, Ltd.
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Gentlemen:
In consideration of the extension and use of various financial accommodations
given, to be given, or continued to or for the account of YUASH, INC.
hereinafter "Borrower," by The Asahi Bank, Ltd., New York Branch, hereinafter
"Bank,"
BORROWER AND BANK MUTUALLY AGREE: that the following terms and conditions shall
apply to any and all Obligations, as hereinafter defined, whether now existing
or hereafter incurred, whether contracted with Bank directly or indirectly,
whether absolute or contingent and whether matured or not:
1. OBLIGATIONS. Except as otherwise specified, the term Obligations as used
herein shall include any and all indebtedness, notes, bonds, debentures.
obligations and liabilities of Borrower owed to Bank directly or indirectly,
conditionally, or as security from another, whether liquidated or
unliquidated, whether at law, in equity or in admiralty, whether due or not
due, and whether heretofore, presently or hereafter incurred or given by
Borrower as principal, surety, endorser, or otherwise.
2. ASSIGNMENT OR TRANSFER BY BANK. flank may wholly or partially negotiate or
assign any Obligations.
3. PAYMENT TO BANK. Borrower agrees to pay to Bank at its office listed above in
United States legal tender any and all principal of and interest on
Obligations when due. If any amount of Obligations is payable in foreign
currency, an equal amount of such currency will be deposited by Borrower in
an account designated by Bank not later than one business day prior to
maturity. If Borrower fails to provide such foreign currency, and if Bank
agrees to provide such currency in its discretion, Bank will obtain such
currency on the maturity date at the prevailing market exchange rate and
Borrower will be liable for all costs in connection with Bank's obtaining
such currency. Any amount which shall be due on a Saturday, Sunday or other
day on which the Bank is closed shall be payable on the next succeeding
business day, but such additional time shall be included in the computation
of interest. All such amounts shall be due and payable at 12:00 noon local
time on the due date.
Borrower further agrees to pay all reasonable charges, fees, commissions and
expenses (including legal expenses) of Bank in connection with any
Obligations hereunder, or incidental to the enforcement of any of the
provisions hereof, and all such charges, fees, commissions and expenses shall
be Obligations within the terms of this agreement.
4. INTEREST AFTER DUE DATE. Except as otherwise provided in a separate agreement
creating or evidencing any of the Obligations, interest on any amounts of the
Obligations outstanding after their due date (whether at the stated maturity,
by acceleration or otherwise), including principal, interest and fees, shall
be immediately payable without demand at a rate equal to 15% per annum above
the rate prevailing prior to maturity of the obligations.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER.
(a) The Borrower is a corporation or partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is in good standing in every jurisdiction where the nature of its
business requires it to be so qualified and the failure to so qualify
will have a material adverse effect on the Borrower.
(b) The execution, delivery and performance by the Borrower of this Agreement
are within the Borrower's corporate or other powers, have been duly
authorized by all necessary corporate or other action, and do not
contravene (i) the Borrower's charter, by-laws or partnership agreement,
(ii) applicable law, or (iii) any contractual restriction binding on or
affecting the Borrower or any of its properties.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Borrower of this
Agreement.
(d) This Agreement is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(e) There is no pending or threatened action or proceeding affecting the
Borrower before any court, governmental agency or arbitrator, which, if
adversely determined, would, in the opinion of the Borrower, materially
adversely affect the financial condition or operations of the Borrower or
which purports to affect the legality, validity or enforceability of this
Agreement or the ability of the Borrower to perform any of the
Obligations.
6. COVENANTS OF THE BORROWER. Until all of the Borrower's Obligations have been
repaid in full, the Borrower shall promptly notify the Bank of:
-1-
(a) (i) any change in the Borrower's business which could impair the
Borrower's ability to repay amounts outstanding under its Obligations as
and when due;
(ii) the occurrence of any default, or any event which, with the passage
of time or the giving of notice (or both), would result in any default,
under any mortgage, indenture or instrument under which there may be
issued, or by which there may be incurred or evidenced, any of the
Borrower's indebtedness for borrowed money; and
(iii) all pending or threatened actions, suits or proceedings before any
court, arbitrator or governmental or administrative body or agency which
might result in any material adverse change in the Borrower's business,
operations, properties or assets or in the Borrower's condition,
financial or otherwise.
(b) Keep at all times books of records and accounts in which full, true and
correct entries shall be made of all dealings and transactions in
relation to the Borrower's business and affairs;
(c) Maintain the Borrower's existence and keep all property which is required
for the Borrower's ongoing operations, business or condition (financial
or otherwise) in good repair, working order and condition:
(d) Pay and discharge all taxes, assessments and governmental charges or
levies imposed upon the Borrower or the Borrower's income or profits, or
upon any of the Borrower's property, prior to the date on which penalties
attach thereto, unless the Borrower shall contest in good faith and by
proper proceedings the payment of any such tax, assessment, charge or
levy and the Borrower shall maintain adequate reserves therefor;
(e) Keep all of the Borrower's properties adequately insured at all times
with responsible insurance carriers against loss or damage by fire and
other hazards, maintain adequate insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property and under all workmen's compensation laws and maintain adequate
insurance covering such other risks as the Bank may reasonably request;
(f) Allow the Bank to visit and inspect any of the Borrower's properties,
examine the Borrower's books of account and other records and files and
make copies thereof, and to discuss the Borrower's business affairs and
finances with the Borrower's officers and employees, at such reasonable
times as the Bank shall request, and
(g) Comply with the requirements of all laws, rules, regulations and orders
applicable to the Borrower or its business.
7. RIGHT TO DEBIT ACCOUNTS OF BORROWER. Without notice to Borrower, Bank may
appropriate and apply to the total or partial payment of any and all
Obligations any and all monies credited to or belonging to Borrower and which
are now or hereafter held by Bank, on deposit or otherwise.
8. EVENTS OF DEFAULT. Upon the occurrence of any of the following, any and all
existing Obligations shall immediately become due and payable;
A. The nonpayment of any Obligations that are due and payable; or
B. The failure of Borrower to perform any act or duty as specified in this
agreement or any Obligations; or
C. Any written statement, representation or warranty furnished to Bank by
Borrower in any financial statement, agreement or similar document is
found to be untrue in any material respect; or
D. The insolvency, suspension of the usual business, assignment of a
significant portion of the assets (whether generally or for the benefit of
creditors), material deterioration in the financial condition or merger or
consolidation of Borrower, or
E. The attachment or distraint of any material funds or other material
property of Borrower by any parties or any domestic or foreign government
or governmental agency or department; or
F. The filing of a petition in bankruptcy or the commencement of any similar
proceeding by or against Borrower under any bankruptcy or debtor's law for
the composition, extension, arrangement or readjustment of debts; or
G. The appointment of a trustee, receiver, conservator, rehabilitator or
similar officer for Borrower or all or a substantial part of its assets.
H. The occurrence of any of the foregoing events described in subsections C
through G of this article, mutatis mutandis with respect to the holder at
any time of a majority of Borrower's outstanding capital stock.
9. WAIVER. Any delay, extension of time, renewal, compromise or other indulgence
which may occur or be granted by Borrower or Bank to a third party shall not
impair the rights or powers of the other party hereto against such third
party. Notwithstanding anything to the contrary, Borrower hereby waives its
right to require from Bank notice, presentment, demand or protest of
Obligations.
10.CUMULATIVE REMEDIES. The rights, remedies, powers and privileges provided
herein shall be cumulative and not exclusive of those provided by law or
equity.
-2-
The obligations of this agreement shall extend to and unconditionally bind
the successors and assigns of Borrower and Bank. The rights, remedies, powers
and privileges contained herein similarly shall enure to the benefit of and
may be enforced by their respective successors and assigns.
11.TERMINATION. This is a continuing agreement and shall remain in full force
and effect until written notice shall have been received by either party from
the other that it has been terminated, but any such notice shall not
discharge, release, change, or reduce Borrower's liability for or on any
outstanding Obligations.
12.MODIFICATION. This agreement may not be modified or terminated nor may any
rights be waived except by a writing signed by the duly authorized
representative of the party against whom enforcement of such modification,
termination or waiver is sought. However, even a written waiver shall not be
effective as to any transaction occurring subsequent to the date of such
waiver, nor as to any continuance of a breach after such waiver.
13.GOVERNING LAW. All rights, obligations and liabilities arising under this
agreement or any Obligations shall be governed by and construed in accordance
with the laws of the Sate of New York.
00.XXXXXXXXX INFORMATION. Borrower shall furnish to Bank within 180 days after
the end of each of its fiscal years its audited consolidated statement of
income and retained earnings in respect of, and its balance sheet as at the
end of, each such year, and shall furnish to Bank such further information as
may be reasonably requested from time to time by Bank.
15.SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be deemed to be ineffective only in
such jurisdiction and only to the extent of such prohibition or
unenforceability, and shall not affect or invalidate the remaining provisions
of this Agreement, which shall be construed so as to preserve to the greatest
extent possible their original purpose and effect.
16.SURVIVAL All covenants, representations, warranties and other agreements made
in this Agreement shall survive and shall continue in full force and effect
so long as any Obligations remain outstanding and unpaid. Each time the Bank
shall make a new advance to the Borrower or a new Obligation shall be
created, the Borrower shall be deemed to have reconfirmed to the Bank that
the representations made herein remain true and correct.
17.CONFLICT. This Agreement shall apply only to unsecured loans, credits and
advances made by the Bank to the Borrower from time to time and shall not
affect the terms of any secured loan arrangement between the Bank and the
Borrower, which shall be construed in accordance with its own terms. In
addition, if the Borrower has entered into any other written agreement with
the Bank evidencing any unsecured Obligation, and if the terms of such other
written agreement shall conflict with the terms hereof, the terms in conflict
shall be reconciled with each other to give effect to both provisions to the
greatest extent possible, but any conflicts which cannot be reconciled shall
be resolved by reference to the terms of the other written agreement which
shall be deemed to be controlling.
IN WITNESS WHEREOF, the undersigned Borrower has caused this agreement to be
executed and its corporate seal to be affixed and attested to as of the 8th day
of May, l998
Yuasa, INC.
(Seal) --------------------------------
Borrower's Name
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
----------------------------- 0000 Xxxxxxxxx Xxxx
Title: Secretary Xxxxxxx, XX 00000-0000
--------------------------------
Address
By: /s/ Xxxxxxx X. XxXxxxxxxxx
--------------------------------
Title: Treasurer
ACCEPTED:
THE ASAHI BANK, LTD.
New York Branch
By:
---------------------------
Title:
-3-
PO Box [LOGO OF CORESTATES BANK
000 Xxxx Xxxxxx APPEARS HERE]
Xxxxxxx XX 00000
000 000 0000
Fax 000 000 0000
Xxxxxx X Xxxxxx
Vice President
March 16, 1998
Xx. Xxxxxxx XxXxxxxxxxx
Treasurer
Yuasa-Exide, Inc.
X.X. Xxx 00000
Xxxxxxx, XX 00000
Dear Xxxxxxx:
I am very pleased to inform you that CoreStates Bank N.A. ("the Bank") has
approved a new credit facility for use by Yuasa-Exide, Inc. ("the Borrower") as
follows:
Amount: $10,000,000.00
Term: 8 years
Repayment: Interest monthly. Principal in 20 consecutive quarterly
installments of $500,000 per quarter beginning July 1, 2001
with a final payment of all remaining principal and accrued
interest due April 1, 2006.
Collateral: Unsecured
Interest Rates: The Bank's "Overnight Base Rate" (OBR) as quoted and made
available by the Bank from time to time, plus .70%.
Fixed rate/OBR Swap to be provided by the Bank and, as a
condition hereof, to be established solely between the
Borrower and the Bank as pertains specifically to this
credit facility.
Conditions: A. Financial reporting, quarterly and annual in form
acceptable to the Bank
B. Financial covenants
1. Minimum "Cash Flow to Debt Service" ratio of 1.00
to 1, tested annually (See attached
calculation/definition, Exhibit 1)
2. Maximum "total debt to Tangible Net Worth" ratio of
12 to 1 as of 3/31/98 (see attached proforma
calculations/definitions, Exhibit 2) and
thereafter, tested quarterly (to be reset prior to
3/31/99, or following the IPO).
C. Cross default -- a default by the Borrower under this
credit facility shall at the Bank's option constitute a
default under any other credit facilities between the
Bank and the Borrower, and vice versa.
D. The Borrower agrees that it's Accounts Receivable,
Inventory, Intellectual Property, and the majority of
it's equipment and real estate, will remain
unencumbered.
E. Such other terms and conditions as contained in the
standard bank loan documentation as required by the Bank
("Related Documentation").
Representations
and Warranties: The Borrower hereby represents and warrants to the Bank that:
a) Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the
state in which it is incorporated.
b) The execution and delivery of this letter and the
Related Documentation and the consummation of the
matters described herein have been duly approved by the
Borrower;
c) All financial statements previously or hereafter given
by or on behalf of the Borrower to the Bank are or will
be (when furnished) true, correct, and substantially
complete as of the date of their preparation.
d) To the knowledge of the Borrower, there are no suits,
investigations, tax claims, or other legal proceedings
now pending which would materially adversely affect the
financial conditions of the Borrower.
e) The "Certified Copy of Borrowing Resolutions and
Certificates of Incumbency" dated June 3, 1996 was and
continues to be true and correct.
Please indicate your acceptance of the above by signing the enclosed copy of
this letter and returning it to my attention no later than March 31, 1998. Upon
acceptance of the within commitment and the delivery of the Related
Documentation, this document shall be deemed a Letter Agreement ("Letter
Agreement") by and between the Bank and the Borrower as of the date of such
acceptance. The terms and conditions of the Letter Agreement shall survive both
the execution of the Letter Agreement and the execution and/or delivery of any
Related Documentation and shall remain in full force and effect until all
obligations of the Borrower to the Bank hereunder are performed and paid in
full. Any failure by the Borrower to fulfill and perform all obligations of the
Borrower to the Bank hereunder ("Default"), whether of payment or performance,
shall be deemed a Default hereunder and under the Related Documentation. Any
Default under or pursuant to any of the Related Documentation shall be deemed a
Default hereunder. Settlement shall occur on or before March 31, 1998.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Vice President
/pjt
The undersigned, intending to be legally bound hereby, acknowledge and accept
the terms and conditions outlined above, as of this 17 day of March 1998.
YUASA-EXIDE, INC.
/s/ Xxxxxxx X. XxXxxxxxxxx
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Xxxxxxx X. XxXxxxxxxxx, Treasurer
Exhibit I
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(Part of Letter Agreement between Yuasa-Exide, Inc.
and CoreStates Bank N.A. dated 3/17/98
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"Cash Flow"
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97 96
----- -----
NI 5035 3438
+Dep 10044 11074
+AM 4403 3926
-Dividends (1200) (400)
-Unfunded Capx* (9443) 0
----- -----
8839 18034
----- -----
*Capital expenditures paid "out of pocket": (i.e. not financed with debt)
Debt Service
------------
(Actual principal repayment on LTD, does not include refinanced or rolled-
over debt, or repayment on lines)
97 96
-- --
8033 6000
"Cash Flow" to "Debt Service" Ratio
97 96
-- --
1.10 3.00
Exhibit 2
---------
(Part of Letter Agreement between Yuasa-Exide, Inc. and
CoreStates Bank N.a. dated 3/17/98
-----------
"Total Debt" to Tangible Net Worth" Ratio
Total Debt = Total Liabilities
TNW = Total Shareholders Equity, minus
intangible assets
97 96
-- --
182,274 = 12.48 186,150 = 25.99
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14,605 7,192
Proforma with `98 NI - Divs. (Liabilities unchanged)
182,274 = 9.09
-------
20,032
Proforma with IPO proceeds (Liabilities unchanged)
182,274 = 2.60
-------
70,032
XX Xxx 0000
000 Xxxx Xxxxxx
Xxxxxxx XX 00000 [LOGO OF CORESTATES BANK
000 000 0000 APPEARS HERE]
Fax 000 000 0000
Xxxxxx X Xxxxxx
Vice President
December 23, 1997
Xx. Xxxxxxx XxXxxxxxxxx
Yuasa Exide Inc.
X.X. Xxx 00000
Xxxxxxx, XX 00000
Dear Xxxxxxx:
I am pleased to advise you that CoreStates Bank N.A. (The "Bank") has approved
an increase to the existing line of credit to Yuasa-Exide, Inc. (The "Company"),
from $5,000,000 to $10,000,000, subject to the following terms and conditions:
Amount: $10,000,000.00
Purpose: Miscellaneous working capital support
Repayment: Interest monthly, Principal payable upon demand
Interest: LIBOR-based rates as quoted by the Bank and accepted by the
Company for such terms as made available at the sole
discretion of the Bank.
Other Conditions:
A. Negative Pledge -- Company agrees that any and all lines of credit
extended by any bank to the Company shall at all times be on an
unsecured basis.
B. Company to provide to the Bank advance written notice of any event
that could result in a material change to the financial condition of
the Company, including but not limited to material acquisitions.
C. Company to provide immediate notice to the Bank in the event that the
Company is in violation of any terms and conditions of any other Bank
financing arrangements.
This facility is also subject to all terms and conditions as outlined in the
"Master Demand Note" and any addendums thereto.
Please indicate your acceptance of the above by signing the acknowledgment
below.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Vice President
PBS/pjt
Acknowledged and accepted this 23 day of December, 1997.
YUASA-EXIDE INC.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx VP & CFO
/s/ Xxxxxxx X. XxXxxxxxxxx
-------------------------------------
Xxxxxxx X. XxXxxxxxxxx Treasurer
--------------- --------------- -------------------- ------------------------
--------------- --------------- -------------------- ------------------------
LIS NO. LOAN NO. BORROWER APPROVAL SIGNATURE
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[LOGO OF CORESTATES APPEARS HERE]
MASTER DEMAND NOTE
$ 10,000,000.00 12/23 , 1997
------------------------- ------------ --
FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than
one (hereinafter collectively referred to as "Borrower"), promises to pay to the
order of CoreStates Bank, N.A.*, a national banking association (the "Bank"), at
any of its banking offices in Pennsylvania, the principal amount of
Ten Million and 00/100---------------------------------------------------DOLLARS
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in lawful money of the United States, or, if less, the outstanding principal
balance on all loans and advances made by Bank evidenced by this Note
("Loans"), plus interest. Said principal and interest shall be payable ON DEMAND
Interest shall accrue at a rate per annum which is at all times equal to SEE
---
ATTACHED NOTE ADDENDUM OF EVEN DATE HEREWITH Bank's Prime Rate, such rate to
--------------------------------------------
change each time the Prime Rate changes, effective on and as of the date of the
change.
INTEREST - Interest shall be calculated on the basis of a 360 day year and shall
be charged for the actual number of days elapsed.
Accrued interest shall be payable monthly. Accrued interest shall also be
payable on demand and when the entire principal balance of this Note is paid to
Bank. The term "Prime Rate" is defined as the rate of interest for loans
established by Bank from time to time as its prime rate. Interest shall accrue
on each disbursement hereunder from the date such disbursement is made by Bank,
provided, however, that to the extent this Note represents a replacement,
substitution, renewal or refinancing of existing indebtedness, interest shall
accrued from the date hereof. Interest shall accrue on the unpaid balance hereof
at the rate provided for in this Note until the entire unpaid balance has been
paid in full, notwithstanding the entry of any judgment against Borrower.
BANK'S LOAN RECORDS - The actual amount due and owing from time to time under
this Note shall be evidenced by Bank's books and records of receipts and
disbursements hereunder. Bank shall set up and establish an account on the books
of Bank in which will be recorded Loans evidenced hereby, payments on such Loans
and other appropriate debits and credits as provided herein, including any Loans
which represent reborrowings of amounts previously repaid. Bank shall also
record, in accordance with customary accounting practice, all other interest,
charges, expenses and other items properly chargeable to Borrower hereunder, and
other appropriate debits and credits. Such books and records of Bank shall be
presumed to be complete and accurate and shall be deemed correct, except to the
extent shown by Borrower to be manifestly erroneous.
NOTE NOT A COMMITMENT TO LEND - Borrower acknowledges and agrees that no
provision hereof, and no course of dealing by Bank in connection herewith, shall
be deemed to create or shall imply the existence of any commitment or obligation
on the part of Bank to make Loans. Except as otherwise provided in a currently
effective written agreement by Bank to make Loans, each Loan shall be made
solely at Bank's discretion.
PREPAYMENT - Borrower may at its option prepay all or any portion of the
principal balance of any Loans at any time without premium or penalty.
COLLATERAL - As security for all indebtedness to Bank now or hereafter incurred
by Borrower, under this Note or otherwise, Borrower grants Bank a lien upon and
security interest in any securities, instruments or other personal property of
Borrower now or hereafter in Bank's possession and in any deposit balances now
or hereafter held by Bank for Borrower's account and in all proceeds of any;
such personal property or deposit balances. Such liens and security interests
shall be independent of Bank's right of setoff. This Note and the indebtedness
evidenced hereby shall be additionally secured by any lien or security interest
evidenced by a writing (whether now existing or hereafter executed) which
contains a provision to the effect that such lien or security interest is
intended to secure (a) this Note or indebtedness evidenced hereby or (b) any
category of liabilities, obligations or the indebtedness of Borrower to Bank
which includes this Note or the indebtedness evidenced hereby, and all property
subject to any such lien or security interest shall be collateral for this Note.
CONFESSION OF JUDGMENT - Borrower irrevocably authorizes and empowers any
attorney or any clerk of any court of record to appear for and confess judgment
against Borrower for such sums as are due and owing on this Note, with or
without declaration, with costs of suit, without stay of execution and with an
amount not to exceed the greater of fifteen percent (15%) of the principal
amount of such judgment or $5,000 added for collection fees. If a copy of this
Note, verified by affidavit by or on behalf of Bank, shall have been filed in
such action, it shall not be necessary to file the original of this Note. The
authority granted hereby shall not be exhausted by the initial exercise thereof
and may be exercised by Bank from time to time. There shall be excluded from
the lien of any judgment obtained solely pursuant to this paragraph all improved
real estate in any area identified under regulations promulgated under the Flood
Disaster Protection Act of 1973, as having special flood hazards if the
community in which such area is located is participating in the National Flood
Insurance Program. Any such exclusion shall not affect any lien upon property
not so excluded.
DEMAND NOTE - This Note is and shall be construed as a "demand instrument" under
the Uniform Commercial Code. Bank may demand payment of the indebtedness
outstanding under this Note or any portion thereof at any time.
BANK'S REMEDIES - In the event that any payment hereunder is not made when due
or demanded, Bank may, immediately or any time thereafter, exercise any or all
of its rights hereunder or under any agreement or otherwise under applicable law
against Borrower, against any person liable, either absolutely or contingently,
for payment of any indebtedness evidenced hereby, and in any collateral, and
such rights may be exercised in any order and shall not be prejudiced by any
delay in Bank's exercise thereof. At any time after such non-payment, Bank may,
at its option and upon five days written notice to Borrower, begin accruing
interest on this Note at a rate not to exceed five percent (5%) per annum in
excess of the rate of interest provided for above on the unpaid principal
balance hereof; provided, however, that no such interest shall accrue hereunder
in excess of the maximum rate permitted by law. All such additional interest
shall be payable upon demand.
NOTICE TO BORROWER - Any notice required to be given by Bank under the
provisions of this Note shall be effective as to each Borrower when addressed to
Borrower and deposited in the mail, postage prepaid, for delivery by first class
mail at Borrower's mailing address as it appears on Bank's records.
DISBURSEMENTS AND PAYMENTS - The proceeds of any Loan may be credited by Bank to
the deposit of Borrower or disbursed in any other manner requested by Borrower
and approved by Bank. All payments due under this Note are to be made in
immediately available funds. If Bank accepts payment in any other form, such
payment shall not be deemed to have been made until the funds comprising such
payment have actually been received by or made available to Bank. If Borrower is
not an individual, Borrower authorizes Bank (but Bank shall have no obligation)
--------------------------------------------------------------------------------
* CoreStates Bank, N.A. also conducts business as Philadelphia National Bank, as
CoreStates First Pennsylvania Bank and as CoreStates Xxxxxxxx Bank
ADDENDUM TO MASTER DEMAND NOTE
IN AMOUNT OF $10,000,000.00
This note will bear interest at a LIBOR based interest rate as quoted by the
Bank and accepted by the Borrower from time to time for specified terms.
PREPAYMENT:
----------
If this Note bears interest at a floating or variable rate and no floor or
minimum rate is specified, Borrower may prepay all or any portion of the
principal balance of this Note at any time, without premium or penalty. If not
permitted under the preceding sentence, any prepayment of principal (including
any principal repayment as a result of acceleration by Bank of this Note) shall
require immediate payment to Bank of a prepayment fee equal to the amount, if
any, by which the aggregate present value of scheduled principal and interest
payments eliminated by the prepayment exceeds the principal amount being
prepaid. Said present value shall be calculated by application of a discount
rate determined by Bank in its reasonable judgment to be the yield-to-maturity
at the time of prepayment on U. S. Treasury securities having a maturity which
most closely approximates the final maturity date of the principal balance then
outstanding. Whether or not a prepayment fee is required hereunder, prepayments
shall be applied to scheduled installments of principal in the inverse order of
their maturity, shall be accompanied by payment of accrued interest on the
principal amount being prepaid and, unless this Note has been accelerated by
Bank, shall not be permitted in an amount less than the scheduled principal
installment immediately prior to final maturity of the outstanding principal
balance.
YUASA-EXIDE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx, Pres. -Finance
By: /s/ Xxxxxxx X. XxXxxxxxxxx
------------------------------------
Xxxxxxx X. XxXxxxxxxxx, Treasurer
Date: 12/23/97
----------------------------------
EXPLANATION AND WAIVER OF RIGHTS
REGARDING CONFESSION OF JUDGMENT
1. On the date hereof, Yuasa-Exide, Inc. , a(an) corporation
---------------------- ----------------------
(the "Obligor") is signing and delivering to CoreStates Bank, N.A. (the "Bank")
a
[X] Promissory note in the principal sum of Ten Million & 00/100---- Dollars
------------------------
($10,000,000.00)
----------------
[_] Guaranty of Obligations of
-----------------------------------------------
[_] Other
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(as the same may be renewed, modified, amended, extended, restated or replaced,
whether one or more, the "Obligation"). The Obligor has been advised by the Bank
(and by the Obligor's legal counsel, if applicable) that the Obligation contains
a clause that provides that the Bank may confess judgment against the Obligor.
The Obligor has read the Obligation and clearly and specifically understands
that by signing the Obligation which contains such confession of judgment
clause:
(a) The Obligor is authorizing the Bank to enter a judgment against
the Obligor and in favor of the Bank, which will give the Bank a lien upon any
real estate which the Obligor may own in any county where the judgment is
entered;
(b) The Obligor is giving up an important right to any notice or
opportunity for a hearing before the entry of this judgment on the records of
the Court;
(c) The Obligor is agreeing that the Bank may enter this judgment
and understands that the Obligor will be unable to contest the validity of the
judgment, should the Bank enter it, unless the Obligor successfully challenges
entry of the judgment through a petition to open or strike the judgment, which
will require the Obligor to retain counsel at the Obligor's expense;
(d) The Obligor may be giving up an important right to any notice
or opportunity for a hearing before the Bank may request and use the power of
the state government to deprive the Obligor of its property pursuant to the
judgment by seizing or having the Sheriff or other official seize the Obligor's
bank accounts, inventory, equipment, furnishings, or any other personal property
that the Obligor may own, to satisfy the Obligation;
(e) The Obligor may be immediately deprived of the use of any
property that is seized by the Bank pursuant to the judgment without notice or a
hearing, and the procedural rules of Pennsylvania's court system do not
guarantee that the Obligor will receive a prompt hearing after the Obligor's
property is seized; and
(f) If the Obligation is the Bank's printed form of Master Demand
Note, Commercial Promissory Note or Security Agreement, or a Master Note
Agreement prepared by the Bank, the Obligor is agreeing that the Bank may enter
judgment whether or not there is a default under the Obligation.
2. The Obligor knows and understands that it is the confession of
judgment clause in the Obligation which gives the Bank the rights described in
subparagraphs (a) through (f) of paragraph 1 above.
3. Fully and completely understanding the rights which are being given
up if the Obligor signs the Obligation containing the confession of judgment,
the Obligor nevertheless freely, knowingly and voluntarily waives said rights
and chooses to sign the Obligation.
4. The Obligor acknowledges that the proceeds of the Obligation are to
be used for business purposes.
5. If the Obligor is an individual, the Obligor certifies that his/her
annual income exceeds $10,000.00.
Dated this 23 day of December ,1997.
---------- ------------ --
THE OBLIGOR HAS READ THIS EXPLANATION AND WAIVER PRIOR TO SIGNING THE OBLIGATION
AND FULLY UNDERSTANDS ITS CONTENTS.
YUASA-EXIDE, INC.
-------------------------------------
[Name of Corporation/Partnership]
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxxxx X. XxXxxxxxxxx
-------------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxx, Vice President - Finance Xxxxxxx X. XxXxxxxxxxx, Treasurer
---------------------------------------- ---------------------------------
(Print Name and Title) (Print Name and Title)
INDIVIDUALS OR PROPRIETORS SIGN BELOW
-------------------------------- ---------------------------------
(Witness Signature) (Signature of Individual Obligor)
-------------------------------- ---------------------------------
(Witness Signature) (Signature of Individual Obligor)
CORPORATE ACKNOWLEDGMENT
------------------------
COMMONWEALTH OF PENNSYLVANIA :
:ss
COUNTY OF Berks :
On the 23rd day of December,1997 before me, a notary public for said
Commonwealth and County, the undersigned officer, personally appeared M.T.
Xxxxxxx & X.X. XxXxxxxxxxx who acknowledged himself/herself to be the officers
of Yuasa-Exide, Inc., and that he/she, as such officer being authorized to do
so, executed the foregoing Explanation and Waiver of Rights Regarding Confession
of Judgment for the purposes therein contained by signing the name of the
corporation by himself/herself as such officer. And said officers did further
certify and acknowledge that he/she received a true, correct and complete copy
of the foregoing Explanation and Waiver of Rights Regarding Confession of
Judgment.
In WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxxxx X. Xxxxxxx -------------------------------------
----------------------- Notarial Seal
Notary Public Xxxxxxxx X. Xxxxxxx, Notary Public
Laureldale Boro, Berks County
[SEAL OF NOTARY PUBLIC APPEARS HERE] My Commission Expires June 13, 1998
-------------------------------------
My Commission Expires:
Seal
PARTNERSHIP ACKNOWLEDGMENT
--------------------------
COMMONWEALTH OF PENNSYLVANIA :
:ss
COUNTY OF :
On the ________ day of________, 19__, before me, a notary public for said
Commonwealth and County, the undersigned officer, personally appeared
________________________________ who acknowledged himself/herself/themselves to
be General Partner(s) of _________________________, a partnership, and who, I am
satisfied is/are the person(s) named in and who executed the within Explanation
and Waiver of Rights Regarding Confession of Judgment and he/she/they did
severally acknowledge that he/she/they signed. sealed and delivered the same as
the act and deed of the said partnership for the uses and purposes therein
expressed by signing the name of the partnership by himself/herself/themselves
as partner(s). And said______________________________each did further certify
and acknowledge that he/she/they received a true, correct and complete copy of
the within Explanation and Waiver of Rights Regarding Confession of Judgment.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
-----------------------------------------
Notary Public
My Commission Expires:
Seal
INDIVIDUAL ACKNOWLEDGMENT
-------------------------
COMMONWEALTH OF PENNSYLVANIA :
:ss
COUNTY OF :
On the _____ day of_____________, 19__, before me, a notary public for said
Commonwealth and County, the undersigned officer, personally
appeared___________________________who, I am satisfied is/are the person(s)
named in and who executed the within Explanation and Waiver of Rights Regarding
Confession of Judgment and he/she/they did severally acknowledge that
he/she/they signed. sealed and delivered the same as his/her/their act and deed
for the uses and purposes therein expressed. And said _______________________
did further certify and acknowledge that he/she/they received a true, correct
and complete copy of the within Explanation and Waiver of Rights Regarding
Confession of Judgment.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
-------------------------------------
Notary Public
My Commission Expires:
Seal
EXHIBIT "A"
-----------
[LINE No.L-4760 ]
----------
REVOLVING CREDIT GRID NOTE
--------------------------
US$ 25.000.000.00 [amount of credit line] 7/16 ,1997
--------------------------------- ------- --
New York, New York.
-------------------
FOR VALUE RECEIVED, the undersigned Yuasa Exide, Inc.
-----------------------------------
(the "BORROWER"), HEREBY PROMISES TO PAY to the order of The SAKURA BANK,
LIMITED, NEW YORK BRANCH (the "BANK"), at its office at 000 Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000, in lawful money of the United States and in immediately
available funds, each principal amount of each LOAN listed on the schedule
attached to this NOTE (the "GRID") made to the BORROWER by the BANK from time
to time during the period from the date of this NOTE up to and including
June 30, 1998 [date] pursuant to the CREDIT AGREEMENT (as defined hereafter),
-------------
on the repayment date corresponding to such LOAN on the GRID, respectively, and
to pay interest (computed on the basis of a year 360 days and actual number of
days elapsed) from the date made until the repayment date therefore at the rate
per annum set forth for such LOAN on the GRID. Interest shall be payable by the
BORROWER to the BANK on the repayment date for such LOAN.
Notwithstanding, the foregoing to the contrary, the outstanding principal
balance of this NOTE shall at no time exceed Twenty Five Million DOLLARS
-------------------
($25,000,000.00)[amount of credit line], and the duration of each LOAN under the
--------------
NOTE shall at no time exceed six (6) [number] calendar months pursuant to the
--- ---
CREDIT AGREEMENT. Any amount of principal hereof which is not paid when due,
whether stated maturity, by acceleration, or otherwise, shall bear interest from
the date when due until said principal amount is paid in full, payable on
demand, at the DEFAULT RATE.
The BORROWER hereby authorizes the BANK to endorse on the Schedule annexed
to this NOTE all LOANS made to the BORROWER and all payments of principal
amounts in respect of such LOANS, which endorsements shall, in absence of
manifest error, be conclusive as to the outstanding principal amounts of all
LOANS; provided, however, that the failure to make such notation with respect to
any LOAN or payment thereof shall not limit or otherwise affect the obligations
of the BORROWER under the CREDIT AGREEMENT and this NOTE.
This NOTE is the NOTE referred to in the REVOLVING CREDIT LINE AGREEMENT
dated as of July 1, 1997, between the BORROWER and the BANK (the "CREDIT
------- --
AGREEMENT"). The CREDIT AGREEMENT, among other things, contains provisions for
acceleration of the maturity of this NOTE upon the happening of certain stated
events and also for payments on account of the principal amounts of this NOTE
prior to the maturity of this NOTE upon the terms and conditions specified in
the CREDIT AGREEMENT. Unless otherwise defined herein, terms defined in the
CREDIT AGREEMENT are used herein as therein defined.
The BORROWER hereby waives presentment, demand, protest or notice of any
kind with respect to this
NOTE.
THIS NOTE SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Yuasa--Exide, Inc.
------------------------------
[name of borrower]
By: /s/ Xxxxxxx X. XxXxxxxxxxx
---------------------------
Title: XXXXXXX X. XXXXXXXXXXX
TREASURER
THE SAKURA BANK, LIMITED
REVOLVING CREDIT LINE AGREEMENT
THIS REVOLVING CREDIT LINE AGREEMENT dated as of
July 1, 1997 between The Sakura Bank, Limited, New York Branch, having its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, X.X., 00000 (the "BANK") and
Yuasa-Exide, Inc.
--------------------------------------------------------------------------------
a California (state of incorporation) corporation having its offices at
--------------------
0000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 (The "BORROWER").
--------------------------------------------------------------
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
SECTION 1.01. DEFINED TERMS. As used in this AGREEMENT, the following terms have
the following meanings (terms defined in the singular to have the same meaning
when used in the plural and vice versa);
"AGREEMENT" means this REVOLVING CREDIT LINE AGREEMENT, as amended,
supplemented, or modified from time to time.
"BUSINESS DAY" means any day other than a Saturday, Sunday, or other day on
which commercial banks in the City of New York are authorized or required to
close under the laws of the State of New York.
"CREDIT LINE" means a line of credit which the BANK establish for the BORROWER
pursuant to SECTION 2.01 hereof in the amount referred to therein, but which
will be terminated in whole or reduced in part pursuant to SECTION 2.02 hereof.
This CREDIT LINE shall not be construed as the commitment of the BANK to make a
LOAN.
"DEBT" means (1) indebtedness or liability for borrowed money or for the
deferred purchase price of property or services (including trade obligations);
(2) obligations as lessee under capital leases; (3) current liabilities in
respect of unfunded vested benefits under any plan established, maintained, or
to which contributions have been made by the BORROWER or any ERISA AFFILIATE;
(4) obligations under letters of credit issued for the account of any PERSON;
(5) all obligations arising under acceptance facilities; (6) all guaranties,
endorsements (other than for collection or deposit in the ordinary course of
business), and other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any PERSON, or otherwise to assure a
creditor against loss; and (7) obligations secured by any LIEN on property owned
by the PERSON, whether or not the obligations have been assumed.
"DEFAULT" or "EVENT OF DEFAULT" shall mean any of the events specified in
SECTION 4.01 hereof, whether or not any requirement for the giving of notice,
the lapse of time, or both, or any other condition, has been satisfied.
"DEFAULT RATE" shall have the meaning assigned to such term in SECTION 2.04 (b)
hereof.
"DOLLARS", "U.S. DOLLARS", "U.S.$", and "$" shall mean the lawful currency of
the United States of America at any relevant time hereunder.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
which together with the BORROWER would be treated as a single employer under
Section 4001 of ERISA (the Employee Retirement Income Security Act).
"FEDERAL FUNDS RATE" shall mean, respect to any LOAN for any INTEREST PERIOD, a
fluctuating interest rate per annum quoted to the BANK by federal funds brokers;
plus a margin.
"INTEREST PERIOD" shall mean each INTEREST PERIOD of any day or days from one
day (overnight) to six (6) months for which FEDERAL FUNDS RATE will apply;
provided that all of the foregoing provisions relating to the INTEREST PERIOD
are subject to the following: i) INTEREST PERIOD shall at no time exceed the
duration of each LOAN specified in SECTION 2.03 hereof, ii) if any such INTEREST
PERIOD for LOAN would otherwise expire on a day which is not a BUSINESS DAY,
such INTEREST PERIOD shall expire on the next succeeding BUSINESS DAY, and iii)
interest accrued on the LOANS shall be payable on the last day of the INTEREST
PERIOD applicable thereto.
"LOAN" or "LOANS" shall have the meaning assigned to such term in SECTION 2.01
hereof.
"LOAN DOCUMENTS" means this AGREEMENT and the NOTE.
"NOTE" shall have the meaning assigned to such term in SECTION 2.05 hereof
"PERSON" means an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, governmental
authority, or other entity of whatever nature.
"REGULATION D" shall mean REGULATION D of the Board of Governors of the Federal
Reserve System as from time to time in effect establishing reserve requirements
"REGULATION U" shall mean REGULATION U of the Board of Governors of the Federal
Reserve System as from time to time in effect related to margin stock
transactions.
ARTICLE II
AMOUNT AND TERMS OF LOANS
-------------------------
SECTION 2.01. REVOLVING CREDIT. The BANK agrees on the terms and conditions
hereinafter set forth, to make one or more loans (the "LOANS") to the
BORROWER from time to time during the period from the date of this AGREEMENT up
to and including June 30, 1998 [date] in an aggregate
----------------------------------
amount not to exceed at any time outstanding Twenty Five Million DOLLARS
--------------------------
($ 25,000,000.00), as such amount may be advised to the BORROWER pursuant to
-----------------
the last paragraph of this SECTION and as such amount may be reduced pursuant to
SECTION 2.02 hereof (the CREDIT LINE). Within the limits of the CREDIT LINE, the
BORROWER may borrow pursuant to SECTION 2.03 hereof, and pay pursuant to SECTION
2.07 hereof, and re-borrow and pay under SECTION 2.03 and 2.07 hereof,
respectively.
Notwithstanding any provision in this AGREEMENT to the contrary, it is clearly
understood and agreed by the BANK and the BORROWER that the BANK does not commit
to make a LOAN hereunder and that the BANK is not required to make any LOAN to
the BORROWER hereunder.
In the event that the BANK determines to extend a CREDIT LINE to the BORROWER,
the BANK shall notify the BORROWER in writing of such intention and shall in
such writing specify to the BORROWER the period for which such CREDIT LINE is to
be extended and the amount of such CREDIT LINE.
SECTION 2.02. REDUCTION AND TERMINATION OF CREDIT LINE. The BANK shall have the
right, upon notice to the BORROWER, to terminate in whole or reduce in part the
unused portion of the CREDIT LINE.
SECTION 2.03. NOTICE AND MANNER OF BORROWING. The BORROWER shall give the BANK
telephonic (confirmed in writing or by facsimile notice, although, the failure
to give any such confirmation to the BANK shall not release or diminish any of
the BORROWER's obligations hereunder), written or facsimile notice (effective
upon receipt) of any LOAN under this AGREEMENT; specifying (1) the date of such
LOAN; (2) the amount of such LOAN; (3) the duration of the INTEREST PERIOD
applicable thereto. Not later than 3:00 p.m. on the date of such LOAN and upon
fulfillment of the applicable conditions set forth in ARTICLE III hereof, the
BANK will, subject to its sole discretion and subject to the provision of
SECTION 2.01 hereof, make such LOAN available to the BORROWER in immediately
available funds by crediting the amount thereof to the BORROWER'S account with
the BANK. All notices given under this SECTION 2.03 shall be irrevocable and
shall be given not later than 3:00 p.m. on the date of each LOAN. The duration
of each LOAN under this AGREEMENT and the NOTE shall at no time exceed six ( 6 )
---------
[number] calendar months.
SECTION 2.04. INTEREST. (a) The BORROWER shall pay interest to the BANK on the
outstanding and unpaid principal amount of each of the LOANS made under this
AGREEMENT at the FEDERAL FUNDS RATE. Interest shall be calculated on the basis
of a year of 360 days for the actual number of days elapsed. Interest shall be
paid in immediately available funds on the last day of each INTEREST PERIOD with
respect thereto.
(b) To the extent permitted by applicable law, any amount of principal of the
LOAN and interest thereon which is not paid when due, whether at stated
maturity, acceleration or otherwise, shall bear interest, payable on demand, at
the INTEREST RATE per annum equal to 1.5% per annum above the rate of interest
announced by the New York branch of The Sakura Bank, Limited from time to time
as The Sakura Bank's prime rate (DEFAULT RATE) until paid in full.
SECTION 2.05. NOTE. All the LOANS made by the BANK under this AGREEMENT shall
be evidenced by, and repaid with interest in accordance with, a single
promissory note of the BORROWER in substantially the form of EXHIBIT "A"
attached hereto duly completed, in the principal amount of the CREDIT LINE,
dated the date of this AGREEMENT, payable to the BANK (the "NOTE"). The BANK is
hereby authorized by the BORROWER to endorse on the schedule attached to the
NOTE the amount of each LOAN and of each payment of principal received by the
BANK on account of the LOANS (such endorsement may be by means of a computer
printout), which endorsement shall, in the absence of manifest error, be
conclusive as to the outstanding balance of the LOANS made by the BANK;
provided, however, that the failure to make such notation with respect to any
LOAN or payment thereof shall not limit or otherwise affect the obligations of
the BORROWER under this AGREEMENT or the NOTE. Any payment of interest and
any other amount payable under this AGREEMENT shall, in the absence of
mathematical error, be conclusive and final.
SECTION 2.06. FUNDING LOSS, INDEMNIFICATION; CAPITAL ADEQUACY AND OTHER COSTS.
(a) The BORROWER shall pay to the BANK, upon the request of the BANK, such
amount as shall be sufficient (in the reasonable opinion of the BANK) to
compensate it for any loss, cost, or expense incurred as a result of any payment
of a LOAN on a date other than the last day of the INTEREST PERIOD for such
LOAN, including but not limited to, acceleration of the LOANS by the BANK
pursuant to SECTION 4.01 hereof.
(b) If the BANK determines at any time that any applicable law or governmental
rule, regulation, guideline or order concerning capital adequacy, reserves or
similar requirements, or any change in interpretation or administration thereof
by any governmental authority, central bank or comparable agency, will have the
effect of increasing the cost to the BANK or the amount of capital required or
expected to be maintained by the BANK as a result of the making or continuance
of the LOANS then the BORROWER agrees to pay to the BANK, upon its written
demand therefor, such additional amounts as shall be required to compensate the
BANK for the increased cost to the BANK as a result of such increase of
capital, reserves or similar requirements. The BANK, upon determining that any
additional amounts will be payable to the BANK pursuant to this paragraph will
give prompt written notice thereof to the BORROWER which notice shall show in
reasonable detail the basis for calculation of such additional amounts, although
the failure to give any such notice shall not release or diminish any of the
BORROWER's obligations to pay additional amounts pursuant to this paragraph.
SECTION 2.07. METHOD OF PAYMENT. The BORROWER shall make each payment of
principal or interest of the LOANS under this AGREEMENT and under the NOTE not
later than 3:00 P.M. on the date when due with respect to the principal and on
the last day of the INTEREST PERIOD, as case may be, in lawful money of the
United States to the BANK in immediately available funds. The BORROWER hereby
authorizes the BANK, if and to the extent payment is not made when due under
this AGREEMENT or, under the NOTE, to charge from time to time against any
account of the BORROWER with the BANK any amount so due. Whenever any payment to
be made under this AGREEMENT or under the NOTE shall be stated to be due on a
non-BUSINESS DAY, such payment shall be made on the next succeeding BUSINESS
DAY. The BORROWER may not prepay the outstanding principal of each LOAN in whole
or in part prior to its due date.
SECTION 2.08 USE OF PROCEEDS. The BORROWER will not, directly or indirectly,
use any part of the LOAN proceeds for the purpose of purchasing or carrying any
margin stock with the meaning of REGULATION U of the Board of the Governors of
the Federal Reserve System or to extend credit to any PERSON for the purpose of
purchasing or carrying any such margin stock.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
SECTION 3.01. CONDITION PRECEDENT TO INITIAL AND ALL LOANS. (a) The BANK
shall make the initial LOAN available to the BORROWER subject to the conditions
precedent that the BANK shall have received on or before the day of such LOAN
each of the following, in form and substance satisfactory to the BANK.
(1) AGREEMENT AND NOTE. This AGREEMENT and the NOTE duly executed by the
BORROWER;
(2) EVIDENCE OF ALL CORPORATE ACTION BY THE BORROWER. Certified copies of all
corporate action taken by the BORROWER, including resolutions of its BOARD of
DIRECTORS, authorizing the execution, delivery, and performance of the LOAN
DOCUMENTS to which it is a party and each other document to be delivered
pursuant to this AGREEMENT;
(3) INCUMBENCY AND SIGNATURE CERTIFICATE OF THE BORROWER. A certificate of the
PRESIDENT or VICE PRESIDENT of the BORROWER certifying the names and true
signatures of the officers of the BORROWER authorized, pursuant to the Board of
Directors resolutions in paragraph (2) above, to sign the LOAN DOCUMENTS to
which it is a party and the other documents to be delivered by the BORROWER
under this AGREEMENT;
(b) The BANK shall make any LOAN available to the BORROWER subject to the
condition precedent that no EVENT of DEFAULT, or event which with the giving of
notice or the passage of time or both, would be an EVENT of DEFAULT, shall have
occurred and be continuing or shall result from the making of the LOAN.
ARTICLE IV
EVENTS OF DEFAULT
-----------------
SECTION 4.01. EVENTS OF DEFAULT. If any of the following events ("EVENTS OF
DEFAULT") shall occur:
(1) The BORROWER shall fail to pay the principal of, or interest on, the
NOTE, or any LOAN as and when due and payable;
(2) The BORROWER shall fail to perform or observe any term, covenant, or
agreement contained in any LOAN DOCUMENT to which it is a party on its part to
be performed or observed;
(3) The BORROWER shall (a) fail to pay any indebtedness for borrowed money
(other than the NOTE) of the BORROWER or any interest or premium thereon, when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise), or (b) fail to perform or observe any term, covenant, or
condition on its part to be performed or observed under any agreement or
instrument relating to any such indebtedness, when required to be performed or
observed, if the effect of such failure to perform or observe is to accelerate,
or to permit the acceleration after the giving of notice or passage of time, or
both, of the maturity of such indebtedness, whether or not such failure to
perform or observe shall be waived by the holder of such indebtedness; or any
such indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required payment), prior to the
stated maturity thereof;
(4) The BORROWER (a) shall generally not, or shall be unable to, or shall
admit in writing its inability to pay its DEBTS as such DEBTS become due; or (b)
shall make an assignment for the benefit of creditors, petition or apply to any
tribunal for the appointment of a custodian, receiver, or trustee for it or a
substantial part of its assets; or (c) shall commence any proceeding under any
bankruptcy, reorganization, arrangements, readjustment of DEBTS, dissolution, or
liquidation under laws or statutes of any jurisdiction, whether now or hereafter
in effect; or (d) shall have any such petition or application filed or any
such proceeding commenced against it in which an order for relief is
undismissed for a considerable period of days; or (e) by any act or omission
shall indicate its consent to, approval of, or acquiescence in any such
petition, application, or proceeding, or order for relief, or the appointment of
a custodian, receiver, or trustee for all or any substantial part of its
properties; or (f) shall
suffer any such custodianship, receivership, or trusteeship to continue
undischarged for a considerable period of days; then, and in any such event,
the BANK may, by notice to the BORROWER, (except in respect of paragraph (4)
above, the events set forth in the following items (1) and (2) shall occur
automatically) (1) declare the CREDIT LINE to make LOANS to be terminated,
whereupon the same shall forthwith terminate, and (2) declare the NOTE, together
with all interest thereon, and all other amounts payable under this AGREEMENT to
be forthwith due and payable, whereupon the NOTE, all the LOANS, all such
interest, and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest, or further notice of any kind, all of
which are hereby expressly waived by the BORROWER.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.01. AMENDMENTS, ETC. No amendment, modification, termination, or
waiver of any provision of any LOAN DOCUMENT to which the BORROWER is a party,
nor consent to any departure by the BORROWER from any LOAN DOCUMENT to which it
is a party, shall in any event be effective unless the same shall be in writing
and signed by the BANK, and then such waiver or consent shall be effective only
in the specific instance and for the specific instance and for the specific
purpose for which it is given.
SECTION 5.02. REPORTING REQUIREMENTS. The BORROWER shall furnish to the BANK;
(1) NOTICE OF LITIGATION. Promptly after the commencement thereof, notice of
all actions, suits, and proceedings before any court, governmental department,
commission, board, bureau, agency, or instrumentality domestic or foreign
affecting the BORROWER which, if determined adversely to the BORROWER, could
have a material reverse effect on financial condition, properties or operations
of the BORROWER;
(2) NOTICE OF DEFAULT and EVENT OF DEFAULT. As soon as possible after the
occurrence of each DEFAULT or EVENT OF DEFAULT, a written notice setting for the
details of such DEFAULT or EVENT OF DEFAULT and the action which is proposed
to be taken by the BORROWER to remedy said DEFAULT or EVENT OF DEFAULT.
(3) GENERAL INFORMATION. Such other information representing the condition or
operations, financial or otherwise, of the BORROWER as the BANK may from time to
time reasonably request.
SECTION 5.03. NOTICES, ETC. All notices and other communications provided for
under this AGREEMENT and under the other LOAN DOCUMENTS to which the BORROWER is
a party shall be in writing, delivered in person, sent by certified mail
(postage prepaid), or sent by telegram, telex or facsimile and promptly
confirmed by letter. Any such notice shall be effective when so given
If to the BORROWER:
Name: Yuasa-Exide, Inc.
------------------------------------
Address: X.X. Xxx 00000
------------------------------------
Xxxxxxx, XX 00000-0000
------------------------------------
------------------------------------
Attention: XXXXXXX X. XXXXXXXXXXX
------------------------------------
Facsimile: (000) 000-0000
------------------------------------
Telephone: (000) 000-0000
------------------------------------
If to the BANK:
The Sakura Bank, Limited, New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: CORPORATE FINANCE - 1 DEPT. or CUSTOMER DESK.
Facsimile: (000) 000-0000 (000) 000-0000
Telephone: (000) 000-0000-0000 (000) 000-0000-0
6745-6754
or, as to each party, at such other address as shall be designated by such
partt in a written notice to the other party complying as to delivery with the
terms of this SECTION 5.03. All such notices and communications shall, when
mailed or telegraphed, be effective when deposited in the mails or delivered to
the telegraph company, respectively, addressed as aforesaid, except that notices
to the BANK pursuant to the provisions of ARTICLE II hereof shall not be
effective until received by the BANK.
SECTION 5.04. NO WAIVER; REMEDIES. No failure on the part of the BANK to
exercise, and no delay in exercising, any right, power, or remedy under any LOAN
DOCUMENT shall operate as waiver thereof; nor shall any single or partial
exercise of any right under any LOAN DOCUMENT preclude any other or further
exercise thereof or exercise of any other right. The remedies provided in the
LOAN DOCUMENTS are cumulative and not exclusive of any remedies provided by law.
SECTION 5.05. SUCCESSORS AND ASSIGNS. This AGREEMENT shall be binding upon and
inure to the benefit of the BORROWER and the BANK and their respective
successors and assigns, except that the BORROWER may not assign or transfer any
of its rights under any LOAN DOCUMENT to which the BORROWER is a party without
the prior written consent of the BANK.
SECTION 5.06. COSTS, EXPENSES, AND TAXES. The BORROWER agrees to pay on demand
all costs and expenses in connection with the preparation, execution, delivery,
filing, recording, and administration of any of the LOAN DOCUMENTS, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the BANK, and local counsel who may be retained by said counsel, with
respect thereto and with respect to advising the BANK as to its rights and
responsibilities under any of the LOAN DOCUMENTS, and all costs and expenses, if
any, in connection with enforcement of any of the LOAN DOCUMENTS. In addition,
the BORROWER shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing, and
recording of any of the LOAN DOCUMENTS and the other documents to be delivered
under any of the LOAN DOCUMENTS, and agrees to save the BANK harmless from
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
SECTION 5.07. DEDUCTIONS. All payments by the BORROWER to the BANK under this
AGREEMENT are to be made net and free of any and all taxes (except for taxes
based upon the overall net income of the BANK), duties, imposts, fees,
withholdings or deductions (the "DEDUCTIONS") of any nature now or hereafter
imposed. IF ANY DEDUCTION is, by law, required to be made from any payment
hereunder, then the BORROWER shall pay to the BANK such additional amount as
will result in receipt by the BANK of a net amount equal to the amount the BANK
would have received hereunder had no such DEDUCTION been required. In such event
the BORROWER shall, as soon as practical, deliver to the BANK a receipt issued
by the relevant taxing authority evidencing the amount of such DEDUCTION and its
payment. If the BORROWER is required to pay an additional amount on account of
any such DEDUCTION, the BORROWER shall have the right, on not less than
three BUSINESS DAYS' prior written notice of the BANK, to repay the applicable
LOAN.
SECTION 5.08. RIGHT OF SET OFF. Upon the occurrence and during the
continuance of any EVENT OF DEFAULT the BANK is hereby authorized at any time
and from time to time, without notice to the BORROWER (any such notice being
expressly waived by the BORROWER), to set off and apply any and all deposits
(general and social, time or demand, provisional or final) at any time held, and
other indebtedness at any time owing by the BANK to or for the credit or the
account of the BORROWER against any and all of the obligations of the BORROWER
now or hereafter existing under this AGREEMENT or the NOTE or any other LOAN
DOCUMENTS, irrespective of whether or not the BANK shall have made any demand
under this AGREEMENT or such other LOAN DOCUMENTS and although such obligations
may be unmatured. The BANK agrees promptly to notify the BORROWER after such set
off and application, provided that the failure to give such notice shall not
affect the validity of such set off and application. The rights of the BANK
under this SECTION 5.08 are in addition to other rights and remedies (including,
without limitation, other rights of set off) which the BANK may have.
SECTION 5.09. GOVERNING LAW. This AGREEMENT and the NOTE shall be governed
by, and construed in accordance with, the laws of the state of New York. Any
legal action or proceedings with respect to this AGREEMENT against the BORROWER
may be brought in the courts of the United States of America of the State of New
York as the BANK may elect, and, by execution and delivery of this AGREEMENT,
the BORROWER hereby (i) accepts for itself, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts, (ii) irrevocably agrees to
be bound by any judgement of any such court with respect to this AGREEMENT or
the NOTE and (iii) irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceedings with respect to this AGREEMENT brought in any court
of the United States of America or the State of New York located in the City of
New York, and further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
In the case of the courts of the United States of America and the State of New
York the BORROWER herby agree to receive service of process in any legal action
or proceedings with respect to this AGREEMENT at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, X.X., 00000. Nothing herein shall affect the right to serve process in
any other manner permitted by the law. The BORROWER hereby agrees that the
mailing of such process to the BORROWER shall be deemed personal service and
accepted by the BORROWER for any legal action or proceedings with respect to
this AGREEMENT.
SECTION 5.10. SEVERABILITY OF PROVISIONS. Any provision of any LOAN
DOCUMENT which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such LOAN
DOCUMENT or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 5.11. HEADINGS. ARTICLE and SECTION headings in this AGREEMENT are
for the convenience of reference only and shall not constitute a part of the
applicable LOAN DOCUMENTS for any other purpose.
IN WITNESS WHEREOF, the parties hereto caused this AGREEMENT to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
Yuasa-Exide, Inc.
----------------------------------
(name of borrower)
By: /s/ Xxxxxxx X. XxXxxxxxxxx
-------------------------------
Title: XXXXXXX X. XXXXXXXXXXX
TREASURER
The Sakura Bank Limited
New York Branch
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Title: Xxxxxxx Xxxxx
Senior Vice President
MASTER NOTE
-----------
New York, N.Y.
August 8, 1996
----------
FOR VALUE RECEIVED, the undersigned Yuasa Exide, Inc. hereby promises to
pay to the order of The Sumitomo Trust & Banking Co., Ltd. New York Branch
(hereinafter the "Bank"), at its office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, on the due date for each advance made by the Bank to the undersigned
(each, an "Advance") or on demand (as recorded on the grid on the reverse side
hereof including additional pages, if any) in lawful money of the United States,
and in immediately available funds, the unpaid principal amount of that Advance
(as recorded on the grid on the reverse side hereof including additional pages,
if any) made by the Bank to the undersigned. The undersigned further promises to
pay interest (computed on the basis of the actual number of days elapsed over a
period of 360 days) on the due date for each Advance at the rate of interest
that is recorded on the grid on the reverse side hereof including additional
pages, if any, on the unpaid principal amount of such Advance but in no event
higher than the maximum permitted under applicable law. Where Advances are based
on the Prime Rate, that rate shall be defined as the rate of interest as is
established at the Bank from time to time as its base or Prime Rate. Each
payment received by the Bank shall be applied to Advances payable on demand and
then in the order of the maturity of their respective due dates.
In the event the undersigned fails to pay any amount of principal or
interest when due, the entire unpaid principal and accrued interest for all
Advances shall forthwith become absolutely due and payable without any notice,
demand, protest or presentment whatsoever, all of which are expressly waived.
The Bank shall and is hereby authorized by the undersigned to record on the
grid on the reverse side hereof including additional pages, if any, an
appropriate notation evidencing date, amount, rate and due date (or if payable
on demand) of each Advance as well as the date and amount of each payment by the
undersigned in respect hereof, whether by prepayment or payment when due or late
payment. The records of the Bank with respect to the Advances and payments made
thereon shall, absent manifest error, be conclusive evidence of the existence
and the amount of the obligations of the undersigned to the Bank hereunder,
including all interest thereon, and all payments and prepayments made by the
undersigned with respect thereto.
The undersigned shall not have the right to prepay any Advance prior to its
maturity date; however, if the undersigned does prepay any Advance, the
undersigned shall reimburse the Bank on demand for any loss incurred or to be
incurred by it as a result of such prepayment including without limitation, the
breaking of any deposits, the reemployment of funds released by any prepayment
or otherwise.
The obligations of the undersigned under this Note are absolute and
unconditional, and shall not be subject to any right of offset or counterclaim.
The provisions of this Note shall be construed and interpreted and all
rights and obligations hereunder determined in accordance with the laws of the
State of New York.
Yuasa Exide, Inc.
By: /s/ Xxxxxxx X. XxXxxxxxxxx
------------------------------
Name: Xxxxxxx X. XxXxxxxxxxx
Title: Treasurer
THE SUMITOMO TRUST & BANKING CO., LTD.
NEW YORK BRANCH
GENERAL SECURITY AGREEMENT
YUASA-EXIDE, INC.
-----------------------------------------------------------
(BORROWER'S NAME)
In consideration of one or more loans, letters of credit or other financial
accommodation made, issued or extended by The Sumitomo Trust & Banking Co.,
Ltd., New York Branch (hereinafter called the "Bank"), the undersigned hereby
agree(s) that the Bank shall have the rights, remedies and benefits hereinafter
set forth.
The term "Liabilities" shall include any and all indebtedness, obligations
and liabilities of any kind of the undersigned to the Bank and also to others to
the extent of their participations granted to or interests therein created or
acquired for them by the Bank, now or hereafter existing, arising directly
between the undersigned and the Bank or acquired outright, conditionally or as
collateral security from another by the Bank, absolute or contingent, joint
and/or several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, direct or
indirect, including, but without limiting the generality of the foregoing,
indebtedness, obligations or liabilities to the Bank of the undersigned as a
member of any partnership, syndicate, association or other group, and whether
incurred by the undersigned as principal, surety, indorser, guarantor,
accommodation party or otherwise.
The term "Security" shall mean every deposit, now or hereafter existing,
of the undersigned with the Bank and any other claim of the undersigned against
the Bank, now or hereafter existing, and all money, instruments, securities,
documents (including the goods covered thereby), chattel paper, credits, claims,
demands and any other property, rights and interests of the undersigned which at
any time shall come into the possession or custody or under the control of the
Bank or any of its agents, associates or correspondents, for any purpose, and
shall include any of the foregoing from time to time made available to the
undersigned by the Bank pursuant to a trust receipt or other security agreement
the effect of which is to continue the Bank's security interest therein and
shall also include the proceeds, products and accessions of and to any thereof.
The term "Security" shall also include all personal property and fixtures of the
undersigned, whether now or hereafter existing or now owned or hereafter
acquired and wherever located, of every kind and description, tangible or
intangible, including, but not limited to, all money, goods, instruments,
securities, documents, chattel paper, accounts, contract rights, general
intangibles, credits, claims, demands and any other property, rights and
interests of the undersigned, and shall include the proceeds, products and
accessions of and to any thereof.
As security for the payment of all the Liabilities, the undersigned hereby
grant(s) to the Bank a security interest in, a general lien upon and/or right of
set-off of, the Security.
At any time and from time to time, upon the demand of the Bank, the
undersigned will: (1) deliver and pledge to the Bank, indorsed and/or
accompanied by such instruments of assignment and transfer in such form and
substance as the Bank may request any and all instruments, documents and/or
chattel paper as the Bank may specify in its demand; (2) give, execute, deliver,
file and/or record any notice, statement, instrument, document, agreement or
other papers that may be necessary or desirable, or that the Bank may request,
in order to create, preserve, perfect or validate any security interest granted
pursuant hereto or to enable the Bank to exercise and enforce its rights
hereunder or with respect to such security interest; (3) keep and stamp or
otherwise xxxx any and all documents and chattel paper and its individual books
and records relating to inventory, accounts and contract rights in such manner
as the Bank may require; and (4) permit representatives of the Bank at any time
to inspect its inventory and to inspect and make abstracts from the
undersigned's books and records pertaining to inventory, accounts, contract
rights, chattel paper, instruments and documents. The right is expressly granted
to the Bank, at its discretion, to file one or more financing statements naming
the undersigned as debtor and the Bank as secured party and indicating therein
the types or describing the items of Security herein specified. Without the
prior written consent of the Bank the undersigned will not create, grant or
permit to exist any security interest in any property of the undersigned other
than purchase money security interests and security interests originally
perfected by possession (whether or not there was also a filing), including
security interests in the proceeds, products and accessions of and to any of the
foregoing. With respect to the Security, or any part thereof, which at any time
shall come into the possession or custody or under the control of the Bank or
any of its agents, associates or correspondents, for any purpose, the right is
expressly granted to the Bank, at its discretion, to transfer to or register in
the name of itself or its nominee any of the Security, and whether or not so
transferred or registered to receive the income and dividends thereon, including
stock dividends and rights to subscribe, and to hold the same as a part of the
Security and/or apply the same as hereinafter provided; to exchange any of the
Security for other property upon the reorganization, recapitalization or other
readjustment and in connection therewith to deposit any of the Security with any
committee or depository upon such terms as it may determine; to vote the
Security so transferred or registered and to exercise or cause its nominee to
exercise all or any powers with respect thereto with the same force and effect
as an absolute owner thereof; all without notice and without liability except to
account for property actually received by it. The Bank shall be deemed to have
possession of any of the Security in transit to or set apart for it or any of
its agents, associates or correspondents.
The Bank at its discretion may, whether any of the Liabilities be due, in
its name or in the name of the undersigned or otherwise, demand, xxx for,
collect or receive any money or property at any time payable or receivable on
account of or in exchange for, or make any compromise or settlement deemed
desirable with respect to, any of the Security, but shall be under no obligation
to do so, or the Bank may extend the time of payment, arrange for payment in
installments, or otherwise modify the terms of, or release, any of the Security,
without thereby incurring responsibility to, or discharging or otherwise
affecting the liability of, the undersigned. The Bank shall not be required to
take any steps necessary to preserve any rights against prior parties to any of
the Security. Upon default hereunder or in connection with any of the
Liabilities (whether such default be that of the undersigned or of any other
party obligated thereon), the undersigned shall, at the request of the Bank,
assemble the Security at such place or places as the Bank designates in its
request. The Bank shall have the rights and remedies with respect to the
Security of a secured party under the New York Uniform Commercial Code (whether
or not such Code is in effect in the jurisdiction where the rights and remedies
are asserted). In addition, with respect to the Security, or any part thereof,
which shall then be or shall thereafter come into the possession or custody of
the Bank or any of its agents, associates or correspondents, the Bank may sell
or cause to be sold in the borough of Manhattan, New York City, or elsewhere, in
one or more sales or parcels, at such price as the Bank may deem best, and for
cash or on credit or for future delivery, without assumption of any credit risk,
all or any of the Security, at any broker's board or at public or private sale,
without demand of performance or notice of intention to sell or of time or place
of sale (except such notice as is required by applicable statute and cannot be
waived), and the Bank or anyone else may be the purchaser of any or all of the
Security so sold and thereafter hold the same absolutely, free from any claim or
right of whatsoever kind, including any equity of redemption, of the
undersigned, any such demand, notice or right and equity being hereby expressly
waived and released. The undersigned will pay to the Bank all expenses including
expense for legal services of every kind) of, or incidental to, the enforcement
of any of the provisions hereof or of any of the Liabilities, or any actual or
attempted sale or any exchange, enforcement, collection, compromise or
settlement of any of the Security or receipt of the proceeds thereof, and for
the care of the Security and defending or asserting the rights and claims of the
Bank in respect thereof, by litigation or otherwise, including expense of
insurance; and all such expenses shall be Liabilities within the terms of this
agreement. The Bank at any time, at its option, may apply the net cash receipts
from the Security to the payment of principal of and/or interest on any of the
Liabilities, whether or not then due, making proper rebate of interest or
discount. Notwithstanding that the Bank, whether in its own behalf and/or in
behalf of another or others, may continue to hold Security and regardless of the
value thereof, the undersigned shall be and remain liable for the payment in
full, including both principal and interest, of any balance of the Liabilities
and expenses at any time unpaid.
If at any time the Security shall be unsatisfactory to the Bank, upon the
demand of the Bank the undersigned will furnish such further security or make
such payment on account of any of the Liabilities as will be satisfactory to the
Bank, and if the undersigned fail(s) forthwith to furnish such security or to
make such payment; or if any sum payable upon any of the Liabilities be not paid
when due; or if the undersigned shall default in the performance of any of its
agreements herein or in any instrument or document delivered pursuant hereto; or
if the undersigned or any maker, drawer, acceptor, indorser, guarantor, surety,
accommodation party or other person liable upon or for any of the Liabilities or
Security shall die, become insolvent (however such insolvency may be evidenced),
commit any act of bankruptcy, or make a general assignment for the benefit of
creditors; or if the undersigned or any copartnership of which the undersigned
is (are) a member (or members) shall suspend the transaction of his, its or
their usual business, or be expelled from or suspended by any stock or
securities exchange or other exchange, or any proceeding, procedure or remedy
supplementary to or in enforcement of judgment shall be resorted to or commenced
against, or with respect to any property of, the undersigned or any such
copartnership, maker, drawer, acceptor, indorser, guarantor, surety,
accommodation party or other person; or if a petition in bankruptcy or for any
relief under any law relating to the relief of debtors, readjustment of
indebtedness, reorganization, composition or extension shall be filed, or any
proceeding shall be instituted under any such law, by or against the undersigned
or any such copartnership, maker, drawer, acceptor, indorser, guarantor, surety,
accommodation party or other person; or if any governmental authority or any
court at the instance thereof shall take possession of any substantial part of
the property of, or assume control over the affairs or operations of, or a
receiver shall be appointed of, or of any substantial part of the property of,
or a writ or order of attachment or garnishment shall be issued or made against
any of the property of, the undersigned or any such copartnership, maker,
drawer, acceptor, indorser, guarantor, surety, accommodation party or other
person, or if any indebtedness of the undersigned or of any such copartnership,
maker, drawer, acceptor, indorser, guarantor, surety, accommodation party or
other person for borrowed money shall become due and payable by acceleration of
maturity thereof; or if the undersigned (if a corporation) shall be dissolved or
be a party to any merger or consolidation without the written consent of the
Bank; or if the Bank, for any reason, deems itself insecure; thereupon, unless
and to the extent that the Bank shall otherwise elect, all of the Liabilities
shall become and be due and payable forthwith.
The Bank may assign, transfer and/or deliver to any transferee of any of
the Liabilities any or all of the Security and thereafter shall be fully
discharged from all responsibility with respect to the Security so assigned,
transferred and or delivered. Such transferee shall be vested with all the
powers and rights of the Bank hereunder with respect to such Security, but the
Bank shall retain all rights and powers hereby given with respect to any of the
Security not so assigned, transferred or delivered. No delay on the part of the
Bank in exercising any power or right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any power or right
hereunder preclude other or further exercise thereof or the exercise of any
other power or right. The rights, remedies and benefits herein expressly
specified are cumulative and not exclusive of any rights, remedies or benefits
which the Bank may otherwise have. The undersigned hereby waive(s) presentment,
notice of dishonor and protest of all instruments included in or evidencing the
Liabilities or the Security and any and all other notices and demands
whatsoever, whether or not relating to such instruments.
Unless otherwise agreed, loans, advances or credits heretofore or hereafter
obtained from or through the Bank by the undersigned shall be repayable with
interest at the Branch of the Bank in the City of New York upon demand.
The undersigned hereby assents to any agreement the Bank may elect to enter
into with any other banks or trust companies to which the undersigned is
indebted providing for sharing Security or any realizations thereon.
No provision hereof shall be modified or limited except by a written
instrument executed by the Bank, expressly referring hereto and to the provision
so modified or limited. The undersigned, if more than one, shall be jointly and
severally liable hereunder and all provisions hereof regarding the Liabilities
or Security of the undersigned shall apply to any Liability or any Security of
any or all of them. This agreement shall be binding upon the heirs, executors,
administrators, assigns or successors of the undersigned; shall constitute a
continuing agreement, applying to all future as well as existing transactions,
whether or not of the character contemplated at the date of this agreement, and
if all transactions between the Bank and the undersigned shall be at any time
closed, shall be equally applicable to any new transactions thereafter; shall so
continue in force notwithstanding any change in any partnership party hereto,
whether such change occurs through death, retirement or otherwise; and shall be
construed according to the laws of the State of New York. Unless the context
otherwise requires, all terms used herein which are defined in the New York
Uniform Commercial Code shall have the meanings therein stated.
This agreement shall become effective immediately upon execution by the
undersigned, and the execution of the Bank shall not be required as a condition
to the effectiveness of this agreement.
New York JULY 23, 1996
------- --
YUASA--EXIDE, INC.
-----------------------------------------
(BORROWER'S NAME)
By /s/ Xxxxxxx X. XxXxxxxxxxx
---------------------------------------
(AUTHORIZED SIGNATURE) (TITLE)
XXXXXXX X. XXXXXXXXXXX TREASURER
BORROWER'S ADDRESS
P. 0. BOX 14145
---------------------------------------
(NUMBER XXX XXXXXX)
XXXXXXX, XX 00000-0000
---------------------------------------
(CITY, STATE)
PROMISSORY NOTE
New York, New York
1/30 1998
--------,-------
FOR VALUE RECEIVED, the undersigned by this promissory note (this "Note") hereby
unconditionally promises to pay to the order of THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH, THE BANK OF TOKYO-MITSUBISHI, LTD., CAYMAN BRANCH, BANK
OF TOKYO-MITSUBISHI TRUST COMPANY or BROADWAY CAPITAL CORPORATION (collectively
referred to herein as the "Bank"), as appropriate, on the respective "Due Dates"
below at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Bank's
Office"), or at such place as may be designated, the principal amount of all
indebtedness outstanding designated on the grid below (or on pages attached
hereto) in lawful money of the United States of America and in immediately
available funds. The undersigned further agrees to pay interest on such
principal amounts on the dates at the rates specified below.
Unless otherwise agreed, interest shall be computed on the basis of a 360-day
year and the actual number of days elapsed. Notwithstanding the foregoing, any
principal, interest, or other amount owing hereunder which is unpaid when due
shall bear interest from the date of default to the actual date of payment
(before as well as after judgment) at a rate per annum equal to the higher of
(x) the rate of interest per annum otherwise applicable hereunder plus 2% and
(y) the Bank's prevailing "prime" rate of interest plus 2%. In any event, the
rate of interest payable under this Note shall not exceed the maximum rate
permitted by law. The undersigned agrees to pay all costs and expenses
(including the reasonable fees and disbursements of counsel) incurred by the
Bank in connection with the enforcement of this Note and the collection of
amounts payable hereunder. All amounts payable in respect of this Note shall be
paid free and clear of any set-off, counterclaim or other deduction or
withholding and free and clear taxes, duties and imposts (including withholding
or retention taxes) which may be levied by any jurisdiction, except such as are
levied by the United States of America or the State or City of New York on the
income of the Bank. The undersigned hereby waives presentment, demand, protest,
notice of dishonor, and any other notice of any kind. The undersigned hereby
authorized the Bank, if and to the extent any payment due the Bank hereunder is
not otherwise made when due, to charge any amount so due against the accounts of
the undersigned or any of its wholly-owned subsidiaries maintained with the Bank
or the Bank's affiliates (as if the Bank its affiliates were one and same
entity), with undersigned remaining liable for any deficiency.
If, after the date hereof, the adoption of any law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by the Bank with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency (a) subjects the Bank to any charge
with respect to this Note or changes the basis of taxation of payments to the
Bank of principal, interest or other amounts due hereunder (except for changes
in the rate of tax on the overall net income of the Bank) or (b) imposes,
modifies or makes applicable any reserve, special deposit insurance assessment
or similar requirement against the assets of, deposits with or for the accounts
of, or credit extended by, the Bank, and the result or any of the foregoing is
to increase the cost to the Bank of making, funding or maintaining the loan(s)
evidenced by this Note, to reduce any amount received or receivable by the Bank
hereunder or to reduce the rate of return on the Bank's capital in respect of
such loan(s), then upon demand by the Bank, the undersigned shall pay to the
Bank such additional amount or amounts as will compensate the bank for such
increased cost or reduction. The Bank's determination of the amount of such
increased cost or reduction shall be conclusive, absent manifest error.
The undersigned represents and warrants to the Bank (effective as of the date of
each disbursement made hereunder) that it is a corporation, partnership or other
organization duly incorporated or created and validly existing under the laws of
the jurisdiction of its incorporated or creation; that the execution, delivery
and performance by the undersigned of this Note are within the corporate,
partnership or other organizational powers of the undersigned, have been duly
authorized by all necessary corporate, partnership or other organizational
action, and do not contravene any charter or other organizational documents of
the undersigned; and that this Note is a legal, valid and binding obligation of
the undersigned enforceable against the undersigned in accordance with its
terms.
It is further agreed that upon the occurrence of any of the following events any
and all principal, interest and other amounts payable hereunder shall
automatically become immediately due and payable without any action by the
Bank:(a) the undersigned shall fail to pay full when and as due any principal,
interest or other amount due hereunder; or (b) any representation or warranty
made by the undersigned in connection with or related to this Note shall prove
to be incorrect in any material respect when made or deemed to have been made;
or (c) the undersigned, any of its wholly-owned subsidiaries or any guarantor of
this Note (i) shall not, or be unable to, or shall admit in writing its
inability to, pay its debts as such debts become due, or (ii) shall make an
assignment for the benefit of creditors or petition or apply to any tribunal for
the appointment of a custodian, receiver, trustee or the like for a substantial
part of its assets or properties, domestic or foreign, or (iii) shall commence,
or have commenced against it, any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statue of any jurisdiction, whether foreign or domestic and whether now
or hereinafter in effect, (iv) suffer any custodianship, receivership,
trusteeship, seizure, forfeiture or divestiture of all or a substantial part of
its assets or (v) dissolve, liquidate or otherwise discontinue its business; or
(d) the undersigned, any of its wholly-owned subsidiaries or any guarantor of
this Note shall fail to pay when due and payable any principal, premium or
interest on any indebtedness other than the indebtedness owned hereunder or the
maturity of any such indebtedness shall, in whole or in part, have been
accelerated or required to be prepaid prior to the stated maturity thereof.
The rights of the Bank under this Note shall inure to the benefit of the
successors and assigns of the Bank. The undersigned shall not assign or transfer
its rights or obligations under this Note without the prior written consent of
the Bank. the Bank may assign, or grant participation interests in, all or a
portion of this Note without the undersigned's consent.
PROCEEDING TO ENFORCE THIS NOTE OR RELATED TO THIS NOTE. THE VALIDITY,
INTERPRETATION AND ENFORCEMENT OF THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF. THE UNDERSIGNED SUBMITS, IN ANY LEGAL ACTION RELATED HERETO, TO THE
NON-EXCLUSIVE JURISDICTION OF STATE AND FEDERAL COURTS LOCATED IN THE CITY OF
NEW YORK AND WAIVES ANY OBJECTION IT MAY HAVE AS TO THE BRINGING OR MAINTAINING
OF ANY SUCH ACTION WITH ANY SUCH COURT.
[SIGNATURE APPEARS HERE]
----------------------------------
(Borrower's name)
By: YUASA-EXIDE, INC.
-------------------------------
Name: XXXXXXX X. XxXXXXXXXXX
Title: TREASURER
GRID
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Name of Disbursement Due Date Loan Interest Amount Notation
Bank Date Amount Rate Paid On Made By
Due Date
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MEMORANDUM OF UNDERSTANDING FOR TRANSACTIONS
The undersigned Customer (the "Customer") agrees that regarding its
transactions and commercial relationships with Bank of Tokyo-Mitsubishi Trust
Company and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch (collectively,
the "Bank") of every kind and description (unless otherwise noted), and in
consideration of such transactions and relationships, the following provisions
will apply.
1. Unless the Customer shall have notified the Bank otherwise, each
person listed on the opposite side of this page shall be an "Authorized
Representative" and shall be authorized to give and receive notices and
instructions on behalf of the Customer and to otherwise act on behalf of the
Customer by telephone or facsimile. The Customer may from time to time designate
additional Authorized Representatives and withdraw the designations of
previously designated Authorized Representatives. The Bank shall be entitled to
rely without investigation on the information entered on the opposite side of
this page, as the same may be updated from time to time as provided above. The
Bank may rely upon, and shall be authorized in acting or refraining from acting
in reliance upon, any telephone or facsimile communication in good faith
believed by it to be genuine and made by an Authorized Representative. In the
event that a telephone or facsimile communication is confirmed in writing and
there is a discrepancy between such telephonic or facsimile communication and a
valid written confirmation thereof, such written confirmation will be deemed
effective notice, except when the Bank has acted in reliance on the telephonic
or facsimile communication.
2. In connection with, and in consideration of, any short-term loans made
by the Bank to the Customer pursuant to the Bank's standard form of Revolving
Credit Promissory Note, the Customer agrees that its obligation to make payments
to the Bank in respect thereof may be evidenced by such a note and the records
of the Bank. All entries made in the records of the Bank shall be evidence of
the accuracy of the information set forth therein. The records of the Bank
include, without limitation, all books and records in any form (including
computer disks and related data processing software) which at any time may
evidence or contain information relating to such short-term loans.
3. In consideration of any credit extensions made, and other financial
services provided, by the Bank to the Customer, the Customer hereby agrees to
indemnify the Bank against, and hold the Bank harmless from, any and all losses,
costs and expenses arising out of the transactions and relationships described
in the introductory paragraph above, except to the extent any such loss, cost or
expense is proven to be the direct result of the Bank's gross negligence or
willful misconduct. The Bank will not be responsible for the acts or omissions
of the Customer or any other party. The Customer will not xxx for, and the Bank
will not be liable for, any consequential, special, punitive or indirect damages
suffered in connection with the transactions and or relationships described in
the introductory paragraph. Without limiting the generality of the foregoing,
the Bank will not be liable for any failure to act or delay in acting caused by
any legal constraint, interruption of telephone or other transmission or
communications facilities, equipment failure, emergency conditions or other Acts
of God or circumstances beyond the Bank's control. This memorandum of
understanding shall be governed by, and construed in accordance with, the laws
of the State of New York.
IN WITNESS WHEREOF, a duly authorized officer of the Customer listed on the
corporate resolutions provided to the Bank has executed this Memorandum of
Understanding for Transactions as of this 16th day of January, 1998.
---- -------------
Yuasa -- Exide, Inc.
-------------------------------
Customer Name
By: /s/ Xxxxxxx X. XxXxxxxxxxx
----------------------------
Name: Xxxxxxx X. XxXxxxxxxxx
Title: Treasurer
Authorized Representatives
--------------------------
FACSIMILE &
TELEPHONE
NAME TITLE NUMBERS
---- ----- -------
(Please type or print)
Xxxxxxx X. Xxxxxxx Vice-President Finance (000) 000-0000
----------------------- -------------------------- --------------
Xxxxxxx X. XxXxxxxxxxx Treasurer (000) 000-0000
----------------------- -------------------------- --------------
Xxxx Xxxxxxxx Treasury Analyst (000) 000-0000
----------------------- -------------------------- --------------
Xxxx X. Xxxx Treasury Analyst (000) 000-0000
----------------------- -------------------------- --------------
Facsimile # for all (000) 000-0000
----------------------- -------------------------- --------------
For Bank Use Only
----------- -------------- --------------- -------------------
----------- -------------- --------------- -------------------
LIS NO. LOAN NO. BORROWER APPROVAL SIGNATURE
--------------------------------------------------------------------------------
[CORESTATES LOGO
APPEARS HERE]
COMMERCIAL PROMISSORY NOTE
$10,000,000.00 3/17, 1998
FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more
than one (hereinafter collectively referred to as "Borrower"), promises to pay
to the order of CORESTATES BANK, N.A.*, a national banking association (the
"Bank"), at any of its banking offices in Pennsylvania, the principal amount of
Ten Million and 00/100 DOLLARS, in lawful money of the United States, plus
interest, or be paid as follows:
Interest on this loan shall be payable monthly. The principal balance on this
loan shall be payable in 20 equal consecutive quarterly installments each in the
amount of $500,000 payable on the first day of each quarter beginning July 1,
2001. The final principal installment of $500,000 will be due and payable on
April 1, 2006 along with all accrued and unpaid interest to fully pay this Note.
This loan will accrue interest at a rate of .70% in excess of the Overnight Base
Rate (OBR), as established by the Bank.
ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to
this Note, to any extension or modification hereof and to the indebtedness
evidenced hereby, except as otherwise expressly stated above or in a separate
writing signed by Bank and Borrower.
INTEREST - Interest shall be calculated on the basis of a 360-day year and shall
be charged for the actual number of days elapsed. Accrued interest shall be
payable monthly. Accrued interest shall also be payable when the entire
principal balance of this Note becomes due and payable (whether by demand,
stated maturity or acceleration) or, if earlier, when such principal balance is
actually paid to Bank. If the rate at which interest accrues is based on the
"Prime Rate", that term is defined as the rate of interest for loans established
by Bank from time to time as its prime rate. Said per annum rate of interest
shall change each time Bank's prime rate shall change, effective on and as of
the date of the change. Interest shall accrue on each disbursement hereunder
from the date such disbursement is made by Bank, provided, however, that to the
extent this Note represents a replacement, substitution, renewal or refinancing
of existing indebtedness, interest shall accrue from the date hereof. Interest
shall accrue on the unpaid balance hereof at the rate provided for in this Note
until the entire unpaid balance has been paid in full, notwithstanding the entry
of any judgment against Borrower.
PREPAYMENT - If this Note bears interest at a floating or variable rate and no
floor or minimum rate is specified. Borrower may prepay all or any portion of
the principal balance of this Note at any time, without premium or penalty. If
not permitted under the preceding sentence, any prepayment of principal
(including any principal repayment as a result of acceleration by Bank of this
Note) shall require immediate payment to Bank of a prepayment fee equal to the
amount, if any, by which the aggregate present value of scheduled principal and
interest payments eliminated by the prepayment exceeds the principal amount
being prepaid. Said present value shall be calculated by application of a
discount rate determined by Bank in its reasonable judgment to be the yield-to-
maturity at the time of prepayment on U.S. Treasury securities having a maturity
which most closely approximates the final maturity date of the principal balance
then outstanding. Whether or not a prepayment fee is required hereunder,
prepayment shall be applied to scheduled installments of principal in the
inverse order of their maturity, shall be accompanied by payment of accrued
interest on the principal amount being prepaid and, unless this Note has been
accelerate by Bank, shall not be permitted in an amount less than the scheduled
principal installment immediately prior to final maturity of the outstanding
principal balance.
COLLATERAL - As security for all indebtedness to Bank now or hereafter incurred
by Borrower, under this Note or otherwise. Borrower grants Bank a lien upon and
security interest in any securities, instruments or other personal property of
Borrower now or hereafter in Bank's possession and in any deposit balances now
or hereafter held by Bank for Borrower's account, and in all proceeds of any
personal property or deposit balances. Such liens and security interest shall be
independent of Bank's right of setoff. This Note and the indebtedness evidenced
hereby shall be additionally secured by any lien or security interest evidenced
by a writing (whether now existing or hereafter executed) which contains a
provision to the effect that such lien or security interest is intended to
secure (a) this Note or the indebtedness evidenced hereby or (b) any category of
liabilities, obligations or indebtedness of Borrower to Bank which includes this
Note or the indebtedness evidenced hereby, and all property subject to any such
lien or security interest shall be collateral for this Note.
EVENTS OF DEFAULT - Each of the following shall be an Event of Default
hereunder: (a) the nonpayment when due of any amount payable under this Note or
under any obligation or indebtedness to Bank of Borrower or any person liable,
either absolutely or contingently, for payment of any indebtedness evidenced
hereby, including endorsers, guarantors and sureties (each such person is
referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to
observe or perform any other existing or future agreement with Bank of any
nature whatsoever; (c) if any representation, warranty, certificate, financial
statement or other information made or given by Borrower or any Obligor to Bank
is materially incorrect or misleading; (d) if Borrower or any Obligor shall
become insolvent or make an assignment for the benefit of creditors or if any
petition shall be filed by or against Borrower or any Obligor under any
bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or
any Obligor which remains unsatisfied for 15 days of the issuance of any
attachment, tax lien, levy or garnishment against any property of material value
in which Borrower or any Obligor has and interest; (f) if any attachment, levy,
garnishment or similar legal process is served upon Bank as a result of any
claim against Borrower or any Obligor or against any property of Borrower or any
Obligor; (g) the dissolution merger, consolidation, or the sale or change in
control (as controlled is defined in Rule 12b-2 under the Securities Exchange
Act of 1934) of any Borrower which is a corporation or partnership, or transfer
of any substantial portion of any of Borrower's assets, or if any agreement for
which dissolution, merger, consolidation, change in control, sale or transfer is
entered into by Borrower, without the written consent of Bank; (h) the death of
any Borrower or Obligor who is a natural person; (i) if Bank determines
reasonably and in good faith that an event has occurred or a condition exists
which has had, or is likely to have, a material adverse effect on the financial
condition or creditworthiness of Borrower or any Obligor, or on the ability of
Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if
Borrower shall fail to remit promptly when due to the appropriate government
agency or authorized depository, any amount collected or withheld from any
employee of Borrower for payroll taxes, Social Security payments or similar
payroll deductions; (k) if any Obligor shall attempt to terminate or disclaim
such Obligor's liability for the indebtedness evidenced by this Note; (l) if
Bank shall reasonably and in good faith determine and notify Borrower that any
collateral for this Note or for the indebtedness evidenced hereby is
insufficient as to quality or quantity; (m) if Borrower shall fail to pay when
due any material indebtedness for borrowed money other than to Bank; or (n) if
Borrower shall be notified of the failure of Borrower or any Obligor to provide
such financial and other information promptly when reasonably requested by
Bank. If this Note is payable on demand, Bank's right to demand payment hereof
shall not be restricted or impaired by the absence, non-occurrence or waiver of
an Event of Default, and it is understood that if this Note is payable on
demand, Bank may demand payment at any time.
BANK'S REMEDIES - Upon the occurrence of one or more Events of Default
(including, if this Note is payable on demand, any Event of Default resulting
from Borrower's failure to make any payment hereunder when demanded), unless
Bank elects otherwise, the entire unpaid balance of this Note and all accrued
interest shall be immediately due and payable without notice to Borrower or any
Obligor, and Bank may, immediately or at any time thereafter, exercise any or
all of its rights and remedies hereunder or under any agreement or otherwise
under applicable law against Borrower, any Obligor and any collateral. Bank may
exercise its rights and remedies in any order and may, at its option, delay in
or refrain from exercising some or all of its rights and remedies without
prejudice thereto. Upon the occurrence of any such Event of Default or at any
time thereafter, Bank may, at its option, and upon five days' written notice to
Borrower, begin accruing interest on this Note, at a rate not to exceed five
percent (5%) per annum in excess of the greater of (a) the rate of interest
provided for above, or (b) the Prime Rate in effect from time to time on the
unpaid principal balance hereof;
--------------------------------------------------------------------------------
* CoreStates Bank, N.A. also conducts business as Philadelphia National Bank, as
CoreStates First Pennsylvania Bank and as CoreStates Xxxxxxxx Bank.
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000
000 000 0000 Tel
[LOGO OF PNC BANK APPEARS HERE]
February 11, 1998
Yuasa-Exide, Inc.
X.X. Xxx 00000
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx,
Vice President-Finance and Chief Financial Officer
Re: $10,000,000 Discretionary Line of Credit
----------------------------------------
Dear Xx. Xxxxxxx:
I am pleased to confirm that PNC Bank, National Association (the "Bank") has
approved a $10,000,000 discretionary line of credit to Yuasa-Exide, Inc. (the
"Company"). Advances made under the line of credit, if any, shall be due and
payable on the last day of the applicable interest period, and all obligations
of the Company to the Bank shall be due and payable upon the occurrence of an
event of default. All advances will bear interest and be subject to the terms
and conditions set forth herein and in the enclosed Note. The line of credit
will be reviewed by the Bank from time to time and in any event prior to its
expiration on January 31, 1999 (the "Expiration Date") to determine whether it
should be continued or renewed.
This is not a committed line of credit. The Company acknowledges and agrees that
advances made under this line of credit, if any, shall be made at the sole
discretion of the Bank. The Bank may decline to make advances under the line or
terminate the line at any time and for any reason without prior notice to the
Company. This letter sets forth certain terms and conditions solely to assure
that the parties understand each other's expectations and to assist the Bank in
evaluating the status, on an ongoing basis, of the line of credit.
The Bank's willingness to consider making advances under this facility is
subject to the Company's ongoing agreement (a) to furnish the Bank with its
audited annual financial statements within 90 days after the end of its fiscal
year, its unaudited quarterly financial statements within 45 days after the end
of each fiscal quarter and such other financial information as the Bank may
reasonably request from time to time promptly after receipt of each request, (b)
to notify the Bank as soon as practicable of the following: (i) the occurrence
of any default (or event which, with the passage of time or giving of notice or
both, would become a default) under any direct or contingent obligation of the
Company, or (ii) any reduction in the Company's net worth from the Company's
prior financial reporting period (if there are any outstanding balances under
the line
Yuasa-Exide, Inc.
February 11, 1998
Page 2
of credit during the then current reporting period), and (c) upon the Bank's
request, to furnish copies of any covenant compliance certificates prepared in
connection with any such obligations.
Enclosed for execution is the Note evidencing this facility. Please indicate the
Company's agreement to the terms and conditions of this letter by having the
enclosed copy of this letter executed where indicated and returning it to me.
Prior to the making of any advances hereunder, the Company must deliver to the
Bank a duly executed original of the Note and a certified copy of resolutions
and an incumbency certificate, each in form and substance satisfactory to the
Bank.
I am pleased to offer support for your banking needs and look forward to working
with you.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxx X. Xxxxxxxx
----------------------------
Title: Vice President
-------------------------
Agreed and accepted this 14th day of February, 1998.
YUASA-EXIDE, INC.
By: /s/ Xxxxxxx X. XxXxxxxxxxx
----------------------------
Title: Treasurer
-------------------------
DISCRETIONARY LINE OF CREDIT NOTE
$10,000,000 February 11, 1998
FOR VALUE RECEIVED, YUASA-EXIDE, INC. (the "Borrower"), with an address at X.X.
Xxx 00000, 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, promises to pay to
the order of PNC BANK, NATIONAL ASSOCIATION (the "Bank"), in lawful money of the
United States of America in immediately available funds at its offices located
at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other
location as the Bank may designate from time to time, the principal sum of TEN
MILLION DOLLARS ($10,000,000) (the "Facility") or such lesser amount as may be
advanced to or for the benefit of the Borrower hereunder, together with interest
accruing on the outstanding principal balance from the date hereof, as provided
below:
1. Rate of Interest. Each advance outstanding under this Note will bear
----------------
interest for the interest period requested, not to exceed ninety (90) days, at a
per annum rate equal to the Bank's fully absorbed cost of funds (as determined
by Bank in its sole discretion) plus thirty (30) basis points. Interest will be
calculated on the basis of a year of 360 days for the actual number of days in
each interest period. In no event will the rate of interest hereunder exceed the
maximum rate allowed by law.
2. Discretionary Advances. THIS IS NOT A COMMITTED LINE OF CREDIT AND
----------------------
ADVANCES UNDER THIS NOTE, IF ANY, SHALL BE MADE BY THE BANK IN ITS SOLE
DISCRETION. NOTHING CONTAINED IN THIS NOTE OR ANY OTHER LOAN DOCUMENTS SHALL BE
CONSTRUED TO OBLIGATE THE BANK TO MAKE ANY ADVANCES. THE BANK SHALL HAVE THE
RIGHT TO REFUSE TO MAKE ANY ADVANCES AT ANY TIME WITHOUT PRIOR NOTICE TO THE
BORROWER.
The Borrower may request advances, repay and request additional advances
hereunder, subject to the terms and conditions of this Note and the Loan
Documents (as defined herein). In no event shall the aggregate unpaid principal
amount of advances under this Note exceed the face amount of this Note.
3. Payment Terms. The principal amount of each advance and interest accrued
-------------
thereon shall be payable on the last day of the applicable interest period for
such advance.
If any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank's office indicated above is
located, such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing interest in connection with
such payment. The Borrower hereby authorizes the Bank to charge the Borrower's
deposit account at the Bank for any payment when due hereunder. Payments
received will be applied to charges, fees and expenses (including attorneys'
fees), accrued interest and principal in any order the Bank may choose, in its
sole discretion.
4. Default Rate. If any advance or other amount is not paid when due, the
------------
Borrower shall pay interest on such amount until it is paid in full at a rate
per annum (based on a year of 360 days and actual days elapsed) (the "Default
Rate") equal to three (3%) percentage points above the Prime Rate but not more
than the maximum rate allowed by law. As used herein, "Prime Rate" shall mean
the rate publicly announced by the Bank from time to time as its prime rate. The
Prime Rate is determined from time to time by the Bank as a means of pricing
some loans to its borrowers. The Prime Rate is not tied to any external rate of
interest or index, and does not necessarily reflect the lowest rate of interest
actually charged by the Bank to any particular class or category of customers.
If and when the Prime Rate changes, the rate of interest on this Note will
change automatically without notice to the Borrower, effective on the date of
any such change. The Default Rate shall continue to apply whether or not
judgment shall be entered on this Note.
5. Prepayment. The Borrower shall have the right to prepay at any time and from
----------
time to time, in whole or in part, without penalty, any advance hereunder which
is accruing interest at a rate based upon a floating rate. If the Borrower
prepays all or any part of any advance which is accruing interest at a fixed
rate on other than the last day of the applicable interest period, the Borrower
shall also pay to the Bank, on demand therefor, the Cost of Prepayment. "Cost of
Prepayment" means an amount equal to the present value, if positive, of the
product of (a) the difference between (i) the yield, on the beginning date of
the applicable interest period, of a U.S. Treasury obligation with a maturity
similar to the applicable interest period minus (ii) the yield, on the
-----
prepayment date, of a U.S. Treasury obligation with a maturity similar to the
remaining maturity of the applicable interest period, and (b) the principal
amount to be prepaid, and (c) the number of years, including fractional years
from the prepayment date to the end of the applicable interest period. The yield
on any U.S. Treasury obligation shall be determined by reference to Federal
Reserve Statistical Release H.15(519) "Selected Interest Rates". For purposes
of making present value calculations, the yield to maturity of a similar
maturity U.S. Treasury obligation on the prepayment date shall be deemed the
discount rate. The Cost of Prepayment shall also apply to any payments made
after acceleration of the maturity of this Note.
6. Other Loan Documents. This Note is issued pursuant to the confirmation
--------------------
letter dated even date herewith, and the other documents referred to therein,
the terms of which are incorporated herein by reference (the "Loan Documents").
7. Advance Procedures. A request for advance made by telephone must be promptly
------------------
confirmed in writing by such method as the Bank may require. The Borrower
authorizes the Bank to accept telephonic requests for advances, and the Bank
shall be entitled to rely upon the authority of any person providing such
instructions. The Borrower hereby indemnifies and holds the Bank harmless from
and against any and all damages, losses, liabilities, costs and expenses
(including reasonable attorneys' fees and expenses) which may arise or be
created by the acceptance of such telephone requests or making such advances.
The Bank will enter on its books and records, which entry when made will be
presumed correct, the date and amount of each advance, the interest rate and
interest period applicable thereto, as well as the date and amount of each
payment made by the Borrower.
2
8. Yield Protection. The undersigned shall pay to the Bank, on written demand
----------------
therefor, together with the written evidence of the justification therefor, all
direct costs incurred, losses suffered or payments made by Bank by reason of any
change in law or regulation or its interpretation imposing any reserve, deposit,
allocation of capital, or similar requirement (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) on the
Bank, its holding company or any of their respective assets.
9. Right of Setoff. In addition to all liens upon and rights of setoff against
---------------
the money, securities or other property of the Borrower given to the Bank by
law, the Bank shall have, with respect to the Borrower's obligations to the Bank
under this Note and to the extent permitted by Jaw, a contractual possessory
security interest in and a contractual right of setoff against, and the Borrower
hereby assigns, conveys, delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to, all deposits, moneys, securities
and other property of the Borrower now or hereafter in the possession of or on
deposit with, or in transit to, the Bank whether held in a general or special
account or deposit, whether held jointly with someone else, or whether held for
safekeeping or otherwise, excluding, however, all XXX, Xxxxx, and trust
accounts. Every such security interest and right of setoff may be exercised
without demand upon or notice to the Borrower. Every such right of setoff shall
be deemed to have been exercised immediately upon the occurrence of an Event of
Default hereunder without any action of the Bank, although the Bank may enter
such setoff on its books and records at a later time.
10. Miscellaneous. No delay or omission of the Bank to exercise any right or
-------------
power arising hereunder shall impair any such right or power or be considered to
be a waiver of any such right or power nor shall the Bank's action or inaction
impair any such right or power. The Borrower agrees to pay on demand, to the
extent permitted by law, all costs and expenses incurred by the Bank in the
enforcement of its rights in this Note and in any security therefor, including
without limitation reasonable fees and expenses of the Bank's counsel. If any
provision of this Note is found to be invalid by a court, all the other
provisions of this Note will remain in full force and effect.
The Borrower and all other makers and indorsers of this Note hereby forever
waive presentment, protest, notice of dishonor and notice of non-payment. The
Borrower also waives all defenses based on suretyship or impairment of
collateral.
If this Note is executed by more than one Borrow, the obligations of such
persons or entities hereunder will be joint and several. This Note shall bind
the Borrower and its heirs, executors, administrators, successors and assigns,
and the benefits hereof shall inure to the benefit of Bank and its successors
and assigns.
This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the
3
exclusive jurisdiction of any state or federal court located for the county or
judicial district where the Bank's office indicated above is located, and
consents that all service of process be sent by nationally recognized overnight
courier service directed to the Borrower at the Borrower's address set forth
herein and service so made will be deemed to be completed on the business day
after deposit with such courier; provided that nothing contained in this Note
will prevent the Bank from bringing any action, enforcing any award or judgment
or exercising any rights against the Borrower individually, against any security
or against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both the Bank and the
Borrower. The Borrower waives any objection to venue and any objection based on
a more convenient forum in any action instituted under this Note.
11. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
--------------------
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Note, including the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first
written above, with the intent to be legally bound hereby.
(CORPORATE SEAL] YUASA-EXIDE, INC.
Attest: Xxxx Xxxxxxxx By: Xxxxxxx X. XxXxxxxxxxx
---------------------- -----------------------------------
Print Name: Xxxx Xxxxxxxx Print Name: Xxxxxxx X. XxXxxxxxxxx
------------------ ---------------------------
Title: Sr. Treasury Analyst Title: Treasurer
----------------------- --------------------------------
4
TERM LOAN AGREEMENT
This TERM LOAN AGREEMENT (this "Agreement") is made as of the 30th day of
October 1995, between YUASA EXIDE, INC. (the "Borrower") and THE SAKURA BANK,
LIMITED (together with its successors and assigns, the "Bank").
IN CONSIDERATION of the mutual promises and covenants contained in
this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 As used herein, and unless otherwise defined herein, the
following terms have the following respective meanings;
"Accounting Terms" - All accounting terms not specifically defined herein
----------------
shall be construed in accordance with generally accepted accounting principles
and all financial data, if any, submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
"Agreement" shall mean this Term Loan Agreement.
---------
"Applicable Law" shall mean all provisions of statutes, rules, regulations,
--------------
ordinances, decrees and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the person in question is a party.
"Business Day" shall mean any day other than a Saturday, Sunday or other
------------
day on which banks in New York, New York are authorized or required by law to
close; and in the case of LIBOR Loans shall mean any day on which U.S. Dollar
Transactions are carried out in the London Interbank Market.
"Default Rate" shall mean the rate of interest per annum as defined in
------------
Section 2.03(b).
"Dollars" or "U.S.$" shall mean lawful money of the United States of
------- -----
America in freely transferable form.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended, together with such regulations as may, from time to time, be
promulgated thereunder.
1
"Event of Default" is defined in Article VI.
----------------
"Interest Payment Date" shall mean the last Business Day of each Interest
---------------------
period for a BOT LIBOR Priced Loan, and in the case of any Interest Period of
more than three months duration, on the last Business Day of each successive
period of three months starting from the beginning of such Interest Period.
"Interest Period" shall mean one of periods of one, two, three or six
---------------
months, the first of which shall begin on the day on which the BOT LIBOR Priced
Loan is made and succeeding of which shall commence on the last day of the
immediately preceding Interest Period in respect of such BOT LIBOR Priced Loan
provided that:
--------
(x) any Interest Period which would otherwise end on a day which is
not a Business Day shall be extended so as to end on the next succeeding
Business Day, unless (with respect to BOT LIBOR Priced Loans only) such
succeeding Business Day falls in a succeeding calendar month, in which case
the Interest Period shall end on the preceding Business Day, and
(y) notwithstanding the foregoing, each Interest Period shall end when
the Bank demands repayment of the applicable Loans.
and, each Interest Period applicable to the Loan shall be specified by the
Company in a notice to the Bank at least three Business Days prior to the
commitment.
"Lending Office" shall mean the Bank's New York Branch office located at
--------------
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office of the Bank as
the Bank shall specify from time to time.
"BOT LIBOR" shall mean, in respect of each Interest Period applicable to a
---------
BOT LIBOR Priced Loan, the interest rate per annum equal to the arithmetic mean
(rounded upwards, if necessary, to the nearest whole multiple of 1/32 of 1%) of
the rates of interest at which deposits in UTS. Dollars are offered to the Bank
by Bank of Tokyo in the London interbank market at or about 11:00 a.m. (London
time) two Business Days before the first day of such Interest Period and in an
amount comparable to the principal amount of such BOT LIBOR Priced Loan, for a
term equal to the applicable Interest period.
"Loan" or "Loans" shall mean Loan made pursuant to Article II.
---- -----
"Note" shall mean the promissory note made by the Borrower as provided in
----
Section 2.01 hereof and substantially in the form of Exhibit A hereof.
"Prime Rate" shall mean for each day the rate per annum announced from time
----------
to time by the New York Branch of the Bank as
2
its prime rate in effect for such day.
ARTICLE II
LOAN
SECTION 2.01 Term Loan
---------
(a) Subject to the terms and conditions of this Agreement, the Bank hereby
agrees to make a loan (the "Loan") to the Borrower on October 30 1995 in a
principal amount of $20,000,000.
(b) The Borrower's obligation to pay the principal of and interest on the
Loan shall be evidenced by its promissory note (the "Note") in the form of
Exhibit A hereto, dated the date of the Loan and payable to the order of the
Bank. Unless accelerated in accordance with the provisions of Section 6.02
hereof, the principal amount of the Loan and the Note shall be repaid in 10
equal semi-annual installments of U.S. $2,000,000.00, and such installments
shall be payable on 30th day of April and October, starting as of April 30, 1998
and ending as of October 30, 2002 (the "Repayment Dates", with the last
Repayment Date being called the "Maturity Date") and with the last such semi-
annual installment to equal the outstanding principal balance of the Loan. All
payments made hereunder by the Borrower shall be made without counterclaim,
deduction or offset in lawful money of the United States of America to the Bank
at its Lending Office in immediately available funds by 11:00 a.m. (New York
time) on the date or dates when due. If any payment would otherwise be due
hereunder on a day which is not a Business Day, the due date of such payment
shall be extended to the next succeeding Business Day unless such next
succeeding Business Day falls in a succeeding calendar month in which case the
due date of such payment shall be on the preceding Business Day and such
extension of time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
SECTION 2.02 Method of Borrowing. The Borrower shall give to the Bank
-------------------
irrevocable written or telephonic (promptly to be confirmed in writing) notice
of its request for the making of the Loan by 11:00 a.m. (New York time) three
(3) Business Days prior to the date on which the Loan is to be made. Such notice
shall specify the date, the duration of the initial Interest Period therefore.
Not later than 1:00 p.m. (New York time) on the date so specified in such
notice, the Bank shall make available to the Borrower at the Lending Office, in
immediately available funds, the proceeds of the Loan.
SECTION 2.03 Interest
--------
(a) The Loan shall bear interest from the date made until due in accordance
with the provisions hereof and of the Note at a rate per annum equal to the sum
of BOT LIBOR Rate plus 0.375% p.a., for
3
Interest Periods specified by the Borrower from time to time.
(b) Any amount which is not paid when due hereunder or under the Note shall
(to the extent not prohibited by law) bear interest until paid in full at a rate
equal to the greater of (i) 2% above the Prime Rate or (ii) 2% above the rate
applicable to such amount immediately prior to its becoming due (the "Default
Rate").
(c) Interest shall be calculated on the basis of a 360-day year for the
exact number of days elapsed (including the first day of any period, but
excluding the last) and shall be payable:
(i) on the Interest Payment Date;
(ii) at the time of any payment of principal; and
(iii) in respect of interest accrued pursuant to Section 2.03(b), on
the demand of the Bank.
SECTION 2.04 Prepayment of the Loan.
----------------------
(a) The Borrower shall have the right, upon not less than three (3)
Business Days prior irrevocable written notice (effective upon receipt), to
prepay the Loan in whole or in part, provided however, that if in part, the
prepayment must be in a minimum aggregate amount of $2,000,000 or a greater
multiple thereof.
(b) All payments shall be accompanied by payment to the Bank of accrued
interest on the principal amount so prepaid to and including the date of such
prepayment. Prepayment shall only be permitted on an Interest Payment Date. In
addition, the Borrower agrees to reimburse the Bank on demand for any loss or
expense incurred or sustained by the Bank, as reasonably determined by the Bank,
as a result of the prepayment of the Loan, or a part thereof.
(c) Each partial prepayment shall be applied to the installments due on the
Repayment Dates in the inverse order of their maturity.
(d) Amounts prepaid may not be reborrowed hereunder.
SECTION 2.05 Changes in Circumstances Affecting Loan. If, after the date
---------------------------------------
hereof, the introduction of, or any change in, any applicable law, rule or
regulation, or in the interpretation or administration thereof by any
governmental authority charges with the interpretation or administration
thereof, shall make it unlawful for the Bank to maintain or fund the Loan, the
Bank shall forthwith give notice thereof to the Company, and the Company shall
as promptly as possible repay in full the unpaid principal amount of the Loan,
together with accrued interest thereon to such date of repayment and all other
amounts due hereunder.
SECTION 2.06 Funding Indemnity. The Borrower hereby agrees to pay to the
-----------------
Bank on demand such amount or amounts as shall
4
compensate the Bank for any loss, cost or expense incurred by the Bank, as
reasonably determined by the Bank and agreed to by the Borrower, as a result of:
(a) any payment or prepayment of a Loan on a date other than, the last day
of the Interest Period for the Loan, or
(b) the failure to borrow a Loan pursuant to a notice given as set forth in
Section 2.02 hereof, which amount shall include, but not be limited to, expenses
incurred by the Bank in connection with the redeployment of funds prepaid,
repaid, or not borrowed, as the case may be, and an amount equal to the
deficiency, if any, (as determined in good faith by the Bank) of the actual
return on funds so redeployed below the amount of interest and commission which
would have been earned thereon hereunder to the last day of such Interest Period
or such maturity date, as the case may be. The Bank shall provide the Borrower
with a detailed summary of the method by which it calculated the amount claimed
from the Borrower under this section, and provide the Borrower with an
opportunity to review such calculation.
SECTION 2.07 Use of Proceeds. The proceeds of the Loan shall be used by the
---------------
Borrower for operating funds.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01 Conditions Precedent to the Loan. The obligation of the
------------------------------------
Bank to make the Loan shall be subject to the Bank having received the following
in form and substance satisfactory to it:
(a) The Note, duly executed by authorized signatories of the Borrower,
payable to the order of the Bank and dated the date on which the Loan is to be
made;
(b) Copies of all the proceedings taken by the Borrower to authorize the
execution and delivery of this Agreement and the Note including:
(i) a duly certified copy of the Corporate By-Laws of the Borrower
and its Certificate and Articles of Incorporation;
(ii) a copy of this Agreement duly signed by authorized officers of
the Borrower;
(iii) a duly certified resolution of the Board of Directors of the
Borrower, authorizing the establishment of this Agreement under the
terms and conditions of this Agreement and designating the signatories
authorized to
5
execute, in the name of the Borrower, this Agreement and the Note and
any other documents submitted by the Borrower in connection with this
Agreement;
SECTION 3.02 Additional Conditions Precedent to the Loan. The obligation of
-------------------------------------------
the Bank to make the Loan shall be subject to the further conditions precedent
that the Bank shall have received the following, and that the statements therein
shall be true and correct as of the date of such Loan:
(a) a certificate of the Borrower's Chief Financial Officer to the effect
that:
(i) the representations and warranties contained in Section 4.01 are true
and correct on and as of such date as though made on and as of such date;
and
(ii) no event has occurred and is continuing, or would result from the
making of such Loan which constitutes, or would, with the passage of time
or notice or both, constitute an Event of Default, and
(iii) since March 31, 1995, there has been no material adverse change in
the financial condition, operations, business or business prospects of the
Borrower.
(b) All such other approvals, opinions or documents as the Bank may
reasonably request, certified by an appropriate governmental official or officer
of the Borrower, if so requested.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower. The Borrower
----------------------------------------------
represents and warrants to the Bank, as of the closing of the Loan, as follows:
(a) Organization. Incorporation. Etc. The Borrower is a corporation duly
--------------------------------
incorporated, validly existing and in good standing under the laws of the State
of California and has all requisite power and authority to own its property and
assets and to carry on its business as it is presently being conducted and as it
intends to carry on. The Borrower is qualified to do business and is in good
standing in all states where the nature of the Borrower's business and the
ownership of its property require it to become so qualified, and where the
failure to be so qualified would have a material adverse impact on the
Borrower's ability to repay the Loan. Complete and correct copies of the
Borrower's Certificate and Articles of Incorporation and By Laws and all
amendments to these documents have been delivered to the Bank.
6
(b) Authorization. The execution, delivery and performance by the Borrower
-------------
of this Agreement and the Note are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not contravene
any law or regulation known to the Borrower or any contractual restriction
binding on or affecting the Borrower or its assets, and will not result in the
creation or imposition of any lien or encumbrance affecting the assets of the
Borrower.
(c) Compliance with Law, etc. of Agreement and Note; Approvals.
----------------------------------------------------------
i) The execution, delivery and performance by the Borrower of this
Agreement and the Note and the Loan under this Agreement do not and will
not, to the Borrower's knowledge, (A) violate any Applicable Law, or (B)
conflict with, result in a breach of or constitute a default under (x) the
Certificate or Articles of Incorporation or By Laws of the Borrower, (y)
any statute, rule, governmental decree, or resolution, or (z) any
indenture, agreement, order, judgment, contract, understanding or other
instrument to which the Borrower is a party or by which it or any of its
property may be bound or affected.
ii) No licenses, permits, consents, orders, approvals or authorizations
by, or registrations, declarations, withholdings of objection or filings
with any governmental bodies, or regulatory, banking or supervisory bodies,
or any other Person are necessary or appropriate in connection with the due
execution, delivery and performance by the Borrower of this Agreement.
(d) Binding Obligations. This Agreement has been duly executed and
-------------------
delivered by the duly authorized officers of the Borrower and is, and the Note
when executed and delivered hereunder will be, legal, valid and binding
obligations of the Borrower as the case may be, enforceable against the Borrower
as the case may be, in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally.
(e) Financial Statements. The financial statements which the Borrower has
--------------------
submitted to the Bank were prepared in accordance with generally accepted
accounting principles consistently applied and fully and fairly reflect the
financial condition of the Borrower at the dates thereof, and no material
adverse change in the financial condition, operations or business of the
Borrower has occurred since March 31, 1994.
(f) Litigation. Except as otherwise previously notified in writing to the
----------
Bank, there is no litigation or governmental
7
proceeding pending, nor to the knowledge of Borrower threatened, against or in
any other manner relating adversely to the Borrower or any of the Borrower's
property in court or before any arbitrator of any kind or before any
governmental body, which if adversely determined would, singly or in the
aggregate, have a material adverse effect on the financial condition or
properties, business or operations of the Borrower or on the ability of the
Borrower to perform its obligations under this Agreement.
(g) Use of the Proceeds. The Borrower will use the proceeds of any Loan
-------------------
solely for the purpose set out in Section 2.07 or for such other purposes that
the Bank may approve in writing. In addition, the Borrower is not engaged
principally in, nor does it have as one of its important activities, the
business of extending credit for the purpose of "purchasing" or "carrying" any
"margin stock" (each within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of the
Loan will be used to purchase or carry any margin stock or extend credit to
others for a purpose which violates Regulation U or Regulation X (of said Board
of Governors) or any other provision of law or governmental regulation.
(h) Compliance with Law. The Borrower is in substantial compliance with all
-------------------
Applicable Laws, non-compliance with which could, singularly or in the
aggregate, have a materially adverse effect on the ability of the Borrower to
perform its obligations under this Agreement or the Note.
(i) Filings. All filings, recordations, notifications, registrations,
-------
notarizations, authentications or other formalities necessary or appropriate to
be accomplished and all stamp or similar taxes or duties to be paid in
connection with the execution, delivery, validity and enforceability of this
Agreement, the Note and the Loan hereunder have been accomplished or paid.
(j) Absence of Default. The Borrower is in compliance with all of the
------------------
provisions of its Certificate of Incorporation and By Laws, and no event or
condition has occurred, or failed to occur, which has not been remedied or
waived, the occurrence or non-occurrence of which constitutes, or which with the
passage of time or giving of notice or both would constitute, a default by the
Borrower, under any indenture, lease, agreement or other instrument, or any
judgment, decree, resolution or order to which the Borrower or any of its
property may be bound or affected, which default could have a material adverse
effect on the ability of the Borrower to perform its obligations under this
Agreement or the Note.
(k) Material Obligations. The Borrower, is neither a party to nor bound by
--------------------
any loan or credit agreement, or any material franchise agreement, deed, lease
or other instrument, or subject to any Charter, By Laws or other corporate
restriction or judgment,
8
decree or order of any court or governmental body which may have a materially
adverse effect on the ability of the Borrower to perform its obligations under
this Agreement or the Note.
(l) Accuracy and Completeness of Information. All information, reports
--------------------------------------------
and other papers and data relating to the Borrower furnished to the Bank were,
at the time the same were so furnished, complete and correct in all material
respects to the extent necessary to give the Bank true and accurate knowledge of
the subject matter. No fact is currently known to the Borrower which materially
and adversely affects the business, assets, liabilities, financial position or
business prospects of the Borrower or the ability of the Borrower to perform its
obligations under this Agreement or the Note which has not been set forth or
referred to herein or in such information, reports, or other papers or data or
otherwise specifically disclosed in writing to the Bank.
(m) ERISA. No "plan" (as such term is defined in Section 4021 (a) of
-----
"ERISA" of the Borrower or any of its Subsidiaries) has incurred an "accumulated
funding deficiency" for which any excise tax or penalty is due under the United
States Internal Revenue Code, no Reportable Event (as defined in ERISA) has
occurred and is continuing in respect of any such plan, and the Borrower and
each of its Subsidiaries are in compliance, in all material respects, with the
provisions of ERISA.
(n) Subsidiary. The Borrower is a 86.5% owned subsidiary of Yuasa
----------
Corporation.
(o) Rank of the Loans. All obligations to pay the principal of and interest
-----------------
on the Loan and the Note and other charges made hereunder constitute direct,
unconditional and general obligations of the Borrower, and will rank prior to or
pari passu with all other foreign and domestic indebtedness for borrowed money
----------
of the Borrower.
SECTION 4.02 Survival of Representations and Warranties. All statements
------------------------------------------
contained in any certificate, financial statement, legal opinion or other
document delivered by or on behalf of the Borrower pursuant to or in connection
with this Agreement shall constitute representations and warranties made under
this Agreement. All representations and warranties made under this Agreement
shall survive, and not be waived by the execution and delivery of this
Agreement, any investigation by the Bank or the making of any Loan under this
Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS OF THE BORROWER
From and after the date hereof and so long as the Loan or any amount
payable hereunder or under the Note is outstanding and
9
unpaid or this Agreement is in effect and unless the Bank shall otherwise
consent in writing, the Bank will require the Borrower's adherence to the
following:
SECTION 5.01 Annual Financial Statement. The Borrower shall deliver to
----------------------------
the Bank:
(a) within 120 days after the end of each fiscal year of the Borrower,
deliver to the Bank consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such year consolidated and
consolidating statements of income and of sources and applications of funds of
the Borrower and its Subsidiaries for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and accompanied by the opinion thereof of independent public accountants
of recognized national standing, which opinion shall state that such balance
sheets, statements of income and statements of sources and uses of funds have
been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with that of the preceding fiscal year, and
present fairly and accurately the financial position of the Borrower as of their
date, and that the audit by such accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and
(b) permit representatives of the Bank during business hours and upon
reasonable notice to (a) visit and inspect the books, records, and properties
of the Borrower and (b) discuss with its principal and officers its affairs,
finances and accounts.
SECTION 5.02 Corporate Existence: Continuity of Operations. Maintain its
---------------------------------------------
corporate existence in good standing and comply with all laws, directives,
regulations or interpretations thereof which are or purport to be applicable to
it; conduct its business substantially as such business is now conducted; and
maintain its assets in good repair, working order and condition.
SECTION 5.03 Notice of Events.
----------------
(a) Upon the occurrence of an Event of Default, give written notice thereof
to the Bank, providing details of such occurrence and setting forth the action
it intends or proposes to take to remedy said Events of Default.
(b) Give prompt written notice to the Bank of (i) any substantial dispute
between the Borrower and any governmental authority with respect to taxes or any
other matter; (ii) any substantial dispute threatening the continued normal
business operations of the Borrower; (iii) any material loss or damage to
property resulting from any casualty; (iv) the commencement of any litigation
proceeding (whether by service of process or by
10
attachment of any asset) which could have a material adverse effect on the
Borrower's business, operations, properties, assets or condition (financial or
otherwise); and (v) any other material adverse change in the Borrower's
consolidated financial condition or operations.
SECTION 5.04 ERISA. Comply in all material respects with the provisions of
-----
ERISA with respect to each of its employee plans.
SECTION 5.05 Performance of Obligations; Taxes.
---------------------------------
(a) Pay all its indebtedness and perform all contractual obligations
promptly pursuant to agreements to which it is a party or by which it or any of
its properties or assets is bound at any time during the term of the Agreement.
(b) Pay, before any penalty attaches, all general taxes and all special
taxes, special assessments, water charges, drainage and sewer charges and all
other charges of any kind whatsoever, ordinary or extraordinary, which may be
levied, assessed, imposed or charged on or against the property and will, upon
written request, exhibit to the Bank official receipts evidencing such payments.
If the Borrower desires to contest any such tax or assessment, it shall do so in
a manner which prevents enforcement of any lien for taxes and shall deposit with
the Bank such security for the payment of the tax as the Bank may reasonably
require to assure payment of the matter under contest in the event of a
determination of the matter under contest adverse to Borrower.
SECTION 5.06 Approvals. Obtain and promptly renew all consents, licenses
---------
and authorizations as may be required at any time hereunder or under any
applicable law to enable the Borrower to perform its obligations under this
Agreement and the Note or required for the validity or enforceability of this
Agreement and the Note, and the Borrower will comply with the terms of all
governmental consents in relation to this Agreement and the Note.
SECTION 5.07 Insurance. The Borrower will maintain insurance to such extent
---------
and covering such risks as is usual for companies engaged in the same or similar
businesses.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. The following shall constitute Events of
------------------
Default (and, an "Event of Default") under this Agreement:
(a) The Borrower shall default in any payment when due of principal of the
Loan or the Note; or shall default in the payment of interest on the Loan or the
Note, or any other amount payable
11
under this Agreement or the Note; for more than five (5) Business Days after
such principal, interest or other amount becomes due or is demanded;
(b) Any representation or warranty made by the Borrower under this
Agreement or any statement in any certificate or financial statement furnished
to the Bank shall prove incorrect, untrue or misleading in any material respect
when made or deemed made;
(c) The Borrower shall default in the performance or observance of any
covenant or agreement contained in this Agreement, and such default shall
continue for a period of thirty (30) days after written notice thereof has been
given to the Borrower by the Bank requesting that the same be cured, unless such
default cannot be cured within such 30-day period, in which event the Borrower
shall have 90 days to cure such default, and provided further that the Borrower
promptly commences such cure within such 30-day period and continuously proceeds
with such cure in a diligent manner; or
(d) The Borrower shall: (i) fail to pay any Indebtedness (excluding
Indebtedness evidenced by the Note) of the Borrower in excess of $5,000,000.00
or any interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness; or (ii) fail to perform any term,
covenant or condition on its part to be performed under any agreement or
instrument relating to any such Indebtedness in excess of $5,000,000.00 when
required to be performed, and such failure shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such failure to perform is to accelerate, or permit the acceleration of the
maturity of such Indebtedness in excess of $5,000,000.00; or any such
Indebtedness in excess of $5,000,000.00 shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or
(e) The Borrower shall (i) apply for or consent to the appointment of a
receiver, trustee, intervenor, or liquidator of itself, or of any of its
property, (ii) be unable, or admit in writing its inability, to pay its debts as
they mature, (iii) make a general assignment for the benefit of its creditors,
(iv) be adjudicated a bankrupt or insolvent, or (v) file a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization or an arrangement
with creditors or to take advantage of any insolvency law or any answer
admitting the material allegations of a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or corporate action shall
be taken by it for the purpose of effecting any of the foregoing; or
12
(f) The commencement of a case or other proceeding, without the
application or consent of the Borrower, as appropriate, in any court of
competent jurisdiction, seeking the liquidation, reorganization, dissolution,
winding up or composition or readjustment of debts, of the Borrower, as
appropriate, the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower, as appropriate or for all or any substantial part of
their respective assets, or any similar action with respect to the Borrower or
the Guarantor, as appropriate under any laws relating to bankruptcy, insolvency,
reorganization, winding up or composition or readjustment of debts, and such
case or proceeding shall continue undismissed, or unstayed and in effect, for a
period of 120 consecutive days or any order for relief in respect of the
Borrower as appropriate shall be entered in an involuntary case under the
Federal bankruptcy laws (as now or hereafter in effect); or
(g) A final judgment or order for the payment of money in excess of
$5,000,000.00 not covered by insurance shall be rendered against the Borrower
and such judgment or order shall continue unsatisfied and in effect for a period
of 30 consecutive days; or
(h) Any reportable event under ERISA shall have occurred and be continuing
for 15 days which the Bank in good faith determines constitutes grounds for the
imposition of liability in excess of $5,000,000.00 against the Borrower under
Part IV, Subtitle D or ERISA; or
(i) The Borrower shall cease to be a 51% owned Subsidiary of Yuasa
Corporation; or
(j) Any competent governmental authority takes (i) any action to condemn,
seize, requisition or otherwise appropriate any substantial portion of the
properties or assets of the Borrower (without payment of compensation), or (ii)
any action to dissolve, liquidate or terminate the existence of the Borrower or
to divest any material portion of its properties or assets.
SECTION 6.02 Remedies.
--------
(a) Upon the occurrence of:
(i) any Event of Default referred to in subsection 7.01(e) or (f), the
Note, all interest thereon, and all other amounts payable under this
Agreement shall become forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; or
(ii) any other Event of Default, the Bank may by 30 days written notice to
the Borrower declare the principal of and interest accrued on the Note and
all other amounts hereunder
13
and under the Note to be, and the same shall become and be, forthwith due
and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower.
(b) The Borrower agrees to pay to the Bank on demand all reasonable costs
and expenses which the Bank may incur as a result of the occurrence of an Event
of Default or the failure of the Borrower to pay any amount when due hereunder
or under the Note.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Notices, Etc. Except as is otherwise provided in this
------------
Agreement, all notices and other communications provided hereunder shall be in
writing (including telefaxed communication) and mailed or telegraphed or
delivered, if to the Borrower, at its address at 000 Xxxx Xxxxxx X.X.Xxx 00000,
Xxxxxxx, XX 00000-0000, Attention: Xx. Xxxxxxx X. Xxxxxxxx, Vice President,
Finance & CFO or Xx. Xxxxxxx X. XxXxxxxxxxx, Assistant Controller; if to the
Bank at its address at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Mr.
Xxxxxxx Xxx; or as to each party, at such other address as shall be designated
by such party in a written notice to the other party. All such notices and
communications shall be effective when received by the party to whom sent.
SECTION 7.02 Survival. The representations and warranties of the Borrower
--------
contained herein shall survive the making of the Loan and, shall remain
effective until all obligations of the Borrower hereunder, and under the Note
shall have been paid by Borrower in full.
SECTION 7.03 Amendments and Waivers. The provisions of this Agreement and
----------------------
the Note may be amended or modified, or the provisions of either waived only by
an instrument in writing signed by the Borrower and the Bank.
SECTION 7.04 Entire Agreement. This Agreement and the documents referred to
----------------
herein embody the entire agreement and understanding between the parties hereto
and supersede all prior agreements and understandings relating to the subject
matter hereof.
SECTION 7.05 No Waiver. No failure to exercise, and no delay in exercising
---------
any right, power or remedy hereunder, under the Note, or under any other
document delivered pursuant hereto shall impair any right, power or remedy which
the Bank may have, nor shall any such delay be construed to be a waiver of any
such right, power or remedy, or an acquiescence in any breach or default under
this Agreement or the Note or under any other document delivered
14
pursuant hereto, nor shall any waiver by the Bank of any breach or default
hereunder be deemed a waiver of any default or breach subsequently occurring.
The rights and remedies herein specified are cumulative and not exclusive of any
rights or remedies which the Bank would otherwise have.
SECTION 7.06 Separability of Provisions. In case one or more of the
--------------------------
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
SECTION 7.07 Binding Effect; Assignment. All the provisions of this
--------------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns when it shall have been executed by
the Borrower and the Bank. The Borrower shall not have the right to assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Bank.
SECTION 7.08 Submission to Jurisdiction. Any legal action or proceedings
--------------------------
with respect to this Agreement against the Borrower may be brought in the courts
of the United States of America or the State of New York as the Bank may elect,
and, by execution and delivery of this Agreement, the Borrower hereby, (i)
accepts for itself, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts, and (ii) irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceedings with respect to
this Agreement brought in any court of the United States of America or the State
of New York located in the City of New York, and further irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. In the case of the courts of the United
States of America and the State of New York the Borrower hereby agrees to
receive service of process in any legal action or proceedings with respect to
this Agreement. Nothing herein shall affect the right to serve process in any
other manner permitted by law. The Borrower hereby agrees that the mailing of
such process to the Borrower shall be deemed personal service and accepted by
the Borrower for any legal action or proceedings with respect to this Agreement.
SECTION 7.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
SECTION 7.10 Governing Law. This Agreement and the Note shall be construed
-------------
in accordance with and governed by the laws of the State of New York.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused it to be executed by their duly authorized officers, as of the date first
above written.
Yuasa Exide, Inc.
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name XXXXXXX X. XXXXXXX
--------------------------------
Title VICE PRESIDENT, FINANCE & CFO
-------------------------------
THE SAKURA BANK, LIMITED
By /s/ Xxxxxxx Xxxxx
---------------------------
Name Xxxxxxx Xxxxx
-------------------------
Title Senior Vice President
------------------------
16
EXHIBIT A
PROMISSORY NOTE
---------------
US $20,000,000 .00
Dated: October 30, 1995
FOR VALUE RECEIVED, the undersigned, YUASA EXIDE, INC. a California
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of THE SAKURA
BANK, LIMITED (the "Bank") the principal sum of Twenty Million Dollars
($20,000,000.00), or such lesser outstanding amount which the Bank shall have
advanced to the Borrower as the Loan, in immediately available funds, in
consecutive 10 equal semi-annual - installments of $2,000,000.00 on the
Repayment Dates (the 30th day of April and October, commencing April 30, 1998),
and to pay interest from the date hereof on said principal sum or the unpaid
balance hereof, in like money and funds, at the rates and at the times specified
in the Credit Agreement (as hereinafter defined), provided that any amount which
--------
is not paid when due hereunder shall bear interest (to the extent not prohibited
by law) until paid in full, payable on demand, at a rate per annum equal to the
higher of (i) the Prime Rate plus 2% or (ii) 2% above the rate applicable to
such amount immediately prior to its becoming due. Interest shall be computed on
the basis of a year of 360 days for the actual number of days elapsed.
Both principal and interest are payable in lawful money of the United
States of America to the office of the Bank located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (or any successor office notified to the Borrower by the
Bank).
17
This Promissory Note is the Note referred to in, and is entitled to the
benefits of, the Term Loan Agreement dated as of October 30, 1995, (the "Credit
Agreement") between the Borrower and the Bank, which Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
the principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. Terms defined in the Credit Agreement and used herein shall
have their respectively defined meanings herein unless the contrary is expressly
indicated.
The Borrower hereby waives presentment, demand, protest or notice of any
kind with respect to this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
YUASA EXIDE, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: XXXXXXX X. XXXXXXX
----------------------------------
Title: VICE PRESIDENT, FINANCE & CFO
---------------------------------
18
PROMISSORY NOTE
---------------
US $20,000,000.00
Dated: October 30, 1995
FOR VALUE RECEIVED, the undersigned, YUASA EXIDE, INC. a California
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of THE SAKURA
BANK, LIMITED (the "Bank") the principal sum of Twenty Million Dollars
($20,000,000.00), or such lesser outstanding amount which the Bank shall have
advanced to the Borrower as the Loan, in immediately available funds, in
consecutive 10 equal semi-annual - installments of $2,000,000.00 on the
Repayment Dates (the 30th day of April and October, commencing April 30, 1998),
and to pay interest from the date hereof on said principal sum or the unpaid
balance hereof, in like money and funds, at the rates and at the times specified
in the Credit Agreement (as hereinafter defined), provided that any amount which
--------
is not paid when due hereunder shall bear interest (to the extent not prohibited
by law) until paid in full, payable on demand, at a rate per annum equal to the
higher of (i) the Prime Rate plus 2% or (ii) 2% above the rate applicable to
such amount immediately prior to its becoming due. Interest shall be computed on
the basis of a year of 360 days for the actual number of days elapsed.
Both principal and interest are payable in lawful money of the United
States of America to the office of the Bank located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (or any successor office notified to the Borrower by the
Bank) .
This Promissory Note is the Note referred to in, and is entitled to the
benefits of, the Term Loan Agreement dated as of October 30, 1995, (the "Credit
Agreement") between the Borrower and the Bank, which Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
the principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. Terms defined in the Credit Agreement and used herein shall
have their respectively defined meanings herein unless the contrary is expressly
indicated.
The Borrower hereby waives presentment, demand, protest or notice of any
kind with respect to this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
YUASA EXIDE, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: XXXXXXX X. XXXXXXX
--------------------------------
Title: VICE PRESIDENT, FINANCE & CFO
-------------------------------
CERTIFICATE
-----------
The undersigned is the Chief Financial Officer of YUASA-EXIDE, INC. (the
"Company"), and does hereby, pursuant to Paragraph 3.02 of the Term Loan
Agreement dated as of October 30, 1995 (the "Agreement") by and between the
company and THE SAKURA BANK, LIMITED, certify for and on behalf of the Company
as follows:
1. The representations and warranties contained in Section 4.01 of the
Agreement are true and correct in all material respects on and as of the date
hereof as though made on and as of this date.
2. No event has occurred and is continuing, or would result from the
making of the Loan under the Agreement which constitutes or would, with the
passage of time or notice or both, constitute an Event of Default under the
Agreement.
3. Since March 31, 1995, there has been no material adverse change in the
financial condition, operations or business of the Company.
Dated: October 30, 1995.
YUASA-EXIDE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
YESCO, INC.
Xxxxx 000
0000 Xxxxxxxxx Xxx
Xxxx, Xxxxxx 00000
Xxxxxxx Xxxxxx Date: Xxxxx 00, 0000
XxxxXxxxxx Bank
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Dear Xx. Xxxxxx:
Reference is made to our lock-box account no. 00000000 (the "Account") which
receive deposits through the Lock Box (the "Lock Box") maintained with you.
Pursuant to a Securitization Agreement dated as of March, 1998, (as the same may
be amended, modified or otherwise supplemented from time to time, the
"Securitization Agreement") among us, as seller. Yuasa Exide, Inc., as servicer,
Prominent Funding Corporation, as purchaser (the "Purchaser"), and The Sakura
Bank, Limited, acting through its New York Branch, as agent for Purchaser (the
"Agent"), we have assigned and/or may hereafter assign to Purchaser an undivided
percentage interest in certain of the accounts, chattel paper, instruments or
general intangibles (collectively, "Receivables") and Related Property (as
defined in the Securitization Agreement), with respect to which payments are or
may hereafter be made to the Account and Lock Box, and have granted to
Purchaser a security interest in our retained interest in such Receivables and
the Related Property. Your execution of this letter agreement is a condition
precedent to our continued maintenance of the Account and Lock Box with you.
We hereby transfer exclusive ownership and control of the Account and Lock
Box effective March 16, 1998, to the Agent subject only to the condition
subsequent that the Agent shall have given you notice of its election to assume
such ownership and control, which notice may be in the form attached hereto as
Annex A or in any other form that gives you reasonable notice of such election.
We hereby irrevocably instruct you, at all times from and after the date of
your receipt of notice from the Agent as described above, to make all payments
to be made by you out of or in connection with the Account directly to the
Agent, at its address set forth below its signature hereto or as die Agent
otherwise notifies you, for the account of the Purchaser - account number
00000000, or otherwise in accordance with the instructions of the Agent.
1
We also hereby notify you that, at all times from and after the date of your
receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account and Lock Box, including, without
limitation, (a) the right to specify when payments are to be made out of or in
connection with the Account and (b) the right to require preparation of
duplicate monthly bank statements on the Account for the Agent's audit purposes
and mailing of such statements directly to an address specified by the Agent.
Notice from the Agent may be personally served or sent by Telex, facsimile or
U.S. mail, certified return receipt requested or by express mail or courier, to
the address, Telex or facsimile number set forth under your signature to this
Letter agreement (or to such other address, Telex or facsimile number as to
which you shall notify the Agent in writing). If notice is given by Telex or
facsimile, it will be deemed to have been received when the notice is sent and
the answerback is received (in the case of Telex) or receipt is confirmed by
telephone or other electronic means (in the case of facsimile). All other
notices will be deemed to have been received when actually received or, in the
case of personal delivery, delivered.
By executing this Letter agreement, you acknowledge the existence of the Agent's
right to ownership and control of the Account and Lock Box and its ownership of
and security interest in the accounts from time to time on deposit therein and
agree that from the date hereof the Account and Lock Box shall be maintained by
you for the benefit of, and amounts from time to time therein held by you as
agent for, the Agent on the terms provided herein. The Account is to be entitled
"Yesco, Inc. and The Sakura Bank, Limited, acting through its New York Branch as
Agent for Prominent Funding Corporation". Except as otherwise provided in this
letter agreement, payments to the Account and Lock Box are to be processed in
accordance with the standard procedures currently in effect. All service charges
and fees with respect to the Account and Lock Box shall continue to be payable
by us as under the arrangements currently in effect.
By executing this letter agreement, you irrevocably waive and agree not to
assert, claim or endeavor to exercise, irrevocably bar and estop yourself from
asserting, claiming or exercising and acknowledge that you have not heretofore
received a notice, writ, order or any form of legal process from any other party
asserting, claiming or exercising, any right of set-off, banker's lien or other
purported form of claim with respect to the Account or the Lock Box or any
funds from time to time therein. Except for your right to payment of your
service charges and fees and to make deductions for returned items, you shall
have no rights in the Account or the Lock Box or funds therein. To the extent
you may ever have such rights, you hereby expressly subordinate all such rights
to all rights of the Agent.
2
You may terminate this Letter agreement by canceling the Account and Lock Box
maintained with you, which cancellation and termination shall become effective
only upon thirty days' prior written notice thereof from you to the Agent.
Incoming mail addressed to or wire transfers to the Account or Lock Box received
after such cancellation shall be forwarded in accordance with the Agent's
instructions. This letter agreement may also be terminated upon written notice
to you by the Agent stating that the Securitization Agreement pursuant to which
this letter agreement was obtained is no longer in effect. Except as otherwise
provided in this paragraph, this letter agreement may not be terminated or
amended without the prior written consent of the Agent.
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing the two copies of this letter agreement enclosed herewith
in the space provided below, sending one such signed copy to the Agent at the
address provided below its signature and returning the other signed copy to us.
Very truly yours,
YESCO, INC.
/s/ Xxxxxxx XxXxxxxxxxx
By: Xxxxxxx XxXxxxxxxxx
Title: Assistant Secretary
3
Accepted and confirmed as of the date first written above:
PROMINENT FUNDING CORPORATION,
as Purchaser
By:
-----------------------------
Name:
Title:
THE SAKURA BANK, LIMITED, acting through
its New York Branch, as Agent
By:
-----------------------------
Name:
Title:
Address for notice:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx and Toshiharu Sakuragi
Acknowledged and agreed to as of the date first written above: - - subject to
the
additional
terms and
conditions as
outlined on
the attached
addendum.
CORESTATES BANK N.A.
By: [SIGNATURE APPEARS HERE]
-----------------------------
Title:
--------------------------
Address for notice:
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Addendum
--------
To Letter Agreement between YESCO Inc., Prominent Funding Corporation, The
Sakura Bank Limited, and CoreStates Bank, N.A.,
Dated March 16, 1998
Notwithstanding any other provisions of this letter agreement,
(1) unless you are grossly negligent or engage in willful misconduct in
performance or non-performance in connection `with this letter agreement,
the Account or the Lock Box, we, the Purchaser and the Agent agree to hold
you harmless from any claims, damages, losses or expenses incurred by any
party in connection herewith in the event you breach the standard of care
set forth herein, we, the Purchaser and the Agent expressly agree that
your liability shall be limited to damages directly caused by such breach
and in no event shall you be liable for any incidental indirect, punitive
or consequential damages whatsoever,
(2) we agree that you may act on the instructions of the Agent without
making any special inquiry into the authority of the Agent, and you will
not be held liable for reasonable reliance on such instructions;
(3) you shall not be liable for any failure, inability to perform, or
delay in performance hereunder, if such failure, inability or delay is due
to acts of God, war, civil commotion governmental action, fire, explosion,
strikes, other industrial disturbances, equipment malfunction, action,
non-action or delayed action on our part or the part of the Agent or any
other entity or any other causes that are beyond your reasonable control;
(4) in the event insufficient funds are available in the Account for
return items or uncollected or fees and charges owed to you with respect
to the Account or the Lock Box and charged by you in the normal course of
business, we shall pay all such amounts to you on demand. If we fall to
pay such items Agent agrees that it will reimburse you for all such
amounts on demand.
Our responsibility and the Purchaser's and the Agent's respective
responsibilities under this paragraph shall survive the termination of this
letter agreement.
Prominent Funding Corporation: YESCO, Inc.,
By: By: /s/ Xxxxxx X. Xxxxxx
----------------------------- -----------------------------
Name Name XXXXXX X. XXXXXX
Title Title Treasurer
The Sakura Bank Limited CoreStates Bank N.A.
By: By:[SIGNATURE APPEARS HERE]
----------------------------- -----------------------------
Name Name
Title Title
CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") dated as of December 10, 1991 is
entered into by YUASA-EXIDE, INC., a California corporation (the "Borrower"),
and THE MITSUI TRUST & BANKING CO., LTD. (the "Bank").
ARTICLE 1.
DEFINITIONS; INTERPRETATION
Section 1.1 Definitions. The following terms are used in this Agreement
-----------
with the following meanings:
"Business Day" means any day other than a Saturday, a Sunday or any
other day on which banks in Los Angeles, California and New York, New York are
authorized or required by law to close.
"Debt" of any person or entity means (i) indebtedness for borrowed
money or for the deferred purchase price of property or services in respect of
which such person or entity is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or in respect of which such person or entity otherwise
assures a creditor against loss, and (ii) obligations under leases that shall
have been or should be, in accordance with generally accepted accounting
principles, recorded as capital leases, in respect of which obligations such
person or entity is liable, contingently or otherwise, as obligor, guarantor or
otherwise, or in respect of which obligations such person or entity otherwise
assures a creditor against loss.
"Event of Default" has the meaning set forth in Section 6.1.
"Guarantor" means Yuasa Battery Co., Ltd., the Japanese parent of the
Borrower.
"Guaranty" means the letter of guaranty dated December 10, 1991 from
the guarantor to the Bank.
"Loan" has the meaning set forth in Section 2.1.
"Loan Documents" means this Agreement, the Note, the Guaranty and any
other document, guaranty or similar instrument delivered pursuant to this
Agreement or any other Loan Document.
"Note" has the meaning set forth in section 3.1(a).
1
"Subsidiary" means (i) a corporation of which the Borrower and/or its
other Subsidiaries own, directly or indirectly, such number of outstanding
shares as have more than 50% of the ordinary voting power for the election of
directors and (ii) a partnership directly or indirectly controlled or managed by
the Borrower and/or its other Subsidiaries.
Section 1.2 Accounting Terms. Unless otherwise specified in this
----------------
Agreement, all accounting terms used in this Agreement shall be interpreted, all
accounting determinations under this Agreement shall be made and all financial
statements required to be delivered by the Borrower pursuant to this Agreement
shall be prepared in accordance with generally accepted accounting principles as
in effect from time to time applied on a basis consistent with the most recent
audited consolidated financial statements of the Borrower delivered to the Bank.
Section 1.3 Interpretation. In this Agreement, the singular includes the
--------------
plural and the plural the singular; words importing any gender include the other
genders; references to statutes are to be construed as including all statutory
provisions consolidating, amending or replacing the statute referred to;
references to "writing" include printing, typing, lithography and other means of
reproducing words in a tangible, visible form; references to sections (or any
subdivision of a section), articles, schedules, recitals, annexes and exhibits
are to those of this Agreement unless otherwise indicated; the words
"including," "includes", "include" shall be deemed to be followed by the words
"without limitation"; and references to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications to such instruments, but only to the extent such amendments and
other modifications are not prohibited by the terms of this Agreement.
ARTICLE 2.
AMOUNTS AND TERMS OF THE LOAN
Section 2.1 The Loan. The Bank agrees, on the terms and conditions
--------
hereinafter set forth, to make a term loan in the amount of $30,000,000 (the
"Loan") to the Borrower on December 10, 1991.
Section 2.2 Repayment of the Loan; Optional Prepayments. (a) If not sooner
-------------------------------------------
prepaid, the borrower shall repay the outstanding principal amount of the Loan
and any and all accrued but unpaid interest on the Maturity Date, as defined and
as provided in the Note.
(b) The Borrower may, subject to the provisions of the Note, prepay
the Loan without premium or penalty in whole at any time or from time to time in
part, by paying the principal amount being prepaid together with accrued
interest thereon to the date of prepayment.
2
Section 2.3 Interest. The Borrower shall pay interest on the unpaid
--------
principal amount of the Loan from the date of the Loan until such principal
amount is paid in full, at the interest rate specified in the Note and at the
times and in the manner specified in the Note.
[Section 2.4 Note Payments. (a) The Bank Shall submit to the Borrower, on
-------------
or prior to the Closing Date, two duly completed and signed copies of Form 4224
(relating to all payments to be made to the Bank by the Borrower pursuant to
this Agreement) of the United States Internal Revenue Service. Thereafter and
from time to time, upon notice from or upon any change in the Bank's
circumstances as reflected in the prior such form delivered by it, the Bank
shall submit to the Borrower, such additional duly completed and signed copies
of such form (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may be required under
then-current United States laws or regulations to avoid United States
withholding taxes on payments in respect of all payments to be made to the Bank
by the Borrower pursuant to the Loan Documents.
(b) All payments by or on behalf of the Borrower under the Loan
Documents shall be made without set-off or counterclaim and in such amounts as
may be necessary in order that all such payments (after deduction or withholding
for or on account of any present or future taxes, levies, imposts, duties or
other charges of whatsoever nature imposed by any government, any political
subdivision or any taking authority, other than any tax on or measured by the
overall net income of the Bank pursuant to the income tax laws of the United
States or the jurisdiction where the Bank's principal office is located
(collectively, the "Taxes") shall not be less than the amounts otherwise
specified to be paid under the Loan documents. A certificate as to any
additional amounts payable to the Bank under this Section 2.4 submitted to the
Borrower by the Bank shall show in reasonable detail the amount payable and the
calculations used to determine in good faith such amount and shall be conclusive
absent manifest error. Any amounts payable by the Borrower hereunder with
respect to past payments shall be due within five (5) Business Days following
receipt by the Borrower of such certificate from the Bank; and such amounts
payable with respect to future payments shall be due concurrently with such
future payments. With respect to each deduction or withholding for or on
account of any Taxes, the Borrower shall promptly furnish to the Bank such
certificates, receipts and other documents as may be required (in the reasonable
judgment of the Bank) to establish any tax credit to which the Bank may be
entitled. Without in any way affecting any of its rights hereunder, the Bank
agrees that, upon its becoming aware that any of the present or future payments
due it under the Loan Documents would be subject to deduction for Taxes, it will
notify the Borrower in writing and the Bank further agrees that it will use
reasonable efforts not disadvantageous to it (in its sole determination) in
3
order to avoid or minimize, as the case may be, the payment by the Borrower of
any additional amounts for Taxes pursuant to this Section 2.4. The agreements
and obligations of the Borrower under this Section 2.4. The agreements and
obligations of the Borrower under this Section 2.4 shall survive the payment in
full of the Loan.]
ARTICLE 3.
CONDITIONS OF LENDING
Section 3.1 Documentary Conditions Precedent to the loan. The obligation of
--------------------------------------------
the Bank to make the Loan is subject to the conditions precedent that the Bank
shall have received on or before the day of the Loan the following documents, in
form and substance satisfactory to the Bank:
(a) a Promissory Note in the form attached hereto as exhibit A (the
"Note"), duly executed by the Borrower;
(b) the Guaranty, duly executed by the Guarantor;
(c) certified copies of Borrower's charter, by laws and resolutions of
the Board of Directors of the Borrower approving the execution, delivery and
performance of the Loan Documents to which the Borrower is party, and of all
documents evidencing other necessary corporate or other action with respect to
the Loan Documents to which the Borrower is party;
(d) certified copies of all necessary governmental authorizations and
approvals with respect to the Loan Documents;
(e) a certificate of the Secretary of the Borrower certifying the
names and specimen signatures of the officers or partners of the Borrower duly
authorized to sign the Loan Documents; and
(f) such other approvals, opinions and documents as the Bank may
reasonably request.
Section 3.2 Circumstantial Conditions Precedent to the Loan. The
-----------------------------------------------
obligation of the Bank to make the Loan shall be subject to the further
conditions precedent that, on the date of the Loan, the following statements
shall be true (and the Acceptance by the Borrower of the Loan shall be deemed to
be a confirmation of the truth of such statements):
(a) the representations and warranties contained in Section 4.1 are
correct on and as of the Loan as though made on and as of such date; and
(b) no event has occurred and is continuing, or would result from the
Loan, that constitutes an Event of Default or would
4
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
Article 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Borrower. The Borrower
----------------------------------------------
represents and warrants as follows:
(a) the Borrower is duly organized, validly existing and in good
standing under the laws of California;
(b) the execution, delivery and performance by the Borrower of the Loan
documents to which the Borrower is a party are within the Borrower's powers,
have been duly authorized by all necessary action and do not contravene law or
any contractual restriction binding on or affecting Borrower;
(c) no authorization, approval or other action by, or notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of the Loan documents to
which the Borrower is a party;
(d) each of the Loan Documents to which the Borrower is party is the
legal, valid and binding obligation of the Borrower, enforceable against
Borrower in accordance with its terms, and such obligation ranks at least pari
----
passu in all respects with all other unsecured obligations of the Borrower;
-----
(e) the balance sheet of the Borrower and its Subsidiaries as of end of
March, and the related statements of income and retained earnings of the
Borrower and its Subsidiaries for the fiscal period then ended, copies of which
have been furnished to the Bank, fairly present the financial condition of the
Borrower and its Subsidiaries as of such date and the results of the operations
of the Borrower and its subsidiaries for the period ended on such dated, all in
accordance with generally accepted accounting principles consistently applied,
and since____________________ there has been no material adverse change in such
condition or operations;
(f) there is no pending or, to the Borrower's knowledge and belief,
threatened action or proceeding affecting the Borrower, or any of its
Subsidiaries before any court, governmental agency or arbitrator that may
materially and adversely affect the financial condition or operations of the
Borrower or any such Subsidiary;
(g) the Borrower and its Subsidiaries have filed all national, federal,
state, and local income tax returns required to have been filed by them and have
paid all taxes, assessments,
5
charges and other amounts due thereunder, except to the extent disputed by
appropriate proceedings diligently pursued and except to the extent that
appropriate reserves are being maintained with respect to any amounts so
disputed;
(h) no proceeds of the Loan will be used to acquire any security in
any transaction which is subject to Section 13 and 14 of the Securities Exchange
Act of 1934; and
(i) the Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of the Loan will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock. Proceeds of the Loan will be used only to acquire the industrial
division of Exide Corporation.
ARTICLE 5.
COVENANTS OF THE BORROWER
Section 5.1 Covenants. So long as the Loan shall remain unpaid, the
---------
Borrower will, unless the Bank shall otherwise consent in writing:
(a) comply, and cause each of its Subsidiaries to comply, in all
material respects with all applicable laws, rules, regulations and orders, such
compliance to include paying when due all taxes, assessments and governmental
charges imposed upon them or upon their property, except to the extent disputed
by appropriate proceedings diligently pursued and except to the extent that
appropriate reserves are being maintained with respect to any amounts so
disputed;
(b) furnish to the Bank: (i) as soon as available and in any event
within 90 days after the end of each fiscal year of the Borrower, a balance
sheet of the Borrower and its Subsidiaries as of the end of such year and
statements of income and retained earnings of the Borrower and its Subsidiaries
for such year, certified in a manner acceptable to the Bank by independent
public accountants acceptable to the Bank; and (ii) such other information
respecting the condition or operations, financial or otherwise, of the Borrower
or any of its Subsidiaries as the Bank may from time to time reasonably request;
and
(c) not (i) dissolve or consolidate with or merge into any other
entity or (ii) sell, lease or otherwise transfer, all or any substantial part of
its assets to any other entity. The Borrower will not permit any Subsidiary to
dissolve or consolidate with, merge into or transfer all or any substantial part
of its assets to any entity other than the Borrower or a wholly-owned
consolidated Subsidiary.
6
ARTICLE 6.
EVENTS OF DEFAULT
Section 6.1 Events of Default. If any of the following events (each an
-----------------
"Event of Default") shall occur and be continuing:
(a) the Borrower shall fail to make any payment of, or principal of,
interest on, the Loan when due;
(b) any representation or warranty made by the Borrower (or any of
its officers) under or in connection with any Loan Document shall prove to have
been incorrect or misleading in any material respect when made or deemed made;
(c) the Borrower shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be performed
or observed, and any such failure shall remain unremedied for ten (10) days
after written notice thereof shall have been given to the Borrower by the Bank;
(d) the Borrower, the Guarantor or any of their respective
Subsidiaries shall (i) fail to pay any Debt (excluding Debt resulting from the
Loan) of the Borrower, the Guarantor or such Subsidiary (as the case may be), or
any interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any specified in the agreement or
instrument relating to such Debt, or (ii) fail to perform or observe any term,
covenant or condition on its part to be performed or observed under any
agreement or instrument relating to any such Debt, when required to be performed
or observed, and such failure shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such failure
is to accelerate, or to permit the acceleration of, the maturity of such Debt;
or any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity thereof;
(e) the Borrower, the Guarantor or any of their respective
Subsidiaries shall admit in writing its inability to pay its debts or shall make
a general assignment for the benefit of creditors; any proceeding shall be
instituted by or against the Borrower, the Guarantor or any of their respective
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, seeking
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking appointment of a receiver, trustee or other similar official
for it or for any substantial part of its property; or the Borrower, the
Guarantor or
7
any of their Subsidiaries shall take any Corporate action to authorize any of
the actions set forth above in this subsection (e);
(f) an extraordinary event shall occur, or a change affecting the
functions of the Borrower or the Guarantor shall occur, which event or change
gives reasonable grounds to conclude, in the judgment of the Bank, that the
Borrower or the Guarantor may not, or may be unable to, perform or observe in
the normal course its obligations under any Loan Document; or
(g) any judgment or order for the payment of money in excess of
$10,000.- shall be rendered against the Borrower, the Guarantor or any of their
respective Subsidiaries and such judgment shall continue unsatisfied and
unstayed for a period of ten (10) days;
then, (1) in the case of any Event of Default specified in paragraphs (d) or (e)
above, the Loan, the Note and all interest thereon and all other amounts payable
under the Loan Documents shall automatically become due and payable without
presentment, demand, protest or noire of any kind, all of which are expressly
waived and (2) in the case of any other Event of Default specified above, the
Bank may, be notice to the Borrower, declare the Loan and the Note, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Loan and the Note, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE 7.
MISCELLANEOUS
Section 7.1 Amendments, Etc. No amendment or waiver of any provision of any
---------------
Loan Document, or consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
party or parties charge therewith, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
Section 7.2 Notices, Etc. All notices and other communications provided for
------------
hereunder shall be in writing and mailed, telecopied or delivered to the
addresses and telecopier numbers for the parties set forth on the signature
pages hereof or to such other address or telecopier number as a party may
specify by notice given in accordance with the provisions hereof. All such
notices and communications shall, when mailed or telecopier, be effective when
deposited in the mails or telecopied, respectively.
8
Section 7.3 No Waiver; Remedies. No failure on the part of the Bank or the
-------------------
Borrower to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein are cumulative and not exclusive of any
remedies provided by law.
Section 7.4 Currency Equivalent. For purposes of the Loan Documents, the
-------------------
equivalent in another currency of an amount in United States dollars shall be
determined at the rate of exchange quote by the Bank in Los Angeles for
conversion of such other currency into United States dollars on the date of
determination.
Section 7.5 Costs, Expenses and Taxes. The Borrower agrees to pay on demand
-------------------------
all costs and expenses in connection with the preparation, execution, delivery
and administration of the Loan Documents, including the reasonable fees and out-
of-pocket expenses of counsel for the Bank with respect thereto and with respect
to advising the Bank as to its rights and responsibilities under this agreement
and such instruments and documents. The Borrower further agrees to pay on demand
all losses, costs and expenses, if any, in connection with the enforcement of
the Loan documents, including Losses, costs and the performance of its
obligations contained in any Loan Document. In addition, the Borrower shall pay
any and all stamp and other taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing and recording of the Loan
Documents, and agrees to save the Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees. The obligations of the Borrower under this Section 7.5
shall survive payment in full of the Loan.
Section 7.6 Right of Setoff. Upon the occurrence and during the continuance
---------------
of any Event of Default, the bank is hereby authorized at any time and from time
to time, without notice to the borrower (any such notice being expressly waived
by the Borrower), to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Bank to or for the credit or the account of the Borrower
against any and all of the obligations of the borrower now or hereafter existing
under any Loan Document, irrespective of whether or not the Bank shall have made
any demand under such Loan Document and although such obligations may be
unmatured. The Bank agrees to notify the Borrower promptly after any such setoff
and application; provided that the failure to give such notice shall not affect
--------
the validity of such setoff and application. The rights of the Bank under this
Section are in addition to other rights and remedies (including other rights of
setoff) that the Bank may have.
9
Section 7.7 Judgment. If, for the purpose of obtaining judgment in any
--------
court, it is necessary to convert a sum due under any Loan document in United
States dollars into another currency (the "other currency"), the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Bank could purchase United States dollars with the other currency
on the Business Day preceding that on which final judgment is given. The
obligation of the Borrower in respect of any such sum due from it to the Bank
under any Loan Document shall, notwithstanding any judgment in such other
currency, be discharged only to the extent that on the Business Day following
receipt by the Bank of any sum adjudged to be so due in the other currency the
Bank may in accordance with normal banking procedures purchase United States
dollars with the other currency; if the United States dollars so purchased are
less that the sum originally due to the Bank in United States dollars, the
Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Bank against such loss, and if the United States
dollars so purchased exceed the sum originally due to the Bank in United States
dollars, the Bank agrees to the Borrower such excess.
Section 7.8 Binding effect; Governing Law. This Agreement shall be binding
-----------------------------
upon and inure to the benefit of the borrower and the bank and their respective
successors and assigns, except that the borrower shall not have the right to
assign its rights and obligations hereunder or any interest herein. The Bank may
assign to any other financial institution all or any part of, or any interest
in, the Bank's rights and benefits hereunder and under any other Loan Document,
and to the extent of such assignment such assignee shall have the same rights
and benefits against the Borrower as it would have had if it were the Bank
hereunder.
10
IN WITNESS WHEREOF, the parties hereto have caused this agreement to
be executed by their respective duly authorized representatives, as of the date
first above written.
"BORROWER"
YUASA-EXIDE, INC.
a CALIF. corporation
----------
By: YUASA-EXIDE, INC.
----------------------------
Name: XXXXX X. XXXXX
--------------------------
Title: Treasurer
-------------------------
/s/ Xxxxx X. Xxxxx
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Borrower's address for notices:
YUASA-EXIDE, INC.
-------------------------------
000 XXXX XXXXXX
-------------------------------
XXXXXXX, XX 00000
-------------------------------
Attention: XXXXX X. XXXXX
---------------------
Telecopier No.: (000)-000-0000
----------------
"BANK"
THE MITSUI TRUST & BANKING CO.,
LTD.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Bank's address for notices:
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: S. Ashiba
---------
Telecopier No.: (000) 000-0000
--------------
11
ADDENDUM TO CREDIT AGREEMENT
[To be attached if Borrower is not a California corporation]
Consent to Jurisdiction; waiver of Immunities.
----------------------------------------------
(a) the Borrower hereby irrevocably submits to the jurisdiction
of any California or Federal court sitting in Los Angeles over any action or
proceeding arising out of or relating to the Loan documents. The Borrower hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding. The
Borrower hereby irrevocably appoints __________________________, (the "process
agent"), with an office on the date hereof at _________________, Los Angeles,
California, United States of America, as its agent to receive on behalf of the
Borrower and its property service of copies of the summons and complaint and any
other process which may be served in any such action or proceeding. As an
alternative method of service, the Borrower also irrevocably consents to the
service of any and all process in any such action or proceeding by the mailing
of copies of such process to the Borrower at its address as set forth on the
signature page hereof. The Borrower agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Nothing in this Addendum shall affect the right of the Bank
to serve legal process in any other manner permitted by law or affect the right
of the Bank to Bring any action or proceeding against the Borrower or its
property in the courts of any other jurisdictions.
(c) To the extent that the borrower has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service or notice, attachment otherwise) with respect to itself
or its property, the borrower hereby irrevocably waives such immunity in respect
of its obligations under the Loan Documents.
(d) This Addendum is for all purposes a part of the Credit
agreement to which it is attached.
Bank's initials: Borrower's initials:
------------------------------- ----------------------------------
12
EXHIBIT A
PROMISSORY NOTE
U.S. $30,000,000 Date: December 10, 0000
Xxx Xxxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, the undersigned, YUASA-EXIDE, INC. (the "Borrower"),
hereby promises to pay to the order of the MITSUI TRUST & BANKING CO., LTD. (the
"Bank"), on or prior to December 10, 1998 (the "Maturity Date"), the aggregate
unpaid principal amount of the Loan made by Bank to Borrower pursuant terms used
and not defined herein have the meanings specified in the Credit Agreement.
Borrower shall pay interest on the unpaid principal amount of the Loan from
the data of disbursement of the Loan until such principal amount is paid in
full, at an interest rate per annum equal to 7.9% (the "Interest Rate").
--- -----
Interest on the Loan shall be payable semi-annually in arrears, commencing
on June 10, 1992, at the end of each six-month period thereafter and on the
Maturity Date. The outstanding principal amount of the Loan shall be due and
payable upon the Maturity Date. Overdue principal of, and to the extent
permitted by law, overdue interest on the Loan and other amounts overdue under
the Credit Agreement shall bear interest at the higher of (i) the Prime Rate (as
defined below) plus 1.5% per annum, and (ii) 9% per annum, payable on demand.
--- ----- --- -----
All interest on the Loan shall be computed on the basis of a year of 360 days,
and paid for actual days elapsed, and the term "per annum" shall be deemed to
--- -----
refer to a year so calculated. "Prime Rate" means the rate of interest announced
by the Bank from time to time as its base rate. The Prime Rate is determined by
Bank from time to time as a means of pricing credit extensions to some customers
and is neither tied to any external rate or interest or index or necessarily the
lowest rate of interest charged by Bank at any given time for any particular
class of customers or credit extensions.
Borrower may, upon at least two (2) Business Days' notice to Bank, prepay
the outstanding amount of the Loan in whole or in part on any Business Day with
accrued interest to the date of such prepayment on the amount prepaid.
Borrower shall make each payment under this Note or the Credit Agreement
not later than 12:00 noon, Los Angeles time, on the day when due. Borrower
hereby authorizes Bank, if and to the extent payment is not made when due under
this Note or the Credit Agreement, to charge from time to time against any or
all of Borrower's accounts with Bank any amount so due.
Whenever any payment to be made under the Credit Agreement or under this
Note shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case by included in the computation of payment of interest.
All amounts payable under this Note are payable in lawful money of the
United States of America (in freely transferable United States dollars) in
immediately available funds at Bank's office at 000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (unless and until notified otherwise by
Bank), free and clear of and without deduction for any and all present and
future taxes, levies, imposts, deductions, charges and withholdings, and all
liabilities with respect thereto.
This Note is the "Note" referred to in, and is entitled to the benefits of,
the Credit Agreement dated as of December 9, 1991 between Borrower and Bank (the
"Credit Agreement"), which making of the Loan by Bank to Borrower, and (ii)
contains provisions for acceleration of the maturity of the Loan and this
provisions of the Credit Agreement are incorporated herein by reference.
This Note shall be construed in accordance with and governed by the law of
the State of California without reference to the choice of law principles
thereof.
BORROWER:
YUASA-EXIDE, INC.
a CALIFORNIA corporation
----------
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: XXXXX X. XXXXX
-------------------------
Title: Treasurer
------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
TERM LOAN AGREEMENT
This TERM LOAN AGREEMENT (this "Agreement) is made as of the 10th day of
November 1995, between YUASA-EXIDE, INC. (the "Borrower") and THE MITSUI TRUST &
BANKING CO., LTD. (together with its successors and assigns, the "Bank").
IN CONSIDERATION of the mutual promises and covenants contained in this
Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 As used herein, and unless otherwise defined herein, the following
terms have the following respective meanings:
"Accounting Terms" All accounting terms not specifically defined herein
----------------
shall be construed in accordance with generally accepted accounting principles
and all financial data, if any, submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
"Agreement" shall mean this Term Loan Agreement.
---------
"Applicable Law" shall mean all provisions of statutes, rules regulations,
--------------
ordinances, decrees and orders of governmental bodies or regulatory agencies
applicable to a Person and all orders and decrees of all courts and arbitrators
in proceedings or actions in which the person in question is a party.
"Business Day" shall mean any day excluding Saturday, Sunday or any day on
------------
which (i) banking institutions in New York City or (solely in connection with
matters relating to the London interbank market) London are authorized or
required by law or any governmental action to close, or (ii) substantially all
banking institutions in New York City or (solely in connection with matters
relating to the London interbank market) London are in fact closed.
"Default Rate" shall mean the rate or interest per annum as defined in
------------
Section 2.03(b).
"Dollars" or "U.S. $" shall mean lawful money of the United States of
-------------------
America in freely transferable form.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
amended, together with such regulations as may, from time to time, be
promulgated thereunder.
"Event of Default" is defined in Article VI.
----------------
"Interest Payment Date" shall mean (i) the last Business Day of each
---------------------
Interest Period, (ii) the date of any prepayment (on the amount prepaid) and
(iii) at maturity (whether acceleration or otherwise) and, after such maturity,
on demand.
"Interest Period" shall mean one of period of one (1), two (2), three (3),
---------------
or six (6) month, the first of which shall begin on the day on which the loan is
made and succeeding of which shall commence on the last day of the immediately
preceding Interest Period, provided that:.
(x) any Interest Period which would otherwise end on a day which is
not a Business Day, unless such next succeeding Business Day falls in a
succeeding calendar month, in which case the Interest Period shall end of
the next preceding Business Day,
(y) the duration of the Interest Periods shall be selected by the
Borrower so that an Interest Period shall end in any event on each
Repayment Date, and
(z) notwithstanding the foregoing, each Interest Period shall end
when the Bank demands repayment of the applicable Loans.
and, each Interest Period applicable to the Loan shall be specified by the
Borrower in a notice to the Bank at least three (3) Business Days prior to the
commencement of such Interest Period.
"Lending Office" shall mean the Bank's New York Branch Office located at
--------------
One World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 or such other office of the Bank as the Bank shall specify from time to
time.
"LIBOR" shall mean, in respect of each Interest Period, the rate per
-----
annum quoted by Bank of Tokyo, London Branch at approximately 11:00 am. London
time, two (2) Business Days prior to the commencement of such Interest Period
for the offering by Bank of Tokyo, London Branch to leading banks in the London
interbank market of United States dollar deposits having a term comparable to
such Interest Period and in an amount comparable to the outstanding principal
amount of the Loan for which an interest rate is then being determined.
"Loan" shall mean the Loan made pursuant to Article II.
----
"Note" shall mean the promissory note made by the Borrower as provided in
----
Section 2.01 hereof and substantially in the form of Exhibit A hereof.
"Prime Rate" shall mean for each day the rate per annum announced from
----------
tine to time by the New York Branch of the Bank as its prime rate in effect for
such day.
"Repayment Dates or" Repayment Date" shall mean the dates of repayment of
--------------- --------------
the Loan as defined in Section 2.01 (b).
2
ARTICLE II
LOAN
SECTION 2.01 Term Loan
---------
(a) Subject to the terms and conditions of this Agreement, the Bank hereby
agrees to make a loan (the "Loan") to the Borrower on November 10, 1995 in a
principal amount of Ten Million United States Dollars (US$10,000,000.00).
(b) The Borrower's obligation to pay the principal of and interest of the
Loan shall be evidenced by its promissory note (the "Note") in the form of
Exhibit A hereto, dated the date of the Loan and payable to the order of the
Bank. Unless accelerated in accordance with the provisions of Section 6.02
hereof, the principal amount of the Loan and the Note shall be paid in 10 equal
semi-annual installments of U.S. $1,000,000.00, and such installments shall be
payable on 10th day of May and November, starting as of May 10, 1998 and ending
as of November 10, 2002, (the "Repayment Dates", with the last Repayment Date
being called the "Maturity Date") and with the last such semi-annual installment
to equal the outstanding principal balance of the Loan. (Refer to the Payment
Schedule in the form of Exhibit B hereof.) All payments made hereunder by the
Borrower shall be made without counterclaim, deduction or offset in lawful money
of the United States of America to the Bank at its Lending Office in immediately
available funds by 3:00 p.m. (New York time) on the date or dates when due. If
any payment would otherwise be due hereunder on a day which is not a Business
Day, the due date of such payment shall be extended to the next succeeding
Business Day.
SECTION 2.02 Method of Borrowing The Borrower shall give to the Bank
-------------------
irrevocable written or telephonic (promptly to be confirmed in writing) notice
of its request for the making of the Loan by 11:00 am. (New York time) three (3)
Business Days prior to the date on which the Loan is to be made. Such notice
shall specify the date, the duration of the initial Interest Period therefore.
Not later than 1:00 p.m. (New York time) on the date so specified in such
notice, the Bank shall make available to the Borrower at the Lending Office, in
immediately available funds, the proceeds of the Loan.
SECTION 2.03 Interest
--------
(a) The Loan shall bear interest from the date made until due in
accordance with the provisions hereof and of the Note an a rate per annum equal
to the sum of BOT LIBOR Rate plus 0.375 p.a., for Interest Periods specified by
the Borrower from time to time.
(b) Any amount which is not paid when due hereunder or under the Note
shall (to the extent not prohibit by law) bear interest until paid in full at a
rate equal to the grater of (i) 2% above the Prime Rate or (ii) 2% above the
rate applicable to such amount immediately prior to its becoming due (the
"Default Rate").
3
(c) Interest shall be calculated on the basis of a 360-day year for the
exact number of days elapsed (including the first day of any period, but
excluding the last) and shall be payable:
(i) on the Interest Payment Dates;
(ii) at the time of any payment of principal; and
(iii) in respect of interest accrued pursuant to Section 2.03 (b),
on the demand of the Bank.
(d) At any time the Loan is outstanding, upon the request of the Borrower,
the Bank shall provide the Borrower with a rate quote for an interest rate swap
transaction (the "Swap Transaction") between the Bank and the Borrower, in which
the Borrower may pay a fixed rate and receive a floating rate, and on the other
side the Bank may receive a fixed rate and pay a floating rate. The Swap
Transaction would be entered into pursuant to documentation in form and
substance, and containing terms and conditions satisfactory to the Bank and the
Borrower; provided that the basic condition for the Swap Transaction shall be as
follows:
(i) The notional principal amount shall be US$10,000,000.00. Such
notional amount shall be decreased by the principal
repayment of the Loan pursuant to Section 2.01 (b).
(ii) The term of the Swap Transaction shall be the same as the
remaining term of the Loan.
(iii) After the Swap Transaction is made, the Interest Period of the
Loan shall be each successive six (6) month period.
SECTION 2.04 Prepayment of the Loan
----------------------
(a) The Borrower shall have the right, upon not less than three (3)
Business Days prior irrevocable written notice (effective upon receipt) to
prepay the Loan in whole or in part without premium or penalty, provided,
however, that if in part, the prepayment must be in a minimum aggregate amount
of $1,000,000 or a greater multiple thereof, provided further, however, that the
-------- ------- -------
Borrower may prepay the Loan, in whole or in part, only on an Interest Payment
Date.
(b) All payments shall be accompanied by payment to the Bank of accrued
interest on the principal amount so prepaid to an including the date of such
prepayment. Prepayment shall only be permitted on an Interest Payment Date.
(c) Each partial prepayment shall be applied to the installments due on
the Repayment Dates in the inverse order of their maturity.
(d) Amounts prepaid may not be reborrowed hereunder.
4
SECTION 2.05 Change in Circumstances Affection Loan. If, after the date
--------------------------------------
hereof, the introduction of, or any change in, any applicable law, rule or
regulation, or in the interpretation or administration thereof by any
governmental authority changes with the interpretation or administration
thereof, shall make it unlawful for the Bank to maintain or fund the Loan, the
Bank shall forthwith give notice thereof to the Borrower, and the Borrower shall
as promptly as possible repay in full the unpaid principal amount of the Loan,
together with accrued interest thereon to such date of repayment.
SECTION 2.06 Funding Indemnity. The Borrower hereby agrees to pay to the
-----------------
Bank on demand such amount or amounts as shall compensate the Bank for any loss,
cost or expense incurred by the Bank, as reasonably determined by the Bank, as a
result of(a) the failure to borrow a Loan pursuant to a notice given as set
forth in Section 2.02 hereof, (b) the failure of the Borrower to make any
prepayment after the Borrower has give notice requesting the same in accordance
with Section 2.04 (a) hereof, or (c) the making of a payment or prepayment of
the Loan on any day which is not the last day of an Interest Period with respect
thereto, which amount shall include, but not be limited to, expenses incurred by
the Bank in connection with the liquidating or redeploying deposits as
determined in good faith by the Bank, and an amount equal to the actual return
on funds so redeployed below the amount of interest and commission which would
have been earned thereon hereunder to the last day of such Interest Period or
such maturity date, as the case may be. The Bank shall provide the Borrower with
a detailed summary of the method by which it calculated the amount claimed from
the Borrower under this section, and provide the Borrower with an opportunity to
review such calculation.
SECTION 2.07 Use of Proceeds. The proceeds of the Loan shall be used by the
---------------
Borrower for operating funds.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01 Conditions Precedent to the Loan. The obligation of the Bank
--------------------------------
to make the Loan shall be subject to the Bank having received the following in
form and substance satisfactory to it:
(a) The Note duly executed by authorized signatories of the Borrower,
payable to the order of the Bank and dated the date on which the Loan is to be
made;
(b) Copies of all the proceedings taken by the Borrower to authorize the
execution an delivery of this Agreement and the Note including;
(i) a duly certified copy of the Corporate By-Laws of the Borrower
its Certificate and Article of Incorporation.
5
(ii) a copy of this Agreement duly signed by authorized officers of
the Borrower;
SECTION 3.02 Additional Conditions Precedent to the Loan. The obligation
-------------------------------------------
of the Bank to make the Loan shall be subject to the further conditions
precedent that the Bank shall have received the following, and that the
statements therein shall be true and correct as of the date of such Loan:
(a) a certificate of the Borrower's Chief Financial Officer to the
effect that:
(i) the representations and warranties contained in Section 4.01
are true and correct on and as of such date as through made on and
as of such date; and
(ii) no event has occurred and is continuing, or would result from
the making of such Loan which constitutes, or would, with the
passage of time or notice or both, constitute an Event of Default,
and,
(iii) since March 31, 1995, there has been no material adverse
change in the financial condition, operations, business or business
prospects of the Borrower.
(b) All such other approvals, opinions or documents as the Bank may
reasonably request, certified by an appropriate governmental official or officer
of the Borrower, if so requested.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower. The Borrower
----------------------------------------------
represents and warrants to the Bank as of the closing of the Loan, as follows:
(a) Organization, Incorporation. Etc. The Borrower is a corporation
--------------------------------
duly incorporated, validly existing and in good standing under the laws of the
State of California and has all requisite power and authority to own its
property and assets and to carry on its business as it is presently being
conducted and as it intends to carry on. The Borrower is qualified to do
business and is in good standing in all states where the nature of the
Borrower's business and the ownership of its property require it to become so
qualified, and where the failure to be so qualified would have a material
adverse impact on the Borrower's ability to repay the Loan. Complete and correct
copies of the Borrower's Certificate and Articles of Incorporation and By Laws
and all amendments to these documents have been delivered to the Bank.
6
(b) Authorization. The execution, delivery and performance
-------------
Borrower of this Agreement and the Note are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene any law or regulation known to the Borrower or any contractual
restriction binding on or affecting the Borrower or its assets, and will not
result in the creation or imposition of any lien or encumbrance affecting the
assets of the Borrower.
(c) Compliance with Law. etc. of Agreement and Note: Approvals.
----------------------------------------------------------
(i) The execution, delivery and performance by the Borrower of this
Agreement and the Note and the Loan under this Agreement do not and
will not, to the Borrower's knowledge, (A) violate any Applicable
Law, or (B) conflict with, result in a breach of or constitute a
default under (x) the Certificate or Articles of Incorporation or By
Laws of the Borrower, (y) any statute, rule , governmental decree,
or resolution, or (z) any indenture, agreement, order, judgment,
contract, understanding or other instrument to which the Borrower is
a party or by which it or any of its property may be bound or
affected.
(ii) No license, permits, consents, orders, approvals or
authorizations by, or registrations, declarations, withholdings of
objection or filings with any governmental bodies, or regulatory,
banking or supervisory bodies, or any other Person are necessary or
appropriate in connection with the due execution, delivery and
performance by the Borrower of this Agreements.
(d) Binding Obligations. This Agreement has been duly executed and
-------------------
delivered by the duly authorized officers of the Borrower and is, and the Note
when executed and delivered hereunder will be, legal valid and binding
obligations of the Borrower, as the case may be, enforceable against the
Borrower as the case may be, in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganizations,
moratorium or other similar laws affecting the rights of creditors generally.
(e) Financial Statements. The financial statements which the Borrower
--------------------
has submitted to the Bank were prepared in accordance with generally accepted
accounting principles consistently applied and fully and fairly reflect the
financial condition of the Borrower at the dates thereof, and no material
adverse change in the financial condition, operations or business of the
Borrower has occurred since March 31, 1994.
(f) Litigation. Except as otherwise previously notified in writing to
----------
the Bank, there is no litigation or governmental proceeding pending, not to the
knowledge of Borrower threatened, against or in any other manner relating
adversely to the Borrower or any of the Borrower's property in court or before
any arbitrator of any kind or before any governmental body, which if adversely
determined would, singly or in the aggregate, have a material adverse effect on
the financial condition or properties, business or operations of the Borrower or
on the ability of the Borrower to perform its obligations under this Agreement.
7
(g) Use of the Proceeds. The Borrower will use the proceeds of any Loan
-------------------
solely for the purpose set out in Section 2.07 or for such other purposes that
the Bank may approve in writing. In addition, the Borrower is not engaged
principally in, nor does it have as one of its important activities, the
business of extending credit for the purpose of "purchasing" or "carrying" any
"margin stock" (each within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of the
Loan will be used to purchase or carry any margin stock or extend credit to
others for a purpose which violates Regulation U or Regulation X (of said Board
of Governors) or any other provision of law or governmental regulation.
(h) Compliance with Law. The Borrower is in substantial compliance with
-------------------
all Applicable Laws, non-compliance with which could, singularly or in the
aggregate, have a materially adverse effect on the ability of the Borrower to
perform its obligations under this Agreement or the Note.
(i) Filings. All filings, recordations, notifications, registrations,
-------
notarizations, authentications or other formalities necessary or appropriate to
be accomplished and all stamp or similar taxes or duties to be paid in
connection with the executive, delivery, validity and enforceability of the
Agreement, the Note and the Loan hereunder have been accomplished or paid.
(j) Absence of Default. The Borrower is in compliance with all of the
------------------
provisions of its Certificate of Incorporation and By Laws, and no event or
conditions has occurred, or failed to occur, which has not been remedied or
waive, the occurrence or nonoccurrence of which constitutes, or which with the
passage of time or giving of notice or both would constitute, a default by the
Borrower, under any indenture, lease, agreement or other instrument, or any
judgment, decree, resolution or order to which the Borrower or any of its
property may be bound or affected, which default could have a material adverse
effect on the ability of the Borrower to perform its obligations under this
Agreement or the Note.
(k) Material Obligations. The Borrower, is neither a party to nor bound
--------------------
by any loan or credit agreement, or any material franchise agreement, deed,
lease or other instrument, or subject to any Charter, By Laws or other corporate
restriction or judgment, decree or order of any court or governmental body which
may have a materially adverse effect on the ability of the Borrower to perform
its obligations under this Agreement or the Note.
(l) Accuracy and Completeness of Information. All information, reports and
----------------------------------------
other papers and data relating to the Borrower furnished to the Bank were, at
the time the same were so furnished, complete and correct in all material
respects to the extent necessary to give the Bank true and accurate knowledge of
the subject matter. No fact is currently known to the Borrower which materially
and adversely affects the business, assets, liabilities, financial position or
business prospects of the Borrower the ability of the Borrower to perform its
obligations under this Agreement or the Note which has not been set forth or
referred to herein or in such information, reports or other papers or data or
otherwise specifically disclosed in writing to the Bank.
8
(m) ERISA. No "plan" (as such term is defined in Section 4021 (a) of
-----
"ERISA" of the Borrower or any of its Subsidiaries) has incurred an "accumulated
funding deficiency" for which any excise tax or penalty is due under the United
States Internal Revenue Code, no Reportable Event (as defined in ERISA) has
occurred an is continuing in respect of any such plan, and the Borrower and each
of its Subsidiaries are in compliance, in all material respects, with the
provisions of ERISA
(n) Subsidiary. The Borrower is a 86.5% owned subsidiary of Yuasa
----------
Corporation.
(o) Rank of the Loans. All obligations to pay the principal of and
-----------------
interest of the Loan and the Note and other charges made hereunder constitute
direct, unconditional and general obligations of the Borrower, and will rank
prior to or pari passu with all other foreign and domestic indebtedness for
----------
borrowed money of the Borrower.
SECTION 4.02 Survival of Representations and Warranties. All statements
------------------------------------------
contained in any certificate, financial statement, legal opinion or other
document delivered by or on behalf of the Borrower pursuant to or in connection
with this Agreement shall constitute representations and warranties made under
this Agreement. All representations and warranties made under this Agreement
shall survive, and not be waived by the execution and delivery of this
Agreement, any investigation by the Bank or the making of any Loan under this
Agreement.
ARTICLE V
AFFIRMATIVE COVENANTS OF THE BORROWER
From and after the date hereof and so long as the Loan or any amount
payable hereunder or under the Note is outstanding and unpaid or this Agreement
is in effect and unless the Bank shall otherwise consent in writing, the Bank
will require the Borrower's adherence to the following:
SECTION 5.01 Annual Financial Statement. The Borrower shall deliver to
--------------------------
the Bank:
(a) within 120 days after the end of each fiscal year of the Borrower,
deliver to the Bank consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such year consolidated and
consolidating statement of income and of sources and applications of funds of
the Borrower and its Subsidiaries for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and accompanied by the opinion thereof of independent public accountants
of recognized national standing, which opinion shall state that such balance
sheets, statements of income and statements of sources and uses of funds have
been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with that of the preceding position of the
Borrower as of their date, and that the audit by such accountants in connection
with such financial statements has been made in accordance with generally
accepted auditing standards; and,
9
(b) permit representatives of the Bank during business hours and upon
reasonable notice to (i) visit and inspect the books, records and properties of
the Borrower and (ii) discuss with its principal and offices its affairs,
finances and accounts.
SECTION 5.02 Corporate Existence; Continuity of Operations. Maintain its
---------------------------------------------
corporate existence in good standing and comply with all laws, directives,
regulations or interpretations thereof which are or purport to be applicable to
it; conduct its business substantially as such business is now conducted; and
maintain its assets in good repair, working order and condition.
SECTION 5.03 Notice of Events.
----------------
(a) Upon the occurrence of an Event of Default, give written notice
thereof to the Bank, providing details of such occurrence and setting forth the
action it intends or proposes to take to remedy said Events of Default.
(b) Give prompt written notice to the Bank of(i) any substantial dispute
between the Borrower and any governmental authority with respect to taxes or any
other matter; (ii) any substantial dispute threatening the continued normal
business operations of the Borrower; (iii) any material loss or damage to
property resulting from any casualty; (iv) the commencement of any litigation
proceeding (whether by service of process or by attachment of any asset) which
could have a material adverse effect on the Borrower's business, operations,
properties, assets or condition (financial or otherwise); and (v) any other
material adverse change in the Borrower's consolidated financial condition or
operations.
SECTION 5.04 ERISA. Comply in all material respects with the provisions of
-----
ERISA with respect to each of its employee plans.
SECTION 5.05 Performance of Obligations; Taxes.
---------------------------------
(a) Pay all its indebtedness and perform all contractual obligations
promptly pursuant to agreements to which it is a party or by which it or any of
its properties or assets is bound at any time during the term of the Agreement.
(b) Pay, before any penalty attaches, all general taxes and all special
taxes, special assessments, water charges, drainage and sewer charges and all
other charges of any kind whatsoever, ordinary or extraordinary, which may be
levied, assessed, imposed or charged on or against the property and will, upon
written request, exhibit to the Bank official receipts evidencing such payments.
If the Borrower desires to contest any such tax or assessment, it shall do so in
a manner which prevents enforcement of any lien for taxes and shall deposit with
the Bank such security for the payment of the tax of the Bank may reasonably
require to assure payment of the matter under contest in the event of a
determination of the matter under contest adverse to Borrower.
10
SECTION 5.06 Approvals. Obtain and promptly renew all consents, licenses
---------
and authorizations as may be required at any time hereunder or under any
applicable law to enable the Borrower to perform its obligations under this
Agreements and the Note or required for the validity or enforceability of this
Agreement and the Note, and the Borrower will comply with the terms of all
governmental consents in relation to the Agreement and the Note.
SECTION 5.07 Insurance. The Borrower will maintain insurance to such
---------
extent and covering such risks as is usual for companies engaged in the same or
similar businesses.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. The following shall constitute Events of
-----------------
Default (and, an "Event of Default") under this Agreement:
(a) The Borrower shall default in any payment when due of principal of the
Loan or the Note; or shall default in the payment of interest on the Loan or the
Note or any other amount payable under this Agreement or the Note;
(b) Any representation or warranty made by the Borrower under this
Agreement or any statement in any certificate or financial statement furnished
to the Bank shall prove incorrect, untrue or misleading in any material respect
when made or deemed made;
(c) The Borrower shall default in the performance or observance of any
covenant or agreement contained in this Agreement, and such default shall
continue for a period of ten (10) days after written notice thereof has been
given to the Borrower by the Bank requesting that the same be cured unless such
default cannot be cured within such ten (10) day period, in which event, to the
extent acceptable to the Bank, the Borrower shall have a reasonable amount of
time to cure such default and provided further that the Borrower promptly
commences such cure within that reasonable time period and continuously proceeds
with such cure in a diligent manner;
(d) The Borrower shall; (i) fail to pay any indebtedness (excluding
Indebtedness evidenced by the Note) of the Borrower in excess of $500,000.00 or
any interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness; or (ii) fail to perform any term,
covenant or condition on its part to be performed under any agreement or
instrument relating to any such indebtedness in excess of $500,000.00 when
required to be performed, and such failure shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such failure to perform is to accelerate, or permit the acceleration of the
maturity of such indebtedness in excess of $500,000.00; or any such indebtedness
in excess of $500,000.00 shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof; or
11
(e) The Borrower shall (i) apply for or consent to the appointment of a
receiver, trustee, intervenor, or liquidator of itself, or of any of its
property, (ii) be unable, or admit in writing its inability, to pay its debts as
they mature, (iii) make a general assignment for the benefit if its creditors,
(iv) be adjudicated a bankrupt or insolvent, or (v) file a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization or an arrangement
with creditors or to take advantage of any insolvency law or any answer
admitting the material allegations of a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or corporate action shall
be taken by it for the purpose of effecting any of the foregoing; or
(f) The commencement of a case or other proceeding, without the
application or consent of the Borrower, as appropriate, in any court of
competent jurisdiction, seeking the liquidation, reorganization, dissolution,
winding up or composition or readjustment of debts, of the Borrower, as
appropriate, the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower, as appropriate or for all or any substantial part of
their respective assets, or any similar action with respect to the Borrower or
the Guarantor, as appropriate under any laws relating to bankruptcy, insolvency
reorganization, winding up or composition or readjustment of debts, and such
case or proceeding shall continue undismissed, or unstayed and in effect, or any
order for relief in respect of the Borrower as appropriate shall be entered in
an involuntary case under the Federal bankruptcy laws (as now or hereafter in
effect); or
(g) A final judgement or order for the payment of money in excess of
$500,000.00 not covered by insurance shall be rendered against the Borrower and
such judgment or order shall continue unsatisfied, or
(h) Any reportable event under ERISA shall have occurred and be continuing
for 15 days which the Bank in good faith determines constitutes grounds for the
imposition of liability in excess of $500,000.00 against the Borrower under Part
IV, Subtitle D or ERISA; or
(i) The Borrower shall cease to be a 51% owned Subsidiary of Yuasa
Corporation; or
(j) Any competent governmental authority takes (i) any action to condemn,
seize, requisition or otherwise appropriate any substantial portion of the
properties or assets of the Borrower (without payment of compensation), or (ii)
any action to dissolve, liquidate or terminate the existence of the Borrower or
to divest any material portion of its properties or assets.
SECTION 6.02 Remedies.
--------
(a) Upon the occurrence of:
(i) any Event of Default referred to in subsection 6.01(d), (e) or
(f), the Note, all interest thereon, and all other amounts payable under this
Agreement shall become forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; or
12
(ii) any other Event of Default, the Bank may by written notice to
the Borrower declare the principal of and interest accrued on the Note and all
other amounts hereunder and under the Note to be, and the same shall become and
be, forthwith due and payable, without presentment, demand, protest or further
notice of any kinds, all of which are hereby expressly waived by the Borrower.
(b) The Borrower agrees to pay to the Bank on demand all reasonable costs
and expenses which the Bank may incur as a result of the occurrence of an Event
of Default or the failure of the Borrower to pay any amount when due hereunder
or under the Note.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Notices, Etc. Except as is otherwise provided in this
------------
Agreement, all notices and other communications provided hereunder shall be in
writing (including telefaxed communication) and mailed or telegraphed or
delivered, if to the Borrower, at its address at 0000 Xxxxxxxxx Xxxx 19605-9607,
X.X. Xxx 00000, Xxxxxxx, XX 00000-0000, Attention: Xx. Xxxxxxx X. Xxxxxxx, Vice
President, Finance & CFO or Xx. Xxxxxxx X. XxXxxxxxxxx, Treasurer; if to the
Bank at its address at One World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xx. Xxxxx Xxxxxxxxxx, Vice President; or
as to each party, at such other address as shall be designated by such party in
a written notice to the other party. All such notices and communications shall
be effective when received by the party to whom sent.
SECTION 7.02 Survival. The representations and warranties of the Borrower
--------
contained herein shall survive the making of the Loan and, shall remain
effective until all obligations of the Borrower hereunder, and under the Note
shall have been paid by Borrower in full.
SECTION 7.03 Amendments and Waivers. The provisions of this Agreement and
----------------------
the Note may be amended or modified, or the provisions of either waived only by
an instrument in writing signed by the Borrower and the Bank.
SECTION 7.04 Entire Agreement. This Agreement and the documents referred
----------------
to herein embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings relating to the
subject matter hereof.
SECTION 7.05 No Waiver. No Failure to exercise, and no delay in exercising
---------
any right, power or remedy hereunder, under the Note, or under any other
document delivered pursuant hereto shall impair any right, power or remedy which
the Bank may have, nor shall any such delay be construed to be a waiver of any
such right, power or remedy, or an acquiescence in any breach or default under
this Agreement or the Note or under any other document delivered pursuant
hereto, nor shall any waiver by the Bank of any breach or default hereunder be
deemed a waiver of any default or breach subsequently occurring. The rights and
remedies herein specified are cumulative and not exclusive of any rights or
remedies which the Bank would otherwise have.
13
SECTION 7.06 Separability of Provisions. In case one or more of the
--------------------------
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
SECTION 7.07 Binding Effect; Assignment. All the provisions of this
--------------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns when it shall have been executed by
the Borrower and the Bank. The Borrower shall not have the right to assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Bank.
SECTION 7.08 Governing Law; Submission to Jurisdiction.
-----------------------------------------
(a) THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE
NOTE OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT FOR ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS.
(c) THE BORROWER HEREBY IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING, (I) ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS, (II) THE RIGHT TO
INTERPOSE ANY SETOFF, NON-COMPULSORY COUNTERCLAIM OR CROSS-CLAIM AND (III) TRIAL
BY JURY.
(d) THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER
AT ITS ADDRESS SET FORTH IN SECTION 7.01 HEREOF. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY
OTHER JURISDICTION.
14
SECTION 7.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or caused
it to be executed by their duly authorized officers, as of the date first above
written.
YUASA-EXIDE, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name XXXXXXX X. XXXXXXX
-----------------------
Title V.P. OF FINANCE
----------------------
THE MITSUI TRUST & BANKING
COMPANY LIMITED
NEW YORK BRANCH
By /s/ Tadanori Minegishi
--------------------------
Name: Tadanori Minegishi
Title: Senior Vice President & Manager
15
EXHIBIT A
PROMISSORY NOTE
---------------
US$10,000,000.00
Dated: November 10, 1995
FOR VALUE RECEIVED, the undersigned, YUASA-EXIDE, INC. a California
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of THE MITSUI
TRUST & BANKING CO., LTD. (the "Bank") the principal sum of Ten Million Dollars
($10,000,000.00), or such lesser outstanding amount which the Bank shall have
advanced to the Borrower as the Loan, in immediately available funds, in
consecutive 10 equal semi-annual installments of $1,000,000.00 on the Repayment
Dates (the 10th day of May and November, commencing May 10, 1998), and to pay
interest from the date hereof on said principal sum or the unpaid balance
hereof, in like money and funds, at the rates and at the times specified in the
Credit Agreement (as hereinafter defined), provided that any amount which is not
paid when due hereunder shall bear interest (to the extent not prohibited by
law) until paid in full, payable on demand, at a rate per annum equal to the
higher of (i) the Prime Rate plus 2% or (ii) 2% above the rate applicable to
such amount immediately prior to its becoming due. Interest shall be computed
on the basis of a year of 360 days for the actual number of days elapsed.
Both principal and interest are payable in lawful money of the United
States of America to the office of the Bank located at One World Financial
Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or any
successor office notified to the Borrower by the Bank).
This Promissory Note is the Note referred to in, and is entitled to the
benefits of, the Term Loan Agreement dated as of November 10, 1995, (the "Credit
Agreement") between the Borrower and the Bank, which Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
the principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. Terms defined in the Credit Agreement and used herein shall
have their respectively defined meanings herein unless the contrary is expressly
indicated.
The Borrower hereby waives presentment, demand, protest or notice of any
kind with respect to this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
YUASA-EXIDE, INC.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name XXXXXXX X. XXXXXXX
---------------------
Title V.P. OF FINANCE
--------------------
EXHIBIT B
REPAYMENT SCHEDULE
------------------
Repayment Date Repayment Date
-------------- --------------
1. May 10, 1998 $1,000,000.00
2. November 10, 1998 $1,000,000.00
3. May 10, 1999 $1,000,000.00
4. November 10, 1998 $1,000,000.00
5. May 10, 2000 $1,000,000.00
6. November 10, 2000 $1,000,000.00
7. May 10, 2001 $1,000,000.00
8. November 10, 2001 $1,000,000.00
9. May 10, 2002 $1,000,000.00
10. November 10, 2002 $1,000,000.00
---------------------------------------
Total $10,000,000.00
