EXECUTION COPY
Exhibit 4.1
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EXIDE CORPORATION,
CERTAIN BORROWING SUBSIDIARIES
and
CERTAIN GUARANTORS
__________________________________
AMENDED AND RESTATED
CREDIT AND GUARANTEE AGREEMENT
_________________
dated as of
September 29, 2000
__________________________________
CREDIT SUISSE FIRST BOSTON,
as Sole Book Manager, Joint Lead Arranger and Administrative Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Syndication Agent and Joint Lead Arranger
____________________________
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Table of Contents
Page
SECTION 1. DEFINITIONS......................................................................................................... 2
1.1. Defined Terms....................................................................................................... 2
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1.2. Other Definitional Provisions....................................................................................... 33
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SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS........................................................................... 34
2.1. Term Loans; Term Loan Commitments................................................................................... 34
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2.2. Procedure for Borrowing of Additional Tranche B Term Loans.......................................................... 34
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2.3. Repayment of Term Loans............................................................................................. 35
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2.4. Revolving Credit Commitments........................................................................................ 37
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2.5. Procedure for Revolving Credit Borrowing............................................................................
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2.6. Swing Line Commitment................................................................................................ 38
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2.7. Procedure for Swing Line Borrowing; Refunding of Swing Line Loans.................................................... 39
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2.8. Reallocation of Swing Line Maximums.................................................................................. 41
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SECTION 3. PROVISIONS RELATING TO EXTENSIONS OF CREDIT; FEES AND PAYMENT....................................................... 42
3.1. Repayment of Loans; Evidence of Debt................................................................................ 42
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3.2. Facility Fees, Commitment Fees, Prepayment Fees, etc................................................................ 43
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3.3. Termination or Reduction of Revolving Credit Commitments............................................................ 44
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3.4. Optional Prepayments................................................................................................ 44
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3.5. Mandatory Prepayments and Commitment Reductions..................................................................... 45
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3.6. Conversion and Continuation Options................................................................................. 46
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3.7. Minimum Amounts and Maximum Number of Eurocurrency Tranches......................................................... 47
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3.8. Interest Rates and Payment Dates.................................................................................... 47
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3.9. Computation of Interest and Fees.................................................................................... 48
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3.10. Inability to Determine Interest Rate................................................................................ 49
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3.11. Pro Rata Treatment and Payments..................................................................................... 49
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3.12. Requirements of Law................................................................................................. 53
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3.13. Taxes............................................................................................................... 54
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3.14. Indemnity........................................................................................................... 56
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3.15. Illegality.......................................................................................................... 56
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3.16. Change of Lending Office............................................................................................ 56
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3.17. Replacement of Lenders under Certain Circumstances.................................................................. 56
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3.18. Controls; Currency Exchange Rate Fluctuations....................................................................... 57
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3.19. Redenomination and Alternative Currencies........................................................................... 58
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3.20. Reporting Requirements of Swing Line Lenders and Issuing Lenders.................................................... 58
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SECTION 4. LETTERS OF CREDIT................................................................................................... 58
4.1. L/C Commitment...................................................................................................... 58
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4.2. Procedure for Issuance of Letters of Credit......................................................................... 59
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4.3. L/C Participations.................................................................................................. 59
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4.4. Reimbursement Obligation With Respect to Letters of Credit.......................................................... 60
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4.5. Obligations Absolute................................................................................................ 61
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4.6. Commissions, Fees and Other Charges................................................................................. 61
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4.7. Letter of Credit Payments............................................................................................ 62
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4.8. Applications......................................................................................................... 62
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SECTION 5. REPRESENTATIONS AND WARRANTIES...................................................................................... 62
5.1. Financial Condition.................................................................................................. 62
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5.2. No Change............................................................................................................ 63
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5.3. Corporate Existence; Compliance with Law............................................................................. 63
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5.4. Corporate Power; Authorization; Enforceable Obligations.............................................................. 63
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5.5. No Legal Bar......................................................................................................... 64
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5.6. No Material Litigation............................................................................................... 64
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5.7. No Default........................................................................................................... 64
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5.8. Ownership of Property; Liens......................................................................................... 64
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5.9. Intellectual Property................................................................................................ 64
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5.10. Taxes............................................................................................................... 65
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5.11. Federal Regulations................................................................................................. 65
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5.12. Labor Matters....................................................................................................... 65
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5.13. ERISA............................................................................................................... 65
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5.14. Investment Company Act; Other Regulations........................................................................... 66
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5.15. Subsidiaries........................................................................................................ 66
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5.16. Use of Proceeds..................................................................................................... 66
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5.17. Environmental Matters............................................................................................... 66
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5.18. Accuracy of Information, etc........................................................................................ 67
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5.19. Security Documents.................................................................................................. 68
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5.20. Solvency............................................................................................................ 68
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5.21. Senior Indebtedness................................................................................................. 68
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5.22. Specified Corporate Transactions.................................................................................... 68
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SECTION 6. CONDITIONS PRECEDENT................................................................................................ 69
6.1. Conditions to Effectiveness of Amendment and Restatement and Initial Extension of Credit on the Restatement
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Effective Date.................................................................................................... 69
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6.2. Conditions to Each Extension of Credit............................................................................... 73
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SECTION 7. AFFIRMATIVE COVENANTS............................................................................................... 73
7.1. Financial Statements................................................................................................. 73
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7.2. Certificates; Other Information...................................................................................... 74
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7.3. Payment of Obligations............................................................................................... 75
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7.4. Conduct of Business and Maintenance of Existence, etc................................................................ 75
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7.5. Maintenance of Property; Insurance................................................................................... 75
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7.6. Inspection of Property; Books and Records; Discussions............................................................... 75
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7.7. Notices.............................................................................................................. 76
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7.8. Environmental Laws................................................................................................... 76
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7.9. Interest Rate Protection............................................................................................. 77
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7.10. Additional Collateral, etc.......................................................................................... 77
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7.11. Clean-Down.......................................................................................................... 78
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SECTION 8. NEGATIVE COVENANTS.................................................................................................. 78
8.1. Financial Condition Covenants........................................................................................ 79
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8.2. Limitation on Indebtedness........................................................................................... 80
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8.3. Limitation on Liens.................................................................................................. 81
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8.4. Limitation on Fundamental Changes.................................................................................... 83
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8.5. Limitation on Sale of Assets......................................................................................... 83
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8.6. Limitation on Dividends.............................................................................................. 85
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8.7. Limitation on Capital Expenditures................................................................................... 85
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8.8. Limitation on Investments, Loans and Advances........................................................................ 86
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8.9. Limitation on Optional Payments and Modifications of Debt Instruments, etc........................................... 87
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8.10. Limitation on Transactions with Affiliates.......................................................................... 87
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8.11. Limitation on Sales and Leasebacks.................................................................................. 87
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8.12. Limitation on Changes in Fiscal Periods............................................................................. 88
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8.13. Limitation on Negative Pledge Clauses............................................................................... 88
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8.14. Limitation on Restrictions on Subsidiary Distributions.............................................................. 88
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8.15. Limitation on Lines of Business..................................................................................... 88
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8.16. Limitation on Assets of Domestic Subsidiaries....................................................................... 89
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SECTION 9. EVENTS OF DEFAULT................................................................................................... 89
SECTION 10. GUARANTEE.......................................................................................................... 92
10.1. Guarantee........................................................................................................... 92
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10.2. No Subrogation, Contribution, Reimbursement or Indemnity............................................................ 93
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10.3. Amendments, etc..................................................................................................... 93
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10.4. Guarantee Absolute and Unconditional................................................................................ 94
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10.5. Reinstatement....................................................................................................... 94
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10.6. Payment............................................................................................................. 95
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10.7. Limited Effect of Limitations on Guarantees......................................................................... 95
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SECTION 11. THE AGENTS; THE JOINT LEAD ARRANGERS; THE BOOK MANAGER............................................................. 95
11.1. Appointment......................................................................................................... 95
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11.2. Delegation of Duties................................................................................................ 95
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11.3. Exculpatory Provisions.............................................................................................. 95
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11.4. Reliance by Agents.................................................................................................. 96
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11.5. Notice of Default................................................................................................... 96
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11.6. Non-Reliance on Agents and Other Lenders............................................................................ 96
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11.7. Indemnification..................................................................................................... 97
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11.8. Agent in Its Individual Capacity.................................................................................... 97
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11.9. Successor Administrative Agent...................................................................................... 97
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11.10. Authorization to Release Liens; Execution of Security Documents and Security Document Amendments................... 98
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11.11. Public Deeds for Purposes of Spanish Law........................................................................... 98
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11.12. The Joint Lead Arrangers; the Documentation Agent; the Syndication Agent; the Book Manager......................... 98
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SECTION 12. MISCELLANEOUS...................................................................................................... 98
12.1. Amendments and Waivers.............................................................................................. 98
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12.2. Notices............................................................................................................. 99
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12.3. No Waiver; Cumulative Remedies...................................................................................... 100
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12.4. Survival of Representations and Warranties.......................................................................... 100
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12.5. Payment of Expenses................................................................................................. 100
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12.6. Successors and Assigns; Participations and Assignments.............................................................. 101
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12.7. Adjustments; Set-off................................................................................................ 104
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12.8. Conversion of Loans................................................................................................. 105
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12.9. Addition of Borrowing Subsidiaries; Tranche B Term Loan Supplement.................................................. 106
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12.10. Collateral Agency and Intercreditor Agreement; Existing Guaranties................................................. 107
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12.11. Counterparts....................................................................................................... 107
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12.12. Severability....................................................................................................... 107
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12.13. Integration........................................................................................................ 107
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12.14. GOVERNING LAW...................................................................................................... 107
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12.15. Submission To Jurisdiction; Waivers................................................................................ 107
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12.16. Acknowledgments.................................................................................................... 108
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12.17. WAIVERS OF JURY TRIAL.............................................................................................. 108
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12.18. Confidentiality.................................................................................................... 108
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12.19. Enforceability; Usury.............................................................................................. 109
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12.20. Judgment........................................................................................................... 109
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12.21. German Limitations on Liability.................................................................................... 110
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12.22. Certain Waivers.................................................................................................... 110
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12.23. Existing Amended and Restated Credit Agreement..................................................................... 110
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ANNEXES
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A Pricing Grid
B Calculation of The MLA Cost
SCHEDULES
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1.1A Revolving Credit Commitments
1.1B Addresses and Designated Maximums for Borrowing Subsidiaries
1.1C Currency Maximums
1.1D Mortgaged Property
1.1E Permitted Acquisitions
1.1F Environmental Reserves
1.1G Wholly Owned Subsidiaries
2.1(a) Tranche A Term Loans and Tranche A Term Loan Lenders
2.1(b) Tranche B Term Loans and Tranche B Term Loan Lenders
5.4 Consents, Authorizations, Filings and Notices
5.15 Subsidiaries
5.17 Assumed Environmental Liabilities
5.19(a) UCC Filing Jurisdictions
5.19(b) Mortgage Filing Jurisdictions
8.2(e) Existing Indebtedness
8.3(f) Existing Liens
8.5 Permitted Asset Sales
8.8(f) Existing Investments
8.14 Existing Restrictions on Subsidiary Distributions
10.1 Exceptions to Guarantees by Foreign Subsidiaries
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EXHIBITS
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A [Reserved]
B Form of Collateral Agreement
C Form of Compliance Certificate
D [Reserved]
E Form of Foreign Obligations Guarantor Joinder Agreement
F-1 Form of Tranche A Term Note
F-2 Form of Tranche B Term Note
F-3 Form of Revolving Credit Note
F-4 Form of Swing Line Note
G Form of Prepayment Option Notice
H Form of Exemption Certificate
I Form of Closing Certificate
J Form of Legal Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
K Form of Assignment and Acceptance
L Form of Borrowing Subsidiary Joinder Agreement
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AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT, dated as of
September 29, 2000, among:
(a) Exide Corporation, a Delaware corporation (the "Company");
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(b) the Borrowing Subsidiaries signatories hereto;
(c) the Guarantors signatories hereto;
(d) the several Lenders from time to time parties hereto;
(e) Credit Suisse First Boston, as sole book manager (in such capacity,
the "Book Manager");
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(f) Credit Suisse First Boston, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders;
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(g) Credit Suisse First Boston and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as joint-
lead arrangers (in such capacity, the "Joint-Lead Arrangers");
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(h) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as syndication agent (in such capacity, the
"Syndication Agent") for the Lenders; and
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(i) the institution, if any, named as the Documentation Agent in
connection with the syndication of the Additional Tranche B Term Loan
Commitments, (in such capacity, the "Documentation Agent").
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and certain of its subsidiaries are parties to
the Credit and Guarantee Agreement, dated as of December 19, 1997 (as amended,
supplemented or otherwise modified, the "Existing Credit Agreement"), with the
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lenders parties thereto, Credit Suisse First Boston, as administrative agent,
and others;
WHEREAS, the Company has entered into the Stock Purchase Agreement,
dated as of May 9, 2000 with subsidiaries of Pacific Dunlop Limited (the
"Seller"), (together with the other agreements referred to therein,
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collectively, as amended, supplemented or otherwise modified, the "GNB
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Acquisition Agreement"), pursuant to which the Company will acquire (the "GNB
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Acquisition") substantially all of the global battery business of the Seller,
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including 100% of the capital stock of Pacific Dunlop GNB Corporation, a
Delaware corporation ("GNB");
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WHEREAS, to provide a portion of the financing for the purchase price to be
paid by the Company in connection with the GNB Acquisition, for the payment of
fees and expenses relating to the GNB Acquisition and related transactions and
for the repayment of a portion of the
1
outstanding principal amount of Revolving Credit Loans outstanding under the
Existing Credit Agreement (without reduction of Revolving Credit Commitments),
the Company wishes to provide for additional Tranche B Term Loans to be made
concurrently with the closing of the GNB Acquisition and, prior to the closing
of the GNB Acquisition, to obtain commitments from lenders to make such
additional Tranche B Term Loans upon and subject to the terms and conditions set
forth herein and to be set forth in the Tranche B Term Loan Supplement described
below;
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of August 11, 2000 (the "Existing Amended and Restated Agreement"), the
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parties thereto agreed that, upon the satisfaction of the conditions precedent
set forth therein, the Existing Credit Agreement would be amended and restated
in its entirety by the Existing Amended and Restated Agreement; and
WHEREAS, the Company has informed the parties hereto that it does not
intend to cause the Existing Amended and Restated Credit Agreement to become
effective but, instead, intends to cause this Agreement to become effective and
has requested the parties hereto to agree to amend and restate the Existing
Credit Agreement in its entirety as provided herein; and, accordingly, this
Agreement replaces and supersedes in its entirety the Existing Amended and
Restated Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree that, on the Restatement
Effective Date, the Existing Credit Agreement shall be amended and restated in
its entirety as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the terms listed in
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this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Acquired Indebtedness": the difference (but not below zero) between
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(a) Indebtedness of a Subsidiary of the Company assumed or acquired as a
result of a Permitted Acquisition, so long as the respective Indebtedness
existed prior to the respective Permitted Acquisition and was not incurred
in connection with, or in contemplation of, the Permitted Acquisition or
the respective Person becoming a Subsidiary of the Company, and provided
that no Person other than the respective Subsidiary created or acquired as
a result of the respective Permitted Acquisition shall have any liability
(contingent or otherwise) with respect to any Acquired Indebtedness and (b)
the net working capital (defined as current assets minus current
liabilities) (but not below zero) of the Subsidiary acquired as a result of
such Permitted Acquisition.
"Additional Tranche B Term Loan": as defined in Section 2.1.
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"Additional Tranche B Term Loan Commitment": as to any Lender, the
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obligation of such Lender, if any, to make an Additional Tranche B Term
Loan to the Company hereunder in a principal amount not to exceed the
amount set forth for such Lender in a schedule to the Tranche B Term Loan
Supplement. The amount of the aggregate Additional Tranche B Term Loan
Commitments of all Lenders set forth in the Tranche B Term Loan Supplement
shall be no greater than $250,000,000.
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"Adjustment Date": as defined in the Pricing Grid.
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"Affiliate": as to any Person, any other Person which, directly or
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indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether
by contract or otherwise; provided, that the Seller and its subsidiaries
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shall not be deemed to be Affiliates so long as the Seller and its
subsidiaries own less than 20% of the voting stock of the Company.
"Agents": the collective reference to the Syndication Agent, the
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Documentation Agent and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender, an amount equal to
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the sum of (a) the aggregate unpaid principal amount of such Lender's Term
Loans, (b) from the effective date of the Tranche B Term Loan Supplement
until the Restatement Effective Date, the aggregate amount of such Lender's
Additional Tranche B Term Loan Commitment and (c) the amount of such
Lender's Revolving Credit Commitment or, if the Revolving Credit
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit.
"Aggregate Exposure Percentage": with respect to any Lender, the
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ratio (expressed as a percentage) of such Lender's Aggregate Exposure to
the Aggregate Exposure of all Lenders.
"Agreement": this Amended and Restated Credit and Guarantee
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Agreement, as amended, supplemented or otherwise modified from time to
time.
"Applicable Margin": (a) with respect to Tranche B Term Loans
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(unless, in each case, a higher percentage is set forth in the Tranche B
Term Loan Supplement), (i) 4.50% for such Loans which are Eurocurrency
Loans and (ii) 3.50% for such Loans which are Base Rate Loans, and (b) with
respect to Loans under each Facility other than the Tranche B Term Loan
Facility, the rate per annum determined pursuant to the Pricing Grid.
"Application": an application, in such form as the Issuing Lender may
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specify from time to time, requesting such issuing lender to open a Letter
of Credit.
"Asset Sale": any Disposition of Property or series of related
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Dispositions of Property (excluding any such Disposition permitted by any
of clauses (a) through (g) of Section 8.5 or any such Disposition described
in Section 8.11(b)) which yields gross proceeds (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities and valued at fair market value in the case
of other non-cash proceeds) to the Company and any of its Subsidiaries in
excess of $500,000.
"Assignee": as defined in Section 12.6(c).
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"Assignor": as defined in Section 12.6(c).
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"Available ECF Amount": at any date, the portion of Excess Cash Flow
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for the fiscal year most recently ended which was not required to be
applied to prepay the Term Loans and reduce the Revolving Credit
Commitments pursuant to Section 3.5 (as set forth in the certificate
delivered by the Company pursuant to Section 7.2(a) with respect to such
prior fiscal year).
"Available Prepayment Amount": at any time during any fiscal year of
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the Company, an amount equal to the lesser of:
(a) the difference between (i) $20,000,000 and (ii) the
aggregate principal amount of Eligible Prepayment Debt which prior to
such time has been prepaid, repurchased or redeemed during the term of
this Agreement;
(b) the amount equal to (i) the Available ECF Amount minus (ii)
the amount (to the extent positive) by which (A) the sum of (x) the
aggregate Purchase Prices for all Permitted Acquisitions consummated
since the Restatement Effective Date and (y) the aggregate principal
amount of Eligible Prepayment Debt which has been prepaid, repurchased
or redeemed during such fiscal year exceeds (B) $80,000,000.
"Available Revolving Credit Commitment": as to any Revolving Credit
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Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment over (b) the Dollar Equivalent of such
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Lender's Revolving Extensions of Credit.
"Base Rate": for any day, a rate per annum (rounded upwards, if
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necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
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shall mean the rate of interest per annum publicly announced from time to
time by the Reference Lender as its prime or base rate in effect at its
principal office in New York City (the Prime Rate not being intended to be
the lowest rate of interest charged by the Reference Lender in connection
with extensions of credit to debtors). Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change
in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is
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based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve System of the
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United States (or any successor).
"Borrower" or "Borrowers": the individual or collective reference to
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the Company and the Borrowing Subsidiaries, in their respective capacities
as borrowers hereunder.
"Borrowing Date": any Business Day specified by a Borrower as a date
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on which such Borrower requests the relevant Lenders to make Loans
hereunder.
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"Borrowing Subsidiary": each Foreign Subsidiary of the Company set
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forth on the signature pages hereto as a Borrowing Subsidiary.
"Borrowing Subsidiary Joinder Agreement": the Borrowing Subsidiary
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Joinder Agreement, substantially in the form of Exhibit L.
"Business": as defined in Section 5.17.
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"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New York City or London, England are authorized
or required by law to close; provided that such day also (a) is a day upon
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which trading is conducted by and between banks in deposits for the
currency in which such Eurocurrency Loan is to be made in the relevant
interbank eurocurrency market, with respect to notices and determinations
in connection with, and payments of principal and interest on, Eurocurrency
Loans, (b) is not a day on which commercial banks in the principal
financial center in the country in which such Borrowing Subsidiary is
organized are authorized or required by law to close, in the case of Loans
made to any Borrowing Subsidiary and (c) in the case of euro only, is not a
day on which commercial banks in the city which the Administrative Agent
nominates for purposes of its euro operations are authorized or required by
law to close; provided, further, when such term is used for the purpose of
determining the date on which the Eurocurrency Base Rate is determined
under this Agreement for any Loan denominated in euro for any Interest
Period therefor and for purposes of determining the first and last day of
any such Interest Period, references in this Agreement to Business Days
shall be deemed to be references to Target Operating Days.
"Capital Expenditures": for any period, with respect to any Person,
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the aggregate of all expenditures by such Person and its Subsidiaries for
the acquisition or leasing (pursuant to a capital lease) of fixed or
capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) which should be
capitalized under GAAP on a consolidated balance sheet of such Person and
its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
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such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
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unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of six months or less from the
date of acquisition
5
issued by any Lender or by any commercial bank organized under the laws of
the United States of America or any state thereof having combined capital
and surplus of not less than $500,000,000; (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Ratings Services ("S&P") or
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P-2 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or carrying an
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equivalent rating by a nationally recognized rating agency, if both of the
two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days with respect to securities issued or fully
guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by
any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or
less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition; or (g) shares of money market mutual or
similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"Cash Management Program": any cash management program or similar
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program maintained by the Company or any of its Subsidiaries and operated
by a bank or other financial institution.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral": all Property of the Loan Parties, now owned or
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hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Collateral Agency and Intercreditor Agreement": the Collateral
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Agency and Intercreditor Agreement, dated as of December 19, 1997, executed
and delivered in connection with the Existing Credit Agreement.
"Collateral Agreement": the Amended and Restated Collateral Agreement
--------------------
to be executed and delivered by the Company, substantially in the form of
Exhibit B, as the same may be amended, supplemented or otherwise modified
from time to time.
"Commitment": as to any Lender, the sum of the Additional Tranche B
----------
Term Loan Commitment and the Revolving Credit Commitment of such Lender.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with the Company within the meaning of
Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
----------------------
Responsible Officer substantially in the form of Exhibit C.
6
"Confidential Information Memorandum": the Confidential Information
-----------------------------------
Memorandum dated August 2000 and furnished to the Lenders.
"Consolidated Current Assets": at any date, all amounts (other than
---------------------------
cash and Cash Equivalents) which would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on
a consolidated balance sheet of the Company and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at any date, all amounts which
--------------------------------
would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet
of the Company and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt and any short-term lines of credit of
the Company and its Subsidiaries and (b) without duplication of clause (a)
above, all Indebtedness consisting of Revolving Credit Loans or Swing Line
Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income for
-------------------
such period plus, without duplication and to the extent reflected as a
----
charge in the statement of such Consolidated Net Income for such period,
the sum of (a) income tax expense, (b) interest expense, amortization or
writeoff of debt discount and debt issuance costs and commissions,
discounts and other fees and charges associated with Indebtedness
(including the Loans), (c) depreciation and amortization expense, (d)
amortization of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any other non-cash charges and (f) any foreign
currency translation losses required to be recognized in accordance with
GAAP with respect to intercompany obligations and minus, to the extent
included in the statement of such Consolidated Net Income for such period,
the sum of (a) interest income, (b) any extraordinary, unusual or non-
recurring income or gains (including, whether or not otherwise includable
as a separate item in the statement of such Consolidated Net Income for
such period, gains on the sales of assets outside of the ordinary course of
business), (c) any other non-cash income, all as determined on a
consolidated basis and (d) any foreign currency translation gains required
to be recognized in accordance with GAAP with respect to intercompany
obligations.
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio
----------------------------------------
of (a) Consolidated EBITDA for such period less (i) the aggregate amount
actually paid by the Company and its Subsidiaries in cash during such
period on account of Capital Expenditures (other than Capital Expenditures
of the type described in paragraph (c) of the proviso to Section 8.7) and
(ii) any Restructuring Charges during such period to (b) Consolidated Fixed
Charges for such period.
"Consolidated Fixed Charges": for any period, the sum (without
--------------------------
duplication) of (a) Consolidated Interest Expense (net of consolidated
interest income) for such period, (b) cash income taxes paid by the Company
or any of its Subsidiaries on a consolidated basis in respect of such
period, (c) scheduled payments made during such period on account of
principal of Indebtedness of the Company or any of its Subsidiaries
(including scheduled principal payments in respect of the Term Loans and
scheduled reductions of the Revolving Credit Commitments) and (d) any
dividends paid in cash during such period in accordance with the provisions
of Section 8.6(c).
7
"Consolidated Interest Coverage Ratio": for any period, the ratio of
------------------------------------
(a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense": for any period, total cash interest
-----------------------------
expense (including that attributable to Capital Lease Obligations) of the
Company and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Company and its Subsidiaries (including,
without limitation, all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Protection Agreements to the extent such
net costs are allocable to such period in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any period of
---------------------------
four consecutive fiscal quarters, the ratio of (a) Consolidated Total Debt
on such day to (b) Consolidated EBITDA for such period; provided that for
--------
purposes of calculating Consolidated EBITDA of the Company and its
Subsidiaries for any period, the Consolidated EBITDA of any Person acquired
by the Company or its Subsidiaries during such period shall be included on
a pro forma basis for such period (assuming the consummation of each such
--- -----
acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders'
equity and of cash flows for the period in respect of which Consolidated
EBITDA is to be calculated (i) have been previously provided to the
Administrative Agent and the Lenders and (ii) either (A) have been reported
on without a qualification arising out of the scope of the audit by
independent certified public accountants of nationally recognized standing
or (B) have been found acceptable by the Administrative Agent.
"Consolidated Net Income": for any period, the consolidated net
-----------------------
income (or loss) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
--------
excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Subsidiaries, (b) the income
(or deficit) of any Person (other than a Subsidiary of the Company) in
which the Company or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by the
Company or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of the
Company to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by
the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
"Consolidated Total Debt": at any date, the aggregate principal
-----------------------
amount of all Indebtedness of the Company and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
----------------------------
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
8
"Continuing Directors": the directors of the Company on the
--------------------
Restatement Effective Date, and each other director, if, in each case, such
other director's nomination for election to the board of directors of the
Company is recommended by at least 66-2/3% of the then Continuing
Directors.
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Convertible Indenture": the Indenture, dated as of December 15, 1995,
---------------------
between the Company and The Bank of New York, as trustee, pursuant to which
the Convertible Notes were issued, as amended, supplemented or otherwise
modified from time to time in accordance with the terms hereof and thereof.
"Convertible Notes": the 2.9% Convertible Senior Subordinated Notes
-----------------
due 2005 of the Company, issued pursuant to the Convertible Indenture.
"Currency Maximum": with respect to any Optional Currency, the amount
----------------
set forth opposite such Optional Currency on Schedule 1.1C.
"Default": any of the events specified in Section 9, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Designated Disposition Proceeds": at any date, the amount equal to
-------------------------------
the aggregate Net Cash Proceeds received from Asset Sales with respect to
assets which were acquired by the Company and its Subsidiaries within 12
months prior to the date of such Asset Sale; provided that, within 30 days
--------
following the date of their acquisition by the Company and its
Subsidiaries, the Company provided to the Agents a written notice which (a)
clearly identified such assets, (b) set forth the Company's good faith
estimate of the fair market value thereof and (c) designated such assets as
being non-core assets held for disposition.
"Designated Equity Amounts": at any date, the amount equal to the sum
-------------------------
of (i) the aggregate amount of Net Cash Proceeds received by the Company
and its Subsidiaries from the issuance of Capital Stock and (ii) the value
of any shares of common stock of the Company directly issued to the sellers
as part of the consideration for any Permitted Acquisition or Permitted
Joint Venture (valued at fair market value (as determined in good faith by
the Board of Directors of the Company)), in each case, which (a) have been
designated in writing by the Company to the Administrative Agent as
"Designated Equity Amounts" and (b) are utilized by the Company and its
Subsidiaries within 45 days after such receipt to finance Permitted
Acquisitions pursuant to Section 8.8(h) or Permitted Joint Ventures
pursuant to Section 8.8(j).
"Designated Maximum": with respect to any Borrowing Subsidiary, the
------------------
amount set forth opposite such Borrowing Subsidiary's name on Schedule
1.1B.
"DM Agreement": the Fiscal and Paying Agent Agreement, dated as of
------------
April 23, 1997, between EHE, the Company, The Bank of New York, as U.S.
fiscal and paying agent and Deutsche Bank Aktiengesellschaft, as DM fiscal
and paying agent, pursuant to which
9
the DM Notes were issued, as amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof and thereof.
"DM Notes": the 9.125% Senior Notes due 2004 of EHE, issued pursuant
--------
to the DM Agreement.
"Disposition": with respect to any Property, any sale, lease, sale and
-----------
leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "Dispose" and "Disposed of" shall have correlative meanings.
------- --------
"Dollar Equivalent": with respect to any amount at any date of
-----------------
determination thereof, the sum of (x) for any such amount denominated in
Dollars, such amount and (y) for any such amount denominated in any
currency other than Dollars, an amount in Dollars equivalent to such
principal amount or such other amount calculated on the basis of the Spot
Rate of Exchange on such date of determination.
"Dollars" and "$": dollars in lawful currency of the United States of
------- -
America.
"Domestic Obligations": the unpaid principal of and interest on
--------------------
(including, without limitation, interest accruing after the maturity of the
Loans made to the Company and Reimbursement Obligations of the Company and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Company, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans made to the Company and
all other obligations and liabilities of the Company to the Administrative
Agent or to any Lender (or, in the case of Interest Rate Protection
Agreements, Hedge Agreements or Cash Management Programs, any affiliate of
any Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, any other Loan Document, the
Letters of Credit, any Interest Rate Protection Agreement, Hedge Agreement
or Cash Management Program entered into with any Lender or any affiliate of
any Lender, or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of counsel to the
Administrative Agent or to any Lender that are required to be paid by the
Company pursuant hereto) or otherwise.
"Domestic Obligations Guarantor Joinder Agreement": the Domestic
------------------------------------------------
Obligations Guarantor Joinder Agreement, substantially in the form of
Exhibit D.
"Domestic Receivables Facility": the collective reference to (i) the
-----------------------------
Receivables Purchase Agreement, dated as of March 31, 1997, among Exide
U.S. Funding Corporation, as seller, Three Rivers Funding Corporation, as
buyer, and the Company, as servicer, (ii) the Sale Agreement, dated as of
March 31, 1997, between the Company, as seller, and Exide U.S. Funding
Corporation, as buyer, (iii) the agreements and instruments executed in
connection therewith as each of items (i), (ii) and (iii) is in effect on
the Restatement Effective Date, but giving effect to (x) extensions of the
termination or expiration date thereunder, (y) increases in the Domestic
Receivables Maximum Commitment Amount to an amount not exceeding
$200,000,000 and (z) other changes thereto approved by the
10
Agents and (iv) any additional or substitute or replacement receivables
facility so long as such facility and all documentation therefor, and the
maximum amount thereof, are approved in writing by the Required Lenders.
"Domestic Receivables Facility Attributed Indebtedness": the
-----------------------------------------------------
aggregate amount theretofore paid to the Company or any of its Subsidiaries
in respect of the receivables sold by it pursuant to the Domestic
Receivables Facility, in each case to the extent the respective receivables
have not yet been repaid by the respective account debtor or repurchased by
the Company (it being the intent of the parties that the amount of Domestic
Receivables Facility Attributed Indebtedness at any time outstanding
approximate as closely as possible the principal amount of Indebtedness
which would be outstanding at such time under the Domestic Receivables
Facility if same were structured as a secured lending agreement rather than
a purchase agreement).
"Domestic Receivables Facility Commitment": the aggregate commitments
----------------------------------------
to purchase receivables pursuant to the Domestic Receivables Facility as in
effect from time to time.
"Domestic Receivables Financier": Three Rivers Funding Corporation or
------------------------------
any other purchaser pursuant to the Domestic Receivables Facility as then
in effect.
"Domestic Receivables Maximum Commitment Amount": $200,000,000.
----------------------------------------------
"Domestic Subsidiary": any Subsidiary of the Company organized under
-------------------
the laws of any jurisdiction within the United States of America.
"ECF Percentage": 75%; provided, that, the ECF Percentage shall be
-------------- --------
reduced to 50% if the aggregate principal amount of the Term Loans
outstanding as of the last day of such fiscal year is less than
$337,500,000.
"EHE": Exide Holding Europe S.A., a corporation organized under the
---
laws of the Republic of France.
"Eligible Prepayment Debt": Indebtedness of the type described in
------------------------
clause (c) of the definition of such term which is not expressly
subordinated by its terms to the Obligations.
"EMU": Economic and Monetary Union as contemplated in the Treaty on
---
European Union.
"EMU Legislation": legislative measures of the European Union for the
---------------
introduction of, changeover to or operation of the euro in one or more
member states.
"Environmental Insurance Recoveries": any recoveries (whether
----------------------------------
consisting of payments of claims or amounts received pursuant to, or in
settlement of, litigation) from insurance carriers representing amounts
asserted as owing to the Company or its Subsidiaries under insurance
policies in respect of environmental claims or liabilities.
"Environmental Laws": any and all foreign, Federal, state, local or
------------------
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any
11
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at
any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"euro": the single currency of the European Union as constituted by
----
the Treaty on European Union and as referred to in EMU Legislation.
"Euro Equivalent": with respect to any amount at any date of
---------------
determination thereof, the sum of (x) for any such amount denominated in
euro, such amount and (y) for any such amount denominated in any currency
other than euro, an amount in euro equivalent to such principal amount or
such other amount calculated on the basis of the Spot Rate of Exchange on
such date of determination.
"euro unit": the currency unit of the euro as defined in the EMU
---------
Legislation.
"Eurocurrency Base Rate": with respect to each day during each
----------------------
Interest Period pertaining to a Eurocurrency Loan, the rate per annum
determined by the Administrative Agent at approximately 11:00 A.M., London
time, on the date which is two Business Days prior to the beginning of such
Interest Period (or, with respect to Loans or Letters of Credit in Pounds,
on the first Business Day of such Interest Period) by reference to the
"British Bankers' Association Interest Settlement Rates" for deposits in
the currency of such Loan (as set forth by any service selected by the
Administrative Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to such Interest Period (rounded,
if necessary, upward to the nearest whole multiple of 1/16th of 1%) plus,
in the case of any such Eurocurrency Loan denominated in Pounds, the MLA
Cost. In the event that such rate is not ascertainable pursuant to the
foregoing provisions of this definition, the Eurocurrency Base Rate shall
be determined by reference to the rate at which the Administrative Agent is
offered deposits in the currency of such Loan at or about 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period (or, with respect to Loans or Letters of Credit in Pounds, on the
first Business Day of such Interest Period) in the interbank eurocurrency
market where its eurocurrency and foreign currency and exchange operations
are then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein.
"Eurocurrency Loans": Loans the rate of interest applicable to which
------------------
is based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each Interest
-----------------
Period pertaining to a Eurocurrency Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
12
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurocurrency Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.
"Eurocurrency Tranche": the collective reference to Eurocurrency
--------------------
Loans the then current Interest Periods with respect to all of which begin
on the same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"European Receivables Facility": the receivables purchase or
-----------------------------
refinancing agreements among EHE and/or its Subsidiaries and one or more
European Receivables Financiers; provided, that no recourse shall be
--------
provided to the Company or any of its Subsidiaries (other than the European
Receivables Subsidiaries) pursuant to the European Receivables Facility or
any documentation related thereto (and no representations, warranties,
undertakings or assurances shall be provided by the Company or any of its
Subsidiaries (other than the European Receivables Subsidiaries) in
connection therewith, other than Standard Securitization Undertakings.
"European Receivables Facility Attributed Indebtedness": at any time,
-----------------------------------------------------
the amount equal to (a) the aggregate amount theretofore paid to EHE and/or
its Subsidiaries in respect of the receivables sold by any of them pursuant
to the European Receivables Facility, in each case to the extent the
respective receivables have not yet been repaid by the respective account
debtor or repurchased by EHE and/or its Subsidiaries minus (b) any cash and
Cash Equivalents then held as collateral security by the European
Receivables Financier on account of amounts owing to the European
Receivables Financier under the European Receivables Facility (it being the
intent of the parties that the amount of European Receivables Facility
Attributed Indebtedness at any time outstanding approximate as closely as
possible, after reduction for such cash and Cash Equivalent collateral, the
principal amount of indebtedness which would be outstanding at such time
under the European Receivables Facility if same were structured as a
secured lending agreement).
"European Receivables Financier": at any time shall mean any
------------------------------
purchaser, lender or provider of credit (excluding EHE and its
Subsidiaries) pursuant to the European Receivables Facility as then in
effect.
"European Receivables Maximum Commitment Amount": $175,000,000.
----------------------------------------------
"European Receivables Subsidiaries": shall mean two Wholly-Owned
---------------------------------
Subsidiaries of EHE which engage in no activities other than in connection
with the financing of accounts receivable and which are designated (as
provided below) as European Receivables Subsidiaries (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which
(i) is guaranteed by the Company or any other Subsidiary of the Company
(excluding guarantees of obligations (other than the principal of, and
interest on,
13
Indebtedness)) pursuant to Standard Securitization Undertakings, (ii) is
recourse to or obligates the Company or any other Subsidiary of the Company
in any way (other than pursuant to Standard Securitization Undertakings) or
(iii) subjects any property or asset of the Company or any other Subsidiary
of the Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof (other than pursuant to Standard Securitization
Undertakings), (b) with which neither the Company nor any of its
Subsidiaries has any contract, agreement, arrangement or understanding
(other than pursuant to the European Receivables Facility (including with
respect to fees payable in the ordinary course of business in connection
with the servicing of accounts receivable and related assets)) on terms
less favorable to the Company or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Company,
and (c) to which neither the Company nor any other Subsidiary of the
Company has any obligation to maintain or preserve either such entity's
financial condition or cause such entity to achieve certain levels of
operating results. Any such designation shall be evidenced by filing with
the Administrative Agent an officer's certificate of the Company certifying
that, to the best of such officer's knowledge and belief after consultation
with counsel, such designation complies with the foregoing conditions.
"Event of Default": any of the events specified in Section 9,
----------------
provided that any requirement for the giving of notice, the lapse of time,
--------
or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Company, the excess,
----------------
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income
for such fiscal year, (ii) an amount equal to the amount of all non-cash
charges (including depreciation and amortization) deducted in arriving at
such Consolidated Net Income, (iii) decreases in Consolidated Working
Capital for such fiscal year, (iv) an amount equal to the aggregate net
non-cash loss on the Disposition of Property by the Company and its
Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income and (v) the net increase during such fiscal year
(if any) in deferred tax accounts of the Company over (b) the sum, without
----
duplication, of (i) an amount equal to the amount of all non-cash credits
included in arriving at such Consolidated Net Income, (ii) the aggregate
amount actually paid by the Company and its Subsidiaries in cash during
such fiscal year on account of Capital Expenditures (excluding the
principal amount of Indebtedness incurred in connection with such
expenditures and any such expenditures financed with the proceeds of any
Reinvestment Deferred Amount), (iii) the aggregate amount of all
prepayments of Revolving Credit Loans and Swing Line Loans during such
fiscal year to the extent accompanying permanent optional reductions of the
Revolving Credit Commitments, other than as a result of the commitment
reductions set forth in Section 3.5, (iv) all optional prepayments of the
Term Loans during such fiscal year, other than as a result of the mandatory
prepayments set forth in Section 3.5, (iv) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including, without
limitation, the Term Loans) of the Company and its Subsidiaries made during
such fiscal year (other than in respect of any revolving credit facility to
the extent there is not an equivalent permanent reduction in commitments
thereunder), (v) increases in Consolidated Working Capital for such fiscal
year, (vi) an amount equal to the aggregate net non-cash gain on the
Disposition of Property by the Company and its Subsidiaries during such
fiscal year (other than sales of inventory in the ordinary course of
business), to the extent included in arriving at such Consolidated Net
14
Income, (vii) the net decrease during such fiscal year (if any) in deferred
tax accounts of the Company and (viii) any cash Restructuring Charges
during such fiscal year.
"Excess Cash Flow Application Date": as defined in Section 3.5(c).
---------------------------------
"Excluded Subsidiaries": Exide Investments Inc., Exide Delaware LLC,
---------------------
Exide U.S. Funding Corporation, Refined Metals Corporation, Royal Battery
Distributors LLC, GNB Battery Technologies Japan, Inc. and ▇▇▇▇▇ Metals
Company.
"Existing Amended and Restated Credit Agreement": as defined in the
----------------------------------------------
recitals to this Agreement.
"Existing Credit Agreement": as defined in the recitals to this
-------------------------
Agreement.
"Existing Mortgage Amendments": the Amendments to Mortgages and/or
----------------------------
Deed of Trusts, in form and substance reasonably satisfactory to the
Administrative Agent, executed by the Loan Party that is a party to each
Existing Mortgage, pursuant to which, inter alia, each Existing Mortgage
----- ----
shall be amended to reflect the amendment and restatement of the Existing
Credit Agreement pursuant hereto.
"Existing Mortgages": the mortgages and deeds of trust made by any of
------------------
the Loan Parties in favor of the Administrative Agent pursuant to the
Existing Credit Agreement and outstanding on the Restatement Effective
Date, covering the properties listed in Part I of Schedule 1.1D.
"Existing Tranche B Term Loans": as defined in Section 2.1(b).
-----------------------------
"Facility": each of (a) the Tranche A Term Loan Commitments and the
--------
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
----------------------------
(b) the Tranche B Term Loan Commitments (including the Additional Tranche B
Term Loan Commitments) and the Tranche B Term Loans made thereunder (the
"Tranche B Term Loan Facility") and (c) the Revolving Credit Commitments
-----------------------------
and the extensions of credit made thereunder (the "Revolving Credit
----------------
Facility").
--------
"Facility Fee Rate": the rate per annum determined pursuant to the
-----------------
Pricing Grid.
"Federal Funds Effective Rate"; for any day, the weighted average of
----------------------------
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Reference Lender from three federal funds brokers of recognized
standing selected by it.
"Foreign Alternate Rate Loans": Loans in any Optional Currency the
----------------------------
rate of interest applicable to which is based upon:
(a) in the case of Swing Line Loans denominated in any Optional
Currency, the rate of interest per annum maintained by the relevant
Swing Line Lender as the rate of interest (in the absence of a
15
eurocurrency rate) it charges borrowers of similar quality as the
relevant Borrower of such Loans in effect at its principal office for
dealings in such Optional Currency; and
(b) in the case of each Loan (other than Swing Line Loans)
denominated in any Optional Currency, the rate of interest per annum
which is negotiated in good faith by the Administrative Agent and the
relevant Borrower from time to time and approved by the Lenders
holding not less than 80% of the affected Loans.
Notwithstanding anything to the contrary contained herein, Loans (other
than Swing Line Loans) may be made or maintained as Foreign Alternate Rate
Loans only to the extent specified in Section 3.10 or 3.15.
"Foreign Lender": any Lender which has (i) a Tranche A Term Loan
--------------
Commitment or made Tranche A Term Loans, (ii) made Tranche B Term Loans to
any Borrowing Subsidiary or (iii) a Revolving Credit Commitment or made
Revolving Credit Loans to any Borrowing Subsidiary or purchased
participating interests in Letters of Credit or Swing Line Loans issued for
the account of or made to any Borrowing Subsidiary.
"Foreign Obligations": the unpaid principal of and interest on
-------------------
(including, without limitation, interest accruing after the maturity of the
Loans made to any of the Borrowing Subsidiaries and Reimbursement
Obligations of any Borrowing Subsidiary and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to any of the
Borrowing Subsidiaries, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding) the Loans made to any of
the Borrowing Subsidiaries and all other obligations and liabilities of any
of the Borrowing Subsidiaries to the Administrative Agent or to any Lender
(or, in the case of Interest Rate Protection Agreements, Hedge Agreements
or Cash Management Programs, any affiliate of any Lender), whether direct
or indirect, absolute or contingent, due or to become due, or now existing
or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit, any
Interest Rate Protection Agreement, Hedge Agreement or Cash Management
Program entered into with any Lender or any affiliate of any Lender, any
foreign currency hedge agreement or swap entered into with any Lender or
any affiliate of any Lender, or any other document made, delivered or given
in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to
be paid by any of the Borrowing Subsidiaries pursuant hereto) or otherwise.
"Foreign Obligations Guarantor Joinder Agreement": the Foreign
-----------------------------------------------
Obligations Guarantor Joinder Agreement, substantially in the form of
Exhibit E.
"Foreign Subsidiary": any Subsidiary of the Company that is not a
------------------
Domestic Subsidiary.
16
"Foreign Subsidiary Guarantor": each Foreign Subsidiary listed as a
----------------------------
Guarantor on the signature pages hereof..
"FQ1", "FQ2 ", "FQ3", and "FQ4": when used with a numerical year
--- ---- --- ---
designation, means the first, second, third or fourth fiscal quarters,
respectively, of such fiscal year of the Company (e.g., FQ4 2000 means the
fourth quarter of the Company's 2000 fiscal year, which fiscal quarter
ended March 31, 2000).
"Francs" and "Ffr": francs in lawful currency of the Republic of
------ ---
France.
"Funded Debt": as to any Person, all Indebtedness of such Person that
-----------
matures more than one year from the date of its creation or matures within
one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders
to extend credit during a period of more than one year from such date,
including, without limitation, all current maturities and current sinking
fund payments in respect of such Indebtedness whether or not required to be
paid within one year from the date of its creation and, in the case of the
Company, Indebtedness in respect of the Loans.
"Funding Office": with respect to any currency the office specified
--------------
from time to time by the Administrative Agent as its funding office for
such currency by notice to the relevant Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United States
----
of America as in effect from time to time, except that for purposes of
Section 8.1, GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements delivered pursuant to
Section 5.1(b). In the event that any "Accounting Change" (as defined
below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement,
then the Company and the Administrative Agent agree to enter into
negotiations in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Company's financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been
made. Until such time as such an amendment shall have been executed and
delivered by the Company, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting Changes
had not occurred. "Accounting Changes" refers to changes in accounting
principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if applicable, the
Securities and Exchange Commission (or successors thereto or agencies with
similar functions).
"GE Sale-Leaseback": the sale by the Company to General Electric
-----------------
Capital Corporation of up to $50,000,000 of certain manufacturing and
related equipment of the Company and the subsequent lease by the Company
from General Electric Capital Corporation of such facility pursuant to the
sale and lease documentation in connection
17
therewith as in effect on the Restatement Effective Date (and any
amendments thereto which do not adversely impact the Lenders in any
material respect).
"GNB": as defined in the recitals to this Agreement.
---
"GNB Acquisition": as defined in the recitals to this Agreement.
---------------
"GNB Acquisition Agreement": as defined in the recitals to this
-------------------------
Agreement.
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government (including, without limitation, for purposes of
Section 3.12 only, the National Association of Insurance Commissioners).
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
-------------------- -------------------
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
-------------------
(the "primary obligor") in any manner, whether directly or indirectly,
---------------
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
--------
however, that the term Guarantee Obligation shall not include endorsements
-------
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in
good faith.
"Guaranteed Party": any of the Company or any Borrowing Subsidiary,
----------------
in its capacity as the party whose obligations under this Agreement and
under the other Loan Documents are guaranteed as provided in Section 10.
"Guarantor" or "Guarantors": the individual or collective reference
--------- ----------
to the Company (in its capacity as guarantor of the Foreign Obligations)
and the Subsidiary Guarantors.
18
"Hedge Agreements": all currency swaps, caps or collar agreements,
----------------
foreign exchange agreements, commodity contracts or similar arrangements
entered into by the Company or any of its Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates
and commodity prices, either generally or under specific contingencies.
"Indebtedness": of any Person at any date, without duplication, (a)
------------
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of Property or services (other
than current trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to Property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such Property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party under acceptance,
letter of credit or similar facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire
for value any Capital Stock (other than common stock) of such Person, (h)
all Guarantee Obligations of such Person in respect of obligations of the
kind referred to in clauses (a) through (g) above; (i) all obligations of
the kind referred to in clauses (a) through (h) above secured by (or for
which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on Property (including, without
limitation, accounts and contract rights) owned by such Person, whether or
not such Person has assumed or become liable for the payment of such
obligation, (j) for the purposes of Section 9(e) only, all obligations of
such Person in respect of Interest Rate Protection Agreements, Hedge
Agreements or Cash Management Programs and (k) the liquidation value of any
mandatorily redeemable preferred Capital Stock of such Person or its
Subsidiaries held by any Person other than such Person and its Wholly Owned
Subsidiaries. Notwithstanding the foregoing, the obligation of the Company
to make the installment investments in the Lion Compact Energy, Inc. joint
venture in the aggregate amount of up to $25,000,000 as required by the
joint venture agreement relating to such joint venture shall not constitute
Indebtedness.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intellectual Property": the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to ▇▇▇ at law or in equity for any infringement
or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the third
---------------------
Business Day of each January, April, July and October for the period ending
on (and including) the last day of the immediately preceding December,
March, June or September, respectively, and the
19
final maturity date of such Loan, (b) as to any Eurocurrency Loan having an
Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurocurrency Loan having an Interest Period longer
than three months, each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of
such Interest Period, (d) as to any Foreign Alternate Rate Loan, the date
or dates determined in good faith by the Administrative Agent (and notified
to the Company) as being customary in the relevant jurisdiction for the
payment of interest on borrowings utilizing such interest rate basis and
(e) as to any Loan (other than any Revolving Credit Loan that is a Base
Rate Loan and any Swing Line Loan), the date of any repayment or prepayment
made in respect thereof.
"Interest Period": as to any Eurocurrency Loan, (a) initially, the
---------------
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurocurrency Loan and ending one, two, three or six
months thereafter, as selected by the relevant Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect
thereto; and (b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurocurrency Loan and
ending one, two, three or six months thereafter, as selected by the
relevant Borrower by irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day of the then current
Interest Period with respect thereto; provided that, all of the foregoing
--------
provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Scheduled Revolving Credit Termination Date or beyond the date final
payment is due on the Tranche A Term Loans or the Tranche B Term
Loans, as the case may be, shall end on the Revolving Credit
Termination Date or such due date, as applicable;
(iii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iv) Borrower shall select Interest Periods so as not to require
a payment or prepayment of any Eurocurrency Loan during an Interest
Period for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
----------------------------------
agreement, interest rate futures contract, interest rate option, interest
rate cap or other interest rate hedge
20
arrangement, to or under which the Company or any of its Subsidiaries is a
party or a beneficiary on the date hereof or becomes a party or a
beneficiary after the date hereof.
"Issuing Lender": the collective reference to (a) Credit Suisse First
--------------
Boston and (b) any other Revolving Credit Lender (together with any of its
Affiliates) selected by the Company with the approval of the Administrative
Agent (and with the consent of such proposed Issuing Lender), in each case
in its capacity as issuer of any Letter of Credit.
"L/C Commitment": at any date, the amount equal to $50,000,000.
--------------
"L/C Fee Payment Date": the third Business Day of each January,
--------------------
April, July and October for the period ending on (and including) the last
day of the immediately preceding December, March, June or September,
respectively, and the last Business Day of the Revolving Credit Commitment
Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to Section 4.4.
"L/C Participants": the collective reference to all the Revolving
----------------
Credit Lenders other than the Issuing Lender.
"Letters of Credit": as defined in Section 4.1(a).
-----------------
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any capital lease having substantially the same economic effect as any
of the foregoing).
"Lira" and "Lit": lira in lawful currency of Italy.
---- ---
"Loan": any loan made by any Lender pursuant to this Agreement.
----
"Loan Documents": this Agreement, the Security Documents and the
--------------
Notes.
"Loan Parties": the Company, the Borrowing Subsidiaries and each
------------
other Subsidiary of the Company which is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
-------------------------
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Credit
Facility prior to any termination of the Revolving Credit Commitments, the
holders of more than 50% of the Total Revolving Credit Commitments).
"Majority Foreign Lenders": with respect to any Optional Currency,
------------------------
the holders of more than 50% of the sum of (i) aggregate unpaid principal
amount of the Tranche A Term
21
Loans made in such Optional Currency and (b) the Total Revolving Extensions
of Credit in such Optional Currency.
"Majority Revolving Credit Facility Lenders": the Majority Facility
------------------------------------------
Lenders in respect of the Revolving Credit Facility.
"Majority Subsidiary": a Subsidiary of a Wholly Owned Subsidiary of
-------------------
the Company that has been capitalized with an investment permitted under
Section 8.8(i).
"Marks" and "DM": Deutsche marks in lawful currency of Germany.
----- --
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, assets, property, condition (financial or otherwise) or prospects
of the Company and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Agents or the Lenders hereunder or thereunder.
"Material Environmental Amount": an amount payable by the Company
-----------------------------
and/or its Subsidiaries on account of remedial costs, compliance costs
(other than amounts expended in the ordinary course of business and
consistent with past practice in order to avoid creating new liability
under Environmental Laws), compensatory damages, punitive damages, fines,
penalties or any combination thereof relating to environmental matters
which, in the aggregate with all other such payments made during any period
of 12 consecutive calendar months, is in excess of $5,000,000 (other than
those as to which reserves in conformity with GAAP which, as of the
Restatement Effective Date, will be provided on the books of the Company or
its Subsidiaries, as the case may be, and which are disclosed in Schedule
1.1F).
"Material Subsidiary": any Subsidiary of the Company which has assets
-------------------
with a book value in excess of $250,000.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls, urea-formaldehyde insulation and lead.
"MLA Cost" means, with respect to any Lender, the cost imputed to such
--------
Lender of compliance with the Mandatory Liquid Assets requirements of the
Bank of England during the relevant Interest Period, determined in
accordance with Annex B.
"Mortgaged Properties": the real properties listed on Schedule 1.1D,
--------------------
as to which the Administrative Agent for the benefit of the Lenders shall
be granted a Lien pursuant to the Mortgages.
"Mortgages": each of the Existing Mortgages, as amended by the
---------
relevant Existing Mortgage Amendment, and the New Mortgages, as each of the
same may be further amended, supplemented, restated, replaced or otherwise
modified from time to time.
22
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"National Currency Unit": the unit of currency (other than a euro
----------------------
unit) of a Participating Member State.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
-----------------
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, reasonable amounts consistent
with past business practices of the Company and its Subsidiaries which are
required to prepare for sale the asset which is the subject of such Asset
Sale, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset which is the
subject of such Asset Sale or Recovery Event (other than any Lien pursuant
to a Security Document) and other customary fees and expenses actually
incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and
(b) in connection with any issuance or sale of equity securities or debt
securities or instruments or the incurrence of loans, the cash proceeds
received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"New Mortgaged Properties": the real properties listed in Part II of
------------------------
Schedule 1.1D.
"New Mortgages": the collective reference to the mortgages and deeds
-------------
of trust in favor of the Administrative Agent, in form and substance
satisfactory to the Administrative Agent, in respect of the New Mortgaged
Properties.
"New Security Documents": the collective reference to any new
----------------------
security documents determined by the Administrative Agent to be required in
respect of properties acquired in the GNB Acquisition (other than
properties covered by the Collateral Agreement and the Mortgages).
"Non-Excluded Taxes": as defined in Section 3.13(a).
------------------
"Non-U.S. Lender": as defined in Section 3.13(d).
---------------
"Notes": the collective reference to any promissory note evidencing
-----
Loans.
"Obligations": the collective reference to the Domestic Obligations
-----------
and the Foreign Obligations.
"Optional Currencies": Marks, Pounds, Francs, euro units and, with
-------------------
respect to Swing Line Loans and Letters of Credit only, Pesetas, and, with
respect to Letters of Credit only, Lira and any other foreign currency
which is acceptable to the Issuing Lender in its sole discretion.
23
"Other Taxes": any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement.
"Participant": as defined in Section 12.6(b).
-----------
"Participating Member State": any member state which has the euro as
--------------------------
its lawful currency.
"Payment Office": with respect to any currency the office specified
--------------
from time to time by the Administrative Agent as its payment office for
such currency by notice to the relevant Borrower and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": (a) the acquisition by the Company or any of
---------------------
its Subsidiaries of (i) all or substantially all of the assets of any
Person or any product line or division thereof or (ii) all of the Capital
Stock (other than directors' qualifying shares) of any Person (whether by
purchase or merger); provided, that any such acquisition shall be a
--------
Permitted Acquisition only if the assets acquired will be used solely in,
or the business of the Person whose stock is acquired consists solely of,
any or all of the same business lines to the extent permitted by Section
8.15 or (b) the capitalization by the Company of a Subsidiary that acquires
or constructs assets used in a line of business permitted by Section 8.15.
Notwithstanding the foregoing, any acquisition described on Schedule 1.1E
shall be deemed to constitute a Permitted Acquisition for purposes of this
definition. It is understood that the GNB Acquisition (including the
creation and capitalization of Subsidiaries in connection with the GNB
Acquisition) does not constitute a "Permitted Acquisition".
"Permitted Acquisition Maximum Amount": at any time during any fiscal
------------------------------------
year of the Company, an amount equal to the difference (but not less than
zero) between:
(i) the sum of (x) $80,000,000 and (y) the Available ECF
Amount; and
(ii) the sum of (x) the aggregate Purchase Prices of all
Permitted Acquisitions consummated since the Restatement Effective
Date and (y) the aggregate principal amount of Eligible Prepayment
Debt which has been prepaid, repurchased or redeemed during such
fiscal year.
"Permitted Acquisition Notice": with respect to any Permitted
----------------------------
Acquisition, a written notice from the Company to the Agents and the
Lenders setting forth (in reasonable detail) (i) the date upon which such
Permitted Acquisition is scheduled to be consummated (it being understood
that any delay in such date shall not, in itself, render such notice
invalid), (ii) the estimated Purchase Price for such Permitted Acquisition
and the nature of the consideration to be paid, (iii) a description of the
stock and/or assets to be acquired in connection with such Permitted
Acquisition, (iv) the sources of cash to be utilized by the
24
Company and its Subsidiaries to finance such Permitted Acquisition and (v)
in the case of Designated Equity Amounts in the form of common stock of the
Company issued as consideration to the seller in connection with a
Permitted Acquisition, a description of the common stock to be issued in
connection with the consummation of such Permitted Acquisition and the
estimated fair market value thereof.
"Permitted Joint Venture": the acquisition by the Company (by merger,
-----------------------
purchase or otherwise) not constituting a Permitted Acquisition of shares
of the capital stock of or other equity interests in a Person or an
interest in a product line or division of a Person, pursuant to negotiated
joint venture or similar agreements with one or more other third-party
Persons that own or will own the remaining shares of the capital stock or
other equity interests in such Person or in such product line or division;
provided, that any such acquisition shall be a Permitted Joint Venture only
--------
if the assets acquired will be used solely in, or the business of the
Person whose stock is acquired consists solely of, any or all of the same
business lines to the extent permitted by Section 8.15.
"Person": an individual, partnership, corporation, limited liability
------
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Pesetas": pesetas in lawful currency of the Republic of Spain.
-------
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement Amendments": the collective reference to the
---------------------------
instruments determined by the Administrative Agent to be required to
modify Pledge Agreements originally executed and delivered pursuant to the
Existing Credit Agreement to reflect the amendment and restatement of the
Existing Credit Agreement effected hereby.
"Pledge Agreements": each of the pledge agreements which have been,
-----------------
or are hereafter to be, executed by a Foreign Subsidiary with respect to
Capital Stock it owns of another Subsidiary or intercompany loans or
receivables owing to it by another Subsidiary, whether on or after the
Restatement Effective Date (including, without limitation, pursuant to
Section 7.10), as each of the same may from time to time be amended or
otherwise modified, including, without limitation, modifications pursuant
to the Pledge Agreement Amendments. The Pledge Agreements executed and
delivered pursuant to the Existing Credit Agreement and in effect on the
Restatement Effective Date are listed in Part I of Schedule 1.1H.
"Pledged Stock": shall have the meaning assigned to such term (or any
-------------
analogous term) in the Pledge Agreements.
"Pounds" and "(Pounds)": pounds sterling in lawful currency of the
------ --------
United Kingdom.
"Pricing Grid": the pricing grid attached hereto as Annex A.
------------
25
"Pro Forma Balance Sheet": as defined in Section 5.1(a).
-----------------------
"Projections": as defined in Section 7.2(c).
-----------
"Properties": as defined in Section 5.17.
----------
"Property": any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Purchase Price": with respect to any Permitted Acquisition, the sum
--------------
(without duplication) of (a) the amount of cash paid by the Company and its
Subsidiaries in connection with such Permitted Acquisition, (b) Designated
Equity Amounts in connection with such Permitted Acquisition, (c) the
principal amount (or, if less, the accreted value) at the time of such
Permitted Acquisition of all Acquired Indebtedness in connection with such
Permitted Acquisition and (d) the aggregate fair market value of all other
consideration (including any contingent obligations and affiliated
contracts) given by the Borrower and its Subsidiaries in connection with
such Permitted Acquisition.
"Recovery Event": any settlement of or payment in respect of any
--------------
property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Company or any of its Subsidiaries.
"Reference Lender": the Administrative Agent.
----------------
"Refunded Swing Line Loans": as defined in Section 2.7(b).
-------------------------
"Refunding Date": as defined in Section 2.7(c).
--------------
"Register": as defined in Section 12.6(d).
--------
"Regulation U": Regulation U of the Board as in effect from time to
------------
time.
"Reimbursement Obligation": the obligation of the relevant Borrower
------------------------
to reimburse the relevant Issuing Lender pursuant to Section 4.4 for
amounts drawn under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds received by the Company or any of
its Subsidiaries in connection therewith which are not applied to prepay
the Term Loans or reduce the Revolving Credit Commitments pursuant to
Section 3.5(b) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
------------------
which the Company has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
-------------------
Officer stating that no Event of Default has occurred and is continuing and
that the Company (directly or indirectly through a Subsidiary) intends and
expects to use all or a specified portion of the
26
Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets
useful in its business; provided that no such Reinvestment Notice shall be
--------
required to be delivered with respect to Asset Sales or Recovery Events,
the Net Cash Proceeds with respect to which do not exceed $5,000,000 (it
being understood that this shall not affect the obligation (if any) of the
Company and its Subsidiaries to apply the Net Cash Proceeds of such Asset
Sale or Recovery Sale to the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments pursuant to Section 3.5(b)).
"Reinvestment Prepayment Amount": with respect to any Reinvestment
------------------------------
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Company's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
----------------------------
Event, the earlier of (a) the date occurring one year after such
Reinvestment Event and (b) the date on which the Company shall have
determined not to, or shall have otherwise ceased to, acquire assets useful
in the Company's business with all or any portion of the relevant
Reinvestment Deferred Amount.
"Related Guaranteed Obligations": with respect to any Guarantor, the
------------------------------
obligations of each Guaranteed Party which such Guarantor is guaranteeing
pursuant to Section 10.
"Related Guaranteed Party": with respect to any Guarantor, the
------------------------
Guaranteed Party whose obligations it is guaranteeing pursuant to Section
10.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
----------------
ERISA, other than those events as to which the thirty day notice period is
waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg. (S)
2615.
"Required Foreign Lenders": the holders of more than 50% of the sum
------------------------
of the Dollar Equivalent of (a) the aggregate unpaid principal amount of
the Tranche A Term Loans, (b) the aggregate unpaid principal amount of the
Tranche B Term Loans made to any Borrowing Subsidiary and (c) the Total
Revolving Credit Commitments or, if the Revolving Credit Commitments have
been terminated, the Total Revolving Extensions of Credit in respect of any
Borrowing Subsidiary.
"Required Lenders": the holders of more than 50% of the sum of the
----------------
Dollar Equivalent of (a) the aggregate unpaid principal amount of the Term
Loans (and, prior to the Restatement Effective Date, the Additional Tranche
B Term Loan Commitments) and (b) the Total Revolving Credit Commitments or,
if the Revolving Credit Commitments have been terminated, the Total
Revolving Extensions of Credit.
"Required Prepayment Lenders": the Majority Facility Lenders in
---------------------------
respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty,
27
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its
Property is subject.
"Responsible Officer": the chief executive officer, president or
-------------------
chief financial officer of the Company, but in any event, with respect to
financial matters, the chief financial officer of the Company.
"Restatement Effective Date": the date on which the conditions
--------------------------
precedent set forth in Section 6.1 shall have been satisfied, which date
shall be no later than December 31, 2000.
"Restructuring Charges": the aggregate amount of any cash
---------------------
expenditures made by the Borrower and its Subsidiaries which constitute a
utilization by the Borrower and its Subsidiaries of reserves maintained for
severance, plant closings and similar restructuring charges.
"Revolving Credit Commitment": as to any Revolving Credit Lender, the
---------------------------
obligation of such Lender, if any, to make Revolving Credit Loans and
participate in Swing Line Loans and Letters of Credit, the Dollar
Equivalent of which shall be in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1.1A, as the same may
be changed from time to time pursuant to the terms hereof. The original
amount of the Total Revolving Credit Commitments is $250,000,000, of which
not more than $150,000,000 in the aggregate may be borrowed by the Company.
"Revolving Credit Commitment Period": the period from and including
----------------------------------
the date hereof to but not including the Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as provided
herein.
"Revolving Credit Lender": each Lender which has a Revolving Credit
-----------------------
Commitment or which has made Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
----------------------
"Revolving Credit Percentage": as to any Revolving Credit Lender at
---------------------------
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the Total Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired or terminated,
the percentage which the Dollar Equivalent of the aggregate principal
amount of such Lender's Revolving Extensions of Credit then outstanding
constitutes of the Dollar Equivalent of the aggregate principal amount of
the Revolving Extensions of Credit then outstanding).
"Revolving Credit Termination Date": the earlier of (a) the Scheduled
---------------------------------
Revolving Credit Termination Date and (b) the date on which the Tranche A
Term Loans shall be paid in full.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
------------------------------
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit
28
Loans made by such Lender then outstanding, (b) such Lender's Revolving
Credit Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Credit Percentage of the sum of all Swing Line Maximums
then outstanding.
"Scheduled Revolving Credit Termination Date": December 18, 2003.
-------------------------------------------
"Security Document Amendments": the collective reference to the
----------------------------
Existing Mortgage Amendments, the UK Mortgage Amendments, the Pledge
Agreement Amendments and any other amendments or other modifications to
Security Documents deemed advisable by the Administrative Agent to be
entered into in connection with the Restatement Effective Date to reflect
the amendment and restatement of the Existing Credit Agreement effected
hereby.
"Security Documents": the collective reference to the Collateral
------------------
Agreement, the Pledge Agreements, the Mortgages, the UK Mortgages, the New
Security Documents, if any, and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any Property of
any Person to secure the obligations and liabilities of any Loan Party
under any Loan Document.
"Seller": as defined in the recitals to this Agreement.
------
"Senior 10% Note Indenture": the Indenture, dated as of April 28,
-------------------------
1995, between the Company and The Bank of New York, as trustee, pursuant to
which the Senior 10% Notes were issued, as amended, supplemented or
otherwise modified from time to time in accordance with the terms hereof
and thereof.
"Senior 10% Notes": the 10% Senior Notes due 2004 of the Company,
----------------
issued pursuant to the Senior 10% Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
-------
any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person on a going concern basis will, as of
such date, exceed the amount of all "liabilities of such Person, contingent
or otherwise", as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing determinations
of the insolvency of debtors, (b) the present fair saleable value of the
assets of such Person on a going concern basis will, as of such date, be
greater than the amount that will be required to pay the liability of such
Person on its debts as such debts become absolute and matured, (c) such
Person will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business, and (d) such Person will be
able to pay its debts as they mature. For purposes of this definition, (i)
"debt" means liability on a "claim", and (ii) "claim" means any (x) right
to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
29
"Specified Change of Control": either (a) a "Change of Control" as
---------------------------
defined in the DM Agreement or the Senior 10% Note Indenture or (b) a
"Fundamental Change" as defined in the Convertible Indenture.
"Specified Corporate Transactions": the collective reference to (a)
--------------------------------
the merger of GNB and all of its domestic subsidiaries with and into the
Company, with the Company being the surviving corporation of such merger,
to be consummated concurrently with the consummation of the GNB Acquisition
and (b) the merger of all existing Domestic Subsidiaries of the Company
(other than the Excluded Subsidiaries) with and into the Company, with the
Company being the surviving corporation of such merger, to be consummated
on or before the Restatement Effective Date.
"Spot Rate of Exchange": with respect to any Optional Currency, at
---------------------
any date of determination thereof, the spot rate of exchange in London that
appears on the display page applicable to such Optional Currency on the
Telerate System Incorporated Service (or such other page as may replace
such page on such service for the purpose of displaying the spot rate of
exchange in London) for the conversion of such Optional Currency into
Dollars; provided that if there shall at any time no longer exist such a
--------
page on such service, the spot rate of exchange shall be determined by
reference to another similar rate publishing service selected by the
Administrative Agent and if no such similar rate publishing service is
available by reference to the published rate of the Administrative Agent in
effect at such date for similar commercial transactions.
"Standard Securitization Undertakings": representations, warranties,
------------------------------------
covenants and indemnities entered into by the Company or any of its
Subsidiaries in connection with the Domestic Receivables Facility or the
European Receivables Facility which are reasonably customary in an accounts
receivable transaction.
"Subsequent Participant": any member state of EMU that adopts the
----------------------
euro as its lawful currency after January 1, 1999.
"Subsidiary": as to any Person, a corporation, partnership, limited
----------
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Guarantor" or "Subsidiary Guarantors": the individual or
-------------------- ---------------------
collective reference to the Foreign Subsidiary Guarantors.
"Swing Line Approval Limit": with respect to each Swing Line Lender
-------------------------
providing Swing Line Loans in Optional Currencies or in Dollars, the amount
set forth below opposite the name of such Lender.
30
Swing Line Lender Amount
----------------- ------
Credit Suisse First Boston (EURO)36,580,000
First Union National Bank $15,000,000
provided that, in the case of First Union National Bank, such Swing Line
--------
Approval Limit shall not be increased without the approval of First Union
National Bank.
"Swing Line Commitment": the obligation of the Swing Line Lenders to
---------------------
make Swing Line Loans pursuant to Section 2.6 in an aggregate principal
amount at any one time outstanding not to exceed (a) in the case of Swing
Line Loans made to the Company, $15,000,000 and (b) in the case of Swing
Line Loans made to the Borrowing Subsidiaries, an aggregate amount in
Dollars, euro and/or Pounds of which the Euro Equivalent is (EURO)
36,580,000.
"Swing Line Lender": with respect to (a) Swing Line Loans to be made
-----------------
to the Company in Dollars, First Union National Bank (acting in its
capacity as a lender of Swing Line Loans) and (b) Swing Line Loans to be
made to the Borrowing Subsidiaries in any Optional Currency, the Lender
(acting in its capacity as a lender of Swing Line Loans) set forth below
opposite such Optional Currency:
Currency Swing Line Lender
-------- -----------------
Francs Societe Generale
Banque Nationale de ▇▇▇▇▇
▇▇▇▇▇ BHF Bank
Pounds Bank of Scotland
Pesetas Banque Nationale de Paris
Euro Credit Suisse First Boston
; provided that, (x) no Swing Line Lender shall make Swing Line Loans in
--------
any currency other than the Optional Currency set forth above opposite its
name and Dollars and (y) with the consent of the Administrative Agent, the
Company may from time to time remove any of the foregoing Swing Line
Lenders (or any successor thereto) as a "Swing Line Lender" and substitute
therefor any other Lender who agrees (in its sole discretion) to serve in
such capacity with respect to the relevant currency.
"Swing Line Loans": as defined in Section 2.6.
----------------
"Swing Line Maximum": at any date, with respect to each Swing Line
------------------
Lender making Swing Line Loans in an Optional Currency, or, in the case of
First Union National Bank, in Dollars, the amount set forth below opposite
the name of such Swing Line Lender (as such amount may be have been
adjusted through such date in accordance with the provisions of Section
2.8):
Swing Line Lender Amount
----------------- ------
31
Societe Generale (EURO)6,090,000
Bank Nationale de Paris (EURO)12,190,000
Bank of Scotland (EURO)4,570,000
First Union National Bank (EURO)$15,000,000
Credit Suisse First Boston (EURO)3,040,000
BHF Bank (EURO)10,670,000
"Swing Line Participation Amount": as defined in Section 2.8.
-------------------------------
"Target Operating Day": any day that is not (a) a Saturday or Sunday,
--------------------
(b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any
successor settlement system) is not operating (as determined by the
Administrative Agent).
"Term Loan Lender" or "Term Loan Lenders": the individual or
---------------- -----------------
collective reference to the Tranche A Term Loan Lenders and the Tranche B
Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term Loans
----------
and the Tranche B Term Loans.
"Total Revolving Credit Commitments": at any time, the aggregate
----------------------------------
amount of the Revolving Credit Commitments at such time.
"Total Revolving Extensions of Credit": at any time, the aggregate
------------------------------------
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders at such time.
"Tranche A Term Loan": as defined in Section 2.1.
-------------------
"Tranche A Term Loan Lender": each Lender which has made a Tranche A
--------------------------
Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
------------------------------
Lender at any time, the percentage which the aggregate principal amount of
such Lender's Tranche A Term Loans then outstanding constitutes of the
aggregate principal amount of the Tranche A Term Loans then outstanding.
"Tranche B Term Loan": as defined in Section 2.1.
-------------------
"Tranche B Term Loan Lender": each Lender which has an Additional
--------------------------
Tranche B Term Loan Commitment or has made a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Lender at any time, the
------------------------------
percentage which the aggregate principal amount of such Lender's Tranche B
Term Loans then outstanding constitutes of the aggregate principal amount
of the Tranche B Term Loans then outstanding.
32
"Tranche B Term Loan Supplement": the amendment to this Agreement
------------------------------
executed and delivered pursuant to Section 12.9(b).
"Transferee": as defined in Section 12.18.
----------
"Treaty on European Union": the Treaty of Rome of March 25, 1957, as
------------------------
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which
was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time."
"Type": as to any Loan, its nature as a Base Rate Loan or a
----
Eurocurrency Loan.
"UK Mortgage Amendments": any amendments or other modifications of the
----------------------
UK Mortgages determined by the Administrative Agent to be required to
reflect the amendment and restatement of the Existing Credit Agreement
effected hereby.
"UK Mortgages": each of (i) the Deed of Mortgage made by Big
------------
Batteries Limited in favor of the Administrative Agent for the benefit of
the Lenders with respect to the real property located in Cwmbran, Wales and
(ii) the Deed of Mortgage made by CMP Batteries Limited in favor of the
Administrative Agent for the benefit of the Lenders with respect to the
real property located in Hulton, England, and as each of the same may be
further amended, supplemented, restated, replaced or otherwise modified
from time to time.
"Uniform Customs": the Uniform Customs and Practice for Documentary
---------------
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
-----------------------
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries; provided, however, that each of the Foreign
-------- -------
Subsidiaries of the Company set forth in Schedule 1.1G shall be deemed to
be a "Wholly Owned Subsidiary" to the extent that the Company owns
beneficially at least the percentage of such Foreign Subsidiary set forth
opposite such Foreign Subsidiary's name on Schedule 1.1G.
1.2. Other Definitional Provisions. (a) Unless otherwise specified
----------------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
33
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOANS AND COMMITMENTS
2.1. Term Loans; Term Loan Commitments. (a) Pursuant to the Existing
--------------------------------------
Credit Agreement, the Tranche A Term Loan Lenders made term loans (the "Tranche
-------
A Term Loans") to the Borrowing Subsidiaries listed on Schedule 2.1(a). Schedule
------------
2.1(a) sets forth the name of each Borrowing Subsidiary to which a Tranche A
Term Loan was made and is outstanding on the date of this Agreement, and the
principal amount of the Tranche A Term Loans owing by each such Borrowing
Subsidiary on the date of this Agreement. From and after the Restatement
Effective Date, such Loans shall be outstanding under this Agreement and shall
be governed by the terms hereof.
(b) Pursuant to the Existing Credit Agreement, the Tranche B Term
Loan Lenders that were parties to the Existing Credit Agreement prior to the
Restatement Effective Date made term loans (the "Existing Tranche B Term
-----------------------
Loans") to the Borrowers listed on Schedule 2.1(b). Schedule 2.1(b) sets forth
the name of each Borrower to which Existing Tranche B Term Loans were made and
are outstanding on the date hereof, and the aggregate principal amount of the
Existing Tranche B Term Loans owing by each such Borrower on the date of this
Agreement. From and after the Restatement Effective Date, such Loans shall be
outstanding under this Agreement and shall be governed by the terms hereof.
(c) Subject to the terms and conditions hereof and of the Tranche B
Term Loan Supplement, each Tranche B Term Loan Lender, by becoming a party to
the Tranche B Term Loan Supplement, severally agrees to make a term loan (an
"Additional Tranche B Term Loan"; together with the Existing Tranche B Term
-------------------------------
Loans, the "Tranche B Term Loans") to the Company on the Restatement Effective
--------------------
Date in a principal amount not to exceed the amount of the Additional Tranche B
Term Loan Commitment of such Lender. The Additional Tranche B Term Loan made by
each such Tranche B Term Loan Lender shall be denominated in either Dollars or
euro, as set forth for each such Lender in the Tranche B Term Loan Supplement.
(d) The Term Loans may from time to time be Eurocurrency Loans or
Base Rate Loans, as determined by the relevant Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 3.6 and, to the extent
permitted pursuant to the definition of such term, Foreign Alternate Rate Loans.
2.2. Procedure for Borrowing of Additional Tranche B Term Loans. The
---------------------------------------------------------------
Company shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 10:00 A.M., New York City
time, (a) three Business Days prior to the date designated by the Company to be
the Restatement Effective Date, in the case of Eurocurrency Loans, or (b) one
Business Day prior to the date designated by the Company to be the Restatement
Effective Date, in the case of Base Rate Loans) requesting that the Additional
Tranche B Term Loan Lenders make the Additional Tranche B Term Loans to be made
by them on the Restatement Effective Date and specifying the amount to be
borrowed. Upon receipt of such notice the Administrative Agent shall promptly
notify each Tranche B Term Loan Lender thereof. Not later than 12:00 Noon, New
York City time, on the Restatement Effective Date each Tranche B Term Loan
Lender having an Additional Tranche B Term Loan Commitment shall make available
34
to the Administrative Agent at the Funding Office an amount in immediately
available funds equal to the Additional Tranche B Term Loan to be made by such
Lender on the Restatement Effective Date. The Administrative Agent shall make
available to the Company the aggregate of the amounts made available to the
Administrative Agent by the Tranche B Term Loan Lenders in immediately available
funds.
2.3. Repayment of Term Loans. (a) The Tranche A Term Loan of each
----------------------------
Tranche A Term Loan Lender shall mature in 24 consecutive quarterly installments
(other than with respect to the last installment, which shall be due on December
18, 2003), commencing on March 31, 1998, each of which shall be in an aggregate
amount equal to such Lender's Tranche A Term Loan Percentage of the amount equal
to (i) the Dollar Equivalent of the initial aggregate principal amount of the
Tranche A Term Loan of such Lender times (ii) the percentage set forth below
opposite the date upon which such installment is due:
Installment Percentage
----------- ----------
March 31, 1998 1.50%
June 30, 1998 1.50%
September 30, 1998 3.50%
December 31, 1998 3.50%
March 31, 1999 2.00%
June 30, 1999 2.00%
September 30, 1999 4.66%
December 31, 1999 4.66%
March 31, 2000 2.50%
June 30, 2000 2.50%
September 30, 2000 5.83%
December 31, 2000 5.83%
March 31, 2001 2.75%
June 30, 2001 2.75%
September 30, 2001 6.42%
December 31, 2001 6.42%
March 31, 2002 2.75%
June 30, 2002 2.75%
September 30, 2002 6.42%
December 31, 2002 6.42%
March 31, 2003 3.50%
June 30, 2003 3.50%
September 30, 2003 8.17%
December 18, 2003 8.17%
Notwithstanding anything to the contrary contained herein, amounts due pursuant
to this Section 2.3(a) need not be applied to repay the Tranche A Term Loans
owing in any particular currencies but rather shall be applied against any such
amounts owing in any such currencies as the Company shall elect. Any
outstanding Tranche A Term Loans shall be due and payable on December 18, 2003.
35
(b) The Tranche B Term Loan of each Tranche B Term Loan Lender shall
mature in 29 consecutive quarterly installments (other than with respect to the
last installment, which shall be due on March 18, 2005), commencing on March 31,
1998, each of which shall be in an amount equal to such Lender's Tranche B Term
Loan Percentage of the amount equal to (i) the Dollar Equivalent of the initial
aggregate principal amount of the Tranche B Term Loans of such Lender times (ii)
the percentage set forth below opposite the date upon which such installment is
due:
Installment Percentage
----------- ----------
March 31, 1998 .15%
June 30, 1998 .15%
September 30, 1998 .35%
December 31, 1998 .35%
March 31, 1999 .15%
June 30, 1999 .15%
September 30, 1999 .35%
December 31, 1999 .35%
March 31, 2000 .15%
June 30, 2000 .15%
September 30, 2000 .35%
December 31, 2000 .35%
March 31, 2001 .15%
June 30, 2001 .15%
September 30, 2001 .35%
December 31, 2001 .35%
March 31, 2002 .15%
June 30, 2002 .15%
September 30, 2002 .35%
December 31, 2002 .35%
March 31, 2003 .15%
June 30, 2003 .15%
September 30, 2003 .35%
December 31, 2003 .35%
March 31, 2004 6.6%
June 30, 2004 6.6%
September 30, 2004 15.4%
December 31, 2004 15.4%
March 18, 2005 50%
Notwithstanding the foregoing, the payment percentages indicated above for each
installment payment date prior to the Restatement Effective Date shall apply
only to the Existing Tranche B Term Loans; accordingly, the percentage scheduled
to be due on March 18, 2005 in respect of the Additional Tranche B Term Loans
shall be a percentage equal to the sum of (i) 50% and (ii) the sum of the
percentages set forth above for all dates prior to the Restatement Effective
Date. In any event, any principal amount outstanding in respect of the Tranche
B Term Loans on March 18, 2005 shall be due and payable on March 18, 2005.
36
2.4. Revolving Credit Commitments. (a) Subject to the terms and
---------------------------------
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans in Dollars and in the Optional Currencies ("Revolving
---------
Credit Loans") to each of the Borrowers from time to time during the Revolving
------------
Credit Commitment Period in an aggregate principal amount at any one time
outstanding the Dollar Equivalent of which, when added to such Lender's
Revolving Credit Percentage of the sum of the Dollar Equivalent of (i) the L/C
Obligations then outstanding and (ii) the aggregate principal amount of the
Swing Line Loans then outstanding, does not exceed the amount of such Lender's
Revolving Credit Commitment; provided, that:
--------
(i) no Borrower shall request and no Revolving Credit Lender
shall have any obligation to make any Revolving Credit Loan in any Optional
Currency to the extent that after giving effect to the making of such
Revolving Credit Loan, (A) the Dollar Equivalent of the Total Revolving
Extensions of Credit denominated in such Optional Currency would exceed the
Currency Maximum with respect to such Optional Currency or (B) the Dollar
Equivalent of the Total Revolving Extensions of Credit denominated in all
Optional Currencies would exceed $200,000,000; and
(ii) no Borrowing Subsidiary shall request and no Revolving
Credit Lender shall have any obligation to make any Revolving Credit Loan
to the extent that after giving effect to the making of such Revolving
Credit Loan, the Dollar Equivalent of the Total Revolving Extensions of
Credit with respect to such Borrowing Subsidiary would exceed such
Borrowing Subsidiary's Designated Maximum; and
(iii) SEA ▇▇▇▇▇ ▇.▇. shall be permitted to borrow only Swing Line
Loans which are denominated in Pesetas or euro (and any Revolving Credit
Loans necessary to refund such Swing Line Loans in accordance with the
provisions of Section 2.7).
During the Revolving Credit Commitment Period each of the Borrowers may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) Each of the Borrowers shall repay all outstanding Revolving
Credit Loans made to it on the Revolving Credit Termination Date.
(c) All Revolving Credit Loans (as defined in the Existing Credit
Agreement) made under the Existing Credit Agreement and outstanding on the
Restatement Effective Date shall constitute Revolving Credit Loans hereunder
from and after the Restatement Effective Date.
2.5. Procedure for Revolving Credit Borrowing. (a) Each of the
---------------------------------------------
Borrowers may borrow under the Revolving Credit Commitments during the Revolving
Credit Commitment Period on any Business Day, provided that the relevant
--------
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, in the case of borrowings by the Company, and 12:00 Noon, London time, in
the case of borrowings by any Borrowing Subsidiary, in each case (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurocurrency
Loans or Foreign Alternate Base Rate Loans, or (b) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans), specifying (i) the
amount and Type of Revolving Credit Loans to be borrowed, (ii) the requested
Borrowing Date, (iii) the currency in which such Revolving Credit Loans are to
be made
37
and (iv) in the case of Eurocurrency Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor.
Each borrowing under the Revolving Credit Commitments shall be in an amount
equal to the Dollar Equivalent of $5,000,000 or a whole multiple of $1,000,000
in excess thereof (or, if such borrowing is to be made in any Optional Currency,
an amount in such Optional Currency approximately equal to such amount);
provided, that the Swing Line Lender may request, on behalf of the relevant
--------
Borrower, borrowings under the Revolving Credit Commitments which are Base Rate
Loans (in the case of Loans denominated in Dollars) or Eurocurrency Loans (in
the case of Loans denominated in any Optional Currency) in other amounts
pursuant to Section 2.6. Upon receipt of any such notice from a Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Each Revolving Credit Lender will make the amount of its pro rata share of each
--- ----
borrowing available to the Administrative Agent for the account of the
Company at the Funding Office prior to 12:00 Noon, New York City time, in the
case of borrowings by the Company, and 12:00 Noon, London time, in the case of
borrowings by any Borrowing Subsidiary, in each case, on the Borrowing Date
requested by the relevant Borrower in funds immediately available to the
Administrative Agent. The Administrative Agent shall make available to the
relevant Borrower the aggregate of the amounts for such Borrower made available
to the Administrative Agent by the Revolving Credit Lenders in immediately
available funds.
2.6. Swing Line Commitment. (a) Subject to the terms and conditions
---------------------------
hereof, the Swing Line Lenders agree to make a portion of the credit otherwise
available to the Borrowers under the Revolving Credit Commitments from time to
time during the Revolving Credit Commitment Period by making swing line loans in
Dollars or any Optional Currency ("Swing Line Loans") to the Borrowers; provided
---------------- --------
that (i) the aggregate principal amount of Swing Line Loans outstanding to the
Company or the Borrowing Subsidiaries at any time shall not exceed the relevant
Swing Line Commitment then in effect and the aggregate principal amount of Swing
Line Loans outstanding made by First Union National Bank to the Company shall
not exceed the Swing Line Approval Limit and Swing Line Maximum then in effect
for First Union National Bank (ii) none of the Borrowers shall request, and none
of the Swing Line Lenders shall make, any Swing Line Loan in any Optional
Currency if, after giving effect to the making of such Swing Line Loan, the
aggregate amount of the Total Revolving Extensions of Credit denominated in such
Optional Currency would exceed the Currency Maximum with respect to such
Optional Currency, (iii) none of the Borrowers shall request, and none of the
Swing Line Lenders shall make, any Swing Line Loan in Pesetas if, after giving
effect to the making of such Swing Line Loan, the aggregate amount of Swing Line
Loans denominated in Pesetas would exceed the Euro Equivalent of 14,600,000 and
(iv) none of the Borrowing Subsidiaries shall request, and none of the Swing
Line Lenders shall make, any Swing Line Loan if, after giving effect to the
making of such Swing Line Loan, (A) the aggregate amount of the Available
Revolving Credit Commitments would be less than zero, (B) the Total Revolving
Extensions of Credit with respect to such Borrowing Subsidiary would exceed such
Borrowing Subsidiary's Designated Maximum or (C) the aggregate amount of Swing
Line Loans made by such Swing Line Lender shall exceed the Swing Line Maximum
applicable to such Swing Line Lender. During the Revolving Credit Commitment
Period, the Borrowers may use the Swing Line Commitment by borrowing, repaying
and reborrowing, all in accordance with the terms and conditions hereof. Swing
Line Loans denominated in Dollars shall be Base Rate Loans and Swing Line Loans
denominated in any Optional Currency shall be Foreign Alternate Rate Loans.
(b) The relevant Borrower or Borrowers shall repay all outstanding
Swing Line Loans on the Revolving Credit Termination Date.
38
(c) Any Swing Line Loans (as defined in the Existing Credit
Agreement) made under the Existing Credit Agreement and outstanding on the
Restatement Effective Date shall constitute Swing Line Loans hereunder from and
after the Restatement Effective Date.
2.7. Procedure for Swing Line Borrowing; Refunding of Swing Line
----------------------------------------------------------------
Loans. (a) Whenever the Company desires that the relevant Swing Line Lender
-----
make Swing Line Loans to it, the Company shall give such Swing Line Lender
irrevocable telephonic notice (which telephonic notice must be received by such
Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date) confirmed promptly in writing (with a copy to the Administrative
Agent), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Credit
Commitment Period); provided, that the presentation by any third party of any
check or draft drawn on the account of the Company or any other borrowing by way
of overdraft being deemed to constitute a notice of borrowing of Swing Line
Loans by the Company in the amount of such check, draft or other borrowing, to
the extent that insufficient funds are then available for the payment thereof in
the account of the Company with the relevant Swing Line Lender and so long as
the amount and currency with respect to such deemed notice of borrowing are in
compliance with the terms of this Agreement. Each borrowing by the Company under
the Swing Line Commitment shall be in an amount equal to $500,000 or a whole
multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New York City
time, on the requested Borrowing Date, such Swing Line Lender shall make
available to the Company, in immediately available funds, the proceeds of such
requested Swing Line Loan.
(b) Whenever a Borrowing Subsidiary desires that a Swing Line Lender
make Swing Line Loans to it, such Borrowing Subsidiary shall give to such Swing
Line Lender irrevocable telephonic notice (which telephonic notice must be
received by such Swing Line Lender not later than 10:00 A.M., London time (or
such other time as the Administrative Agent and the Swing Line Lender may
consent), on the proposed Borrowing Date) confirmed promptly in writing (with a
copy to the Administrative Agent), specifying (i) the amount and currency to be
borrowed, (ii) the requested Borrowing Date (which shall be a Business Day
during the Revolving Credit Commitment Period) and (iii) any other information
requested by the Swing Line Lender in accordance with its particular borrowing
procedures; provided, that the presentation by any third party of any check or
--------
draft drawn on the account of a Borrowing Subsidiary or any other borrowing by
way of overdraft being deemed to constitute a notice of borrowing of Swing Line
Loans by such Borrowing Subsidiary in the amount of such check, draft or other
borrowing, to the extent that insufficient funds are then available for the
payment thereof in the account of such Borrowing Subsidiary with the relevant
Swing Line Lender and so long as the amount and currency with respect to such
deemed notice of borrowing are in compliance with the terms of this Agreement.
Each borrowing under the Swing Line Commitment by a Borrowing Subsidiary shall
be in the amount equal to the Dollar Equivalent of $500,000 or a whole multiple
of $100,000 in excess thereof (or, if such borrowing is to be made in any
Optional Currency, an amount in such Optional Currency approximately equal to
such amount). Not later than 3:00 P.M., London time, on the requested Borrowing
Date, such Swing Line Lender shall make available to the relevant Borrowing
Subsidiary, in immediately available funds, the proceeds of such requested Swing
Line Loan.
(c) Each Swing Line Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the relevant Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), on (x)
one Business Day's notice in the case of Swing Line Loans made to the Company in
Dollars or (y) three Business Days' notice, otherwise, given by the
39
Swing Line Lender through the Administrative Agent no later than 12:00 Noon, New
York City time, in the case of borrowings by the Company, and 12:00 Noon, London
time, in the case of borrowings by any Borrowing Subsidiary, request each
Revolving Credit Lender to make, and each Revolving Credit Lender hereby agrees
to make, a Revolving Credit Loan, in an amount equal to such Revolving Credit
Lender's Revolving Credit Percentage of the aggregate amount of the outstanding
Swing Line Loans (the "Refunded Swing Line Loans") with respect to which such
-------------------------
notice has been given, to repay the requesting Swing Line Lender. Each Revolving
Credit Lender shall make the amount of such Revolving Credit Loan available to
the Administrative Agent at the Funding Office in immediately available funds,
not later than 1:00 P.M., New York City time, in the case of borrowings by the
Company, and 1:00 P.M., London time, in the case of borrowings by any Borrowing
Subsidiary, in each case, one Business Day (or three Business Days, as the case
may be) after the date of such notice. The proceeds of such Revolving Credit
Loans shall be immediately applied by the Swing Line Lender to repay the
Refunded Swing Line Loans. The relevant Borrower irrevocably authorizes the
Administrative Agent to charge such Borrower's accounts with the Administrative
Agent (up to the amount available in each such account) in order to immediately
pay the amount of such Refunded Swing Line Loans to the extent amounts received
from the Revolving Credit Lenders are not sufficient to repay in full such
Refunded Swing Line Loans.
(d) If prior to the time a Revolving Credit Loan would have otherwise
been made pursuant to Section 2.7(c), one of the events described in Section
9(f) shall have occurred and be continuing with respect to the Company or the
relevant Borrowing Subsidiary or if for any other reason, as determined by the
Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made
as contemplated by Section 2.7(c), each Revolving Credit Lender shall, on the
date such Revolving Credit Loan was to have been made pursuant to the notice
referred to in Section 2.7(c) (the "Refunding Date"), purchase for cash an
--------------
undivided participating interest in an amount equal to (i) its Revolving Credit
Percentage times (ii) the aggregate principal amount of Swing Line Loans then
-----
outstanding which were to have been repaid with such Revolving Credit Loans (the
"Swing Line Participation Amount").
-------------------------------
(e) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Lender's Swing Line Participation Amount,
the Swing Line Lender receives any payment on account of the Swing Line Loans,
the Swing Line Lender will distribute to the Administrative Agent for
distribution to such Lender its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's participating interest was outstanding and funded and, in
the case of principal and interest payments, to reflect such Lender's pro rata
--- ----
portion of such payment if such payment is not sufficient to pay the principal
of and interest on all Swing Line Loans then due); provided, however, that in
-------- -------
the event that such payment received by the Swing Line Lender is required to be
returned, such Revolving Credit Lender will return to the Administrative Agent
for distribution to the Swing Line Lender any portion thereof previously
distributed to it by the Swing Line Lender.
(f) Each Borrower hereby irrevocably and unconditionally authorizes
the Swing Line Lender to convert into Dollars (at the actual exchange rate then
available to it) all amounts then owing to it on account of any Swing Line Loan
which is denominated in Pesetas. Such Swing Line Lender and each Revolving
Credit Lender hereby irrevocably and unconditionally agrees that (i) no
Revolving Credit Lender shall have any obligation to make any Loans or purchase
any participating interests contemplated by Section 2.7(d) or (e) on account of
such Peseta-denominated Swing Line Loan until such time as such Swing Line
Lender has effected the conversion described
40
above and provided written notice to the Administrative Agent (which shall
promptly forward such notice to the Revolving Credit Lenders) of the amount of
Dollars owing to it as a result of such conversion and (ii) from and after the
date upon which such conversion is effected, the obligations of the Revolving
Credit Lenders under Sections 2.7(d) and (e) shall be satisfied only by the
payment to such Swing Line Lender of such Revolving Credit Lender's Revolving
Credit Percentage of the amount of Dollars so notified to the Administrative
Agent.
(g) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.7(c) and to purchase participating interests pursuant
to Section 2.7(d) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender, the Company or the relevant Borrowing Subsidiary may have against the
Swing Line Lender, the Company, the relevant Borrowing Subsidiary or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 6; (iii) any adverse change in the condition
(financial or otherwise) of the Company or the relevant Borrowing Subsidiary;
(iv) any breach of this Agreement or any other Loan Document by the Company, any
other Loan Party or any other Revolving Credit Lender; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(h) Notwithstanding anything to the contrary contained herein, no
Revolving Credit Lender shall be required to make a Revolving Credit Loan
pursuant to Section 2.7(c) or acquire a participation pursuant to Section 2.7(d)
in a Swing Line Loan if an Event of Default shall have occurred and be
continuing at the time such Swing Line Loan was made and such Revolving Credit
Lender shall have notified the relevant Swing Line Lender and the Administrative
Agent in writing, at least one Business Day prior to the time such Swing Line
Loan was made, that such Event of Default has occurred and that such Revolving
Credit Lender will not acquire participations in Swing Line Loans made while
such Event of Default is continuing.
2.8. Reallocation of Swing Line Maximums. (a) The Company (on its
----------------------------------------
own behalf and as agent of the Borrowing Subsidiaries) may from time to time
(but, unless the Administrative Agent shall otherwise agree, not more frequently
than one time per calendar month) request that the amount of any one or more
Swing Line Maximums be increased and/or the amount of any one or more Swing Line
Maximums be decreased by delivering a written request for such re-allocation to
the Administrative Agent. Each such request shall specify the Euro Equivalent
amount of the increase or decrease, as the case may be, applicable to each
affected Swing Line Lender. The Administrative Agent shall deliver to each
affected Swing Line Lender a copy of such request promptly following receipt
thereof.
(b) Unless the revised Swing Line Maximum of any Swing Line Lender
will, after giving effect to the requested re-allocation of Swing Line Maximums,
be in excess of the Swing Line Approval Limit then in effect for such Swing Line
Lender, then the Swing Line Maximums shall be deemed to be so re-allocated and
the definition of the term "Swing Line Maximum" contained in Section 1.1 hereof
shall be deemed to be amended to reflect such re-allocation; provided that (i)
--------
no Swing Line Lender shall lend more than its Swing Line Maximum (as in effect
prior to the effectiveness of such re-allocation) until such Swing Line Lender
has received notice from the Administrative Agent of the effectiveness of such
re-allocation (which notice the Administrative Agent agrees to deliver promptly
upon such effectiveness), (ii) after giving effect to
41
such re-allocation, the aggregate amount of Swing Line Maximums shall not exceed
the Swing Line Commitment then in effect, (iii) the Dollar Equivalent of the sum
of (a) the aggregate principal amount of all Revolving Credit Loans then
outstanding, (b) the aggregate amount of all L/C Obligations then outstanding
and (c) the sum of all Swing Line Maximums then in effect, would exceed the
aggregate amount of Revolving Credit Commitments then in effect and (iv) SEA
▇▇▇▇▇ ▇.▇. shall be permitted to borrow only Swing Line Loans which are
denominated in Pesetas and euro (and any Revolving Credit Loans necessary to
refund such Swing Line Loans in accordance with the provisions of Section 2.7).
SECTION 3. PROVISIONS RELATING TO EXTENSIONS OF CREDIT;
FEES AND PAYMENT
3.1. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
-----------------------------------------
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be,
(i) the then unpaid principal amount of each Revolving Credit Loan made to it by
such Revolving Credit Lender on the Revolving Credit Termination Date (or such
earlier date on which the Loans become due and payable pursuant to Section 9),
(ii) the then unpaid principal amount of each Swing Line Loan made to it by such
Swing Line Lender on the Revolving Credit Termination Date (or such earlier date
on which the Loans become due and payable pursuant to Section 9), (iii) the
principal amount of each Tranche A Term Loan made to it by such Term Loan Lender
in installments according to the amortization schedule set forth in Section 2.3
(or on such earlier date on which the Loans become due and payable pursuant to
Section 9) and (iv) the principal amount of each Tranche B Term Loan made to it
by such Term Loan Lender in installments according to the amortization schedule
set forth in Section 2.3 (or on such earlier date on which the Loans become due
and payable pursuant to Section 9). Each Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans made to it from time to
time outstanding from the date hereof until payment in full thereof at the rates
per annum, and on the dates, set forth in Section 3.8.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrowers, shall
maintain the Register pursuant to Section 12.6(e), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder
and (iii) both the amount of any sum received by the Administrative Agent
hereunder from each Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 3.1(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrowers therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the relevant
42
Borrower to repay (with applicable interest) the Loans made to such Borrower by
such Lender in accordance with the terms of this Agreement.
(e) The relevant Borrower agrees that, upon the request to the
Administrative Agent by any Lender, such Borrower will execute and deliver to
such Lender a promissory note of such Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit F-1, F-2, F-3 or F-4, respectively, as
applicable, with appropriate insertions as to date and principal amount.
3.2. Facility Fees, Commitment Fees, Prepayment Fees, etc. (a) The
----------------------------------------------------------
Company agrees to pay to the Administrative Agent for the account of each
Revolving Credit Lender a facility fee for the period from and including the
Restatement Effective Date to the last day of the Revolving Credit Commitment
Period, computed at the Facility Fee Rate on the amount of the Revolving Credit
Commitment of such Lender during the period for which payment is made, payable
quarterly in arrears on the third Business Day of each January, April, July and
October for the period ending on (and including) the last day of the immediately
preceding December, March, June or September, respectively, and on the Revolving
Credit Termination Date. Facility fees accrued and unpaid on the Restatement
Effective Date pursuant to Section 3.2 of the Existing Credit Agreement shall
from and after the Restatement Effective Date be payable pursuant to this
Section 3.2.
(b) The Company agrees to pay to the Joint Lead Arrangers, the Book
Manager, the Syndication Agent, the Documentation Agent, if any, and the
Administrative Agent the fees in the amounts and on the dates previously agreed
to in writing by the Company, the Joint Lead Arrangers, the Book Manager, the
Syndication Agent, the Documentation Agent, if any, and the Administrative
Agent.
(c) The Company agrees to pay to the Administrative Agent the
administrative agent fees in the amounts and on the dates from time to time
agreed to in writing by the Company and the Administrative Agent.
(d) The Company shall pay to the Administrative Agent on the
Restatement Effective Date, for the account of each Lender party to the Existing
Credit Agreement on the Restatement Effective Date, an amendment fee equal to
.25% of the Aggregate Exposure of such Lender under the Existing Credit
Agreement on the Restatement Effective Date.
(e) Each optional or mandatory prepayment in respect of the Tranche B
Term Loans made to the Tranche B Term Loan Lenders on or prior to the third
anniversary of the Closing Date shall be accompanied by a prepayment fee equal
to (i) if such prepayment is made prior to the first anniversary of the Closing
Date, 3% of the principal amount of such prepayment, (ii) if such prepayment is
made on or after the first anniversary of the Closing Date and prior to the
second anniversary of the Closing Date, 2% of the principal amount of such
prepayment and (iii) if such prepayment is made on or after the second
anniversary of the Closing Date and on or prior to the third anniversary of the
Closing Date, 1% of the principal amount of such prepayment; provided, that no
--------
such prepayment fee shall be payable in connection with prepayments made (A)
pursuant to Section 3.5(c), (B) pursuant to Section 3.5(b) in respect of an
Asset Sale of any assets listed in Schedule 8.5 or described in Section 8.5(g),
or (C) pursuant to Section 3.5(a) in respect of Net Cash
43
Proceeds received by the Company from the exercise of any warrants issued to the
Tranche B Term Loan Lenders in connection with the Additional Tranche B Term
Loans.
3.3. Termination or Reduction of Revolving Credit Commitments. The
-------------------------------------------------------------
Company shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments; provided
--------
that no such termination or reduction of the Revolving Credit Commitments shall
be permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans and Swing Line Loans made on the effective date thereof,
the Total Revolving Extensions of Credit would exceed the Total Revolving Credit
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a
whole multiple thereof, and shall reduce permanently the Revolving Credit
Commitments then in effect.
3.4. Optional Prepayments. The relevant Borrower may at any time and
-------------------------
from time to time prepay the Loans made to it, in whole or in part, without
premium or penalty (except as provided in Section 3.2(e)), upon irrevocable
notice delivered to the Administrative Agent by 10:00 A.M., New York City time,
in the case of prepayments by the Company, and 10:00 A.M., London time, in the
case of prepayments by any Borrowing Subsidiary, in each case, at least three
Business Days prior thereto in the case of Foreign Alternate Rate Loans which
are not Swing Line Loans or Eurocurrency Loans and at least one Business Day
prior thereto in the case of Base Rate Loans (or, in the case of Swing Line
Loans, on the date of such prepayment), which notice shall specify the date and
amount of prepayment and whether the prepayment is of Eurocurrency Loans, Base
Rate Loans or Foreign Alternate Rate Loans; provided, that if a Eurocurrency
--------
Loan is prepaid on any day other than the last day of the Interest Period
applicable thereto, the relevant Borrower shall also pay any amounts owing
pursuant to Section 3.14. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Credit Loans
which are Base Rate Loans and Swing Line Loans) accrued interest to such date on
the amount prepaid. Partial prepayments of Term Loans and Revolving Credit Loans
shall be in an aggregate principal amount of the Dollar Equivalent of $1,000,000
or a whole multiple thereof and partial prepayments of Swing Line Loans shall be
in an aggregate principal amount of $100,000 or a whole multiple thereof (or, if
any such prepayment is to be made in any Optional Currency, an amount in such
Optional Currency approximately equal to such amount). Subject to Section
3.11(d), any optional prepayments of the Term Loans pursuant to this Section 3.4
shall be made ratably to the Tranche A Term Loans and the Tranche B Term Loans
according to the respective outstanding principal amounts thereof held by the
Term Loan Lenders with such amounts applied to reduce the then remaining
installments of the respective Term Loans pro rata based upon the then remaining
--- ----
principal amount thereof. Amounts prepaid on account of the Term Loans may not
be reborrowed. Subject to the foregoing, amounts prepaid pursuant to this
Section 3.4 need not be applied to prepay the Tranche A Term Loans owing in any
particular currencies but rather shall be applied against any such amounts owing
in any such currencies as the Company shall elect.
44
3.5. Mandatory Prepayments and Commitment Reductions. (a) Unless the
----------------------------------------------------
Required Prepayment Lenders shall otherwise agree, if any Capital Stock shall be
issued, or Indebtedness incurred, by the Company or any of its Subsidiaries, an
amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the
date of such issuance or incurrence toward the prepayment of the Term Loans and
the reduction of the Revolving Credit Commitments as set forth in Section
3.5(d); provided that no such prepayment or reduction shall be required with
--------
respect to (i) any Indebtedness incurred in accordance with Section 8.2 (other
than paragraph (q) thereof), (ii) Designated Equity Amounts, (iii) Capital Stock
issued in connection with the Company's stock plans or arrangements for
directors and employees of the Company and its Subsidiaries, (iv) Capital Stock
issued to the Company or any Wholly-Owned Subsidiary or (v) Capital Stock of the
Company issued to the Seller in connection with the GNB Acquisition.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if
on any date the Company or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof (or is not required pursuant to the
proviso in the definition of Reinvestment Notice in Section 1.1), such Net Cash
-------
Proceeds shall be applied on such date toward the prepayment of the Term Loans
and the reduction of the Revolving Credit Commitments as set forth in Section
3.5(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net
--------
Cash Proceeds of Asset Sales and Recovery Events that may be subject to the
exclusion from the foregoing requirement pursuant to a Reinvestment Notice (and
pursuant to the proviso in the definition of Reinvestment Notice in Section 1.1)
-------
shall not exceed (A) $20,000,000 at any one time or (B) $20,000,000 in the
aggregate with respect to all Asset Sales and Recovery Events occurring in any
fiscal year and (ii) on each Reinvestment Prepayment Date, an amount equal to
the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event shall be applied toward the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments as set forth in Section 3.5(d).
(c) Unless the Required Prepayment Lenders shall otherwise agree, if,
for any fiscal year of the Company, there shall be Excess Cash Flow, the Company
shall, on the relevant Excess Cash Flow Application Date, apply the ECF
Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and
the reduction of the Revolving Credit Commitments as set forth in Section
3.5(d). Each such prepayment and commitment reduction shall be made on a date
(an "Excess Cash Flow Application Date") no later than fifteen days after the
---------------------------------
earlier of (i) the date on which the financial statements of the Company
referred to in Section 7.1(a), for the fiscal year with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 3.5 shall be applied, first, to
-----
the prepayment of the Term Loans and, second, to reduce permanently the
------
Revolving Credit Commitments. Subject to Section 3.11(d), any such prepayments
of the Term Loans shall be applied to the Tranche A Term Loans and the Tranche B
Term Loans pro rata according to the respective outstanding principal amounts
--- ----
thereof held by the Term Loan Lenders with such amounts applied to reduce the
then remaining installments of the respective Term Loans pro rata based upon the
--- ----
then remaining principal amount thereof. Amounts prepaid on account of the Term
Loans may not be reborrowed. Any such reduction of the Revolving Credit
Commitments shall be accompanied by prepayment of the Revolving Credit Loans
and/or Swing Line Loans to the extent, if any, that the Total Revolving
Extensions of Credit exceed the amount of the Total Revolving Credit Commitments
as so reduced,
45
provided that if the aggregate principal amount of Revolving Credit Loans and
--------
Swing Line Loans then outstanding is less than the amount of such excess
(because L/C Obligations constitute a portion thereof), the Company shall or
shall cause the Borrowing Subsidiaries to, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in cash
in a cash collateral account established with the Administrative Agent for the
benefit of the Lenders under the relevant Facility on terms and conditions
satisfactory to the Administrative Agent. The application of any prepayment
pursuant to Section 3.5 shall be made first to Base Rate Loans and Foreign
Alternate Rate Loans, ratably based on the outstanding principal amounts
thereof, and second to Eurocurrency Loans. Each prepayment of the Loans under
Section 3.5 (except in the case of Revolving Credit Loans that are Base Rate
Loans and Swing Line Loans) shall be accompanied by accrued interest to the date
of such prepayment on the amount prepaid. Subject to the foregoing, amounts
prepaid pursuant to this Section 3.5 need not be applied to prepay the Tranche A
Term Loans owing in any particular currencies but rather shall be applied
against any such amounts owing in any such currencies as the Company shall
elect.
3.6. Conversion and Continuation Options. (a) Each Borrower may elect
----------------------------------------
from time to time to convert Eurocurrency Loans denominated in Dollars to Base
Rate Loans by giving the Administrative Agent irrevocable notice of such
election by 10:00 A.M., New York City time, in the case of Loans to the Company,
and by 10:00 A.M., London time, in the case of Loans to any Borrowing
Subsidiary, in each case at least one Business Day prior to such conversion,
provided that any such conversion of Eurocurrency Loans may only be made on the
--------
last day of an Interest Period with respect thereto. Each Borrower may elect
from time to time to convert Base Rate Loans or the Foreign Alternate Rate Loans
to Eurocurrency Loans by giving the Administrative Agent by 10:00 A.M., New York
City time, in the case of borrowings by the Company, and 10:00 A.M., London
time, in the case of borrowings by any Borrowing Subsidiary, in each case, at
least three Business Days' prior irrevocable notice of such election (which
notice shall specify the length of the initial Interest Period therefor),
provided that no Base Rate Loan under a particular Facility may be converted
--------
into a Eurocurrency Loan (i) when any Event of Default has occurred and is
continuing and the Administrative Agent or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurocurrency Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Borrower giving irrevocable notice of such election by 10:00 A.M., New
York City time, in the case of Loans to the Company, and by 10:00 A.M., London
time, in the case of Loans to any Borrowing Subsidiary, in each case at least
three Business Days prior to such continuation, of the length of the next
Interest Period to be applicable to such Loans, provided that no Eurocurrency
--------
Loan denominated in Dollars under a particular Facility may be continued as such
(i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided, further,
-------- -------
that if the relevant Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso any Eurocurrency Loans denominated in Dollars
shall be automatically converted to Base Rate Loans on the last day of such then
expiring Interest Period and any Eurocurrency Loan
46
denominated in any Optional Currency shall be continued as a Eurocurrency Loan
with an Interest Period of one month's duration. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant Lender thereof.
3.7. Minimum Amounts and Maximum Number of Eurocurrency Tranches.
----------------------------------------------------------------
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurocurrency Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, (a) after giving effect
thereto, the aggregate principal amount of the Eurocurrency Loans comprising
each Eurocurrency Tranche shall be equal to the Dollar Equivalent of $5,000,000
or a whole multiple of $1,000,000 in excess thereof (or, with respect to
Eurocurrency Loans made in any Optional Currency, an amount in such Optional
Currency approximately equal to such amount) and (b) no more than 25
Eurocurrency Tranches shall be outstanding at any one time.
3.8. Interest Rates and Payment Dates. (a) Each Eurocurrency Loan
-------------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
(c) Each Foreign Alternate Rate Loan shall bear interest at a rate
per annum equal to the Foreign Alternate Rate plus the Applicable Margin in
effect at such time with respect to Base Rate Loans.
(d) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
which is equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 3.8 plus
----
2%, (y) in the case of Reimbursement Obligations owing in Dollars, the rate
applicable to Base Rate Loans under the Revolving Credit Facility plus 2% and
----
(z) in the case of Reimbursement Obligations owing in Optional Currencies, the
rate applicable to Foreign Alternate Rate Loans under the Revolving Credit
Facility plus 2%, and (ii) if all or a portion of any interest payable on any
----
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate applicable to Base Rate Loans (or, in the case of
interest, fees or amounts owing on account of obligations denominated in
Optional Currencies, Foreign Alternate Rate Loans) under the relevant Facility
plus 2% (or, in the case of fees, reimbursements or any such other amounts that
----
do not relate to a particular Facility, the Base Rate plus 3.25%), in each case,
----
with respect to clauses (i) and (ii) above, from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (d) of this Section
--------
3.8 shall be payable from time to time on demand.
47
(f) For the purposes of Articles L313-1 to L313-6 of the French Code
de la Consommation, the parties hereto acknowledge that it is not possible to
calculate precisely the taux effectif global as the interest rate may vary
during the course of the Loans. However, by way of example, the taux effectif
global applicable on December 19, 1997 taking into account the fees, commissions
and expenses which are payable by the Borrowers and:
(i) in the case of a Eurocurrency Loan, assuming a base
interest rate of 3.664% per annum (being the Eurocurrency Rate (as at
December 19, 1997) for French Francs or, in the case of the Tranche B Term
Loans, Dollars with an Interest Period of three months), (A) in respect of
the Tranche A Term Loans would be 5.922% per annum and the taux de periode
would be 5.664% for a period of three months, (B) in respect of the Tranche
B Term Loans would be 6.174% per annum and the taux de periode would be
5.914% for a period of three months and (C) in respect of the Revolving
Credit Loans made to the Borrowing Subsidiaries (assuming that Revolving
Credit Facilities were fully drawn for the entire duration of the Revolving
Credit Commitment Period) would be 5.418% per annum and the taux de periode
would be 5.164% for a period of three months;
(ii) in the case of a Base Rate Loan, assuming a base interest
rate of 8.5% per annum (being the Base Rate (as at December 19, 1997) for
French Francs or, in the case of the Tranche B Term Loans, for a period of
three months), (A) in respect of the Tranche A Term Loans would be 9.48%
per annum and the taux de periode would be 9.25% for a period of three
months, (B) in respect of the Tranche B Term Loans would be 9.731% per
annum and the taux de periode would be 9.5% for a period of three months
and (C) in respect of the Revolving Credit Loans made to the Borrowing
Subsidiaries (assuming that Revolving Credit Facilities were fully drawn
for the entire duration of the Revolving Credit Commitment Period) would be
9.228% per annum and the taux de periode would be 9.0% for a period of
three months; and
(iii) in the case of a Foreign Alternate Rate Loan, assuming a
base interest rate of 3.664% per annum (being the Foreign Alternate Rate
for Credit Suisse First Boston (as at December 19, 1997) for French Francs
or, in the case of the Tranche B Term Loans, for a period of three months),
(A) in respect of the Tranche A Term Loans would be 4.915% per annum and
the taux de periode would be 4.664% for a period of three months, (B) in
respect of the Tranche B Term Loans would be 5.167% per annum and the taux
de periode would be 4.914% for a period of three months and (C) in respect
of the Revolving Credit Loans made to the Borrowing Subsidiaries (assuming
that Revolving Credit Facilities were fully drawn for the entire duration
of the Revolving Credit Commitment Period) would be 4.411% per annum and
the taux de periode would be 4.164% for a period of three months.
3.9. Computation of Interest and Fees. (a) Interest, fees and
-------------------------------------
commissions payable pursuant hereto shall be calculated on the basis of a 360-
day year for the actual days elapsed, except that, (i) with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, and any Loans or Letters of Credit denominated in Pounds, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed and (ii) with respect to Foreign Alternate
Rate Loans, the interest thereon shall be calculated in accordance with the
method customarily used for calculating interest on loans in the relevant
jurisdiction. The Administrative Agent shall as soon as practicable notify the
relevant Borrower and the relevant Lenders of each determination of a
Eurocurrency Rate. Any change in
48
the interest rate on a Loan resulting from a change in the Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the relevant Borrower and the relevant
Lenders of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the relevant Borrower and the Lenders in the absence of manifest
error. The Administrative Agent shall, at the request of the relevant Borrower,
deliver to such Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
3.8(a).
3.10. Inability to Determine Interest Rate. If prior to the first day
------------------------------------------
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon each of the Borrowers) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurocurrency Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
relevant Borrower and the relevant Lenders as soon as practicable thereafter.
If such notice is given (i) any Eurocurrency Loans denominated in Dollars under
the relevant Facility requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, (ii) any Eurocurrency Loans denominated
in any Optional Currency requested to be made on the first day of such Interest
Period shall be made as Foreign Alternate Rate Loans, (iii) any Loans under the
relevant Facility that were to have been converted on the first day of such
Interest Period to Eurocurrency Loans shall be continued as Base Rate Loans,
(iv) any outstanding Eurocurrency Loans denominated in Dollars under the
relevant Facility shall be converted, on the first day of such Interest Period,
to Base Rate Loans and (v) any outstanding Eurocurrency Loans denominated in any
Optional Currency shall be converted, on the first day of such Interest Period,
to Foreign Alternate Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans under the relevant Facility
shall be made or continued as such, nor shall any Borrower have the right to
convert Loans under the relevant Facility to Eurocurrency Loans.
3.11. Pro Rata Treatment and Payments. (a) Each borrowing by a
-------------------------------------
Borrower from the Lenders hereunder (other than in the case of Swing Line
Loans), each payment by a Borrower on account of any commitment or facility fee
and any reduction of the Commitments of the Lenders shall be made pro rata
--- ----
according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan
Percentages or Revolving Credit Percentages, as the case may be, of the relevant
Lenders.
49
(b) Subject to Section 3.4 and 3.5, each payment by a Borrower on
account of principal of and interest on the Term Loans under a particular
Facility shall be made pro rata according to the respective outstanding
--- ----
principal amounts of the Term Loans under such Facility then held by the Term
Loan Lenders (except as otherwise provided in Section 3.11(d)).
(c) Each payment (including each prepayment) by a Borrower on account
of principal of and interest on the Revolving Credit Loans shall be made pro
---
rata according to the respective outstanding principal amounts of the Revolving
----
Credit Loans then held by the Revolving Credit Lenders.
(d) Notwithstanding anything to the contrary in Sections 3.4, 3.5 or
3.11, so long as any Tranche A Term Loans are outstanding, each Tranche B Term
Loan Lender may, at its option, decline the portion of any optional prepayment
or mandatory payment applicable to the Tranche B Term Loans of such Lender;
accordingly, with respect to the amount of any optional prepayment described in
Section 3.4 or mandatory prepayment described in Section 3.5 that is allocated
to Tranche B Term Loans (such amounts, the "Tranche B Prepayment Amount"), at
---------------------------
any time when Tranche A Term Loans remain outstanding, the relevant Borrower
will, in lieu of applying such amount to the prepayment of Tranche B Term Loans
as provided in Section 3.4 (in the case of optional prepayments) or Section 3.5
(in the case of mandatory prepayments), on the date specified in Section 3.4 or
3.5, as the case may be, and so long as no Default or Event of Default shall
have occurred and is continuing, in the case of any mandatory prepayment
required to be made pursuant to Section 3.5, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Tranche B Term Loan Lender a
notice (each, a "Prepayment Option Notice") as described below. As promptly as
------------------------
practicable after receiving such notice from such Borrower, the Administrative
Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice,
which shall be in the form of Exhibit G, and shall include an offer by such
Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business
---------------
Days after the date of the Prepayment Option Notice, the relevant Tranche B Term
Loans of such Lender by an amount equal to the portion of the Tranche B
Prepayment Amount indicated in such Lender's Prepayment Option Notice as being
applicable to such Lender's Tranche B Term Loans. Each Tranche B Term Loan
Lender shall notify the Administrative Agent and the relevant Borrower in
writing, by no later than 10:00 A.M., New York City time, in the case of
prepayments by the Company, and by no later than 10:00 A.M., London time, in the
case of prepayments by a Borrowing Subsidiary, in each case, on the fifth
Business Day preceding the Prepayment Date, whether or not it accepts the
relevant Borrower's prepayment offer. Failure by such Lender to so notify the
Administrative Agent by such time shall be deemed to be notice that such Lender
accepts the relevant Borrower's prepayment offer. On the Prepayment Date, (i)
such Borrower shall pay to the Administrative Agent the aggregate amount
necessary to prepay that portion of the outstanding Tranche B Term Loans in
respect of which Tranche B Term Loan Lenders have accepted prepayment as
described above (such Lenders, the "Accepting Lenders"), and such amount shall
-----------------
be applied to reduce the Tranche B Repayment Amounts with respect to each
Accepting Lender and (ii) such Borrower shall pay to the Administrative Agent an
amount equal to the portion of the Tranche B Prepayment Amount not accepted by
the Accepting Lenders, and such amount shall be applied first, to the prepayment
-----
of the Tranche A Term Loans, second, after prepayment in full of all Tranche A
------
Term Loans, to the prepayment of the Tranche B Term Loans and, third, after
-----
prepayment in full of all Term Loans, to reduce permanently the Revolving Credit
Commitments with corresponding prepayments of the Revolving Credit Loans in the
manner set forth in the second sentence of Section 3.5(d).
50
(e) All payments (including prepayments) to be made by a Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and (except to the extent otherwise set
forth herein) shall be made (i) with respect to payments by the Company on
account of amounts denominated in Dollars, prior to 12:00 Noon, New York City
time, on the due date thereof to the Administrative Agent, for the account of
the relevant Lenders, at the Payment Office, in Dollars and in immediately
available funds, (ii) with respect to payments by the Company on account of
amounts denominated in Optional Currencies and with respect to payments by any
Borrowing Subsidiary, prior to 12:00 Noon, London time, on the due date thereof
to the Administrative Agent, for the account of the relevant Lenders, at the
Payment Office, in the relevant Optional Currency or in Dollars (as applicable)
and in immediately available funds. Payments received by the Administrative
Agent after such specified time shall be deemed to have been received on the
next Business Day. The Administrative Agent shall distribute such payments to
the Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurocurrency Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension. All payments hereunder shall be made in Dollars, or, in
the case of Eurocurrency Loans (and interest thereon) outstanding in any
Optional Currency, such Optional Currency.
(f) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the rate of interest which reflects the cost
to the Administrative Agent of obtaining funds of the type utilized to fund such
amount for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent submitted
to any Lender with respect to any amounts owing under this Section 3.11(f) shall
be conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to Base Rate Loans or Foreign Alternate Rate Loans, as the
case may be, under the relevant Facility, on demand, from the relevant Borrower.
Any failure by a Lender to fund its share of any borrowing required hereunder
shall not relieve any other Lender of its obligation to fund its ratable share
of such borrowing as required hereunder.
(g) Unless the Administrative Agent shall have been notified in
writing by a Borrower prior to the date of any payment being made hereunder that
such Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that such Borrower is making such payment, and
the Administrative Agent may, but shall not be required to,
51
in reliance upon such assumption, make available to the relevant Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
--- ----
made to the Administrative Agent by such Borrower within three Business Days of
such required date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the rate of interest which reflects the cost to the
Administrative Agent of obtaining funds of the type utilized to fund any such
amount. Nothing herein shall be deemed to limit the rights of the Administrative
Agent or any Lender against any Borrower.
(h) Notwithstanding any other provision contained herein, in the
event that any Revolving Credit Lender gives three Business Days' prior notice
to the Administrative Agent that it is unable to fund Revolving Credit Loans
which are Eurocurrency Loans or Foreign Alternate Rate Loans in any Optional
Currency at a reasonable cost to it, the Administrative Agent shall, until such
notice is withdrawn and to the extent necessary in order to excuse such
Revolving Credit Lender from making any Revolving Credit Loans in such Optional
Currency, reallocate from time to time among the Revolving Credit Lenders the
outstanding Revolving Credit Loans in such Optional Currency based on the
Revolving Credit Percentages; provided that, no Revolving Credit Lender shall be
--------
required to make Revolving Credit Loans in excess of its Revolving Credit
Commitment; provided, further, that, in the event that the Revolving Credit
-------- -------
Lenders the Revolving Credit Percentages of which aggregate at least 51% give
such notice to the Administrative Agent, the Revolving Credit Lenders shall not
be required to make any Revolving Credit Loans in such Optional Currency until
any such notices have been withdrawn so that the Revolving Credit Lenders the
Revolving Credit Percentages of which aggregate at least 51% have either not
given any such notice or have withdrawn any such notice.
(i) A payment shall be deemed to have been made by the Administrative
Agent on the date on which it is required to be made under this Agreement if the
Administrative Agent has, on or before that date, taken all relevant steps to
make that payment. With respect to the payment of any amount denominated in
euro, the Administrative Agent shall not be liable to any Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds in the euro unit to the account with the bank in the principal financial
center in the Participating Member State which the relevant Borrower or, as the
case may be, any Lender shall have specified for such purpose. In this paragraph
(i), "all relevant steps" means all such steps as may be prescribed from time to
time by the regulations or operating procedures of such clearing or settlement
system as the Administrative Agent may from time to time determine for the
purpose of clearing or settling payments of euro.
(j) Any amount payable by the Administrative Agent to the Lenders
under this Agreement in the currency of a Participating Member State shall be
paid in the euro unit.
(k) If, in relation to the currency of any Subsequent Participant,
the basis of accrual of interest or fees expressed in this Agreement with
respect to such currency shall be inconsistent with any convention or practice
in the London Interbank Market or, as the case may be, the Paris Interbank
Market for the basis of accrual of interest or fees in respect of the euro, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such
52
Subsequent Participant becomes a Participating Member State; provided, that if
--------
any Loan in the currency of such Subsequent Participant is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(l) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU legislation and (i) without prejudice to the
respective liabilities for indebtedness of the Borrowers to the Lenders and the
Lenders to the Borrowers under or pursuant to this Agreement and (ii) without
increasing the Available Revolving Credit Commitment of any Lender:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency denomination of a
Subsequent Participant to be paid to or by the Administrative Agent shall,
immediately upon such Subsequent Participant becoming a Participating
Member State, be replaced by a reference to such reasonably comparable and
convenient amount (or an integral multiple thereof) in the euro unit as the
Administrative Agent may from time to time specify; and
(ii) except as expressly provided in this Section 3.11, each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to
be necessary or appropriate to reflect the adoption of the euro in any
Participating Member State and any relevant market conventions or practices
relating to the euro.
3.12. Requirements of Law. (a) If the adoption of or any change in
-------------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurocurrency Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for Non-
Excluded Taxes covered by Section 3.13 and changes in the rate of tax on
the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurocurrency Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurocurrency Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the relevant Borrower shall promptly pay such
Lender, upon its demand, any additional amounts necessary to compensate such
Lender on an after-tax basis for such increased cost or reduced amount
receivable. If any Lender becomes
53
entitled to claim any additional amounts pursuant to this Section 3.12, it shall
promptly notify the relevant Borrower (with a copy to the Administrative Agent)
of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the relevant Borrower (with a copy to the
Administrative Agent) of a written request therefor, such Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender on
an after-tax basis for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section 3.12 submitted by any Lender to a Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of each Borrower pursuant to this Section 3.12 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
3.13. Taxes. (a) All payments made by any Borrower under this
-----------
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes
------------------
are required to be withheld from any amounts payable to any Agent or any Lender
hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrowers shall not be required to
-------- -------
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
the Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from a Borrower with respect to such Non-Excluded Taxes
pursuant to Section 3.13(a).
54
(b) In addition, the relevant Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by a
Borrower, as promptly as possible thereafter such Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by such
Borrower showing payment thereof. If such Borrower fails to pay any Non-
Excluded Taxes or Other Taxes when due to the appropriate taxing authority or
fails to remit to the Agents the required receipts or other required documentary
evidence, such Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as a result of any such failure. The agreements in this
Section 3.13 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
---------------
deliver to the Company and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest" a statement substantially in the form of
Exhibit H and a Form W-8BEN, or any subsequent versions thereof or successors
thereto properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Company under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Company at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Company (or any other form of certification adopted
by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this Section 3.13(d), a Non-U.S. Lender shall not be required to
deliver any form pursuant to this Section 3.13(d) that such Non-U.S. Lender is
not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the relevant
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the relevant Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the relevant Borrower, such properly
completed and executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate, provided that
--------
such Lender shall only be required to complete, execute and deliver such
documentation if in such Lender's reasonable judgment such completion, execution
or submission would not materially prejudice the legal position of such Lender.
55
3.14. Indemnity. Each Borrower agrees to indemnify each Lender and to
---------------
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in making a borrowing
of, conversion into or continuation of Eurocurrency Loans after such Borrower
has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by such Borrower in making any prepayment after such
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurocurrency Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
----
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurocurrency
market. A certificate as to any amounts payable pursuant to this Section 3.14
submitted to a Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
3.15. Illegality. Notwithstanding any other provision herein, if the
----------------
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurocurrency Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurocurrency Loans, continue Eurocurrency Loans as such
and convert Base Rate Loans or Foreign Alternate Rate Loans to Eurocurrency
Loans shall forthwith be canceled and (b) such Lender's Loans then outstanding
as Eurocurrency Loans, if any, shall be converted automatically to Base Rate
Loans (in the case of Loans denominated in Dollars) or Foreign Alternate Rate
Loans (in the case of Loans denominated in any Optional Currency) on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurocurrency Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the relevant Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 3.14.
3.16. Change of Lending Office. Each Lender agrees that, upon the
------------------------------
occurrence of any event giving rise to the operation of Section 3.12 or 3.13(a)
with respect to such Lender, it will, if requested by the relevant Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
--------
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 3.16 shall
-------- -------
affect or postpone any of the obligations of any Borrower or the rights of any
Lender pursuant to Section 3.12 or 3.13(a).
3.17. Replacement of Lenders under Certain Circumstances. Any
--------------------------------------------------------
Borrower shall be permitted to replace any Lender which (a) requests
reimbursement for amounts owing pursuant to Section 3.12 or 3.13 or (b) defaults
in its obligation to make Loans hereunder, with a replacement
56
financial institution; provided that (i) such replacement does not conflict with
--------
any Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 3.16 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 3.12 or 3.13,
(iv) the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) such Borrower shall be liable to such replaced Lender under
Section 3.14 if any Eurocurrency Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 12.6 (provided that such Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time as
such replacement shall be consummated, such Borrower shall pay all additional
amounts (if any) required pursuant to Section 3.12 or 3.13, as the case may be,
and (ix) any such replacement shall not be deemed to be a waiver of any rights
which such Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
3.18. Controls; Currency Exchange Rate Fluctuations. (a) The Company
---------------------------------------------------
will implement and maintain internal controls to monitor the borrowings and
repayments of Loans by the Borrowers, with the object of preventing any request
for a Loan that would result in a breach of any of the aggregate or individual
limits or sub-limits set forth in this Agreement with respect to the Total
Revolving Extensions of Credit, the Designated Maximum of any individual
Borrowing Subsidiary or the Currency Maximum of any Optional Currency and of
promptly identifying and remedying any circumstance where, by reason of changes
in exchange rates, any of such limits or sub-limits shall have been breached. In
the event that at any time the Company determines that by reason of currency
exchange rates any of such limits or sub-limits shall have been breached, in
each case, by more than 5%, the Company will promptly notify the Administrative
Agent.
(b) The Administrative Agent will calculate the Aggregate Exposures
with respect to all of the Lenders on each date on which a borrowing is
requested or a Loan is converted or continued hereunder and on any other date in
its sole discretion.
(c) In the event that on any date the Administrative Agent calculates
that any of such limits or sub-limits shall have been breached, in each case, by
more than 5% or would be breached by any requested borrowing or issuance of a
Letter of Credit, the Administrative Agent will give notice to such effect to
the Company and the Lenders (except in the case of a breach which would result
from the making of a requested borrowing or the issuance of a requested Letter
of Credit, in which case, the Administrative Agent shall notify the requesting
Borrower (with a copy to the Company) that because of such potential breach the
requested borrowing or issuance will not be made). Within five Business Days
after receipt of such notice, the Company will, or will cause the Borrowing
Subsidiaries to, make such repayments or prepayments of Loans (together with
interest accrued to the date of such repayment or prepayment) as shall be
necessary to eliminate any excess above any such limit or sub-limit, unless by
the time such repayment or prepayment is required to be made, such limit or sub-
limit is no longer breached by reason of currency exchange rate fluctuations. If
by virtue of the second sentence of this paragraph (c) any such repayment or
prepayment of a Eurocurrency Loan pursuant to this Section occurs on a day which
is not the last day of the then current Interest Period with respect thereto,
the Company shall pay to the Lenders such amounts, if any, as may be required
pursuant to Section 3.14.
57
3.19. Redenomination and Alternative Currencies. Each obligation
-----------------------------------------------
under this Agreement of a party to this Agreement which has been denominated in
the national currency unit of a Subsequent Participant state shall be
redenominated into the euro unit in accordance with EMU legislation immediately
upon such Subsequent Participant becoming a Participating Member State (but
otherwise in accordance with EMU Legislation).
3.20. Reporting Requirements of Swing Line Lenders and Issuing
--------------------------------------------------------------
Lenders. (a) Within two Business Days following the last day of each calendar
-------
month, each Swing Line Lender shall deliver to the Administrative Agent a
statement showing the average daily principal amount of the Swing Line Loans
outstanding in each currency during the calendar quarter most recently ended.
(b) Within two Business Days following the last day of each calendar
month, each Issuing Lender shall deliver to the Administrative Agent a report
detailing all activity during the preceding month with respect to any Letters of
Credit issued by any such Issuing Lender, including the face amount, the account
party, the beneficiary and the expiration date of such Letters of Credit and any
other information with respect thereto as may be requested by the Administrative
Agent.
SECTION 4. LETTERS OF CREDIT
4.1. L/C Commitment. (a) Subject to the terms and conditions hereof,
-------------------
each of the Issuing Lenders, in reliance on the agreements of the other
Revolving Credit Lenders set forth in Section 4.3(a), agrees to issue letters of
credit ("Letters of Credit") for the account of any of the Borrowers (the
-----------------
Borrower for whose account such Letter of Credit shall have been issued, the
"Account Party") on any Business Day during the Revolving Credit Commitment
-------------
Period in such form as may be approved from time to time by the Issuing Lender;
provided that the Issuing Lender shall have no obligation to issue any Letter of
--------
Credit for the account of any Borrower if, after giving effect to such issuance
(i) the Dollar Equivalent of the L/C Obligations would exceed the L/C
Commitment, (ii) the aggregate amount of the Available Revolving Credit
Commitments would be less than zero, (iii) in the case of a Letter of Credit
requested to be issued in an Optional Currency, the Dollar Equivalent of the
Total Revolving Extensions of Credit with respect to such Optional Currency
would exceed the Currency Maximum with respect to any Optional Currency or (iv)
the Dollar Equivalent of the Total Revolving Extensions of Credit with respect
to such Borrowing Subsidiary would exceed such Borrowing Subsidiary's Designated
Maximum. Each Letter of Credit shall (i) be denominated in Dollars or any
Optional Currency and (ii) expire no later than the earlier of (x) the first
anniversary of its date of issuance and (y) the date which is five Business Days
prior to the Scheduled Revolving Credit Termination Date, provided that any
--------
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
(c) Any Letter of Credit (as defined in the Existing Credit
Agreement) issued under the Existing Credit Agreement and outstanding on the
Restatement Effective Date shall from and after the Restatement Effective Date
constitute a Letter of Credit hereunder.
58
4.2. Procedure for Issuance of Letters of Credit. Each Borrower may
-------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender (with a copy to the Administrative Agent) at
its address for notices specified herein an Application therefor, completed to
the satisfaction of the Issuing Lender, and such other certificates, documents
and other papers and information as the Issuing Lender may request. Upon receipt
of any Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by the Issuing Lender and the Account Party. The
Issuing Lender shall furnish a copy of such Letter of Credit to the Account
Party promptly following the issuance thereof. The Issuing Lender shall promptly
furnish to the Administrative Agent, which shall in turn promptly furnish to the
Revolving Credit Lenders, notice of the issuance of each Letter of Credit
(including the amount thereof).
4.3. L/C Participations. (a) The Issuing Lender irrevocably agrees to
------------------
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Account Party in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Percentage of the amount of such draft,
or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 4.3(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the rate of interest which
reflects the cost to the Issuing Lender of obtaining funds of the type utilized
to fund such payment during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
4.3(a) is not made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to Eurocurrency Loans under the Revolving Credit Facility. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section shall be conclusive in the absence of
manifest error.
59
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
---
rata share of such payment in accordance with Section 4.3(a), the Issuing Lender
----
receives any payment related to such Letter of Credit (whether directly from the
Account Party or otherwise, including proceeds of collateral applied thereto by
the Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
--- ----
provided, however, that in the event that any such payment received by the
-------- -------
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
(d) Each Borrower hereby irrevocably and unconditionally authorizes
the Issuing Lender to convert into Dollars (at the actual exchange rate then
available to it) all amounts then owing to it on account of any Letter of Credit
which is denominated in an Optional Currency other than Marks, Pounds, Francs or
euro and is not reimbursed by the relevant Account Party in a timely manner and
otherwise in accordance with the provisions of Section 4.4. Such Issuing Lender
and each L/C Participant hereby irrevocably and unconditionally agrees that (i)
no L/C Participant shall have any obligation to make any payments or purchase
any participating interests contemplated by Section 4.3(b) or (c) on account of
such Letter of Credit until such time as such Issuing Lender has effected the
conversion described above and provided written notice to the Administrative
Agent (which shall promptly forward such notice to the L/C Participants) of the
amount of Dollars owing to it as a result of such conversion and (ii) from and
after the date upon which such conversion is effected, the obligations of the
L/C Participants under Sections 4.3(b) and (c) shall be satisfied only by the
payment to such Issuing Lender of such L/C Participant's Revolving Credit
Percentage of the amount of Dollars so notified to the Administrative Agent.
(e) Notwithstanding anything to the contrary contained in this
Section 4.4, no Revolving Credit Lender shall be required to acquire a
participating interest in a Letter of Credit if an Event of Default shall have
occurred and be continuing at the time such Letter of Credit was issued and such
Revolving Credit Lender shall have notified the Administrative Agent in writing,
at least one Business Day prior to the issuance date with respect to such Letter
of Credit, that such Event of Default has occurred and that such Revolving
Credit Lender will not acquire participations in Letters of Credit issued while
such Event of Default is continuing.
4.4. Reimbursement Obligation With Respect to Letters of Credit. The
----------------------------------------------------------
Account Party agrees to reimburse the Issuing Lender on each date on which the
Issuing Lender notifies the Account Party of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Lender for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs
or expenses incurred by the Issuing Lender in connection with such payment. Each
such payment shall be made to the Issuing Lender at its address for notices
specified herein in the currency in which such Letter of Credit was denominated
and in immediately available funds. Interest shall be payable on any and all
amounts remaining unpaid by the Account Party under this Section from the date
such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate set forth in Section 3.8(d). Each
drawing under any Letter of Credit denominated in Dollars or any Optional
Currency shall (unless an event of the type described in clause (i) or (ii) of
Section 9(f) shall have occurred and be continuing with respect to the Account
Party or the Company, in which case the procedures specified in Section 4.3 for
funding by L/C Participants shall apply) constitute a request by the Account
Party to the Administrative Agent for a borrowing pursuant to Section 2.5 of (i)
in the case of Letters of Credit
60
denominated in Dollars, Base Rate Loans (or, at the option of the Administrative
Agent and the Swing Line Lender for Dollars in their sole discretion, a
borrowing pursuant to Section 2.7 of Swing Line Loans in Dollars) in the amount
of such drawing and (ii) in the case of Letters of Credit denominated in any
Optional Currency, Eurocurrency Loans (or, at the option of the Administrative
Agent and the Swing Line Lender for such Optional Currency in their sole
discretion, a borrowing pursuant to Section 2.7 of Swing Line Loans in such
Optional Currency) in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the date of such drawing. Any Reimbursement
Obligations (as defined in the Existing Credit Agreement) outstanding under the
Existing Credit Agreement on the Restatement Effective Date shall from and after
the Restatement Effective Date constitute Reimbursement Obligations hereunder.
4.5. Obligations Absolute. Each of the Borrower's obligations under
--------------------
this Section 4 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which such Borrower may have or have had against an Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. Each Borrower also agrees
with the relevant Issuing Lender that such Issuing Lender shall not be
responsible for, and such Borrower's Reimbursement Obligations under Section 4.4
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be invalid, fraudulent or forged, or any dispute between or among
such Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of such
Borrower against any beneficiary of such Letter of Credit or any such
transferee. None of the Issuing Lenders shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions which have resulted from the gross negligence or willful
misconduct of such Issuing Lender. Each Borrower agrees that any action taken or
omitted by an Issuing Lender under or in connection with any Letter of Credit or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and, if applicable, in accordance with the standards of care
specified in the Uniform Commercial Code of the State of New York, shall be
binding on such Borrower and shall not result in any liability of an Issuing
Lender to such Borrower.
4.6. Commissions, Fees and Other Charges. (a) The relevant Borrower
-----------------------------------
will pay a commission on all outstanding Letters of Credit for its account at a
per annum rate equal to the Applicable Margin then in effect with respect to
Eurocurrency Loans under the Revolving Credit Facility, shared ratably among the
Revolving Credit Lenders and payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date. In addition, such Borrower shall pay to
the relevant Issuing Lender for its own account a fronting fee in an amount
agreed between such Borrower and such Issuing Lender, payable quarterly in
arrears on each L/C Fee Payment Date after the Issuance Date.
(b) In addition to the foregoing fees and commissions, the relevant
Borrower shall pay or reimburse the relevant Issuing Lender for such normal and
customary costs and expenses as are incurred or charged by such Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
(c) Any fees, commissions or other charges owing under Section 4.6 of
the Existing Credit Agreement on the Restatement Effective Date shall continue
to be outstanding under this
61
Section 4.6 from and after the Restatement Effective Date and shall be governed
by, and payable in accordance with, this Agreement.
4.7. Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the relevant Borrower of the date and amount thereof. The responsibility
of such Issuing Lender to the relevant Borrower in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
4.8. Applications. To the extent that any provision of any Application
------------
related to any Letter of Credit is inconsistent with the provisions of this
Section 4, the provisions of this Section 4 shall apply.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make the Loans and issue or participate in the Letters of Credit, each of the
Borrowers hereby jointly and severally represent and warrant to each Agent and
each Lender that:
5.1. Financial Condition. (a) The unaudited pro forma consolidated
------------------- --- -----
balance sheet of the Company and its consolidated Subsidiaries as at June 30,
2000 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies of
-----------------------
which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to the consummation of the
GNB Acquisition and the making of the Loans to be made on the Restatement
Effective Date and the use of proceeds thereof and the payment of fees and
expenses in connection with the foregoing. The Pro Forma Balance Sheet has been
prepared based on the best information available to the Company as of the date
of delivery thereof, and presents fairly on a pro forma basis the estimated
--- -----
financial position of Company and its consolidated Subsidiaries as at June 30,
2000, assuming that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of the Company and the
unaudited consolidating balance sheets of the Company's U.S. operations and the
Company's European operations, in each such case, as at March 31, 1999 (as
restated and provided to the Lenders) and March 31, 2000, and the related
consolidated and consolidating statements of income and of cash flows for the
fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from (in the case of the consolidated statements only) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, present fairly the consolidated financial condition of the Company
and the consolidating financial condition of the Company's U.S. operations and
the Company's European operations, as at such date, and the consolidated and
consolidating results of such operations and the related consolidated and
consolidating cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of the Company and the unaudited
consolidating balance sheet with respect to the Company's U.S. operations and
the Company's European operations, in each such case, as at June 30, 2000, and
the related unaudited consolidated and consolidating statements of income and
cash flows for the three-month period ended on such date, present fairly the
consolidated financial condition of the Company and the unaudited consolidating
financial condition of the Company's U.S. operations and the Company's European
operations as at such date, and the consolidated and
62
consolidating results of such operations and the related consolidated and
consolidating cash flows for the three-month period then ended (subject to
normal year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). The Company and its
Subsidiaries do not have, as of the date of this Agreement, any material
Guarantee Obligations, contingent liabilities and liabilities for taxes, or any
material long-term leases or unusual forward commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, which are not reflected in the
most recent financial statements referred to in this paragraph (b). During the
period from March 31, 2000 to and including the date hereof there has been no
Disposition by the Company or any of its Subsidiaries of any material part of
the business or Property of the Company and its Subsidiaries taken as a whole.
(c) To the best of the Company's knowledge after due inquiry, (i) the
audited consolidated balance sheets of the GNB Technologies Group as at June 30,
1998 and June 30, 1999, and the related consolidated statements of income and of
cash flows for the fiscal years ended on such dates, reported on by and
accompanied by an unqualified report from KPMG, present fairly the consolidated
financial condition of the GNB Technologies Group, as at such dates and the
consolidated results of its operations and the related consolidated cash flows
for the respective fiscal years then ended; (ii) the unaudited consolidated
balance sheet of the GNB Technologies Group as at March 31, 2000, and the
related unaudited consolidated statements of income and cash flows for the nine-
month period ended on such date, present fairly the consolidated financial
condition of the GNB Technologies Group as at such date, and the consolidated
results of its operations and the related consolidated cash flows for the nine-
month period then ended (subject to normal year-end audit adjustments); and
(iii) all such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein).
5.2. No Change. Since March 31, 2000 there has been no development or
---------
event which has had or could reasonably be expected to have a Material Adverse
Effect.
5.3. Corporate Existence; Compliance with Law. Each of the Company and
----------------------------------------
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the corporate
power and authority, and the legal right, to own and operate its Property, to
lease the Property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such qualification
except to the extent that the failure to be so qualified could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and (d) is
in compliance with all Requirements of Law except to the extent that the failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
5.4. Corporate Power; Authorization; Enforceable Obligations. Each
-------------------------------------------------------
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrowers, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrowers, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing
63
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the GNB Acquisition, the
Specified Corporate Transactions, the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 5.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect, (ii) the
filings referred to in Section 5.19 and (iii) with respect to the Specified
Corporate Transactions, certain consents and approvals to the extent that the
failure to obtain such consents and approvals will not materially adversely
affect the ability of the Company to operate its business in the ordinary
course. Each Loan Document has been duly executed and delivered on behalf of
each Loan Party party thereto. This Agreement constitutes, and each other Loan
Document upon execution will constitute, a legal, valid and binding obligation
of each Loan Party party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
5.5. No Legal Bar. The execution, delivery and performance of this
------------
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder, the use of the proceeds thereof and the consummation of
the GNB Acquisition and the Specified Corporate Transactions will not violate
any Requirement of Law (except as contemplated by clause (ii) of the third
sentence of Section 5.4) or any Contractual Obligation of the Company or any of
its Subsidiaries and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Company or any of its Subsidiaries could reasonably
be expected to have a Material Adverse Effect.
5.6. No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of their respective properties or revenues (a)
with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, including, without limitation, the GNB
Acquisition and the Specified Corporate Transactions, or (b) which could
reasonably be expected to have a Material Adverse Effect.
5.7. No Default. Neither the Company nor any of its Subsidiaries is in
----------
default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8. Ownership of Property; Liens. Each of the Company and its
----------------------------
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and good title to, or a valid leasehold interest in, all its
other Property, and none of such Property is subject to any Lien except as
permitted by Section 8.3.
5.9. Intellectual Property. The Company and each of its Subsidiaries
---------------------
owns, or is licensed to use, all Intellectual Property necessary for the conduct
of its business as currently conducted. No material claim has been asserted and
is pending by any Person challenging or
64
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does the Company know of any
valid basis for any such claim. The use of Intellectual Property by the Company
and its Subsidiaries does not infringe on the rights of any Person in any
material respect.
5.10. Taxes. Each of the Company and each of its Subsidiaries has
-----
filed or caused to be filed all Federal, state and other material tax returns
which are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
Property and all other taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Company or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Company, no claim is being asserted,
with respect to any such tax, fee or other charge.
5.11. Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose which violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Company will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1 referred to in Regulation U.
5.12. Labor Matters. There are no strikes or other labor disputes
-------------
against the Company or any of its Subsidiaries pending or, to the knowledge of
the Company, threatened that (individually or in the aggregate) could reasonably
be expected to have a Material Adverse Effect. Hours worked by and payment made
to employees of the Company and its Subsidiaries have not been in violation of
the Fair Labor Standards Act or any other applicable Requirement of Law dealing
with such matters that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect. All payments due from the Company or
any of its Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect if not paid have been paid or accrued as a liability on
the books of the Company or the relevant Subsidiary.
5.13. ERISA. Neither a Reportable Event nor an "accumulated funding
-----
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Company nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan
which has resulted or could reasonably be expected to result in a material
liability under ERISA, and neither the Company nor any Commonly Controlled
Entity would become subject to any material liability under ERISA if the Company
or any such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans
65
as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
5.14. Investment Company Act; Other Regulations. No Loan Party is an
-----------------------------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
5.15. Subsidiaries. The Subsidiaries listed on Schedule 5.15 will
------------
constitute all the Subsidiaries of the Company on the Restatement Effective
Date, after giving effect to the consummation of the GNB Acquisition and the
Specified Corporate Transactions.
5.16. Use of Proceeds. The proceeds of the Tranche A Term Loans and
---------------
the Existing Tranche B Term Loans were used to refinance existing Indebtedness
of the Borrowers. The proceeds of the Additional Tranche B Term Loans will be
used to finance a portion of the purchase price of the GNB Acquisition and to
pay related fees and expenses. The proceeds of the Revolving Credit Loans and
the Swing Line Loans, and the Letters of Credit, have been and shall be used for
general corporate purposes.
5.17. Environmental Matters
---------------------
(a) The facilities and properties owned, leased or operated by the
Company or any of its Subsidiaries, including, without limitation, the
facilities and properties being acquired, or owned by entities whose Capital
Stock is being acquired, in the GNB Acquisition (all of the foregoing, the
"Properties") do not contain any Materials of Environmental Concern in amounts
-----------
or concentrations or under circumstances which (i) constitute or constituted a
violation of, or (ii) could give rise to liability under, any Environmental Law,
except in either case insofar as such violation or liability, or any aggregation
thereof, could not reasonably be expected to result in the payment of a Material
Environmental Amount.
(b) The Properties and all operations at the Properties are in
material compliance, and have in the last five years been in material
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated by the
Company or any of its Subsidiaries (the "Business") which could materially
--------
interfere with the continued operation of the Properties or materially impair
the fair saleable value thereof. Except to the extent described in Schedule
5.17, neither the Company nor any of its Subsidiaries has assumed any liability
of any other Person under Environmental Laws.
(c) Neither the Company nor any of its Subsidiaries has received or
is aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the Business,
nor does the Company have knowledge or reason to believe that any such notice
will be received or is being threatened, except insofar as such notice or
threatened notice, or any aggregation thereof, does not involve a matter or
matters that could reasonably be expected to result in the payment of a Material
Environmental Amount.
66
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law, except
insofar as any such violation or liability referred to in this paragraph, or any
aggregation thereof, could not reasonably be expected to result in the payment
of a Material Environmental Amount.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business, except insofar
as such proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to result in the payment
of a Material Environmental Amount.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Company or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could give rise to liability under Environmental
Laws, except insofar as any such violation or liability referred to in this
paragraph, or any aggregation thereof, could not reasonably be expected to
result in the payment of a Material Environmental Amount.
5.18. Accuracy of Information, etc. No statement or information
----------------------------
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Company to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Loan Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Loan Documents. To the best of the Company's knowledge after due
inquiry, the representations and warranties contained in the GNB Acquisition
Agreement are true and correct in all material respects as of the date of this
Agreement and shall be true and correct in all material respects as of the
Restatement Effective Date.
67
5.19. Security Documents. (a) The Collateral Agreement is effective to
------------------
create in favor of the Administrative Agent, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Collateral described
therein and proceeds thereof. When financing statements in appropriate form are
filed in the offices specified on Schedule 5.19(a) and the Administrative Agent
receives possession of the Pledged Securities (as defined therein), the
Collateral Agreement shall, to the extent a security interest thereon can be
perfected by the filing of financing statements or by such possession,
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in the Collateral described therein and the
proceeds thereof, as security for the Obligations (as defined in the Collateral
Agreement), in each case prior and superior in right to any other Person, except
for Liens permitted by Section 8.3(a)-(f).
(b) Each Pledge Agreement constitutes a legal, valid and binding
obligation of the pledgor party thereto, enforceable against it in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles. Except as
set forth in the legal opinions provided to the Administrative Agent by counsel
in the relevant jurisdictions pursuant to Section 6.1(m), the security interests
in the Pledged Stock or intercompany loans or receivables of each Subsidiary
that is a Foreign Subsidiary pledged pursuant to the Pledge Agreements
constitute valid, perfected first priority security interests on such Pledged
Stock or intercompany loans or receivables, as the case may be (to the extent
applicable under the relevant local laws or otherwise reasonably acceptable to
the Agents), enforceable as such against all creditors of the respective pledgor
and any Persons purporting to purchase any such Pledged Stock or intercompany
loans or receivables, as the case may be, from the respective pledgor.
(c) (i) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
5.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in right
to any other Person and (ii) each of the UK Mortgages is effective to create in
favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable Lien on the real properties which are the subject of the
UK Mortgages and proceeds thereof, and when appropriate steps under applicable
law are taken, each UK Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
properties and the proceeds thereof, as security for the Obligations, in each
case prior and superior in right to any other Person, except for Liens permitted
by Section 8.3(a)-(f).
5.20. Solvency. Each Loan Party is, and after giving effect to the
--------
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
5.21. Senior Indebtedness. The Obligations constitute "Senior
-------------------
Indebtedness" of the Company and the Borrowing Subsidiaries under and as defined
in the Convertible Indenture.
5.22. Specified Corporate Transactions. After giving effect to the
--------------------------------
consummation of the GNB Acquisition and the Specified Corporate Transactions,
all assets of the Company and its
68
Subsidiaries located in the United States will be owned directly by the
Company (and not through any Subsidiary), except as permitted by Section
8.16.
SECTION 6. CONDITIONS PRECEDENT
6.1. Conditions to Effectiveness of Amendment and Restatement and
------------------------------------------------------------
Initial Extension of Credit on the Restatement Effective Date. The
-------------------------------------------------------------
effectiveness of this Agreement, and the agreement of each Lender to make
the initial extension of credit requested to be made by it on or after the
Restatement Effective Date, shall be subject to the satisfaction, prior to
or concurrently with the making of such extension of credit on the
Restatement Effective Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received
--------------
the following:
(i) (A) this Agreement, executed and
delivered by a duly authorized officer of each of the
Borrowers, each of the Guarantors and the Required Lenders
(as defined in the Existing Credit Agreement) and (B) the
Tranche B Term Loan Supplement, executed by each of the
Borrowers, each of the Guarantors, the Administrative Agent
and each Lender having an Additional Supplemental Tranche B
Term Loan Commitment;
(ii) the Collateral Agreement, executed and delivered by
a duly authorized officer of the Company;
(iii) a New Mortgage covering each of the New Mortgaged
Properties and an Existing Mortgage Amendment, if required, in respect
of each Existing Mortgage, in each case executed and delivered by a
duly authorized officer of each party thereto;
(iv) each of the UK Mortgage Amendments, if required,
executed and delivered by a duly authorized officer of each party
thereto;
(v) each of the Pledge Agreement Amendments, executed
and delivered by a duly authorized officer of each party thereto;
(vi) each of the New Security Documents (if any),
executed and delivered by a duly authorized officer of each party
thereto; and
(vii) for the account of each Lender which has so
requested, Notes conforming to the requirements hereof and executed
and delivered by a duly authorized officer of the relevant Borrower.
(b) Consummation of GNB Acquisition, etc. The Administrative
Agent shall have received evidence reasonably satisfactory to it that:
(i) the GNB Acquisition shall have been consummated, or
shall be consummated substantially with the initial extensions of
credit on the Restatement Effective Date, in accordance with the GNB
Acquisition Agreement, without material waiver or other material
modification of any material provision thereof not consented to by the
Required Lenders, for a purchase price consisting of (A) cash in an
amount not to exceed
69
$333,000,000 (subject to purchase price adjustments provided in the GNB
Acquisition Agreement) and (B) 4,000,000 shares of common stock of the
Company; and
(ii) the Specified Corporate Transactions shall have been
consummated or shall be consummated simultaneously with the initial
extensions of credit on the Restatement Effective Date.
(c) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
---------------------------------------------
have received (i) the Pro Forma Balance Sheet and (ii) the financial statements
referred to in Section 5.1(b), and such financial statements shall not, in the
reasonable judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of the Company, as reflected in the financial
statements or projections contained in the Confidential Information Memorandum.
The Administrative Agent shall have received reasonably satisfactory evidence
that the pro forma combined Consolidated EBITDA of the Company and its
--- -----
Subsidiaries and GNB and the other businesses and assets being acquired by the
Company in the GNB Acquisition for the four consecutive fiscal quarters most
recently ended prior to the Restatement Effective Date for which financial
statements are available was at least $325,000,000 (such pro forma combined
--- -----
Consolidated EBITDA to be determined as if the GNB Acquisition had occurred on
the first day of such period of four consecutive fiscal quarters and after
giving effect to such pro forma cost savings as shall be reasonably acceptable
--- -----
to the Administrative Agent).
(d) Approvals. All governmental and third party approvals (including
---------
landlords' and other consents) necessary in connection with the continuing
operations of the Company and its Subsidiaries and the transactions contemplated
hereby shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on the financing contemplated hereby; provided, that
--------
certain governmental consents and approvals required in connection with the
Specified Corporate Transactions may not have been obtained, and the failure to
have obtained such consents and approvals shall not constitute a failure to
satisfy the condition precedent set forth in this paragraph (d) if the Company
has delivered to the Administrative Agent a certificate to the effect that the
failure to obtain such consents and approvals will not materially adversely
affect the ability of the Company to operate its business in the ordinary
course. Without limiting the generality of the foregoing, the Company shall have
received the consent of Yuasa Inc. pursuant to the non-compete agreement between
Yuasa Inc. and the Company to the GNB Acquisition and operation of the
properties acquired in the GNB Acquisition.
(e) Fees. The Lenders, the Joint Lead Arrangers, the Syndication
----
Agent, the Documentation Agent, if any, and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which invoices have
been presented, on or before the Restatement Effective Date.
(f) Business Plan. The Lenders shall have received the Company's
-------------
business plans set forth in the Confidential Information Memorandum.
(g) Capital Structure. The legal and capital structure of the Loan
-----------------
Parties shall be satisfactory to the Administrative Agent.
70
(h) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent lien search in each of the domestic jurisdictions where
assets of the Loan Parties are located, and such search shall reveal no liens on
any of the assets of the Company or its Subsidiaries except for liens permitted
by Section 8.3 or liens to be discharged on or prior to the Restatement
Effective Date pursuant to documentation satisfactory to the Administrative
Agent.
(i) Environmental Reports. The Administrative Agent shall have
---------------------
received the environmental reports with respect to the real properties owned or
leased by the Company and its Subsidiaries issued by Environ, with respect to
the Company's operations prior to the GNB Acquisition, and by Environmental
Resources Management with respect to the operations being acquired in the GNB
Acquisition, and such reports shall be addressed to the Administrative Agent and
the Lenders.
(j) Closing Certificate. The Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, a certificate of each Loan Party,
dated the Restatement Effective Date, substantially in the form of Exhibit I (or
such other form reasonably acceptable to the Administrative Agent), with
appropriate insertions and attachments.
(k) Legal Opinions. The Administrative Agent shall have received the
--------------
following executed legal opinions:
(i) the legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the
Company and its Subsidiaries, substantially in the form of Exhibit J; and
(ii) the legal opinion of local counsel in each jurisdiction
where (i) a Borrowing Subsidiary, (ii) a pledgor party to a Pledge
Agreement, (iii) an issuer whose stock is being pledged pursuant to a
Pledge Agreement or (iv) a Subsidiary Guarantor is organized and of such
other special and local counsel as may be required by the Administrative
Agent.
Each such legal opinion shall cover such other matters incident
to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(l) Pledged Stock; Stock Power; Pledged Notes. The Administrative
-----------------------------------------
Agent shall have received, to the extent required under applicable law, (i) the
certificates representing the shares of Capital Stock pledged pursuant to the
Collateral Agreement and pursuant to any Pledge Agreement, together with an
undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and (ii) each promissory note pledged
to the Administrative Agent pursuant to the Collateral Agreement or any Pledge
Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank satisfactory to the Agents) by the pledgor thereof, and
all other actions required under applicable law to perfect the security interest
of the Administrative Agent in the shares of Capital Stock and the promissory
notes pledged pursuant to the Collateral Agreement or any Pledge Agreement
entered into on the Restatement Effective Date shall have been taken.
(m) Filings, Registrations and Recordings. Each document
-------------------------------------
(including, without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by the
Administrative Agent to be filed, registered
71
or recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described therein,
prior and superior in right to any other Person (other than with respect to
Liens expressly permitted by Section 8.3), shall be in proper form for filing,
registration or recordation.
(n) Title Insurance Policy. The Administrative Agent shall have
----------------------
received in respect of each parcel covered by each Mortgage (other than the UK
Mortgages) a mortgagee's title policy (or policies) or marked up unconditional
binder for such insurance dated the Restatement Effective Date. Each such
policy shall (i) be in an amount satisfactory to the Administrative Agent; (ii)
be issued at ordinary rates; (iii) insure that the Mortgage insured thereby
creates a valid first Lien on such parcel free and clear of all defects and
encumbrances, except such as may be approved by the Administrative Agent; (iv)
name the Administrative Agent for the benefit of the Lenders as the insured
thereunder; (v) be in the form of ALTA Loan Policy - 1992; (vi) contain such
endorsements and affirmative coverage as the Administrative Agent may request
and (vii) be issued by title companies satisfactory to the Administrative Agent
(including any such title companies acting as co-insurers or reinsurers, at the
option of the Administrative Agent). The Administrative Agent shall have
received evidence satisfactory to it that all premiums in respect of each such
policy, and all charges for mortgage recording tax, if any, have been paid.
(o) Flood Insurance. If requested by the Administrative Agent, the
---------------
Administrative Agent shall have received (i) a policy of flood insurance which
(A) covers any parcel of improved real property which is encumbered by any
Mortgage, (B) is written in an amount not less than the outstanding principal
amount of the indebtedness secured by such Mortgage which is reasonably
allocable to such real property or the maximum limit of coverage made available
with respect to the particular type of property under the National Flood
Insurance Act of 1968 (as amended), whichever is less, and (C) has a term ending
not earlier than the maturity of the indebtedness secured by such Mortgage and
(ii) confirmation that the Company has received the notice required pursuant to
Section 208(e)(3) of Regulation H of the Board of Governors of the Federal
Reserve System.
(p) Copies of Documents. The Administrative Agent shall have
-------------------
received a copy of all recorded documents referred to, or listed as exceptions
to title in, the title policy or policies referred to in paragraph (n) above and
a copy, certified by such parties as the Administrative Agent may deem
appropriate, of all other documents affecting the property covered by each
Mortgage.
(q) Indenture Certification. The Administrative Agent shall have
-----------------------
received a certificate of the chief financial officer of the Company
demonstrating that the Loans are permitted to be borrowed pursuant to Section
4.03 of the Senior 10% Note Indenture and paragraph 7(a) of the DM Notes.
(r) Warrants, etc. (i) The Tranche B Term Loan Lenders who
-------------
have committed to make Additional Tranche B Term Loans (or affiliates of such
Tranche B Term Loan Lenders designated by them) shall have received warrants to
purchase 786,000 shares of the common stock of the Company, such warrants to be
distributed to the Tranche B Term Loan Lenders making Additional Tranche B Term
Loans (or such affiliates) pro rata in respect of each such Tranche B Term Loan
Lender's commitment to make such Additional Tranche B Term Loans, and the
Company shall have entered into a warrant agreement, a registration rights
agreement and other
72
customary agreements in respect of such warrants, in each case in form and
substance reasonably satisfactory to the Administrative Agent.
(ii) The Administrative Agent shall have received such
resolutions and other corporate documents, and such legal opinions, in
respect of the warrants and other documents described in the foregoing
clause (i), and the related transactions, as the Administrative Agent shall
reasonably request.
6.2. Conditions to Each Extension of Credit. The agreement of each
-------------------------------------------
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such date as if made on
and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of any of the
Borrowers hereunder shall constitute a representation and warranty by such
Borrower as of the date of such extension of credit that the conditions
contained in this Section 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
Each of the Borrowers hereby jointly and severally agree that, so long
as the Commitments remain in effect, any Letter of Credit remains outstanding or
any Loan or other amount is owing to any Lender or any Agent hereunder, each of
the Borrowers shall and shall cause each of its Subsidiaries to:
7.1. Financial Statements. Furnish to each Agent and each Lender:
-------------------------
(a) as soon as available, but in any event within 100 days after the
end of each fiscal year of the Company, a copy of the audited consolidated
balance sheet of the Company and its consolidated Subsidiaries and the unaudited
consolidating balance sheet of the Company's U.S. operations and the Company's
European operations as at the end of such year and the related audited
consolidated and unaudited consolidating statements of income and of cash flows
for such year, and, in the case of the consolidated statements only, (i) setting
forth in comparative form the figures for the previous year and (ii) reported on
without a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by PricewaterhouseCoopers LLP or other
independent certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal year
of the Company, the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries and the unaudited consolidating balance sheet of the
Company's U.S. operations and the Company's European operations as at the end of
such quarter and the related unaudited consolidated and unaudited consolidating
statements of income and of cash flows for such quarter and the portion of the
fiscal year through the end of
73
such quarter, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
7.2. Certificates; Other Information. Furnish to each Agent and each
------------------------------------
Lender, or, in the case of clause (f) or (g), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a), (i) a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate and (ii) a certificate
of a Responsible Officer containing all information necessary for determining
Excess Cash Flow for the fiscal year covered by such financial statements;
(b) concurrently with the delivery of any financial statements
pursuant to Section 7.1, a certificate of a Responsible Officer (i) stating
that, to the best of each such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate, (ii)
setting forth all information necessary for determining compliance by the
Company and its Subsidiaries with the provisions of Sections 8.1 and 8.7 as of
the last day of the fiscal quarter or fiscal year of the Company, as the case
may be, and (y) to the extent not previously disclosed to the Administrative
Agent, a listing of any actions required to be taken by the Administrative Agent
in order to cause the Company and its Subsidiaries to be in compliance with the
provisions of Section 4.6 of the Collateral Agreement;
(c) as soon as available, and in any event no later than 50 days
after the end of each fiscal year of the Company, a detailed consolidated budget
for the following fiscal year (including a projected consolidated balance sheet
of the Company and its Subsidiaries as of the end of the following fiscal year,
and the related consolidated statements of projected cash flow, and projected
income), and, as soon as available, significant revisions, if any, of such
budget and projections with respect to such fiscal year (collectively, the
"Projections"), which Projections shall in each case be accompanied by a
-----------
certificate of a Responsible Officer stating that such Projections are based on
reasonable estimates, information and assumptions and that such Responsible
Officer has no reason to believe that such Projections are incorrect or
misleading in any material respect;
(d) within 50 days after the end of each fiscal quarter of the
Company, a narrative discussion and analysis of the financial condition and
results of operations of the Company and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current fiscal year to
the end of such fiscal quarter, as compared to the portion of the Projections
covering such periods and to the comparable periods of the previous year;
74
(e) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to the holders of any class of
its debt securities or public equity securities and within five days after the
same are filed, copies of all financial statements and reports which the Company
may make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(f) promptly, copies of all material environmental appraisals and
similar reports prepared for the Company and its Subsidiaries by independent
environmental consultants which any Lender may from time to time reasonably
request after notification of the preparation thereof by the Company; the
Company hereby agrees that it will promptly obtain from the respective
environmental consultants that delivered the environmental reports described in
Section 6.1(i) (or other independent environmental consultants reasonably
acceptable to the Required Lenders) updates of such environmental reports upon
the written request of the Administrative Agent or the Required Lenders (but not
more frequently than annually); and
(g) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or
---------------------------
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be.
7.4. Conduct of Business and Maintenance of Existence, etc. (a) (i)
-----------------------------------------------------------
Preserve, renew and keep in full force and effect its corporate existence and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 8.4 and except, in the case of
clause (ii) above, to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.5. Maintenance of Property; Insurance. (a) Keep all Property useful
---------------------------------------
and necessary in its business in good working order and condition, ordinary wear
and tear excepted and (b) maintain with financially sound and reputable
insurance companies insurance on all its Property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business.
7.6. Inspection of Property; Books and Records; Discussions. (a) Keep
-----------------------------------------------------------
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender (upon request through the Administrative Agent) to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and to discuss the business,
operations, properties and financial and other condition of the Company and its
Subsidiaries with officers and employees of the Company and its Subsidiaries and
with its independent certified public accountants; provided
75
that, unless a Default or an Event of Default has occurred and is continuing,
the Lenders shall coordinate their visits pursuant to this clause (b) so that,
in the aggregate, such visits, inspections and examinations by the Lenders
(without limiting the frequency of visits, inspections and examinations by the
Agents) occur not more frequently than quarterly.
7.7. Notices. Promptly give notice to the Administrative Agent and
------------
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Company or
any of its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries (i) which the Company believes, in good faith, could reasonably be
expected to result in liability to the Company and its Subsidiaries (regardless
of whether covered by insurance) in excess of $2,500,000 or (ii) in which
injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Company or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company or the relevant Subsidiary proposes
to take with respect thereto.
7.8. Environmental Laws. (a) Comply in all material respects with, and
-----------------------
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all
material respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
76
7.9. Interest Rate Protection. In the case of the Company, maintain in
-----------------------------
effect Interest Rate Protection Agreements to the extent necessary to provide
that at all times at least 25% of the aggregate then outstanding principal
amount of the Term Loans is subject to either a fixed interest rate or interest
rate protection for a period and on other terms and conditions reasonably
satisfactory to the Administrative Agent.
7.10. Additional Collateral, etc. (a) With respect to any Property
---------------------------------
acquired after the Restatement Effective Date by the Company (other than (x) any
Property described in paragraph (b) or (c) below and (y) any Property subject to
a Lien expressly permitted by Section 8.3(g)) as to which the Administrative
Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Collateral Agreement or such other documents as the Administrative Agent deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a security interest in such Property and (ii) take all
actions necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in such
Property, including without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Collateral
Agreement or by law or as may be requested by the Administrative Agent.
(b) With respect to any fee interest acquired after the Restatement
Effective Date by the Company in any real property located in the United States
having a fair market value (together with improvements thereof) of at least
$5,000,000, promptly (i) execute and deliver a first priority Mortgage in favor
of the Administrative Agent, for the benefit of the Lenders, covering such real
property, (ii) if requested by the Administrative Agent, provide the Lenders
with (x) title and extended coverage insurance covering such real property in an
amount at least equal to the purchase price of such real estate (or such other
amount as shall be reasonably specified by the Administrative Agent) as well as
a current survey thereof, together with a surveyor's certificate if customary
under local practice in the relevant jurisdiction and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such mortgage or deed of trust, each of the foregoing in form
and substance reasonably satisfactory to the Administrative Agent and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent; provided, however, that the provisions of this clause (b)
-------- -------
shall not apply with respect to fee interests in real property to the extent
that (x) such real property is subject to a Lien expressly permitted by Section
8.3(g) or (y) the Administrative Agent determines that the costs of obtaining a
security interest in such real property are excessive in relation to the value
of the security to be afforded thereby.
(c) With respect to any new Subsidiary created or acquired after the
Restatement Effective Date by the Company or any of its Subsidiaries, promptly:
(i) execute and deliver to the Administrative Agent such
amendments to the Collateral Agreement or an additional Pledge Agreement,
and take such other actions, as the Administrative Agent or the Syndication
Agent deems necessary or advisable in order to grant to the Administrative
Agent, for the benefit of the relevant Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary which is
owned by the Company or any of its Subsidiaries, including, without
limitation, the delivery to the
77
Administrative Agent of the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Company or such Subsidiary, as the case may
be;
(ii) in the case of any Domestic Subsidiary, take such actions
necessary or advisable to grant to the Administrative Agent for the benefit
of the Lenders a perfected first priority security interest in the Capital
Stock of such new Subsidiary;
(iii) in the case of any Foreign Subsidiary, cause such
Subsidiary to execute a Foreign Obligations Guarantor Joinder Agreement;
and
(iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions and any other necessary documentation
relating to the matters described above, which opinions and documentation
shall be in form and substance, and, in the case of opinions, from counsel,
reasonably satisfactory to the Administrative Agent;
provided, however, that any actions described in this Section 7.10 need not be
-------- -------
taken by or with respect to any Foreign Subsidiary to the extent that (x) such
Foreign Subsidiary and its Subsidiaries had consolidated revenues for the
immediately preceding four fiscal quarters and consolidated assets as of the
last day of the most recently completed fiscal quarter which were less than
$2,500,000, (y) the taking of such action would, in the good faith judgment of
the Company (which shall be promptly notified in writing to the Administrative
Agent), cause such the Company or any of its Subsidiaries to be subject to
material adverse tax consequences or would cause the Company or any of its
Subsidiaries (or any of its respective officers, directors or employees) to be
subject to material adverse legal consequences or (z) in the reasonable judgment
of the Administrative Agent, the costs related to the taking of such actions
would be uneconomic relative to the benefits which would reasonably be expected
to be afforded therefrom.
7.11. Clean-Down. Cause the aggregate outstanding principal amount of
----------------
Revolving Credit Loans and Swing Line Loans to be not more than $125,000,000 for
a period of 30 consecutive days during the period from and including February 1
through and including June 30 of each year.
SECTION 8. NEGATIVE COVENANTS
Each of the Borrowers hereby jointly and severally agree that, so
long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, each of the Borrowers shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
78
8.1. Financial Condition Covenants
---- -----------------------------
(a) Consolidated Leverage Ratio. Permit the Consolidated
---------------------------
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of the Company ending during any period set forth below to exceed the
ratio set forth below opposite such period:
Consolidated
Period Leverage Ratio
------ --------------
FQ2 2001 5.00
FQ3 2001 5.00
FQ4 2001 4.75
FQ1 2002 4.75
FQ2 2002 4.75
FQ3 2002 4.50
FQ4 2002 4.00
FQ1 2003 3.75
FQ2 2003 3.50
FQ3 2003 3.25
FQ4 2003 and thereafter 3.00
(b) Consolidated Fixed Charge Coverage Ratio. Permit the
----------------------------------------
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Company ending during any period set forth below to be
less than the ratio set forth below opposite such period:
Consolidated
Period Fixed Charge Coverage Ratio
------ ---------------------------
FQ2 2001 1.00
FQ3 2001 1.00
FQ4 2001 1.00
FQ1 2002 1.00
FQ2 2002 1.00
FQ3 2002 1.00
FQ4 2002 1.10
FQ1 2003 1.10
FQ2 2003 and thereafter 1.20
(c) Consolidated Interest Coverage Ratio. Permit the
------------------------------------
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Company ending during any period set forth below to be less than
the ratio set forth below opposite such period:
Consolidated
Period Interest Coverage Ratio
------ -----------------------
FQ2 2001 2.25
FQ3 2001 2.25
FQ4 2001 2.25
79
FQ1 2002 2.25
FQ2 2002 2.50
FQ3 2002 2.75
FQ4 2002 and thereafter 3.00
8.2. Limitation on Indebtedness. Create, incur, assume or suffer
--------------------------
to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Company to any Subsidiary and of any
Wholly Owned Subsidiary Guarantor to the Company or any other Subsidiary;
(c) Indebtedness secured by Liens permitted by Section 8.3(g) in
an aggregate principal amount not to exceed $5,000,000 at any one time
outstanding;
(d) (i) Capital Lease Obligations with respect to the land and
building in ▇▇▇▇▇▇, Italy currently owned by an affiliate of Fiat S.p.A. in an
aggregate principal amount not to exceed $21,000,000 at any one time
outstanding, (ii) Capital Lease Obligations (if any) with respect to the GE
Sale-Leaseback, (iii) Capital Lease Obligations of GNB and its Subsidiaries
outstanding on the Restatement Effective Date in an aggregate principal amount
not exceeding $6,000,000, (iv) Capital Lease Obligations permitted by Section
8.11 and (v) other Capital Lease Obligations in an aggregate principal amount
(in the case of this clause (v) only) not to exceed $10,000,000 at any one time
outstanding;
(e) Indebtedness outstanding on the date hereof and listed on
Schedule 8.2(e) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof) which are not otherwise
prohibited under this Agreement and which do not have the effect of reducing the
collateral security and credit support provided on account of amounts owing
under any Facility hereunder;
(f) Indebtedness which may be deemed to exist pursuant to the
Domestic Receivables Facility, so long as the Domestic Receivables Facility
Attributed Indebtedness at no time exceeds the Domestic Receivables Maximum
Commitment Amount as then in effect;
(g) Acquired Indebtedness may be assumed or continued by a
Subsidiary of the Company acquired pursuant to, or created to effect, a
Permitted Acquisition, so long as the aggregate principal amount of all such
Acquired Indebtedness incurred or assumed during the term of this Agreement does
not exceed $30,000,000 (without regard to the amount of any Acquired
Indebtedness in connection with any of the Permitted Acquisitions set forth on
Schedule 1.1E);
(h) intercompany Indebtedness among the Company and its
Subsidiaries to the extent permitted by Sections 8.8(e) through (i);
(i) Indebtedness of any Wholly Owned Subsidiary to the Company
or to a Wholly Owned Subsidiary Guarantor constituting the purchase price in
respect of intercompany transfers of goods made in the ordinary course of
business to the extent not constituting Indebtedness for borrowed money;
80
(j) Indebtedness of EHE and/or its Subsidiaries which may be
deemed to exist pursuant to the European Receivables Facility, so long as the
European Receivables Facility Attributed Indebtedness at no time exceeds the
European Receivables Maximum Commitment Amount as then in effect;
(k) guarantees made in the ordinary course of business by the
Company or any of its Subsidiaries of obligations of the Company or any Wholly
Owned Subsidiary Guarantor;
(l) Indebtedness of the Company evidenced by the increase in the
principal amount of the Convertible Notes in connection with the accretion
thereof;
(m) short-term Indebtedness of Foreign Subsidiaries incurred for
working capital purposes in an aggregate principal amount not to exceed
$30,000,000 at any one time outstanding;
(n) Guarantee Obligations of Subsidiaries of the Company
incorporated in Germany provided to German banking institutions in connection
with the financing of supplies purchased by any of such Subsidiaries from German
suppliers; provided that (i) no such Guarantee Obligation shall have a term
--------
exceeding 90 days, (ii) such Guarantee Obligations shall be unsecured and (iii)
the aggregate principal amount of Guarantee Obligations which may be incurred in
reliance on this paragraph (n) shall not exceed $15,000,000 at any one time
outstanding;
(o) additional Indebtedness of the Company or any of its
Subsidiaries in an aggregate principal amount (for the Company and all
Subsidiaries) not to exceed $5,000,000 at any one time outstanding;
(p) unsecured Indebtedness of any Foreign Subsidiary in an
aggregate principal amount (for all Foreign Subsidiaries) not to exceed
$50,000,000 at any one time outstanding; provided, that the Net Cash Proceeds
--------
thereof are applied in accordance with Section 3.5(a).
8.3. Limitation on Liens. Create, incur, assume or suffer to
------------------------
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings (provided that adequate reserves with
--------
respect thereto are maintained on the books of the Company or its Subsidiaries,
as the case may be, in conformity with GAAP);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which
81
do not in any case materially detract from the value of the Property subject
thereto or materially interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries;
(f) 8.3(f), securing Indebtedness permitted by Section 8.2(e),
provided that no such Lien is spread to cover any additional Property after the
Restatement Effective Date and that the amount of Indebtedness secured thereby
is not increased;
(g) Liens securing Indebtedness of the Company or any other
Subsidiary incurred pursuant to Section 8.2(c) to finance the acquisition of
fixed or capital assets, provided that (i) such Liens shall be created
--------
substantially simultaneously with the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any Property other than the
Property financed by such Indebtedness and (iii) the amount of Indebtedness
secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease (including
any capital lease) entered into by the Company or any other Subsidiary in the
ordinary course of its business and covering only the assets so leased; and
(j) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Company or any of its
Subsidiaries in the ordinary course of business;
(k) Liens on accounts receivable and proceeds thereof, in each
case so long as (i) such accounts receivable are sold pursuant to the Domestic
Receivables Facility in accordance with the requirements of Section 8.5(d) and
(ii) the amount of Domestic Receivables Facility Attributed Indebtedness at such
time shall not exceed the Domestic Receivables Maximum Commitment Amount;
(l) Liens on accounts receivable and proceeds thereof, in each
case so long as (i) such accounts receivable are sold pursuant to the European
Receivables Facility in accordance with the requirements of Section 8.5(e) and
(ii) the amount of European Receivables Facility Attributed Indebtedness at such
time shall not exceed the European Receivables Maximum Commitment Amount;
(m) Liens securing Acquired Indebtedness; provided that (i)
--------
other than in the case of the ▇▇▇▇▇▇▇▇▇▇ Acquisition, such Liens existed prior
to, and were not created in contemplation of, the respective Permitted
Acquisition, and (ii) such Liens apply only to the properties or assets so
acquired pursuant to the respective Permitted Acquisition;
(n) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings, provided that (i) the same are
--------
discharged, or that execution or enforcement thereof is stayed pending appeal,
within 30 days or (in the case of any execution or enforcement pending appeal)
such lesser time during which such appeal may be taken and (ii) the
circumstances giving rise to such Liens do not constitute an Event of Default
hereunder;
82
(o) (i) Liens securing Indebtedness permitted by Section 8.2(d)
and (ii) Liens on assets of Subsidiaries in Australia and New Zealand securing
working capital credit facilities of such Subsidiaries permitted by Section
8.2(m);
(p) Liens consisting of the right of the Company's joint venture
partner (the "Partner") in the Lion Compact Energy Inc. joint venture to require
-------
the Company to put its ownership interests in such joint venture to the Partner
in the event the Company does not make certain of the investments required by
the joint venture agreement relating to such joint venture;
(q) Liens in favor of customs and revenue authorities to secure
the payment of customs duties in connection with the importation of goods and
deposits made to secure statutory obligations in the form of excise taxes; and
(r) other Liens not incurred in connection with Indebtedness or
Contingent Obligations which (i) are incidental to the conduct of the business
of the Borrower and its Subsidiaries or the ownership of any of their assets and
(ii) do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries.
8.4. Limitation on Fundamental Changes. Enter into any merger,
--------------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business except:
(a) any Domestic Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company shall be the
--------
continuing or surviving corporation);
(b) any Domestic Subsidiary of the Company may Dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the Company;
(c) any Foreign Subsidiary of the Company (other than any
Borrowing Subsidiary) may be merged or consolidated with or into, or may Dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to, any
other Foreign Subsidiary of the Company; provided that the Administrative Agent
--------
shall not be required to release any security interests in assets thereof,
except in connection with the simultaneous grant by the surviving entity to the
Administrative Agent of security interests in the same assets;
(d) any Borrowing Subsidiary may (i) be merged or consolidated
with or into any other Borrowing Subsidiary or any other Foreign Subsidiary
(provided that, in the case of a merger or consolidation with or into a Foreign
--------
Subsidiary which is not a Borrowing Subsidiary, the Borrowing Subsidiary shall
be the surviving entity thereof) or (ii) Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to any other Borrowing Subsidiary or
to any Wholly Owned Subsidiary Guarantor which is a Foreign Subsidiary; provided
that none of the events described in this paragraph (d) shall have the effect of
reducing the collateral security and credit support provided on account of
amounts owing under any Facility hereunder; and
(e) the Specified Corporate Transactions may be consummated.
8.5. Limitation on Sale of Assets. Dispose of any of its Property
---------------------------------
or business (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter
83
acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary's Capital Stock to any Person, except:
(a) the sale of inventory in the ordinary course of business;
(b) Dispositions permitted by Section 8.4 or 8.11;
(c) the sale or issuance of any Subsidiary's Capital Stock to
(i) the Company, (ii) any Wholly Owned Subsidiary Guarantor or (iii) in the case
of Capital Stock of any Foreign Subsidiary, any other Subsidiary of the Company
which (immediately prior to such sale or issuance) holds Capital Stock of such
Foreign Subsidiary (provided that, in the case of this clause (iii) only, the
--------
percentage of the issued and outstanding Capital Stock of such Foreign
Subsidiary which is held by such purchasing Subsidiary immediately prior to such
sale or issuance is identical to the percentage held by it after giving effect
thereto);
(d) the sale of accounts receivable pursuant to the Domestic
Receivables Facility, so long as the amount of Domestic Receivables Facility
Attributed Indebtedness shall at no time outstanding exceed the Domestic
Receivables Maximum Commitment Amount;
(e) the sale of accounts receivable pursuant to the European
Receivables Facility, so long as the amount of European Receivables Facility
Attributed Indebtedness shall at no time outstanding exceed the European
Receivables Maximum Commitment Amount;
(f) the sale to an affiliate of Fiat S.p.A. in the ordinary
course of business and without recourse of accounts receivable owing to the
Company and its Subsidiaries by Fiat S.p.A. and its Subsidiaries, so long as the
aggregate undiscounted face amount of all receivables so sold (but remaining
outstanding) does not exceed $30,000,000 at any one time outstanding;
(g) the sale by the Company of its ownership interest in Yuasa
Inc.;
(h) any Asset Sale by the Company and its Subsidiaries with
respect to (i) assets described on Schedule 8.5 and (ii) other assets having a
fair market value not to exceed $5,000,000 in the aggregate for any fiscal year
of the Company; provided, that (x) any such Asset Sale described in this clause
--------
(g) is consummated for fair market value, (y) at least 75% of the consideration
received by the Company and its Subsidiaries on account of such Asset Sale shall
be in the form of cash and (z) the proceeds of such Asset Sale are applied in
accordance with the provisions of Section 3.5(b);
(i) any Recovery Event, provided, that the proceeds of such
--------
Recovery Event are applied in accordance with the provisions of Section 3.5(b);
and
(j) the sale by the Company or any of its Subsidiaries of the
assets described on Schedule 8.5 (or, in the case of the particular asset
specified on Schedule 8.5 (the "Contributed Asset"), the contribution of such
-----------------
asset to a joint venture and the sale of equity interests in such joint venture
to a third party), so long as the aggregate consideration (including debt
assumed by the purchaser thereof) received by the Company or any such Subsidiary
in connection with any such asset sale (or contribution and sale) shall be at
least equal to the minimum consideration with respect to such asset as disclosed
on Schedule 8.5.
84
8.6. Limitation on Dividends. Declare or pay any dividend (other
-----------------------
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Company or any Subsidiary or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Company or any Subsidiary (collectively,
"Restricted Payments"), except that:
-------------------
(a) any Subsidiary (i) may make Restricted Payments to the
Company or any Wholly Owned Subsidiary Guarantor and (ii) if such Subsidiary is
not a Wholly Owned Subsidiary, may make Restricted Payments to its shareholders
generally, so long as the Company or its Subsidiary which owns the equity or
other ownership interests in the Subsidiary making the Restricted Payment
receives at least its proportionate share of such Restricted Payment (based upon
its relative ownership interest in the Subsidiary making such Restricted
Payment);
(b) so long as no Default or Event of Default shall have
occurred and be continuing, the Company may purchase its common stock or common
stock options from present or former directors, officers or employees of the
Company or any Subsidiary (i) upon the death, disability or termination of
employment of such director, officer or employee, provided, that the aggregate
--------
amount of such payments pursuant to this clause (b) shall not exceed $2,000,000
during the term of this Agreement;
(c) so long as no Default or Event of Default shall have
occurred or be continuing or would occur as a result thereof, the Company may
pay regular quarterly dividends on its outstanding common stock, provided, that
--------
the aggregate amount of such dividends paid during any fiscal year of the
Company shall not exceed $4,000,000; and
(d) so long as no Default or Event of Default shall have
occurred or be continuing or would occur as a result thereof, the Company may
redeem rights granted to the shareholders of the Company pursuant to its
shareholder rights plan for a nominal amount.
8.7. Limitation on Capital Expenditures. Make or commit to make
---------------------------------------
(by way of the acquisition of securities of a Person or otherwise) any Capital
Expenditure, except Capital Expenditures of the Company and its Subsidiaries in
the ordinary course of business not exceeding $130,000,000 during any fiscal
year of the Company; provided, that:
--------
(a) up to $10,000,000 of any such amount referred to above, if
not so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year;
(b) Capital Expenditures made during any fiscal year shall be
deemed made, first, in respect of amounts permitted for such fiscal year as
-----
provided above and, second, in respect of amounts carried over from the prior
------
fiscal year pursuant to subclause (i) above; and
(c) Capital Expenditures made with the proceeds of Recovery
Events to repair, replace or reconstruct the assets on account of which such
Recovery Event occurred shall be deemed not to constitute Capital Expenditures
for purposes of this Section 8.7.
85
8.8. Limitation on Investments, Loans and Advances. Make any
--------------------------------------------------
advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting all or a material part of a business
unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 8.2;
(d) loans and advances to employees of the Company or its
Subsidiaries in the ordinary course of business (including, without limitation,
for travel, entertainment and relocation expenses) in an aggregate amount for
the Company and its Subsidiaries not to exceed $5,000,000 at any one time
outstanding;
(e) the Company or any of its Subsidiaries may make intercompany
loans to (i) any Wholly Owned Subsidiary so long as each such intercompany loan
of the Dollar Equivalent of $1,000,000 or more in principal amount is evidenced
by a promissory note (in form and substance satisfactory to the Administrative
Agent) which to the extent otherwise required under Section 7.10 is pledged in
favor of the Administrative Agent pursuant to the Collateral Agreement or a
Pledge Agreement and (ii) any Subsidiary which is not a Wholly Owned Subsidiary;
provided, that the aggregate principal amount of all such loans described in
--------
this clause (ii) shall not exceed $10,000,000 at any one time outstanding;
(f) investments existing on the Restatement Effective Date and
set forth on Schedule 8.8(j);
(g) investments in connection with (i) the Interest Rate
Protection Agreements described in Section 7.9 and other non-speculative
Interest Rate Protection Agreements, (ii) non-speculative Hedge Agreements
relating to raw materials reasonably related to the production needs of the
Company and its Subsidiaries and (iii) non-speculative Hedge Agreements relating
to currencies;
(h) Permitted Acquisitions; provided that (i) the aggregate
--------
Purchase Prices paid by the Company and its Subsidiaries on account of all
Permitted Acquisitions as of any time during the term of this Agreement, other
than the acquisitions described on Schedule 1.1E, and net of Designated
Disposition Proceeds, shall not exceed the Permitted Acquisition Maximum Amount
at such time, (ii) no Default or Event of Default shall have occurred and be
continuing immediately prior to or after the consummation of such Permitted
Acquisition, (iii) any Person which becomes a Subsidiary of the Company by
virtue of any such acquisition shall comply with the provisions of Section
7.10(c), (iv) prior to consummating any Permitted Acquisition the Lenders shall
have received evidence reasonably satisfactory to them demonstrating pro forma
compliance by the Company with Section 8.1 both before and after giving effect
to such Permitted Acquisition and (v) the Company shall have provided to the
Agents and the Lenders a Permitted Acquisition Notice with respect to such
Permitted Acquisition at least 30 days' prior to the consummation thereof;
(i) the GNB Acquisition, including the creation and
capitalization of Subsidiaries in connection therewith; and
86
(j) (x) the contribution to a Permitted Joint Venture of the
Contributed Asset and (y) other investments in Permitted Joint Ventures in an
aggregate amount thereof at any one time not to exceed for all investments made
pursuant to this clause (y) the sum of (A) $50,000,000 and (B) the amount of any
such investments financed with Designated Equity Amounts to the extent such
Designated Equity Amounts do not exceed $25,000,000.
8.9. Limitation on Optional Payments and Modifications of Debt
--------------------------------------------------------------
Instruments, etc. (a) Make or offer to make any payment, prepayment, repurchase
----------------
or redemption of or otherwise defease or segregate funds with respect to the
Convertible Notes, DM Notes, or the Senior 10% Notes (other than scheduled
interest payments required to be made in cash); provided, so long as no Default
or Event of Default shall have occurred and is continuing, the Company or any of
its Subsidiaries may at any time prepay, repurchase or redeem Eligible
Prepayment Debt in an aggregate principal amount not to exceed the Available
Prepayment Amount at such time, (b) amend, modify, waive or otherwise change, or
consent or agree to any amendment, modification, waiver or other change to, any
of the terms of the Convertible Notes, the DM Notes, or the Senior 10% Notes
(other than any such amendment, modification, waiver or other change which (i)
would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon and (ii) does not involve the payment of a consent fee), (c)
designate any Indebtedness as "Designated Senior Indebtedness" for the purposes
of the Convertible Indenture or (d) amend its certificate of incorporation in
any manner determined by the Administrative Agent to be adverse to the Lenders
without the prior written consent of the Required Lenders.
8.10. Limitation on Transactions with Affiliates. Enter into any
------------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the Company
or any Wholly Owned Subsidiary Guarantor) unless such transaction is (a)
otherwise permitted under this Agreement, (b) in the ordinary course of business
of the Company or such Subsidiary, as the case may be, and (c) upon fair and
reasonable terms no less favorable to the Company or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's length transaction with
a Person which is not an Affiliate. Notwithstanding the foregoing, the Company
and its Subsidiaries may (i) pay customary fees to non-officer directors of the
Company and (ii) share proceeds of Environmental Insurance Recoveries with
predecessor entities and owners of such predecessor entities on terms deemed
fair and reasonable by the Board of Directors of the Company, as evidenced by a
board resolution.
8.11. Limitation on Sales and Leasebacks. Enter into any
----------------------------------------
arrangement with any Person providing for the leasing by the Company or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Company or such
Subsidiary, other than:
(a) any such transactions which are consummated upon terms
satisfactory to the Agents (or, to the extent that the gross proceeds from such
sale or transfer exceed $40,000,000 in the aggregate, the Required Lenders) and
the Net Cash Proceeds from such sale or transfer are applied in accordance with
the provisions of Section 3.5(b);
(b) the GE Sale-Leaseback; and
87
(c) other transactions with respect to equipment which has been
acquired by the Company and its Subsidiaries within 12 months prior to such
transaction; provided, that the aggregate consideration with respect to all such
--------
transactions during any fiscal year of the Company shall not exceed
$20,000,000.
8.12. Limitation on Changes in Fiscal Periods. Permit the fiscal year
---------------------------------------------
of the Company to end on a day other than March 31 or change the Company's
method of determining fiscal quarters.
8.13. Limitation on Negative Pledge Clauses. Enter into or suffer to
-------------------------------------------
exist or become effective any agreement which prohibits or limits the ability of
the Company or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations other than (a) this Agreement and
the other Loan Documents, (b) the Convertible Indenture, Senior 10% Note
Indenture and the DM Agreement, (c) any agreements governing any purchase money
Liens or Capital Lease Obligations otherwise permitted hereby (in which case,
any prohibition or limitation shall only be effective against the assets
financed thereby) and (d) an agreement by DETA Portuguesa Baterias, Lda. ("DETA
----
Portuguesa") in favor of the Portuguese government which prohibits DETA
----------
Portuguesa from placing a lien on approximately $5,200,000 of the assets in
connection with certain capital expenditures made by DETA Portuguesa during the
fiscal years 1993 through 1997.
8.14. Limitation on Restrictions on Subsidiary Distributions. Enter
------------------------------------------------------
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Company to (a) pay dividends
or make any other distributions in respect of any Capital Stock of such
Subsidiary held by, or pay any Indebtedness owed to, the Company or any other
Subsidiary of the Company, (b) make loans or advances to the Company or any
other Subsidiary of the Company or (c) transfer any of its assets to the Company
or any other Subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement which has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary, (iii) restrictions existing on the date hereof set forth on Schedule
8.14 and any restrictions contained in any issue of Indebtedness which
refinances Indebtedness with restrictions set forth on Schedule 8.14, so long as
the restrictions contained in such refinancing Indebtedness are no more
restrictive than those contained in the Indebtedness being refinanced, (iv)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest of the Company or any of its Subsidiaries, (v) customary
provisions restricting assignment of any licensing agreement entered into by the
Company or any of its Subsidiaries in the ordinary course of business and (vi)
any holder of a Lien permitted pursuant to this Agreement may restrict the
transfer of the respective asset or assets subject thereto.
8.15. Limitation on Lines of Business. (a) Enter into any business,
-------------------------------------
either directly or through any Subsidiary, except for those businesses in which
the Company and its Subsidiaries (other than the Domestic Receivables Subsidiary
and the European Receivables Subsidiary) are engaged on the date of this
Agreement or which are reasonably related thereto, (b) permit the Domestic
Receivables Subsidiary to (i) engage in any business activities other than the
purchase, acquisition, sale and pledge of receivables (or interests therein)
pursuant to the Domestic
88
Receivables Facility and borrowings thereunder and any business activities
reasonably incidental thereto, all in accordance with the Domestic Receivables
Facility, and (ii) have any assets or liabilities, other than receivables
purchased from or contributed by the Company, cash collections therefrom, any
investments of such cash collections and other assets and liabilities reasonably
incidental to the foregoing activities or (c) permit the European Receivables
Subsidiary to (i) engage in any business activities other than the purchase,
acquisition, sale and pledge of receivables (or interests therein) pursuant to
the European Receivables Facility and borrowings thereunder and any business
activities reasonably incidental thereto, all in accordance with the European
Receivables Facility, and (ii) have any assets or liabilities, other than
receivables purchased from or contributed by the Subsidiaries of the Company
engaging in such sales and contributions on the Restatement Effective Date, cash
collections therefrom, any investments of such cash collections and other assets
and liabilities reasonably incidental to the foregoing activities.
8.16. Limitation on Assets of Domestic Subsidiaries. From and after
---------------------------------------------------
the Restatement Effective Date, (a) permit assets owned by the Company and its
Subsidiaries (other than Exide U.S. Funding Corporation), located in the United
States and having an aggregate book value in excess of $16,000,000 (other than
inventory of Foreign Subsidiaries shipped to the United States in the ordinary
course of business), to be owned by any Person other than the Company (directly
and not through any Subsidiaries); or (b) permit the aggregate gross revenue
(determined in accordance with GAAP) of all Domestic Subsidiaries (other than
Exide U.S. Funding Corporation) for any period of four consecutive fiscal
quarters to exceed $28,000,000.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or any
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation,
or any other amount payable hereunder or under any other Loan Document, within
five days after any such interest or other amount becomes due in accordance with
the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the date
made or deemed made; or
(c) (i) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section 7.4(a)
(with respect to the Company only), Section 7.7(a), 7.11 or in Section 8; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days; or
(e) the Company or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but
89
excluding the Loans) on the scheduled or original due date with respect thereto;
or (ii) default in making any payment of any interest on any such Indebtedness
beyond the period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii)
default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee
or agent on behalf of such holder or beneficiary) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated maturity
or (in the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described in clause
--------
(i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an
Event of Default unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate $5,000,000;
or
(f) (i) the Company or any of its Material Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Company or any of its Material Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against the Company or any of its Material Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Material Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Company or any
of its Material Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) the Company or any of its
Material Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Company or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company
or any Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to,
90
incur any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such events
or conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability (not
paid or fully covered by insurance as to which notice has been provided to the
relevant insurance company and such insurance company has not disputed the claim
made for payment thereof) of $2,500,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason (other
than any termination in accordance with its terms), to be in full force and
effect, or any Loan Party or any Affiliate of any Loan Party shall so assert, or
any Lien created by any of the Security Documents shall (except to the extent
released in accordance with the terms hereof) cease to be enforceable and of the
same effect and priority purported to be created thereby; or
(j) The guarantee contained in Section 10 shall cease, for any
reason (other than in connection with the release of all Guarantors parties
thereto in accordance with the terms hereof), to be in full force and effect or
any Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), shall become, or obtain rights (whether by means or warrants,
options or otherwise) to become, the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more
than 20% (in the case of any Person other than the Seller and its subsidiaries)
or 30% (in the case of the Seller and its subsidiaries) of the outstanding
common stock of the Company; (ii) the board of directors of the Company shall
cease to consist of a majority of Continuing Directors; (iii) the Company shall
cease to own and control, of record and beneficially, directly, 100% of each
class of outstanding Capital Stock of any Borrowing Subsidiary free and clear of
all Liens (except Liens created by the Collateral Agreement); or (iv) a
Specified Change of Control shall occur; or
(l) (i) the Convertible Notes shall cease, for any reason, to be
validly subordinated to the Obligations, as provided in the Convertible
Indenture or (ii) any Loan Party, any Affiliate of any Loan Party, the trustee
in respect of the Convertible Notes or the holders of at least 25% in aggregate
principal amount of the Convertible Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above, automatically the Commitments
shall immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) shall immediately become due
and payable, and (B) if such event is any other Event of Default, any or all of
the following actions may be taken: (i) with the consent of the Majority
Revolving Credit Facility Lenders, the Administrative Agent may, or upon the
request of the Majority Revolving Credit Facility Lenders, the Administrative
Agent shall, by notice to the
91
Company declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Company, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. With respect to all Letters
of Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Company shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrowers hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrowers hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Company (or such other Person as may be lawfully entitled thereto).
SECTION 10. GUARANTEE
10.1. Guarantee. In order to induce the Administrative Agent and the
---------
Lenders to execute and deliver this Agreement and to make or maintain the Loans
hereunder, and in consideration thereof:
(a) Subject to the exceptions set forth in Schedule 10.1, each of
the Guarantors hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for the ratable benefit of the Tranche A Term Loan
Lenders, the Tranche B Term Loan Lenders and the Revolving Credit Lenders (and
their respective affiliates), the prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of the
Foreign Obligations, and each of the Guarantors further agrees to pay any and
all expenses (including, without limitation, all reasonable fees, charges and
disbursements of counsel) which may be paid or incurred by the Administrative
Agent or such Lenders in enforcing, or obtaining advice of counsel in respect
of, any of their rights under the guarantee contained in this Section 10.
Without limiting the generality of the foregoing, each Guarantor's liability
shall extend to all amounts that constitute part of the Foreign Obligations and
would be owed by the Borrowing Subsidiaries but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving a Borrowing Subsidiary. The
guarantee contained in this Section 10, subject to Section 10.5, shall remain in
full force and effect until the Foreign Obligations are paid in full,
notwithstanding that from time to time prior thereto any or all of the Borrowing
Subsidiaries may be free from any Foreign Obligations.
(b) Each Guarantor agrees that whenever, at any time, or from time
to time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability under this Section 10, it will notify the
Administrative Agent and such Lender in writing that such payment is made under
the guarantee contained in this Section 10 for such purpose. No payment or
payments
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made by a Guaranteed Party or any other Person or received or collected by the
Administrative Agent or any Lender from a Guaranteed Party or any other Person
by virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Related Guaranteed Obligations of such Guarantor, shall be deemed to modify,
reduce, release or otherwise affect the liability of such Guarantor under this
Section 10 which, notwithstanding any such payment or payments, shall remain
liable for its Related Guaranteed Obligations until, subject to Section 10.5,
its Related Guaranteed Obligations are paid in full.
10.2. No Subrogation, Contribution, Reimbursement or Indemnity.
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Notwithstanding anything to the contrary in this Section 10, each Guarantor
hereby irrevocably waives all rights which may have arisen in connection with
the guarantee contained in this Section 10 to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code (or similar action
under any successor law or under any comparable law), including Section 509
thereof, under common law or otherwise) of the Administrative Agent or any
Lender against the Related Guaranteed Party of such Guarantor or against the
Administrative Agent or any Lender for the payment of its Related Guaranteed
Obligations, nor shall any of the Guarantors seek or be entitled to seek any
contribution or reimbursement from any of its Related Guaranteed Parties in
respect of payments made by such Guarantor hereunder, until all amounts owing to
the Administrative Agent and the Lenders hereunder and under any other Loan
Document shall have been paid in full, no Letters of Credit shall be outstanding
and the Commitments shall have been terminated. If any amount shall be paid to a
Guarantor on account of such subrogation rights at any time when all amounts
owing to the Administrative Agent and the Lenders hereunder and under any other
Loan Document shall not have been paid in full, any Letter of Credit shall be
outstanding and the Commitments shall not have been terminated, such amount
shall be held by such Guarantor in trust for the Administrative Agent and the
relevant Lenders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Administrative
Agent in the exact form received by such Guarantor (duly indorsed by such
Guarantor to the Administrative Agent, if required), to be held as collateral
security for and/or then applied against such Guarantor's Related Guaranteed
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine. The provisions of this Section 10.2 shall survive the term
of the guarantee contained in this Section 10 and the payment in full of the
Obligations and the termination of the Commitments.
10.3. Amendments, etc. Each Guarantor shall remain obligated for its
---------------
Related Guaranteed Obligations under this Section 10 notwithstanding that,
without any reservation of rights against such Guarantor, and without notice to
or further assent by such Guarantor, any demand for payment of or reduction in
the principal amount of any of its Related Guaranteed Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative Agent
or such Lender, and any of its Related Guaranteed Obligations continued, and its
Related Guaranteed Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and this
Agreement, any other Loan Document, and any other documents executed and
delivered in connection herewith or therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the requisite group of
Lenders specified by this Agreement may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
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Administrative Agent or any Lender for the payment of its Related Guaranteed
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for any
Guarantor's Related Guaranteed Obligations or for the guarantee contained in
this Section 10 or any property subject thereto.
10.4. Guarantee Absolute and Unconditional. Each Guarantor waives any
------------------------------------
and all notice of the creation, renewal, extension or accrual of any of its
Related Guaranteed Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained in this Section
10 or acceptance of the guarantee contained in this Section 10; each Guarantor's
Related Guaranteed Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the guarantee contained in this Section 10; and all
dealings between any of the Guarantors or any of their Related Guaranteed
Parties, on the one hand, and the Administrative Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon the guarantee contained in this Section 10. Each Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon such Guarantor or any of its Related Guaranteed Parties
with respect to its Related Guaranteed Obligations. The guarantees contained in
this Section 10 shall be construed as continuing, absolute and unconditional
guarantees of payment without regard to (a) the validity or enforceability of
this Agreement or any other Loan Document, any of the Obligations or any
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, setoff or counterclaim (other than a defense of payment
or performance) which may at any time be available to or be asserted by any of
the Guaranteed Parties against the Administrative Agent or any Lender, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of any
Guarantor or any of its Related Guaranteed Parties) which constitutes, or might
be construed to constitute, an equitable or legal discharge of a Guaranteed
Party for any of the Obligations, or of any Guarantor under the guarantee
contained in this Section 10, in bankruptcy or in any other instance. When the
Administrative Agent or any Lender is pursuing its rights and remedies under
this Section 10 against any Guarantor, the Administrative Agent or any Lender
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against any of such Guarantor's Related Guaranteed Parties or any other
Person or against any collateral security or guarantee for any of the
Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to
collect any payments from any of a Guarantor's Related Guaranteed Parties or any
such other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of any of such Related
Guaranteed Parties or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve such Guarantor of any liability
under this Section 10, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Administrative
Agent and the Lenders against such Guarantor.
10.5. Reinstatement. The guarantees contained in this Section 10 shall
-------------
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of a Guarantor's Related Guaranteed
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any of such Guarantor's Related Guaranteed
Parties or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for,
94
any of such Guarantor's Related Guaranteed Parties or any substantial part of
any of their Property, or otherwise, all as though such payments had not been
made.
10.6. Payment. Each of the Guarantors hereby agrees that its Related
-------------
Guaranteed Obligations will be paid to the Administrative Agent without set-off
or counterclaim at the Payment Office in the currency in which such obligations
were originally denominated.
10.7. Limited Effect of Limitations on Guarantees. Except as expressly
-------------------------------------------------
stated therein, nothing in Schedule 10.1 shall limit or prejudice, or shall be
deemed to limit or prejudice, in any fashion any obligations of any Loan Party
(including, without limitation, where the guarantee of such Loan Party is
subject to limitations described on Schedule 10.1) as a Loan Party under this
Agreement or any other Loan Document.
SECTION 11. THE AGENTS; THE JOINT LEAD ARRANGERS;
THE BOOK MANAGER
11.1. Appointment. Each Lender hereby irrevocably designates and
-----------------
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes each Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto (including, without limitation, with respect to
the Administrative Agent, the execution of certain of, and the holding,
maintenance and application of the collateral under, the Security Documents; and
the Administrative Agent is hereby expressly authorized to execute and deliver
any Security Document determined by the Administrative Agent to require such
execution and delivery. Notwithstanding any provision to the contrary elsewhere
in this Agreement, no Agent shall have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.
11.2. Delegation of Duties. Each Agent may execute any of its duties
--------------------------
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
11.3. Exculpatory Provisions. Neither any Agent nor any of their
----------------------------
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity,
95
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
11.4. Reliance by Agents. Each Agent shall be entitled to rely, and
------------------------
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by the Administrative Agent. The Agents may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. Each Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders (or a
different requisite group of Lenders if so specified by this Agreement) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or a different requisite group of Lenders if so specified by
this Agreement), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
11.5. Notice of Default. No Agent shall be deemed to have knowledge or
-----------------------
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or the Company referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or a different requisite group of Lenders if so specified by this
Agreement); provided that unless and until the Administrative Agent shall have
--------
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
11.6. Non-Reliance on Agents and Other Lenders. Each Lender expressly
----------------------------------------------
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender
96
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, no Agent shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party which may come into the possession of such Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
11.7. Indemnification. The Lenders agree to indemnify each Agent in
---------------------
its capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section 11.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The agreements in this Section 11.7
shall survive the payment of the Loans and all other amounts payable hereunder.
11.8. Agent in Its Individual Capacity. Each Agent, in its individual
--------------------------------------
capacity, and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Loan Party as though such
Agent was not an Agent. With respect to its Loans made or renewed by it and with
respect to any Letter of Credit issued or participated in by it, each Agent, in
its individual capacity shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Agent, and the terms "Lender" and "Lenders" shall
include each Agent in its individual capacity.
11.9. Successor Administrative Agent. The Administrative Agent may
------------------------------------
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Company. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 9(a) or Section
9(f) with respect to the Company shall have occurred and be continuing) be
subject to approval by the Company (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the
97
term "Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. The Syndication Agent may, at
any time, by notice to the Lenders and the Administrative Agent, resign as
Syndication Agent hereunder, whereupon the duties, rights, obligations and
responsibilities hereunder shall automatically be assumed by, and inure to the
benefit of, the Administrative Agent, without any further act by the Syndication
Agent, the Administrative Agent or any Lender. After any retiring Agent's
resignation as Agent, the provisions of this Section 11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents.
11.10. Authorization to Release Liens; Execution of Security Documents
---------------------------------------------------------------
and Security Document Amendments. (a) The Administrative Agent is hereby
--------------------------------
irrevocably authorized by each of the Lenders to release any Lien covering any
Property of the Company or any of its Subsidiaries that is the subject of a
Disposition which is permitted by this Agreement or which has been consented to
in accordance with Section 12.1.
(b) The Administrative Agent is hereby irrevocably authorized to
execute and deliver any Security Document or Security Document Amendment
determined by it to be necessary or advisable to reflect the transaction
contemplated hereby.
11.11. Public Deeds for Purposes of Spanish Law. The Administrative
----------------------------------------
Agent is hereby expressly authorized and instructed by the Lenders to public
deed this Agreement in Spain before a Notary or Official Stockbroker, to accept
the public deeding of a pledge by Exide Holding Europe S.A. of all of its shares
in the Spanish company "Sociedad Espanola del Acumulador Tudor, S.A.", to
extinguish such pledge and to make such amendments, additions, supplements or
corrections to the aforesaid public deeds as the Administrative Agent shall, in
its reasonable discretion, deem to be necessary or appropriate.
11.12. The Joint Lead Arrangers; the Documentation Agent; the
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Syndication Agent; the Book Manager. The Joint Lead Arrangers, the Documentation
-----------------------------------
Agent, if any, the Syndication Agent and the Book Manager, in their respective
capacities as such, shall have no duties or responsibilities, and shall incur no
liability, under this Agreement and the other Loan Documents.
SECTION 12. MISCELLANEOUS
12.1. Amendments and Waivers. Neither this Agreement, any other Loan
----------------------
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 12.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Agents and each Loan
Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents for
98
the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders, or the Agents, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
--------
however, that no such waiver and no such amendment, supplement or modification
-------
shall (i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan, extend the scheduled date or reduced the amount of any
scheduled amortization payment in respect of any Term Loan, reduce the stated
rate of any interest, fee or letter of credit commission payable hereunder or
extend the scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Lender's Revolving Credit Commitment, in each
case without the consent of each Lender directly affected thereby; (ii) amend,
modify or waive any provision of this Section 12.1 or reduce any percentage
specified in the definition of Required Lenders or Required Prepayment Lenders,
consent to the assignment or transfer by the Company of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or
substantially all of the Collateral or release all or substantially all of the
Guarantors from their obligations under the Collateral Agreement, in each case
without the written consent of all Lenders; (iii) reduce any percentage
specified in the definition of Required Foreign Lenders without the written
consent of all Foreign Lenders; (iv) reduce the percentage specified in the
definition of Majority Facility Lenders or Majority Revolving Credit Facility
Lenders without the written consent of all Lenders under each affected Facility;
(v) amend, modify or waive any provision of Section 11 without the written
consent of the Agents; (vi) amend, modify or waive any provision of Section 2.7
without the written consent of the Swing Line Lenders; (vii) amend, modify or
waive any provision of Section 4 without the written consent of the Issuing
Lenders; or (viii) amend or modify Section 3.5(d) to change the application of
prepayments thereunder without the written consent of the Majority Facility
Lenders in respect of any Facility adversely affected thereby. Any such waiver
and any such amendment, supplement or modification shall apply equally to each
of the relevant Lenders and shall be binding upon the Loan Parties, the Lenders,
the Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
12.2. Notices. All notices, requests and demands to or upon the
-------------
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company and the Administrative
Agent, as set forth on Schedule 1.1B hereto, in the case of the Borrowing
Subsidiaries and as set forth in an administrative questionnaire delivered to
the Administrative Agent in the case of the Lenders, or to such other address as
may be hereafter notified by the respective parties hereto:
The Company: Exide Corporation
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Attention: Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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The Administrative Agent: Credit Suisse First Boston
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with, in the case of notices
with respect to any of the
Borrowing Subsidiaries, a
copy to: Credit Suisse First Boston
One ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Lenders shall not be effective until received.
12.3. No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------------
delay in exercising, on the part of the either Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
12.4. Survival of Representations and Warranties. All representations
------------------------------------------------
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
12.5. Payment of Expenses. Each of the Borrowers jointly and severally
-------------------------
agrees (a) to pay or reimburse the Agents for all their reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Agents for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents,
including, without limitation, the fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Agents, (c) to pay, indemnify, and hold each Lender and the
Agents harmless from, any and all recording and filing fees or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender, each Agent, each of their respective
affiliates, and each of their
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respective officers, directors, employees, affiliates, trustees, investment
advisors, agents and controlling persons (each, an "indemnitee") harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the use of proceeds of the Loans or the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of
the Company or any of its Subsidiaries or any of the Properties (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided, that none of the Borrowers shall have any obligation hereunder to any
--------
indemnitee with respect to indemnified liabilities to the extent such
indemnified liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, each of the Borrowers agrees not to
assert and to cause its respective Subsidiaries not to assert, and hereby waive
and agree to cause its respective Subsidiaries to so waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any indemnitee. The agreements
in this Section shall survive repayment of the Loans and all other amounts
payable hereunder.
12.6. Successors and Assigns; Participations and Assignments. (a) This
------------------------------------------------------
Agreement shall be binding upon and inure to the benefit of the Company, the
Lenders, the Agents, all future holders of the Loans and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Company, in accordance
with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
-----------
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Company and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation or would release all or
substantially all of the Collateral or release all or substantially all of the
Guarantors from their obligations under the Collateral Agreement. The Company
agrees that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under
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this Agreement, provided that, in purchasing such participating interest, such
--------
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 12.7(a) as fully as if it were a Lender
hereunder. The Company also agrees that each Participant shall be entitled to
the benefits of Sections 3.12, 3.13 and 3.14 with respect to its participation
in the Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that, in the case of Section 3.13, such Participant shall have
--------
complied with the requirements of said Section and provided, further, that no
-------- -------
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable
--------
law, at any time and from time to time assign to any Lender, any affiliate
thereof, any investment fund or other entity advised or managed by such Lender
or any affiliate thereof, or, with the consent of the Company and the Agents
(which, in each case, shall not be unreasonably withheld or delayed) (provided
--------
that the consent of the Company need not be obtained with respect to any
assignment of Term Loans), to an additional bank, financial institution or other
entity (an "Assignee") all or any part of its rights and obligations under this
--------
Agreement pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit K, executed by such Assignee, such Assignor, the Administrative Agent
and the Syndication Agent (and, where the consent of the Company is required
pursuant to the foregoing provisions, by the Company) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided
--------
that no such assignment to an Assignee (other than to any Lender or any
affiliate thereof or any investment fund or other entity advised or managed by
such Lender or any affiliate thereof) shall be in an aggregate principal amount
of less than $2,500,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement), unless otherwise agreed by the
Company, the Administrative Agent and the Syndication Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance (which, unless the Administrative
Agent shall otherwise agree, shall not be less than three Business Days
following the delivery to the Administrative Agent of such Assignment and
Acceptance for acceptance and recording), (x) the Assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Lender hereunder with a Commitment and/or Loans
as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto). Notwithstanding any provision of this
Section 12.6, the consent of the Company shall not be required for any
assignment which occurs at any time when any Event of Default shall have
occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the Borrowers,
maintain at its address referred to in Section 12.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
--------
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time and any
Notes evidencing such Loans. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Company, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register as
the owner of the Loan and any Note evidencing such Loan recorded therein for all
purposes of this Agreement. Any assignment of any Loan whether or
102
not evidenced by a Note shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan evidenced by a
Note shall be registered on the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Loan, accompanied by a duly
executed Assignment and Acceptance, and thereupon one or more new Notes in the
same aggregate principal amount shall be issued to the designated Assignee and
the old Notes shall be returned by the Administrative Agent to the Company
marked "canceled". The Register shall be available for inspection by the Company
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof or a Person under common management with
such Lender, by the Company, the Administrative Agent and the Syndication Agent)
together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (except that (i) such fee shall be payable by the
Company, in the event of any assignment made at the request of the Company
pursuant to Section 3.17 and (ii) no such registration and processing fee shall
be payable in the case of an Assignee which is an affiliate of the assigning
Lender), the Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register. On or prior to such effective
date, the Company, at its own expense, upon request, shall execute and deliver
to the Administrative Agent (in exchange for the Revolving Credit Note and/or
Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit
Note and/or Term Notes, as the case may be, to the order of such Assignee in an
amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as
the case may be, assumed or acquired by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Revolving Credit
Commitment and/or Term Loans, as the case may be, upon request, a new Revolving
Credit Note and/or Term Notes, as the case may be, to the order of the assigning
Lender in an amount equal to the Revolving Credit Commitment and/or applicable
Term Loans, as the case may be, retained by it hereunder. Such new Notes shall
be dated the Restatement Effective Date and shall otherwise be in the form of
the Note replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to (i) any Federal
Reserve Bank in accordance with applicable law or (ii) the Trustee with respect
to a pool of collateralized loan obligations which includes the obligations
owing to such Lender hereunder.
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an
-------------
"SPC") of such Granting Bank, identified as such in writing from time to time by
---
the Granting Bank to the Administrative Agent and the Company, the option to
provide to the Borrowers all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to the Borrowers pursuant to Section 2.2 or
2.4; provided that (i) nothing contained shall constitute a commitment by any
--------
SPC to make any Loan and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Bank shall
be obligated to make such Loan pursuant to the terms hereof. The making of a
Loan by an SPC hereunder shall be deemed to utilize the Commitments of all
Lenders to the same extent, and as if, such Loan were made by the Granting Bank.
Each party
103
hereto hereby agrees that no SPC shall be liable for any payment under this
Agreement for which a Lender would otherwise be liable for so long as, and to
the extent that, the related Granting Bank makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees that, prior to the date that is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other Person
in instituting against, such SPC any bankruptcy, reorganization arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any state thereof.
12.7. Adjustments; Set-off. (a) On the date of occurrence of any Event
--------------------------
of Default specified in clause (i) or (ii) of Section 9(f), each Lender shall be
deemed to have purchased an interest in the Obligations owing to each other
Lender (and, to the extent necessary after giving effect to any actual
recoveries on such Obligations, shall actually fund such purchase) such that,
after giving effect to all such purchases or deemed purchases, each Lender is
owed directly or through such purchase or deemed purchase the portion of the
aggregate amount of Obligations then outstanding with respect to each of the
Tranche A Term Loan Facility, the Tranche B Term Loan Facility and the Revolving
Credit Facility equal to such Lender's ratable share (determined on the basis of
the amount of the Commitment of such Lender to such Facility or of the aggregate
outstanding principal and/or face amount of Obligations owing to such Lender
under such Facility, as the case may be, immediately prior to the occurrence of
such Event of Default) of all Obligations then outstanding. Each Lender hereby
acknowledges and agrees that its obligation to purchase such Obligations in
accordance with the provisions of this Section 12.7(a) shall be irrevocable and
unconditional.
(b) If any Lender (a "Benefitted Lender") in a particular Facility
-----------------
shall at any time receive any payment of all or part of its Loans or the
Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender in such Facility in respect of such other Lender's
Loans or the Reimbursement Obligations owing to such other Lender with respect
to such Facility, or interest thereon, such Benefitted Lender shall purchase for
cash from the other Lenders in such Facility a participating interest in such
portion of each such other Lender's Loans and/or of the Reimbursement
Obligations owing to each such other Lender with respect to such Facility, or
shall provide such other Lenders in such Facility with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders in such Facility; provided, however,
-------- -------
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(c) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Company,
any of the other Borrowers or any of the Foreign Subsidiary Guarantors, any such
notice being expressly waived by the Company, each other Borrower, and each
Foreign Subsidiary Guarantor, to the extent permitted by applicable law, upon
any amount becoming due and payable by the Company, any other Borrower, or any
of the Foreign Subsidiary Guarantors hereunder (whether at the stated maturity,
by acceleration or otherwise) to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness
104
or claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the Company,
such other Borrower or such Foreign Subsidiary Guarantor. Each Lender agrees
promptly to notify the Company, such other Borrower, such Foreign Subsidiary
Guarantor and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall not
--------
affect the validity of such setoff and application.
12.8. Conversion of Loans. Upon the occurrence of any of the following
-------------------------
events:
(a) an Event of Default specified in clause (i) or (ii) of Section
9(f); or
(b) at the request of the Administrative Agent in its discretion or
upon the direction of the Required Lenders, in each case, upon the occurrence of
any other Event of Default; or
(c) at the request of the Administrative Agent in its discretion or
upon the direction of the Majority Foreign Lenders in respect of a particular
Optional Currency, in each case, upon the occurrence of an Event of Default
specified in Section 9(a) with respect to any Loan or Reimbursement Obligation
or interest or other amount payable thereon in such Optional Currency;
then,
(i) if such event is one of the events specified in clause (a)
or (b) above (A) all outstanding Revolving Credit Loans, Reimbursement
Obligations and Swing Line Loans denominated in any Optional Currency shall
promptly be converted by each Lender thereof into Dollars at the actual
exchange rate at which such Lender is able to obtain the applicable amount
of the relevant Optional Currency and (B) all outstanding Letters of Credit
denominated in any Optional Currency with respect to which presentment for
honor shall not have occurred at the time of the occurrence of such event
shall automatically be converted by the relevant Issuing Lender thereof
into Dollars in the manner provided in clause (A) of this paragraph (i)
immediately after the time, if any, at which a draft shall have been
presented under any such Letter of Credit and shall have been paid by the
relevant Issuing Lender;
(ii) if such event is an event specified in clause (c) above
with respect to any Optional Currency (A) all outstanding Revolving Credit
Loans, Reimbursement Obligations and Swing Line Loans in such Optional
Currency shall promptly be converted by each Lender thereof into Dollars at
the actual exchange rate at which such Lender is able to obtain the
applicable amount of such Optional Currency and (B) all outstanding Letters
of Credit denominated in such Optional Currency with respect to which
presentment for honor shall not have occurred at the time of the occurrence
of such event shall be automatically converted into Dollars in the manner
provided in clause (A) of this paragraph (ii) immediately after the time,
if any, at which a draft shall have been presented under any such Letter of
Credit and shall have been paid by the relevant Issuing Lender; and
(iii) to the extent that, after giving effect to any actual
recoveries on such Obligations, the Tranche B Term Loan Lenders would, in
the absence of the conversion described in this clause (iii) below, be
obligated to fund a purchase of a participating interest in the Obligations
pursuant to Section 12.7 in any Optional Currency, all outstanding Term
105
Loans denominated in any Optional Currency shall promptly be converted by
each Lender thereof into Dollars at the actual exchange rate at which such
Lender is able to obtain the applicable amount of the relevant Optional
Currency.
Promptly following any such conversion, each such Lender shall notify
the Administrative Agent of the exchange rate utilized by it in making its
conversion (which rate shall be deemed to be correct, in the absence of manifest
error) and the amount in Dollars of its relevant converted Loans (after giving
effect to such conversion). The Administrative Agent promptly shall notify each
such Lender, the relevant Borrower and the Company of the aggregate outstanding
principal amount (in Dollars) of such converted Loan and shall provide the
relevant Borrower and the Company with the conversion data provided to the
Administrative Agent by each such Lender. From and after such conversion, (i)
all such specified Loans shall be deemed to be outstanding in Dollars as Base
Rate Loans (with such conversion constituting, for purposes of Section 3.14, a
prepayment of such Loans before the last day of the Interest Period with respect
thereto) and (ii) all amounts from time to time accruing, and all amounts from
time to time payable, on account of such converted Loans (including, without
limitation, any interest and other amounts which were accrued but unpaid on the
date of such conversion) shall be payable in Dollars as if such Loan originally
had been made in Dollars. Any such request specified clause (b) or (c) of this
Section 12.8 shall be made by delivering to the relevant Lenders, the relevant
Borrower and the Company a notice to such effect (an "Acquisition Loan
----------------
Conversion Notice"), which Acquisition Loan Conversion Notice shall, in the case
-----------------
of the event specified in clause (a) of this Section 12.8, be deemed to have
been delivered automatically, without actual delivery thereof or any other
action by any Person, immediately prior to the occurrence of such event.
12.9. Addition of Borrowing Subsidiaries; Tranche B Term Loan
-------------------------------------------------------------
Supplement. (a) This Agreement will be amended to add Subsidiaries of the
----------
Company as additional Borrowing Subsidiaries and to specify the Designated
Maximum with respect thereto upon (x) execution and delivery by the Company,
such additional Borrowing Subsidiary and the Administrative Agent, of a
Borrowing Subsidiary Joinder Agreement, providing for such Subsidiaries to
become Borrowing Subsidiaries (y) delivery to the Agents of (1) satisfactory
corporate resolutions, other corporate documents, certificates and legal
opinions in respect of such additional Borrowing Subsidiaries substantially
equivalent to comparable documents delivered on the Restatement Effective Date
in respect of the Borrowing Subsidiaries party to this Agreement on the
Restatement Effective Date, and (2) such other documents with respect thereto as
the Agents shall reasonably request and (z) the written approval of the Majority
Revolving Credit Lenders, including the written approval of the Majority
Revolving Credit Lenders to the Designated Maximum with respect to each such
Borrowing Subsidiary.
(b) Additional Tranche B Term Loan Commitments in an aggregate
amount of not more than $250,000,000 will be made available hereunder and, to
the extent that the entities providing the Additional Tranche B Term Loan
Commitments are not already Lenders parties to this Agreement, such entities
shall be added as Lenders parties to this Agreement, pursuant to the Tranche B
Term Loan Supplement . The Tranche B Term Loan Supplement shall be executed and
delivered by the Company, each Lender providing an Additional Tranche B Term
Loan Commitment and the Administrative Agent. The Tranche B Term Loan
Supplement shall set forth (i) the name of each Tranche B Term Loan Lender
providing an Additional Tranche B Term Loan Commitment and the amount and
currency of the Additional Tranche B Term Loan Commitment of each such Lender,
(ii) the Applicable Margins applicable to Tranche B Term Loans that are
106
Eurocurrency Loans and Base Rate Loans, respectively, and (iii) such other
modifications to this Agreement and the other Loan Documents as the
Administrative Agent shall consider necessary to appropriately reflect the
addition of the Additional Tranche B Term Loan Commitments; provided, that (A)
--------
no such modifications pursuant to this clause (iii) shall effect any
modification which, pursuant to Section 12.1, require the approval of Lenders
other than the Required Lenders unless such Lenders consent thereto and (B) no
such modification pursuant to this clause (iii) shall be adverse to the
interests of any of the Lenders unless the Required Lenders consent thereto.
12.10. Collateral Agency and Intercreditor Agreement; Existing
--------------------------------------------------------------
Guaranties. (a) Each party hereto, by becoming a party to this Agreement, hereby
----------
acknowledges and agrees that the Collateral Agency and Intercreditor Agreement
is hereby terminated and of no further force and effect.
(b) Upon the consummation of the Specified Corporate Transactions and
the occurrence of the Restatement Effective Date, the security interest granted
by the Excluded Subsidiaries in the Collateral Agreement (as defined in the
Existing Credit Agreement), shall be automatically terminated and released.
12.11. Counterparts. This Agreement may be executed by one or more of
-------------------
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Company and the
Administrative Agent.
12.12. Severability. Any provision of this Agreement 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 hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.13. Integration. This Agreement and the other Loan Documents
------------------
represent the agreement of the Borrowers, the Guarantors, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and there are
no promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
12.14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
--------------------
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12.15. Submission To Jurisdiction; Waivers. Each of the Borrowers and
------------------------------------------
the Guarantors hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
107
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Company, at the
Company's address set forth in Section 12.2 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto, and each
Borrowing Subsidiary and each Guarantor hereby irrevocably appoints the Company
as its agent for service of process and the Company hereby accepts such
appointment and irrevocably agrees to act as such agent and to promptly provide
to each Borrowing Subsidiary and each Guarantor copies of any documents served
upon it as agent for each Borrowing Subsidiary and each Guarantor;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section 12.15 any special, exemplary, punitive or consequential damages.
12.16. Acknowledgments. Each of the Borrowers hereby acknowledges
----------------------
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to any of the Borrowers arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and each of
the Borrowers, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrowers and the Lenders.
12.17. WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE GUARANTORS,
----------------------------
THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.18. Confidentiality. Each of the Agents and each Lender agrees to
----------------------
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
--------
from disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate of any Lender, (b) to any Participant or Assignee (each,
a "Transferee") or prospective Transferee which agrees to comply with the
----------
provisions of this Section, (c) to the employees, directors, agents, attorneys,
accountants and other professional advisors of
108
such Lender or its affiliates, (d) upon the request or demand of any examiner or
Governmental Authority having jurisdiction over the such Agent or such Lender,
(e) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (f) if requested
or required to do so in connection with any litigation or similar proceeding,
(g) which has been publicly disclosed other than in breach of this Section
12.18, (h) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender, or (i) in connection with the exercise of
any remedy hereunder or under any other Loan Document.
12.19. Enforceability; Usury. In no event shall any provision of this
----------------------------
Agreement or any other instrument evidencing or securing the indebtedness of any
of the Borrowers hereunder ever obligate any of the Borrowers to pay or allow
any Lender to collect interest on the Loans or any other indebtedness of any the
Borrowers hereunder at a rate greater than the maximum non-usurious rate
permitted by applicable law (herein referred to as the "Highest Lawful Rate"),
-------------------
or obligate any of the Borrowers to pay any taxes, assessments, charges,
insurance premiums or other amounts to the extent that such payments, when added
to the interest payable on the Loans or any other indebtedness hereunder, would
be held to constitute the payment by such Borrower of interest at a rate greater
than the Highest Lawful Rate; and this provision shall control over any
provision to the contrary.
Without limiting the generality of the foregoing, in the event the
maturity of all or any part of the principal amount of the indebtedness of any
of the Borrowers hereunder shall be accelerated for any reason, then such
principal amount so accelerated shall be credited with any interest theretofore
paid thereon in advance and remaining unearned at the time of such acceleration.
If, pursuant to the terms of this Agreement, any funds are applied to the
payment of any part of the principal amount of the indebtedness of any of the
Borrowers hereunder prior to the maturity thereof, then (a) any interest which
would otherwise thereafter accrue on the principal amount so paid by such
application shall be canceled, and (b) the indebtedness of such Borrower
hereunder remaining unpaid after such application shall be credited with the
amount of all interest, if any, theretofore collected on the principal amount so
paid by such application and remaining unearned at the date of said application;
and if the funds so applied shall be sufficient to pay in full all the
indebtedness of such Borrower hereunder, then the Lenders shall refund to such
Borrower all interest theretofore paid thereon in advance and remaining unearned
at the time of such acceleration. Regardless of any other provision in this
Agreement, or in any of the written evidences of the indebtedness of any of the
Borrowers hereunder, none of the Borrowers shall be required to pay any unearned
interest on such indebtedness or any portion thereof, and shall be required to
pay interest thereon at a rate in excess of the Highest Lawful Rate construed by
courts having competent jurisdiction thereof.
12.20. Judgment. The obligations of each Borrower hereunder due to any
---------------
party hereto in Dollars (including, without limitation, by virtue of any
conversion of a Loan or Reimbursement Obligation from an Optional Currency into
Dollars pursuant to the provisions of Section 12.8) shall, notwithstanding any
judgment in a currency (the "judgment currency") other than Dollars, be
-----------------
discharged only to the extent that on the Business Day following receipt by such
party of any sum adjudged to be so due in the judgment currency such party may
in accordance with normal banking procedures purchase Dollars with the judgment
currency; if the amount of Dollars so purchased is less than the sum originally
due to such party in Dollars, such Borrower agrees, as a
109
separate obligation and notwithstanding any such judgment, to indemnify such
party against such loss, and if the amount of Dollars so purchased exceeds the
sum originally due to any party to this Agreement, such party agrees to remit to
such Borrower such excess.
12.21. German Limitations on Liability. Notwithstanding anything to
--------------------------------------
the contrary contained herein or in any other Loan Document:
(a) the obligations hereunder with respect to each Borrower which is
a Gesellschaft mit beschrankter Haftung organized under the laws of the Federal
Republic of Germany (each, a "German GmbH Borrower") shall at all times be
--------------------
limited so that its liability as a Borrower under this Agreement and the other
Loan Documents shall at no time require its payment of any moneys which are
required to maintain its registered share capital (Stammkapital) to the extent
solely that such share capital is protected by Sections 30 and 31 of the German
Limited Liabilities Companies Act (the "GmbH-Gesetz"); and
-----------
(b) Neither the Administrative Agent nor any of the Lenders shall be
entitled to enforce the obligations of any German GmbH Guarantor under Section
10 for so long as, and solely to the extent that, such enforcement would cause
such German GmbH Guarantor's net assets (Reinvermogen) to be reduced below the
amount of its registered share capital which is protected by Sections 30 and 31
of the GmbH-Gesetz;
provided each guarantee provided by a Guarantor hereunder on account of the
--------
obligations of the German GmbH Borrowers shall be unimpaired by the provisions
of this Section 12.21, such that each such Guarantor shall remain liable under
Section 10 hereof for the obligations of the German GmbH Borrowers to the same
extent as it would have been liable in the absence of this Section 12.21.
12.22. Certain Waivers. Each Lender hereby agrees that,
----------------------
notwithstanding anything to the contrary contained in this Agreement, certain of
the Pledge Agreements, certain promissory notes of Foreign Subsidiaries to be
pledged thereunder, and certain Mortgages may not be delivered prior to or on
the Restatement Effective Date. Each Lender hereby waives compliance with the
provisions of this Agreement to the extent and only to the extent necessary to
permit the Restatement Effective Date to occur without the delivery of such
Foreign Pledge Agreements, promissory notes, Mortgages and other documentation
relating thereto and to permit the Borrowers to borrow under this Agreement. The
Company hereby covenants that it shall, and shall cause its Subsidiaries to,
deliver to the Administrative Agent each such Pledge Agreement, promissory note,
Mortgage and related documentation within 30 days following the Restatement
Effective Date and that the failure to deliver any such Pledge Agreement,
promissory note, Mortgage or related documentation within such 30 day period
shall constitute an Event of Default hereunder; provided that, with the consent
of the Administrative Agent, such 30 day period may be extended by not more than
an additional 30 days.
12.23. Existing Amended and Restated Credit Agreement. The parties
-----------------------------------------------------
hereto acknowledge that this Agreement replaces and supercedes in its entirety
the Existing Amended and Restated Credit Agreement.
110
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
EXIDE CORPORATION, as a Borrower and as a
Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
EXIDE HOLDING EUROPE S.A.
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
EURO EXIDE CORPORATION LIMITED
SOCIEDAD ESPANOLA DEL ACUMULADOR
TUDOR ▇.▇.
▇▇▇▇▇ A.B.
CMP BATTERIJEN B.V.
CMP BATTERIES LIMITED
ACCUMULATORENFABRIK SONNENSHEIN
GMBH
DEUTSCHE EXIDE GMBH
MERCOLEC TUDOR B.V.
each as a Borrowing Subsidiary and as a
Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
1
ACCUMULATORENFABRIK SONNENSCHEIN GMBH
COMPAGNIA GENERALE ACCUMULATORI S.P.A.
SOCIETA INDUSTRIALE ACCUMULATORI S.P.A.
FULMEN IBERICA S.A.
CMP BATTERIES LIMITED
CMP BATTERIJEN B.V.
CMP BATTERIJEN N.V.
SOCIETE FRANCAISE DES ACCUMULATEURS ▇▇▇▇▇
▇. ▇.
EXIDE AUTOMOTIVE BATTERIE GMBH
▇▇▇▇▇ BATTERIE A.G.
INDUSTRIA COMPOSIZIONI STAMPATE S.P.A.
▇▇▇▇▇ BATTERIJEN B.V.
ELECTRO MERCANTIL INDUSTRIAL S.A.
EXIDE (DAGENHAM) LIMITED
EXIDE FRANCE S.A.
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
SOCIEDAD PORTUGUESA DO ACUMULADOR ▇▇▇▇▇ ▇.▇.
EXIDE DENMARK A/S
GEMALA SWEDEN AB
CENTRA S.A.
DETA AKKUMULATORENWERK GMBH
MAREG ACCUMULATOREN GMBH
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ BATTERIETECHNIK GMBH
EXIDE S0NNAK A/S
EXIDE AUTOMOTIVE B.V.
EXIDE BATTERIES LIMITED
B.I.G. BATTERIES LIMITED
EXIDE LENDING LIMITED
each as a Guarantor, subject to the
limitations, if any, contained in Schedule
10.1
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
2
CREDIT SUISSE FIRST BOSTON, as Joint Lead
Arranger, Book Manager and Administrative
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., as Joint Lead
Arranger
By: /s/ Illegible
----------------
Title: Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., as Syndication
Agent
By: /s/ Illegible
----------------
Title: Director
3
Annex A
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PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS,
TRANCHE A TERM LOANS AND FACILITY FEES
----------------------------------------------------------------------------------------------------------------
Applicable Applicable Margin
Margin for for Tranche A
Revolving Credit Applicable Term Loans Applicable
Loans which are Margin for which are Base Margin for
Base Rate Loans Revolving Credit Rate Loans or Tranche A Term
Consolidated or Foreign Loans which are Foreign Loans which are
Leverage Alternate Rate Eurocurrency Alternate Rate Eurocurrency Facility Fee
Ratio Loans Loans Loans Loans Rate
----------------------------------------------------------------------------------------------------------------
* 5.00 to 1 2.50% 3.50% 3.00% 4.00% .50%
----------------------------------------------------------------------------------------------------------------
* 4.50 to 1 2.25% 3.25% 2.75% 3.75% .50%
and
** 5.00 to 1
----------------------------------------------------------------------------------------------------------------
* 4.00 to 1 1.75% 2.75% 2.25% 3.25% .50%
and
** 4.50 to 1
----------------------------------------------------------------------------------------------------------------
* 3.50 to 1 1.50% 2.50% 2.00% 3.00% .50%
and
** 4.00 to 1
----------------------------------------------------------------------------------------------------------------
* 3.00 to 1 1.00% 2.00% 1.50% 2.50% .50%
and
** 3.50 to 1
----------------------------------------------------------------------------------------------------------------
** 3.00 to 1 .875% 1.875% 1.25% 2.25% .375%
----------------------------------------------------------------------------------------------------------------
* more than or equal to
** Less than
Changes in the Applicable Margin or in the Facility Fee Rate resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date
(the "Adjustment Date") on which financial statements are delivered to the
---------------
Administrative Agent and the Lenders pursuant to Section 7.1 (but in any event
not later than the 50th day after the end of each of the first three quarterly
periods of each fiscal year or the 100th day after the end of each fiscal year,
as the case may be) and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred to
above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the Consolidated Leverage Ratio as at
the end of the fiscal period that would have been covered thereby shall for the
purposes of this definition be deemed to be greater than 5.00 to 1. In addition,
at all times while an Event of Default shall have occurred and be continuing,
the Consolidated Leverage Ratio shall for the purposes of this definition be
deemed to be greater than 5.00 to 1. Each determination of the Consolidated
Leverage Ratio pursuant to this definition shall be made with respect to the
period
1
A-2
of four consecutive fiscal quarters of the Company ending at the end of the
period covered by the relevant financial statements.
ANNEX B
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CALCULATION OF THE MLA COST
1. The MLA Cost is calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z)% per annum = MLA Cost
--------------------
100-(B+S)
-
where on the day of application of the formula:
B is the percentage of the Administrative Agent's eligible liabilities
which the Bank of England requires the Administrative Agent to hold on
a non-interest-bearing deposit account in accordance with its cash
ratio requirements.;
Y is the rate at which Pounds deposits are offered by the Administrative
Agent to leading banks in the London interbank market at or about
11:00 A.M. on that day for the relevant period;
L is the percentage of eligible liabilities which the Bank of England
requires the Administrative Agent to maintain as secured money with
members of the London Discount Market Association and/or as secured
call money with certain money brokers and gilt-edged primary market
makers;
X is the rate at which secured Pounds deposits in the relevant amount
may be placed by the Administrative Agent with members of the London
Discount Market Association and/or as secured call money with certain
money brokers and gilt-edged primary market makers at or about 11:00
A.M. on that day for the relevant period;
S is the percentage of the Administrative Agent's eligible liabilities
which the Bank of England requires the Administrative Agent to place
as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on
special deposits.
2. For the purposes of this Annex B:
(i) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England;
(ii) "relevant period" in relation to a borrowing, means:
(A) if its Interest Period is three months or less, its Interest
Period; or
(B) if its Interest Period is more than three months, each successive
period of three months and any necessary shorter period comprised
in that Interest Period.
1
B-2
3. In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages (e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15);
(i) The formula is applied on the first day of each relevant period
comprised in the Interest Period of the relevant borrowing.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to the nearest 1/32nd of 1%.
If the Administrative Agent determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the Administrative
Agent (after consultation with the Lenders) shall notify the Company of the
manner in which the MLA Cost will subsequently be calculated. The manner
of calculation so notified by the Administrative Agent shall, in the
absence of manifest error, be binding on all the parties hereto.
