Exhibit 10.22
================================================================================
EXIDE CORPORATION,
CERTAIN BORROWING SUBSIDIARIES
AND
CERTAIN GUARANTORS
__________________________________
$650,000,000
CREDIT AND GUARANTEE AGREEMENT
_________________
DATED AS OF
DECEMBER 19, 1997
____________________________
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
____________________________
XXXXXX BROTHERS INC.
and
CREDIT SUISSE FIRST BOSTON,
as Arrangers
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. DEFINITIONS............................................................. 2
1.1 Defined Terms........................................................... 2
1.2 Other Definitional Provisions........................................... 33
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS......................................... 33
2.1 Term Loan Commitments................................................... 33
2.2 Procedure for Term Loan Borrowing....................................... 33
2.3 Repayment of Term Loans................................................. 34
2.4 Revolving Credit Commitments............................................ 35
2.5 Procedure for Revolving Credit Borrowing................................ 36
2.6 Swing Line Commitment................................................... 37
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans....... 37
2.8 Reallocation of Swing Line Maximums..................................... 40
SECTION 3. PROVISIONS RELATING TO EXTENSIONS OF CREDIT; FEES AND
PAYMENT................................................................. 40
3.1 Repayment of Loans; Evidence of Debt.................................... 40
3.2 Facility Fees, Commitment Fees, etc..................................... 41
3.3 Termination or Reduction of Revolving Credit Commitments................ 42
3.4 Optional Prepayments.................................................... 42
3.5 Mandatory Prepayments and Commitment Reductions......................... 43
3.6 Conversion and Continuation Options..................................... 44
3.7 Minimum Amounts and Maximum Number of Eurocurrency Tranches............. 45
3.8 Interest Rates and Payment Dates........................................ 45
3.9 Computation of Interest and Fees........................................ 47
3.10 Inability to Determine Interest Rate.................................... 47
3.11 Pro Rata Treatment and Payments......................................... 48
3.12 Requirements of Law..................................................... 51
3.13 Taxes................................................................... 52
3.14 Indemnity............................................................... 53
3.15 Illegality.............................................................. 54
3.16 Change of Lending Office................................................ 54
3.17 Replacement of Lenders under Certain Circumstances...................... 54
3.18 Controls; Currency Exchange Rate Fluctuations........................... 55
3.19 European Monetary Union................................................. 55
3.20 Reporting Requirements of Swing Line Lenders and Issuing Lenders........ 56
SECTION 4. LETTERS OF CREDIT....................................................... 56
4.1 L/C Commitment.......................................................... 56
4.2 Procedure for Issuance of Letters of Credit............................. 57
4.3 L/C Participations...................................................... 57
4.4 Reimbursement Obligation With Respect to Letters of Credit.............. 59
4.5 Obligations Absolute.................................................... 59
4.6 Commissions, Fees and Other Charges..................................... 60
-i-
Page
----
4.7 Letter of Credit Payments............................................... 60
4.8 Applications............................................................ 60
4.9 Transitional Provisions................................................. 60
SECTION 5. REPRESENTATIONS AND WARRANTIES.......................................... 61
5.1 Financial Condition..................................................... 61
5.2 No Change............................................................... 62
5.3 Corporate Existence; Compliance with Law................................ 62
5.4 Corporate Power; Authorization; Enforceable Obligations................. 62
5.5 No Legal Bar............................................................ 62
5.6 No Material Litigation.................................................. 62
5.7 No Default.............................................................. 63
5.8 Ownership of Property; Liens............................................ 63
5.9 Intellectual Property................................................... 63
5.10 Taxes................................................................... 63
5.11 Federal Regulations..................................................... 63
5.12 Labor Matters........................................................... 63
5.13 ERISA................................................................... 64
5.14 Investment Company Act; Other Regulations............................... 64
5.15 Subsidiaries............................................................ 64
5.16 Use of Proceeds......................................................... 64
5.17 Environmental Matters................................................... 64
5.18 Accuracy of Information, etc............................................ 65
5.19 Security Documents...................................................... 66
5.20 Solvency................................................................ 67
5.21 Senior Indebtedness..................................................... 67
SECTION 6. CONDITIONS PRECEDENT.................................................... 67
6.1 Conditions to Initial Extension of Credit............................... 67
6.2 Conditions to Each Extension of Credit.................................. 70
SECTION 7. AFFIRMATIVE COVENANTS................................................... 71
7.1 Financial Statements.................................................... 71
7.2 Certificates; Other Information......................................... 71
7.3 Payment of Obligations.................................................. 73
7.4 Conduct of Business and Maintenance of Existence, etc................... 73
7.5 Maintenance of Property; Insurance...................................... 73
7.6 Inspection of Property; Books and Records; Discussions.................. 73
7.7 Notices................................................................. 73
7.8 Environmental Laws...................................................... 74
7.9 Interest Rate Protection................................................ 74
7.10 Additional Collateral, etc.............................................. 74
7.11 Clean-Down.............................................................. 76
SECTION 8. NEGATIVE COVENANTS...................................................... 76
8.1 Financial Condition Covenants........................................... 77
8.2 Limitation on Indebtedness.............................................. 78
8.3 Limitation on Liens..................................................... 79
8.4 Limitation on Fundamental Changes....................................... 81
8.5 Limitation on Sale of Assets............................................ 81
-ii-
Page
----
8.6 Limitation on Dividends................................................ 82
8.7 Limitation on Capital Expenditures..................................... 83
8.8 Limitation on Investments, Loans and Advances.......................... 83
8.9 Limitation on Optional Payments and Modifications of Debt Instruments,
etc.................................................................... 85
8.10 Limitation on Transactions with Affiliates............................. 85
8.11 Limitation on Sales and Leasebacks..................................... 85
8.12 Limitation on Changes in Fiscal Periods................................ 86
8.13 Limitation on Negative Pledge Clauses.................................. 86
8.14 Limitation on Restrictions on Subsidiary Distributions................. 86
8.15 Limitation on Lines of Business........................................ 86
SECTION 9. EVENTS OF DEFAULT....................................................... 87
SECTION 10. GUARANTEE.............................................................. 90
10.1 Guarantee.............................................................. 90
10.2 No Subrogation, Contribution, Reimbursement or Indemnity............... 92
10.3 Amendments, etc........................................................ 92
10.4 Guarantee Absolute and Unconditional................................... 93
10.5 Reinstatement.......................................................... 93
10.6 Payments............................................................... 94
10.7 Limited Effect of Limitations on Guarantees............................ 94
SECTION 11. THE AGENTS............................................................. 94
11.1 Appointment............................................................ 94
11.2 Delegation of Duties................................................... 94
11.3 Exculpatory Provisions................................................. 94
11.4 Reliance by Agents..................................................... 95
11.5 Notice of Default...................................................... 95
11.6 Non-Reliance on Agents and Other Lenders............................... 95
11.7 Indemnification........................................................ 96
11.8 Agent in Its Individual Capacity....................................... 96
11.9 Successor Administrative Agent......................................... 96
11.10 Authorization to Release Liens......................................... 97
11.11 Public Deeds for Purposes of Spanish Law............................... 97
11.12 The Arranger........................................................... 97
SECTION 12. MISCELLANEOUS.......................................................... 97
12.1 Amendments and Waivers................................................. 97
12.2 Notices................................................................ 98
12.3 No Waiver; Cumulative Remedies......................................... 99
12.4 Survival of Representations and Warranties............................. 99
12.5 Payment of Expenses.................................................... 99
12.6 Successors and Assigns; Participations and Assignments................. 100
12.7 Adjustments; Set-off................................................... 103
12.8 Conversion of Loans.................................................... 104
12.9 Addition of Borrowing Subsidiaries..................................... 105
12.10 Collateral Agency and Intercreditor Agreement.......................... 106
12.11 Counterparts........................................................... 106
12.12 Severability........................................................... 106
-iii-
Page
----
12.13 Integration............................................................ 106
12.14 GOVERNING LAW.......................................................... 106
12.15 Submission To Jurisdiction; Waivers.................................... 106
12.16 Acknowledgements....................................................... 107
12.17 WAIVERS OF JURY TRIAL.................................................. 107
12.18 Confidentiality........................................................ 107
12.19 Enforceability; Usury.................................................. 108
12.20 Judgment............................................................... 108
12.21 German Limitations on Liability........................................ 109
12.22 Certain Waivers........................................................ 109
ANNEXES
----------------------------------
A Pricing Grid
B Calculation of The MLA Cost
SCHEDULES
----------------------------------
1.1A Commitments
1.1B Addresses and Designated Maximums for Borrowing Subsidiaries
1.1C Currency Maximums
1.1D Mortgaged Property
1.1E Permitted Acquisitions
1.1F Certain Letters of Credit
1.1G Wholly Owned Subsidiaries
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(j) Existing Investments
8.14 Existing Restrictions on Subsidiary Distributions
10.1 Exceptions to Guarantees by Foreign Subsidiaries
EXHIBITS
----------------------------------
A Form of Collateral Agency and Intercreditor Agreement
B Form of Collateral Agreement
C Form of Compliance Certificate
D Form of Domestic Obligations Guarantor Joinder Agreement
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
-iv-
J Form of Legal Opinion of Xxxxxxxx & Xxxxx
K Form of Assignment and Acceptance
L Form of Borrowing Subsidiary Joinder Agreement
-v-
EXHIBIT 10.22
CREDIT AND GUARANTEE AGREEMENT, dated as of December 19, 1997, among:
(a) Exide Corporation, a Delaware corporation (the "Company");
-------
(b) the Borrowing Subsidiaries signatories hereto;
(c) the Guarantors signatories hereto;
(d) the several Lenders from time to time parties hereto;
(e) Xxxxxx Brothers Inc. and Credit Suisse First Boston, as advisors and
arrangers (in such capacity, the "Arrangers");
---------
(f) Credit Suisse First Boston, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders; and
--------------------
(g) Xxxxxx Commercial Paper Inc., as syndication agent (in such capacity,
the "Syndication Agent") for the Lenders.
-----------------
W I T N E S S E T H:
-------------------
WHEREAS, the Company is a party to the Credit Agreement, dated as of
August 30, 1994 (as amended, supplemented or otherwise modified from time to
time, the "Existing Domestic Credit Agreement"), with the lenders parties
----------------------------------
thereto and Bankers Trust Company, as administrative agent;
WHEREAS, certain foreign subsidiaries of the Company (including
certain of the Borrowing Subsidiaries) are parties to the Amended and Restated
Facilities Agreement, dated 3 July 1997 (as amended, supplemented or otherwise
modified from time to time, the "Existing Foreign Credit Agreement"; and
---------------------------------
together with the Existing Domestic Credit Agreement, the "Existing Credit
---------------
Agreements"), with the lenders parties thereto and Bankers Trust Company, as
----------
agent;
WHEREAS, the Company wishes to refinance the Existing Credit
Agreements and redeem its 10-3/4% Senior Notes due December 15, 2002 (the
"Senior 10-3/4% Notes");
--------------------
WHEREAS, the Company has requested that the Lenders make available
certain credit facilities, the proceeds of which would be used to refinance the
Existing Credit Agreements and (in the case of proceeds made available to the
Company) to redeem its Senior 10-3/4% Notes;
2
WHEREAS, the Lenders are willing to make such credit facilities
available upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
-------------
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
---------------------
(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.
"Adjustment Date": as defined in the Pricing Grid.
---------------
"Affiliate": as to any Person, any other Person which, directly or
---------
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.
"Agents": the collective reference to the Syndication Agent and the
------
Administrative Agent.
"Aggregate Exposure": with respect to any Lender, an amount equal to
------------------
(a) until the Closing Date, the aggregate amount of such Lender's
Commitments and (b) thereafter, the sum of (i) the aggregate unpaid
principal amount of such Lender's Term Loans and (ii) 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 ratio
-----------------------------
(expressed as a percentage) of such Lender's Aggregate Exposure to the
Aggregate Exposure of all Lenders.
3
"Agreement": this Credit and Guarantee Agreement, as amended,
---------
supplemented or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum set
-----------------
forth under the relevant column heading below:
Base Rate Loans and
Foreign Alternate Eurocurrency
Rate Loans Loans
--------------------- ---------------
Revolving Credit Loans .50% 1.50%
Tranche A Term Loans 1.00% 2.00%
Tranche B Term Loans 1.25% 2.25%
provided, that on and after the first Adjustment Date occurring after the
--------
completion of two full fiscal quarters of the Company after the Closing
Date, the Applicable Margin will be determined pursuant to the Pricing
Grid.
"Application": an application, in such form as the Issuing Lender may
-----------
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
----------
Dispositions of Property (excluding any such Disposition permitted by any
of clauses (a) through (f) 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).
--------
"Assignor": as defined in Section 12.6(c).
--------
"Available ECF Amount": at any date on or after April 1, 1999, the
--------------------
portion of Excess Cash Flow 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
---------------------------
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 Closing Date and (y) the aggregate principal amount of
Eligible Prepayment Debt
4
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
-------------------------------------
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
----
Lender's Revolving Extensions of Credit.
"Base Rate": for any day, a rate per annum (rounded upwards, if
---------
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"
----------
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
---------------
based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve System of the
-----
United States (or any successor).
"Borrower" or "Borrowers": the individual or collective reference to
-------- ---------
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
--------------
on which such Borrower requests the relevant Lenders to make Loans
hereunder.
"Borrowing Subsidiary": each Foreign Subsidiary of the Company set
--------------------
forth on the signature pages hereto as a Borrowing Subsidiary.
"Borrowing Subsidiary Joinder Agreement": the Borrowing Subsidiary
--------------------------------------
Joinder Agreement, substantially in the form of Exhibit L.
"Business": as defined in Section 5.17.
--------
"Business Day": a day other than a Saturday, Sunday or other day on
------------
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
--------
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 and (b) is not a day on which commercial banks in the principal
financial center in the country in which such Borrowing Subsidiary is
5
organized are authorized or required by law to close, in the case of Loans
made to any Borrowing Subsidiary.
"Capital Expenditures": for any period, with respect to any Person,
--------------------
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
-------------------------
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
-------------
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
----------------
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 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 P-2 by Xxxxx'x Investors Service, Inc.
---
("Moody's"), or carrying an 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
6
exclusively in assets satisfying the requirements of clauses (a) through
(f) of this definition.
"Closing 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
January 15, 1998.
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral": all Property of the Loan Parties, now owned or
----------
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Collateral Agency and Intercreditor Agreement": the Collateral
---------------------------------------------
Agency and Intercreditor Agreement to be executed and delivered by the
Company and the Administrative Agent (on behalf of each of the Lenders),
substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
"Collateral Agreement": the Collateral Agreement to be executed and
--------------------
delivered by the Company and each Domestic Subsidiary Guarantor,
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 Tranche A Term Loan
----------
Commitment, the 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.
"Confidential Information Memorandum": the Confidential Information
-----------------------------------
Memorandum dated November 1997 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.
7
"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 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).
"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
8
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.
"Continuing Directors": the directors of the Company on the Closing
--------------------
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.
9
"Currency Maximum": with respect to any Optional Currency, the amount
----------------
set forth opposite such Optional Currency on Schedule 1.1C hereto.
"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. Notwithstanding anything to
the contrary contained herein, the Net Cash Proceeds received by the
Company and its Subsidiaries on account of the sale of the Company's
Italian plastics Subsidiary in an aggregate amount not to exceed
$15,000,000 shall be deemed to constitute Designated Disposition Proceeds.
"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 (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).
"Designated Maximum": with respect to any Borrowing Subsidiary, the
------------------
amount set forth opposite such Borrowing Subsidiary's name on Schedule 1.1B
hereto.
"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 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
10
(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, 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 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 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 February 17, 1994, between the
Company, as seller, and Three Rivers Funding Corporation, as buyer, as such
Receivables Purchase Agreement is in effect on the Closing Date, but giving
effect to (x) extensions of the termination date thereunder, (y) increases
in the committed amount thereof after the Closing Date, but only if the
respective increases are approved in writing by the Required Lenders, and
(z) other changes thereto approved by the Agents and (ii) any additional or
substitute or replacement receivables facility so long as such facility and
all documentation therefor, and the committed amount thereof, is 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
11
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": initially,
----------------------------------------------
$75,000,000; provided that such amount may be increased from time to time
--------
after the Closing Date to a maximum of $90,000,000 as the Domestic
Receivables Facility Commitment pursuant to the Domestic Receivables
Facility (or the various facilities comprising the Domestic Receivables
Facility) is increased.
"Domestic Subsidiary": any Subsidiary of the Company organized under
-------------------
the laws of any jurisdiction within the United States of America.
"Domestic Subsidiary Guarantor": each Domestic Subsidiary and each
-----------------------------
Foreign Subsidiary which has guaranteed all or any portion of the Domestic
Obligations.
"ECF Percentage": 75%; provided, that, with respect to each fiscal
-------------- --------
year of the Company ending on or after March 31, 2000, 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
$200,000,000.
"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.
"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 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.
12
"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
"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
13
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.
"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, 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
14
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
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).
---------------------------------
"Existing Mortgage Assignment": the Assignments of Mortgage and/or
----------------------------
Deed of Trust, in form and substance reasonably satisfactory to the Agents,
executed by Bankers Trust Company, as agent under the Existing Domestic
Credit Agreement, as assignor pursuant to which Bankers Trust Company, as
agent under the Existing Domestic Credit Agreement shall assign all of its
right, title and interest in, to and under each of the Existing Mortgages
to the Administrative Agent for the benefit of the Lenders.
15
"Existing Mortgage Amendments": the Amendments to Mortgage and/or
----------------------------
Deed of Trust, in form and substance reasonably satisfactory to the Agents,
executed by the Loan Party party to the Existing Mortgage, pursuant to
which, inter alia, each Existing Mortgage shall be amended to reflect the
----- ----
refinancing of the Existing Domestic Credit Agreement.
"Existing Mortgages": the mortgages and deeds of trust made by any of
------------------
the Loan Parties in favor of Bankers Trust Company, as agent under the
Existing Domestic Credit Agreement, pursuant to the Existing Domestic
Credit Agreement, other than the mortgages and deeds of trust encumbering
real property which is sold pursuant to the GE Sale-Leaseback.
"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 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": 1/2 of 1% per annum; provided, that on and after
----------------- --------
the first Adjustment Date occurring after the completion of two full fiscal
quarters of the Company after the Closing Date, the Facility Fee Rate will
be 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
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.
16
"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, 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 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.
"Foreign Subsidiary Guarantor": each Domestic Subsidiary and each
----------------------------
Foreign Subsidiary which has guaranteed all or any portion of the Foreign
Obligations.
"Franc Equivalent": with respect to any amount at any date of
----------------
determination thereof, the sum of (x) for any such amount denominated in
Francs, such amount and (y) for any such amount denominated in any currency
other than Francs, an amount in Francs equivalent to such principal amount
or such other amount calculated on the basis of the Spot Rate of Exchange
on such date of determination.
"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
17
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 therewith as in effect on the
Closing Date (and any amendments thereto which do not adversely impact the
Lenders in any material respect).
"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,
18
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.
"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
19
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 and foreign currency xxxxxx and swaps 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.
"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 xxx 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 (commencing with
April 3, 1998) for the period ending on (and including) the last day of the
immediately preceding December, March, June or September, respectively, and
the 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:
20
(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) each 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 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; provided that, with
--------
respect to each letter of credit which is listed on Schedule 1.1F and which
is a "Letter of Credit" hereunder pursuant to the provisions of Section
4.9, the Issuing Lender shall be the Lender who is the issuer thereof.
"L/C Commitment": at any date, the amount equal to (a) $20,000,000
--------------
plus (b) so long as any Letter of Credit described on Schedule 1.1F (or any
replacement thereof) remains outstanding, the amount set forth on said
Schedule 1.1F with respect thereto.
"L/C Fee Payment Date": the third Business Day of each January,
--------------------
April, July and October (commencing with April 3, 1998) 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
21
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 (and, in the case of the Tranche B Term Loan Facility, the
undrawn portion thereof) 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 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
22
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 (without
regard to amounts as to which reserves in conformity with GAAP have been
provided on the books of the Company or its Subsidiaries, as the case may
be, and which are disclosed in the Company's March 31, 1997 annual audited
financial statements provided to the Lenders).
"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 assigned pursuant to
---------
the relevant Existing Mortgage Assignment and as amended by the relevant
Existing Mortgage Amendment, and as each of the same may be further
amended, supplemented, restated, replaced or otherwise modified from time
to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"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
23
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.
"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 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.
"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).
-----------
"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": the acquisition by the Company or any of its
---------------------
Subsidiaries of (a) all or substantially all of the assets of any Person or
any product line or division thereof or (b) 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.
Notwithstanding the foregoing, any acquisition described on Schedule 1.1E
shall be deemed to constitute a Permitted Acquisition for purposes of this
definition.
24
"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 Closing 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 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 Agreements": each of the pledge agreements which are executed
-----------------
by a Foreign Subsidiary with respect to Capital Stock it owns of another
Subsidiary or
25
intercompany loans or receivables owing to it by another Subsidiary,
whether on or after the Closing Date (including, without limitation,
pursuant to Section 7.10).
"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.
------------
"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 G": Regulation G of the Board as in effect from time to
------------
time.
"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.
26
"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 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 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 (a) until
------------------------
the Closing Date, the sum of the Tranche A Term Loan Commitments and the
Revolving Credit Commitments and (b) thereafter, the sum of the Dollar
Equivalent of (i) the
27
aggregate unpaid principal amount of the Tranche A Term Loans, (ii) the
aggregate unpaid principal amount of the Tranche B Term Loans (and, in the
case of the Tranche B Term Loan Facility, the undrawn portion thereof) made
to any Borrowing Subsidiary and (iii) 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 (a) until the
----------------
Closing Date, the Commitments and (b) thereafter, the sum of the Dollar
Equivalent of (i) the aggregate unpaid principal amount of the Term Loans
(and, in the case of the Tranche B Term Loan Facility, the undrawn portion
thereof) and (ii) 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, 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.
"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 $100,000,000 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.
28
"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 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 in effect.
"Scheduled Revolving Credit Termination Date": December 18, 2003.
-------------------------------------------
"Xxxxxxxxxx Acquisition": the acquisition by the Company of an
----------------------
Illinois incorporated battery charger company for an aggregate Purchase
Price of approximately $35,000,000.
"Security Documents": the collective reference to the Collateral
------------------
Agreement, the Pledge Agreements, the Mortgages, the UK Mortgages, the
Collateral Agency and Intercreditor Agreement, 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.
"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.
"Senior 10-3/4% Notes": the 10-3/4% Senior Notes due December 15,
--------------------
2002 of the Company.
"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
29
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.
"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.
"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.
"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.
30
"Subsidiary Guarantor" or "Subsidiary Guarantors": the individual or
-------------------- ---------------------
collective reference to the Domestic Subsidiary Guarantors and the Foreign
Subsidiary Guarantors.
"Swing Line Approval Limit": with respect to each Swing Line Lender
-------------------------
providing Swing Line Loans in Optional Currencies, the amount set forth
below opposite the name of such Lender.
Swing Line Lender Amount
----------------- ------
Credit Suisse First Boston FFr 240,000,000
"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, $10,000,000 and (b) in the case of Swing
Line Loans made to the Borrowing Subsidiaries, the Franc Equivalent of Ffr
240,000,000.
"Swing Line Lender": with respect to (a) Swing Line Loans to be made
-----------------
to the Company in Dollars, CoreStates Bank, N.A. (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
-------- -----------------
Dollars CoreStates Bank, N.A.
Francs To be Determined
Marks To be Determined
Pounds Credit Suisse First Boston
Pesetas To be Determined
; 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, the amount set
forth below
31
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
----------------- ------
Credit Suisse First Boston FFr 240,000,000
"Swing Line Participation Amount": as defined in Section 2.8.
-------------------------------
"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 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 Commitment": as to any Lender, the obligation of
------------------------------
such Lender, if any, to make a Tranche A Term Loan to a Borrowing
Subsidiary hereunder in a principal amount not to exceed the amount set
forth under the heading "Tranche A Term Loan Commitment" opposite such
Lender's name on Schedule 1.1A. The original amount of the aggregate
Tranche A Term Loan Commitments of all Lenders is $150,000,000.
"Tranche A Term Loan Lender": each Lender which has a Tranche A Term
--------------------------
Loan Commitment or 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 such Lender's Tranche A Term Loan
Commitment then constitutes of the aggregate Tranche A Term Loan
Commitments (or, at any time after the Closing Date, 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 Commitment": as to any Tranche B Term Loan Lender
------------------------------
the obligation of such Lender, if any, to make a Tranche B Term Loan to the
Company hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche B Term Loan Commitment" opposite such Lender's
name on Schedule 1.1A. The original amount of the aggregate Tranche B Term
Loan
32
Commitments of all Lenders is $250,000,000, of which not more than
$75,000,000 in the aggregate may be borrowed by the Company.
"Tranche B Term Loan Lender": each Lender which has a Tranche B Term
--------------------------
Loan Commitment or which has made a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Lender at any time, the
------------------------------
percentage which such Lender's Tranche B Term Loan Commitment then
constitutes of the aggregate Tranche B Term Loan Commitments (or, at any
time after the Closing Date, the percentage which the aggregate principal
amount of such Lender's Tranche B Term Loans and commitment to make Tranche
B Term Loans after the Closing Date then outstanding constitutes of the
aggregate principal amount of the Tranche B Term Loans then outstanding and
the aggregate principal amount of the commitments of the Tranche B Term
Loan Lenders to make Tranche B Term Loans after the Closing Date);
provided, that solely for purposes of calculating the amount of each
--------
installment of Tranche B Term Loans (other than the last installment)
payable to a Term Loan Lender pursuant to Section 2.3(c), such Term Loan
Lender's Tranche B Term Loan Percentage shall be calculated as if it had
received the portion of any prior mandatory or optional prepayment
attributable to such Term Loan Lender's Tranche B Term Loans which shall
have been declined by such Term Loan Lender (or, in the case of any Term
Loan Lender which shall have acquired its Tranche B Term Loans by
assignment from another Person, by such other Person).
"Transferee": as defined in Section 12.18.
----------
"Type": as to any Loan, its nature as a Base Rate Loan or a
----
Eurocurrency Loan.
"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.
33
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
---------------------------------
a Wholly Owned Subsidiary of the Company.
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.
(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 COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions
---------------------
hereof, (a) each Tranche A Term Loan Lender severally agrees to make term loans
in Dollars and Optional Currencies (a "Tranche A Term Loan") to each of the
-------------------
Borrowing Subsidiaries on the Closing Date in an aggregate amount for all the
Borrowing Subsidiaries not to exceed the amount of the Tranche A Term Loan
Commitment of such Lender and (b) each Tranche B Term Loan Lender severally
agrees to make a term loan in Dollars (a "Tranche B Term Loan") to each of the
-------------------
Borrowers on the Closing Date and to make up to one additional term loan to the
Borrowers during the period prior to February 22, 1998 in an aggregate amount
for all the Borrowers not to exceed the amount of the Tranche B Term Loan
Commitment of such Lender. 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 Term Loan Borrowing. 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, 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 (b)
one Business Day prior to the requested Borrowing Date, in the case of Base Rate
Loans) requesting that the Term Loan Lenders make the Term Loans to be made by
them on the requested Borrowing Date and specifying the amount to be borrowed;
provided that the aggregate amount of Tranche B Term Loans made by the Tranche B
--------
Term Loan Lenders after the Closing Date (after giving effect to the making of
such requested Tranche B Term Loans) shall not exceed $75,000,000. Upon receipt
of such
34
notice the Administrative Agent shall promptly notify each Term Loan Lender
thereof. Not later than (x) 12:00 Noon, New York City time with respect to
borrowings by the Company and (y) 12:00 Noon, London time with respect to
borrowings by the Borrowing Subsidiaries, on the requested Borrowing Date each
Term Loan Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds in the relevant currency equal
to the Term Loan or Term Loans to be made by such Lender on such requested
Borrowing Date. The Administrative Agent shall make available to each Borrower
the aggregate of the amounts for such Borrower made available to the
Administrative Agent by the 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.
35
(b) The Tranche B Term Loan of each Tranche B Lender shall mature in
29 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 50.0%
(c) Any outstanding Tranche A Term Loans shall be due and payable on
December 18, 2003 and any outstanding Tranche B Term Loans shall be due and
payable on March 18, 2005.
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
36
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 Xxxxx X.X. shall be permitted to borrow only Swing Line
Loans which are denominated in Pesetas (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.
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 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
37
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, (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 Franc Equivalent of Ffr 96,000,000
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.
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). Each borrowing by the Company under the Swing Line
Commitment
38
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. 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 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
39
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 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
40
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 amount (in Francs)
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 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 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 Xxxxx X.X. shall be
permitted to borrow only Swing Line Loans which are denominated in Pesetas (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
41
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 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, with
appropriate insertions as to date and principal amount.
3.2 Facility Fees, Commitment 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 Closing 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 (commencing on April 3,
1998) for the period ending on (and including) the last day of the
42
immediately preceding December, March, June or September, respectively, and on
the Revolving Credit Termination Date.
(b) The Company agrees to pay to the Administrative Agent for the
account of each Tranche B Term Loan Lender a commitment fee for the period from
and including the Closing Date to February 22, 1998, computed at a rate per
annum equal to .50% on the amount by which the average daily Tranche B Term Loan
Commitment of such Lender during the period for which payment is due exceeds the
average daily principal amount (without giving effect to any prepayments or
repayments thereof) during such period of all Tranche B Term Loans made by such
Lender. Such commitment fee shall be payable in arrears on February 22, 1998.
(c) The Company agrees to pay to the Syndication Agent and the
Administrative Agent the fees in the amounts and on the dates previously agreed
to in writing by the Company, the Syndication Agent and the Administrative
Agent.
(d) 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.
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, 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
43
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.
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, (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 or (iv) Capital Stock issued to the Company or any Wholly-
Owned Subsidiary.
(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, 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 shall not exceed
$20,000,000 at any one time 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 commencing with the fiscal year ending March
31, 1999, 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.
44
(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, 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.
45
(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 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
46
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.
(f) For the purposes of Articles L 313-1 to L 313-6 of the French
Code de la Consommation, the parties hereto acknowledge that the taux effectif
global may only be determined during the course of the Loans. 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
[___]% 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 [___]% per annum and the taux de
periode would be [___]% for a period of three months, (B) in respect
of the Tranche B Term Loans would be [___]% per annum and the taux de
periode would be [___]% 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 a period of three months) would be Loans [___]% per annum
and the taux de periode would be [___]% for a period of three months;
(ii) in the case of a Base Rate Loan, assuming a base interest rate of
[___]% 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 [___]% per annum and the taux de periode would be [___]% for
a period of three months, (B) in respect of the Tranche B Term Loans
would be [___]% per annum and the taux de periode would be [___]% 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 a period of three months) would
be Loans [___]% per annum and the taux de periode would be [___]% for
a period of three months; and
(iii) in the case of a Foreign Alternate Rate Loan, assuming a base interest
rate of [___]% 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
47
Tranche B Term Loans, for a period of three months), (A) in respect of
the Tranche A Term Loans would be [___]% per annum and the taux de
periode would be [___]% for a period of three months, (B) in respect
of the Tranche B Term Loans would be [___]% per annum and the taux de
periode would be [___]% 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 a period of three months) would be Loans [___]% per annum
and the taux de periode would be [___]% 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 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
48
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.
(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 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 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")
---------------
49
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 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, and second, 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).
(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.
50
(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, 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
51
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.
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 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.
52
(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).
(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
53
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 1001 or Form 4224, 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-8, 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.
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
54
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 cancelled 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 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
55
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.
3.19 European Monetary Union. (a) If, as a result of the
-----------------------
implementation of European monetary union, (i) any currency ceases to be lawful
currency of the nation issuing the same and is replaced by a European single
currency or (ii) any currency and a European single currency are at the same
time recognized by the central bank or comparable authority of the nation
issuing such currency as lawful currency of such nation and the Administrative
Agent or the Required Foreign Lenders shall so request in a notice delivered to
the Company, then any amount payable hereunder by the Lenders to any Borrower,
or by any Borrower to the Lenders, in such currency shall instead be payable in
the European single currency and the amount so payable shall be determined by
translating the amount payable in such currency to such European single currency
at the exchange rate recognized by the European Central Bank for the purpose of
implementing European monetary union.
56
(b) The Company agrees, at the request of any Lender, to compensate
such Lender for any reasonable loss, cost, expense or reduction in return that
shall be incurred or sustained by such Lender (other than through such Lender's
gross negligence or willful misconduct) as a result of the implementation of
European monetary union, that would not have been incurred or sustained but for
the transactions provided for herein and that, to the extent that such loss,
cost, expense or reduction is of a type generally applicable to extensions of
credit similar to the extensions of credit hereunder, is generally being
requested from borrowers subject to similar provisions. A certificate of a
Lender setting forth (x) the amount or amounts necessary to compensate such
Lender (y) describing the nature of the loss or expense sustained or incurred by
such Lender as a consequence thereof and (z) setting forth a reasonably detailed
explanation of the calculation thereof shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay such Lender the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(c) The Company agrees, at the request of the Required Foreign
Lenders, at the time of or at any time following the implementation of European
monetary union, to enter into an agreement amending this Agreement in such
manner as the Required Foreign Lenders shall specify in order to reflect the
implementation of such monetary union to place the parties hereto in the
position they would have been in had such monetary union not been implemented.
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
57
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.
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
58
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.
(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 or Francs
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
59
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 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.
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.
60
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.
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.
4.9 Transitional Provisions. Schedule 1.1F contains described
-----------------------
certain letters of credit issued prior to the date hereof for the account of the
Company. On the Closing Date, (i) such letters of credit (to the extent
outstanding and issued by a Lender hereunder in Francs, Marks, Pounds, Pesetas
or Lira) shall be automatically and without further action by the parties
thereto converted to Letters of Credit issued pursuant to this Section 4 for the
account of the Company and subject to the provisions hereof, and for this
purpose the fees specified in 4.6 shall be payable (in substitution for any fees
set forth in the reimbursement agreement relating to such letters of credit) as
if such letters of credit had been issued on the Closing Date, (ii) the face
amount of such letters of credit shall be included in the calculation of L/C
Obligations, and (iii) all liabilities of the Company and its Subsidiaries with
respect to such letters of credit shall constitute Obligations. No letter of
credit converted in accordance with this Section 4.9 shall be amended, extended
or renewed without the prior written consent of the Administrative Agent.
Notwithstanding anything set forth in Section 4.1, to the extent that any letter
of credit listed on Schedule 1.1F has an expiration date in excess of one year,
such letter of credit shall continue in full force and effect pursuant to the
terms hereof after the Closing Date through its stated expiration date (but
shall be cash collateralized upon terms reasonably satisfactory to the relevant
Issuing Bank during the period from the Termination Date through such stated
expiration date).
61
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 September
30, 1997 (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 Loans to be made on
the Closing 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 September
30, 1997, 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, 1996 and March
31, 1997, 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) Xxxxxx Xxxxxxxx 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
September 30, 1997, and the related unaudited consolidated and consolidating
statements of income and cash flows for the six-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
consolidating results of such operations and the related consolidated and
consolidating cash flows for the six-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 any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any material long-term leases or
unusual forward or long-term 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, 1997 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.
62
5.2 No Change. Since March 31, 1997 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 with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with 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 and (ii) the filings referred
to in Section 5.19. 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 and the use of the proceeds thereof will not violate any
Requirement of Law 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
63
their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, 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 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 G or 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 G or
Regulation U, as the case may be.
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
64
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 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
------------
constitute all the Subsidiaries of the Company at the date hereof.
5.16 Use of Proceeds. The proceeds of the Term Loans shall be used
---------------
to refinance the Existing Credit Agreements and (other than the Term Loans made
to the Borrowing Subsidiaries) to redeem the Senior 10-3/4% Notes and to pay
related fees and expenses. The proceeds of the Revolving Credit Loans and the
Swing Line Loans, and the Letters of Credit, 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 (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.
65
(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.
(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
66
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.
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 posssession,
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.
(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 capital stock or other equity interests 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
67
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.
(d) With respect to each survey of the Mortgaged Properties more
particularly described on Schedule 1.1H (each, a "Survey"), there have been no
------
changes made to any of the premises shown on any such Survey and/or the
improvements situated on such premises subsequent to the date of such Survey as
set forth on Schedule 1.1H and accordingly, each such Survey remains
representative of the present configuration of such premises and/or
improvements.
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.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. The agreement of each
-----------------------------------------
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
--------------
this Agreement, executed and delivered by a duly authorized officer of each
of the Borrowers and each of the Guarantors, (ii) the Collateral Agreement,
executed and delivered by a duly authorized officer of the Company and each
Domestic Subsidiary Guarantor, (iii) a Mortgage covering each of the
Mortgaged Properties, executed and delivered by a duly authorized officer
of each party thereto, (iv) a UK Mortgage covering each of the properties
which are the subject thereof, executed and delivered by a duly authorized
officer of each party thereto, (v) each of the Pledge Agreements, executed
and delivered by a duly authorized officer of each pledgor party thereto,
(vi) the Collateral Agency and Intercreditor Agreement, executed and
delivered by a duly authorized officer of the Company 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) 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
68
condition of the Company, as reflected in the financial statements or
projections contained in the Confidential Information Memorandum.
(c) 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.
(d) Existing Credit Agreements. All amounts outstanding under the
--------------------------
Existing Credit Agreements shall have been assumed, absorbed and refinanced
by the Loans and other extensions of credit hereunder, and all collateral
security (other than the Mortgages) provided on account of the Existing
Facilities shall have been released.
(e) Redemption of Senior 10-3/4% Notes. The Agents shall have
----------------------------------
received forms of documents to be used in connection with the Company's
call for redemption of the Senior 10-3/4% Notes and shall be satisfied that
such call will be made promptly following the Closing Date (with the
Company hereby covenanting and agreeing to effect such call within 30 days
following the Closing Date).
(f) Sale and Leaseback Facility. The Company shall have received net
---------------------------
cash proceeds of at least $40,000,000 from the GE Sale/Leaseback under
terms satisfactory to the Agents.
(g) Fees. The Lenders, the Syndication Agent 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 Closing Date.
(h) Business Plan. The Lenders shall have received a satisfactory
-------------
business plan for fiscal years 1998-2006 and a satisfactory written
analysis of the business and prospects of the Company and its Subsidiaries
for the period from the Closing Date through the final maturity of the Term
Loans.
(i) Capital Structure. The legal and capital structure of the Loan
-----------------
Parties shall be satisfactory to the Agents.
(j) 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
Closing Date pursuant to documentation satisfactory to the Agents.
(k) 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 Pilko &
Associates, Inc. in May 1997, with respect to the Company's European
operations, and October 1997, with respect to the
69
Company's North American operations, and such reports shall be addressed to
the Agents.
(l) Closing Certificate. The Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit I (or
such other form reasonably acceptable to the Administrative Agent), with
appropriate insertions and attachments.
(m) Legal Opinions. The Administrative Agent shall have received the
--------------
following executed legal opinions:
(i) the legal opinion of Xxxxxxxx & Xxxxx, 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 (other than those opinions with respect to the
Pledge Agreements referred to in paragraph 6.1(a)(v) above which will
not be obtained on the Closing Date).
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(n) Pledged Stock; Stock Power; Pledged Notes. The Administrative
-----------------------------------------
Agent shall, to the extent required under applicable law, have received (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
Closing Date shall have been taken.
(o) 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 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.
(p) Title Insurance Policy. The Administrative Agent shall have
----------------------
received in respect of each parcel covered by each Mortgage (other than the
UK Mortgages) a
70
mortgagee's title policy (or policies) or marked up unconditional binder
for such insurance dated the Closing 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 - 1970 (Amended
10/17/70); (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.
(q) 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.
(r) 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
subsection 6.1(p) 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.
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.
71
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 Xxxxxx Xxxxxxxx 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 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;
72
(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, projected changes in financial position 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;
(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
Pilko & Associates (or other independent environmental consultants
reasonably acceptable to the Required Lenders) updates of the environmental
reports referenced in Section 6.1(k) upon the written request of the
73
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
--------
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;
74
(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.
7.9 Interest Rate Protection. In the case of the Company, within 180
------------------------
days after the Closing Date, enter into Interest Rate Protection Agreements to
the extent necessary to provide that at least $100,000,000 of the aggregate
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 Agents.
7.10 Additional Collateral, etc. (a) With respect to any Property
--------------------------
acquired after the Closing Date by the Company or any of its Domestic
Subsidiaries (other than (x)
75
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 Closing Date
by the Company or any of its Subsidiaries 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
Closing 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 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, cause such Subsidiary
(A) to become a party to the Collateral Agreement and to execute a Domestic
Obligations
76
Guarantor Joinder Agreement and a Foreign Obligations Guarantor Joinder
Agreement and (B) to 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 Collateral described in the Collateral
Agreement with respect to such new Subsidiary, 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;
(iii) in the case of any Foreign Subsidiary, cause such Subsidiary to
execute a Foreign Obligations Guarantor Joinder Agreement; and
(v) 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 Agents), 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 Agents, 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 $105,000,000 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
77
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:
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
------ --------------
March 31, 1998 through June 30, 1998 5.00 to 1.0
July 1, 1998 through December 31, 1998 5.25 to 1.0
January 1, 1999 through June 30, 1999 4.70 to 1.0
July 1, 1999 through December 31, 1999 4.95 to 1.0
January 1, 2000 through June 30, 2000 3.75 to 1.0
July 1, 2000 through December 31, 2000 4.00 to 1.0
January 1, 2001 through June 30, 2001 3.25 to 1.0
July 1, 2001 through December 31, 2001 3.50 to 1.0
January 1, 2002 through June 30, 2002 2.75 to 1.0
July 1, 2002 through December 31, 2002 3.00 to 1.0
January 1, 2003 through June 30, 2003 2.75 to 1.0
July 1, 2003 through December 31, 2003 3.00 to 1.0
January 1, 2004 through June 30, 2004 2.75 to 1.0
July 1, 2004 through December 31, 2004 3.00 to 1.0
(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 Fixed
Period Charge Coverage Ratio
------ ---------------------
March 31, 1998 through December 31, 1998 1.20 to 1.0
January 1, 1999 through December 31, 1999 1.30 to 1.0
January 1, 2000 through December 31, 2000 1.35 to 1.0
January 1, 2001 and thereafter 1.75 to 1.0
(c) Minimum Consolidated EBITDA. Permit Consolidated EBITDA for any
---------------------------
period of four consecutive fiscal quarters of the Company ending during any
period set forth below to be less than the amount set forth below opposite such
period:
Consolidated
Period EBITDA
------ ------------
March 31, 1998 through December 31, 1998 $235,000,000
January 1, 1999 through December 31, 1999 260,000,000
78
January 1, 2000 through December 31, 2000 280,000,000
January 1, 2001 through December 31, 2001 300,000,000
January 1, 2002 and thereafter 320,000,000
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 Xxxxxx, 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 and (iii) other Capital Lease Obligations in an aggregate
principal amount (in the case of this clause (iii) 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 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;
79
(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
$15,000,000 at any one time outstanding; and
(n) 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.
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 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) Liens in existence on the date hereof listed on Schedule 8.3(f),
securing Indebtedness permitted by Section 8.2(e), provided that no such
--------
Lien is spread to
80
cover any additional Property after the Closing 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 Xxxxxxxxxx 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; and
(o) 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
81
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) or with or into any Wholly Owned
Subsidiary Guarantor which is a Domestic Subsidiary (provided that the
--------
Wholly Owned Subsidiary Guarantor 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 or
any Wholly Owned Subsidiary Guarantor which is a Domestic Subsidiary;
(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; and
(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.
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 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;
(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
82
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) 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);
(h) any Recovery Event, provided, that the proceeds of such Recovery
--------
Event are applied in accordance with the provisions of Section 3.5(b).
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);
83
(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 $100,000,000 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;
(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; and
(d) in the event that the Company and its Subsidiaries shall elect to
purchase the land and building in Xxxxxx, Italy currently owned by an
affiliate of Fiat S.p.A. (rather than entering into a Capital Lease with
respect thereto) during the 1998 fiscal year of the Company, the purchase
price paid for such land and building shall be deemed not to constitute a
Capital Expenditure for purposes of this Section 8.7.
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
84
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 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 is pledged in favor of the Administrative Agent
pursuant to the Collateral Agreement or a Pledge Agreement;
(f) investments existing on the Closing 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 commodities futures agreements
for raw materials reasonably related to the production needs of the Company
and its Subsidiaries and (iii) non-speculative foreign currency hedging
agreements;
(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) (without giving effect to the proviso
thereto), (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; and
(i) investments in Permitted Joint Ventures in an aggregate amount
thereof not to exceed $3,000,000 individually and $10,000,000 for all
investments made pursuant to this paragraph (i).
85
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, the 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); and
(b) 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 consideration paid by the Company and its
--------
Subsidiaries on account of the acquisition of such equipment is not
required to be recorded as a Capital
86
Expenditure in accordance with GAAP; and provided, further 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, the Senior 10% Note
Indenture and the DM Agreement and (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).
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 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
87
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 Closing Date, cash collections therefrom, any investments of such cash
collections and other assets and liabilities reasonably incidental to the
foregoing activities.
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 sBall 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 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
88
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, 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
89
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% 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,
90
the Administrative Agent may, or upon the request of the Majority Revolving
Credit Facility Lenders, the Administrative Agent shall, by notice to the
Company declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; (ii)
with the consent of the Majority Facility Lenders in respect of the Tranche B
Term Loan Facility, the Administrative Agent may, or upon the request of the
Majority Facility Lenders in respect of the Tranche B Term Loan Facility, the
Administrative Agent shall, by notice to the Company, on behalf of itself and
the Borrowing Subsidiaries, declare the commitment of the Tranche B Term Loan
Lenders to make up to one additional term loan to the Borrowers after the
Closing Date as described in Section 2.1 to be terminated forthwith, whereupon
such commitment shall immediately terminate; and (iii) 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
91
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 of the Domestic Subsidiary Guarantors hereby unconditionally
and irrevocably guarantees to the Administrative Agent, for the ratable
benefit of the Tranche B Term Loan Lenders and their respective affiliates
(with respect to Tranche B Term Loans made to the Company) and the
Revolving Credit Lenders and their respective affiliates (with respect to
Revolving Credit Loans made to, and Letters of Credit issued for the
account of, the Company), the prompt and complete payment and performance
when due (whether at stated maturity, by acceleration or otherwise) of the
Domestic Obligations, and each of the Domestic Subsidiary 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 of the Domestic Subsidiary Guarantor's liability shall
extend to all amounts that constitute part of the Domestic Obligations and
would be owed by the Company but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving the Company. The guarantee contained in this
Section 10, subject to Section 10.5, shall remain in full force and effect
until the Domestic Obligations are paid in full, notwithstanding that from
time to time prior thereto the Company may be free from any Domestic
Obligations.
(c) 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 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.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the maximum liability of each Domestic Subsidiary Guarantor under this
Section 10 and under the other Loan Documents shall in no event exceed the
amount which can be guaranteed by such Domestic Subsidiary Guarantor under
applicable federal and state laws relating to the insolvency of debtors.
92
10.2 No Subrogation, Contribution, Reimbursement or Indemnity.
--------------------------------------------------------
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
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.
93
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, 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.
94
10.6 Payments. 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
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 Collateral Agency and Intercreditor Agreement). 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, 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
95
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 also represents that it will,
96
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 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 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
97
unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the 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. 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.
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 Arrangers. The Arrangers, 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 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
98
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; or (viii) amend, modify or waive any provision of
Section 4 without the written consent of the Issuing Lenders. 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, the Syndication Agent
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
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
99
The Syndication Agent: Xxxxxx Commercial Paper Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxxXxxxxx
Fax: (000) 000-0000
with, in the case of notices
with respect to any of the
Borrowing Subsidiaries, a
copy to: Credit Suisse First Boston
One Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Attention: Xxx Xxxxxxx
Fax: 00-000-000-0000
provided that any notice, request or demand to or upon either 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
100
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 respective officers, directors, employees,
affiliates, 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
101
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 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 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) shall be in an
aggregate principal amount of less than $5,000,000 (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.
102
(d) The Administrative Agent shall 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 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 "cancelled". 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 Closing 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.
103
(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 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 Commitment, the Tranche B Term Loan Commitment and the
Revolving Credit Commitment equal to such Lender's ratable share of all
Obligations then outstanding with respect to each such commitment. 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.
104
(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 or
any of the other Borrowers, any such notice being expressly waived by the
Company and each other Borrower to the extent permitted by applicable law, upon
any amount becoming due and payable by the Company or any other Borrower
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 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 or such other Borrower. Each Lender agrees
promptly to notify the Company, such other Borrower 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 and the Syndication
Agent in their 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 and the Syndication
Agent in their 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
105
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 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. 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 Closing Date
in respect of the Borrowing Subsidiaries party to this Agreement on the Closing
Date, and (2) such other documents with respect thereto as the Agents shall
reasonably request and (z) the written approval of all the Lenders, including
the written approval of all the Lenders to the Designated Maximum with respect
to each such Borrowing Subsidiary.
106
12.10 Collateral Agency and Intercreditor Agreement. Each Lender
---------------------------------------------
hereby acknowledges that it has fully reviewed each Collateral Agency and
Intercreditor Agreement and agrees to be comply with the terms thereof as if it
were a direct signatory thereto.
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;
(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
107
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 xxx 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 Acknowledgements. 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 WAIVE 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 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
108
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 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.
109
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 and Mortgages may not be delivered prior to or on the
Closing Date. Each Lender hereby waives compliance with the provisions of this
Agreement to the extent and only to the extent necessary to permit the Closing
Date to occur without the delivery of such Foreign Pledge Agreements, 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
Agreements, Mortgage and related documentation within 30 days following the
Closing Date and that the failure to deliver any such Pledge Agreement, 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.
110
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
EXIDE CORPORATION, as a Borrower and as a
Guarantor
By:______________________________________
Name: Xxxxxxxxx X. Xxxxxx
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 X.X.
XXXXX A.B.
EXIDE VERWALTUNGS GMBH
MERCOLEC TUDOR B.V.,
each as a Borrowing Subsidiary and as a
Guarantor
By:______________________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
ACCUMULATORENFABRIK SONNENSCHEIN GMBH
COMPAGNIA GENERALE ACCUMULATORI S.P.A.
SINAC S.R.L.
FULMEN IBERICA S.A.
111
CMP BATTERIES LIMITED
CMP BATTERIJEN B.V.
SOCIETE FRANCAISE DES ACCUMULATEURS
XXXXX X.X.
CMP BATTERIER A/S
EXIDE AUTOMOTIVE BATTERIE GMBH
XXXXX BATTERIE A.G.
INDUSTRIA COMPOSIZIONI STAMPATE S.P.A.
XXXXX BATTERIJEN B.V.
ELECTRO MERCANTIL INDUSTRIAL X.X.
XXXXXXXXXX S.A.
TERRENOS Y CONSTRUCCIONES S.A.
T.S. BATTERIE S.R.L.
EXIDE BATTERIES LIMITED
B.I.G. BATTERIES LIMITED
EXIDE (DAGENHAM) LIMITED
EXIDE FRANCE S.A.
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
CMP BATTERIJEN N.V.
SOCIEDAD PORTUGUESA DO ACUMULADOR XXXXX
X.X.
EXIDE DENMARK A/S
GEMALA SWEDEN AB
CENTRA S.A.
DETA XXXXXXXXXXXXXXXXX XXXX
000
XXXXX XXXXXXXXXXXXX GMBH
FRIWO SILBERKRAFT MBH
EXIDE SONNAK A/S
CMP BATTERIJEN S.A.
EXIDE AUTOMOTIVE S.A.
EXIDE LENDING LIMITED
each as a Guarantor, subject to the
limitations, if any, contained in
Schedule 10.1
By:_______________________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
GBC, INC.
as a Guarantor
By:_______________________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Secretary
GENERAL BATTERY CORPORATION
as a Guarantor
By: Exide Investments, Inc., trustee
By:_______________________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Secretary
EXIDE INTERNATIONAL, INC.
as a Guarantor
By:_______________________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
113
XXXXXX BROTHERS INC., as Arranger
By:_________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent and as a Lender
By:_________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as
Arranger and as Administrative Agent
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a
Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
XXXXXX BROTHERS BANKHAUS AG
By:_________________________________
Name:
Title:
114
ALPHA CREDIT BANK A.E.
By:____________________________________
Name:
Title:
BANK OF MONTREAL
By:____________________________________
Name:
Title:
BANQUE PARIBAS
By:____________________________________
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A.
By:____________________________________
Name:
Title:
SCOTIABANK EUROPE PLC
By:____________________________________
Name:
Title:
BANKA POPOLARE DI BERGAMO-CREDITO
VARESINO S.C.A.R.L.
By:____________________________________
Name:
Title:
115
BANKBOSTON, N.A.
By:_____________________________________
Name:
Title:
BANQUE ET CAISSE D'EPARGNE DE L'ETAT,
LUXEMBOURG
By:_____________________________________
Name:
Title:
BHF BANK AKTENGESELLSCHAFT
By:_____________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS
By:_____________________________________
Name:
Title:
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA S.A.
By:_____________________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By:_____________________________________
Name:
Title:
116
CITIBANK, N.A.
By:___________________________________
Name:
Title:
COMERICA BANK
By:___________________________________
Name:
Title:
COMMERZBANK AG
By:___________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:___________________________________
Name:
Title:
DAI-ICHI KANGYO BANK, LTD.
By:___________________________________
Name:
Title:
DRESDNER BANK AG
By:___________________________________
Name:
Title:
NBD BANK
By:___________________________________
Name:
Title:
117
FIRST UNION NATIONAL BANK
By:____________________________________
Name:
Title:
CORESTATES BANK, N.A.
By:____________________________________
Name:
Title:
INDUSTRIAL BANK OF JAPAN, LIMITED
By:____________________________________
Name:
Title:
OSTERREICHISCHE INVESTITIONSKREDIT AG
By:____________________________________
Name:
Title:
MEESPIERSON N.V.
By:____________________________________
Name:
Title:
MELLON BANK, N.A.
By:____________________________________
Name:
Title:
THE MITSUBISHI TRUST & BANKING
CORPORATION
By:____________________________________
Name:
Title:
000
XXXXXXXX XXXXXXXX XXX XXXXX DI TORINO,
S.P.A.
By:____________________________________
Name:
Title:
SOCIETE GENERALE
By:____________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:____________________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD.
By:____________________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:____________________________________
Name:
Title:
PEOPLES SECURITY LIFE INSURANCE
COMPANY
By:____________________________________
Name:
Title:
119
BANKERS LIFE & CASUALTY INSURANCE
COMPANY
By:____________________________________
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By:____________________________________
Name:
Title:
ING HIGH INCOME PRINCIPAL
By:____________________________________
Name:
Title:
PRESERVATION FUND HOLDINGS, LDC
By:____________________________________
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By:____________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:____________________________________
Name:
Title:
120
METROPOLITAN LIFE INSURANCE COMPANY
By:____________________________________
Name:
Title:
OAK HILL SECURITIES FUND, L.P.
By:____________________________________
Name:
Title:
ORIX USA CORPORATION
By:____________________________________
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:____________________________________
Name:
Title:
KZH HOLDING COMPANY III
By:____________________________________
Name:
Title:
PRIME INCOME TRUST
By:____________________________________
Name:
Title:
KZH-CRESCENT CORPORATION
By:____________________________________
Name:
Title:
121
THE TRAVELERS INSURANCE COMPANY
By:____________________________________
Name:
Title:
THE BANK OF SCOTLAND
By:____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:____________________________________
Name:
Title:
Annex A
-------
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS,
TRANCHE A TERM LOANS AND COMMITMENT FEES
======================================================================================================================
Applicable Applicable
Margin Margin
for for
Revolving Tranche A
Credit Term Applicable
Loans Applicable Loans Applicable Margin Applicable
which are Margin for which are Margin for for Tranche Margin for
Base Rate Revolving Base Rate Tranche A B Term Tranche B
Loans or Credit Loans Loans or Term Loans Loans Term Loans
Consolidated Foreign which are Foreign which are which are which are Facility
Leverage Alternate Eurocurrency Alternate Eurocurrency Base Rate Eurocurrency Fee
Ratio Rate Loans Loans Rate Loans Loans Loans Loans Rate
----------------------------------------------------------------------------------------------------------------------
greater than or
equal to 4.50 to 1 .50% 1.50% 1.00% 2.00% 1.25% 2.25% .50%
----------------------------------------------------------------------------------------------------------------------
greater than or
equal to 4.00 to 1 .25% 1.25% .75% 1.75% 1.25% 2.25% .50%
and
less than 4.50 to 1
----------------------------------------------------------------------------------------------------------------------
greater than or
equal to 3.50 to 1 0% 1.00% .50% 1.50% 1.00% 2.00% .50%
and
less than 4.00 to 1
----------------------------------------------------------------------------------------------------------------------
greater than or 0% .75% .25% 1.25% 1.00% 2.00% .50%
equal to 3.00 to 1
and
less than 3.50 to 1
----------------------------------------------------------------------------------------------------------------------
less than 3.00 to 1 0% .625% 0% 1.00% .75% 1.75% .375%
======================================================================================================================
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 4.50 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 4.50 to 1. Each determination of the
Consolidated Leverage Ratio pursuant to this definition shall be made with
respect to the period of four consecutive fiscal quarters of the Company ending
at the end of the period covered by the relevant financial statements.
ANNEX B
-------
CALCULATION OF THE MLA COST
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.
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.
2
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.
SCHEDULE 1.1A
COMMITMENTS
Revolving Credit Tranche A Term Tranche B Term
Lender Commitment Loan Commitment Loan Commitment
-------------------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston $10,625,000 $6,375,000 $ 0
Xxxxxx Brothers BankHaus AG 10,625,000 6,375,000 0
Alpha Credit Bank A.E. 6,875,000 4,125,000 0
Bank of Montreal 8,125,000 4,875,000 0
Banque Paribas 8,125,000 4,875,000 0
Bank Polska Kasa Opieki S.A. - Pekao S.A. 3,125,000 1,875,000 0
Xxx Xxxx xx Xxxx Xxxxxx 8,125,000 4,875,000 0
Xxxxx Xxxxxxxx xx Xxxxxxx-Xxxxxxx Xxxxxxxx X.x.x.x.x. 5,625,000 3,375,000 0
BankBoston, N.A. 6,875,000 4,125,000 0
Bank of Scotland 8,125,000 4,875,000 0
Xxxxxx xx Xxxxxx x'Xxxxxxx xx x'Xxxx, Xxxxxxxxxx 6,875,000 4,125,000 0
BHF Bank Aktengesellschaft 9,062,500 5,437,500 0
Banque Nationale de Paris 9,062,500 5,437,500 0
Banco Espirito Santo e Comercial de Lisboa S.A. 6,875,000 4,125,000 0
Compagnie Financiere de CIC et de l'Union Europeenne (NY Branch) 4,531,250 2,718,750 0
Compagnie Financiere de CIC et de l'Union Europeenne (London Branch) 4,531,250 2,718,750 0
Citibank, N.A. 8,125,000 4,875,000 0
Comerica Bank 8,125,000 4,875,000 0
Commerzbank AG 8,125,000 4,875,000 0
Credit Agricole Indosuez 6,875,000 4,125,000 10,000,000
Dai-Ichi Kangyo Bank, Ltd. 5,625,000 3,375,000 0
Dresdner Bank AG 8,125,000 4,875,000 0
NBD Bank 8,125,000 4,875,000 0
First Union National Bank 7,812,500 4,687,500 0
Corestates Bank, N.A. 4,687,500 2,812,500 0
Industrial Bank of Japan, Limited 8,125,000 4,875,000 0
Osterreichische Investitionskredit AG 4,376,000 2,625,000 0
MeesPierson N.V. 6,875,000 4,125,000 0
Mellon Bank, N.A. 6,875,000 4,125,000 0
The Mitsubishi Trust & Banking Corporation 8,125,000 4,875,000 0
Istituto Bancario San Paolo di Torino, S.p.A. 3,125,000 1,875,000 0
Societe Generale 9,062,500 5,437,500 0
The Sumitomo Bank, Limited 5,625,000 3,375,000 0
2
Revolving Credit Tranche A Term Tranche B Term
Lender Commitment Loan Commitment Loan Commitment
----------------------------------------------------------------------------------------------------------------------
The Sumitomo Trust & Banking Co., Ltd. 6,875,000 4,125,000 0
Xxxxxxx Xxxxxxxx (Xxxxx), Inc. 8,125,000 4,875,000 0
Xxxxxx Commercial Paper, Inc. 0 0 120,000,000
Peoples Security Life Insurance Company 0 0 10,000,000
Bankers Life & Casualty Insurance Company 0 0 10,000,000
Franklin Floating Rate Trust 0 0 5,000,000
ING High Income Principal Preservation Fund Holdings, LDC 0 0 7,000,000
Archimedes Funding, L.L.C. 0 0 5,000,000
Xxxxxxx Xxxxx Senior Floating Rate Fund, Inc. 0 0 12,000,000
Metropolitan Life Insurance Company 0 0 10,000,000
Oak Hill Securities Fund, L.P. 0 0 12,000,000
ORIX USA Corporation 0 0 6,000,000
Paribas Capital Funding LLC 0 0 10,000,000
KZH Holding Company III 0 0 6,000,000
Prime Income Trust 0 0 12,000,000
KZH-Crescent Corporation 0 0 5,000,000
The Travelers Insurance Company 0 0 10,000,000
------------ ------------ ------------
$250,000,000 $150,000,000 $250,000,000
============ ============ ============
SCHEDULE 1.1B
ADDRESSES FOR NOTICES AND DESIGNATED MAXIMUMS
FOR BORROWING SUBSIDIARIES
Company Designated Maximum
------- ------------------
Exide Holding Europe S.A. $ 50,000,000
0-0 Xxxxx xxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxxxxxxxx Xxxxx
Xxxxxx
CEAc S.A. $200,000,000
0-0 Xxxxx xxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxxxxxxxx Xxxxx
Xxxxxx
SEA Xxxxx X.X. $100,000,000
Xxxxxxx xx Xxxxxxxx, 0
00000 Xxxxxx, Xxxxx
Euro Exide Corp. Ltd. $200,000,000
0, Xxxxxxx Xxxx
Xxxx Xxxxxx - Xxxxxx XX0 0XX
England
Exide Verwaltungs, GmbH $200,000,000
Thiergarten
Xxxxxxxx 0000
00000 Xxxxxxxx, Xxxxxxx
Mercolec Tudor B.V. $200,000,000
Rivierstaete
Xxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Exide Corporation $175,000,000
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
SCHEDULE 1.1C
CURRENCY MAXIMUMS
Currency Amount
-------- ------
Francs $250,000,000
Marks $175,000,000
Pounds $175,000,000
Lira $ 25,000,000
Pesetas $ 15,000,000
SCHEDULE 1.1D
MORTGAGED PROPERTY
SCHEDULE 1.1E
PERMITTED ACQUISITIONS
SCHEDULE 1.1F
LETTERS OF CREDIT
SCHEDULE 1.1G
WHOLLY OWNED SUBSIDIARIES
SCHEDULE 5.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
SCHEDULE 5.15
SUBSIDIARIES
SCHEDULE 5.19(a)
UCC FILING JURISDICTIONS
SCHEDULE 5.19(b)
MORTGAGE FILING JURISDICTIONS
SCHEDULE 8.2(e)
EXISTING INDEBTEDNESS
SCHEDULE 8.3(f)
EXISTING LIENS
SCHEDULE 8.8(j)
EXISTING INVESTMENTS
SCHEDULE 8.14
EXISTING RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS
SCHEDULE 10.1
EXCEPTIONS TO GUARANTEES BY FOREIGN SUBSIDIARIES
German Guarantees.
-----------------
(i) The obligations under Section 10 with respect to each Guarantor
which is a Gesellschaft mit beschrankter Haftung organized under the laws of the
Federal Republic of Germany (each, a "German GmbH Guarantor") shall at all times
---------------------
be limited so that its liability as a Guarantor 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").
-----------
(ii) 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.
French Guarantees.
-----------------
The obligations under Section 10 with respect to Exide Holding Europe
S.A., Exide France S.A., Compagnie Europeenne d'Accumulateurs S.A. and Societe
Francaise D'Accumulateurs Xxxxx X.X. (collectively, the "French Guarantors")
-----------------
shall at all times be limited to the extent, and only to the extent, necessary
to ensure that the incurrence on the Closing Date of the liability of each
French Guarantor as a Guarantor under this Agreement and the other Loan
Documents shall at no time constitute a misuse of corporate assets (abus de
biens sociaux) within the meaning of Article 437.3 of the French Company Act of
24 July, 1966.
Norwegian Guarantees.
--------------------
Exide Sonnak AS's commitments as Guarantor hereunder or under any Loan
Document are limited by the applicable regulations in the Norwegian Joint Stock
Company's Act of 1976 (as amended or replaced) (the "Act") pursuant to which
inter alia a company may only provide financial assistance, including securities
or guarantees for the commitments of their shareholders or other related
entities or persons in so far as the company, according to the latest adopted
balance sheet has (i) an unrestricted and distributable equity capital which is
at least equal to the amount provided, guaranteed or secured, and (ii) adequate
security (either by collateral or third party guarantees) has been provided.
Exide Sonnak AS's commitments hereunder as Guarantor are consequently invalid
and unenforceable unless the applicable requirements under the Act has been
complied with.
Belgian Guarantees.
------------------
The obligations under Section 10 with respect of CMP Batterijen S.A.
and Exide Automotive S.A. shall be enforceable only to the extent that these
obligations have been undertaken in furtherance of the corporate interest of
those companies.
Jersey Guarantees.
-----------------
Exide Lending Limited, in addition to the provisions contained in Section
10 of the Credit and Guarantee Agreement, hereby agrees to the following
additional provisions:
---------------------
(i) any right which at any time Exide Lending Limited has under the
existing or future laws of Jersey whether by virtue of the droit de
discussion or otherwise to require that recourse be had to the assets
of any other person before any claim is enforced against Exide
Lending Limited in respect of its obligations as Guarantor is hereby
abandoned and waived;
(ii) Exide Lending Limited undertakes that if at any time the Agent sues
Exide Lending Limited in respect of any of its obligations as
Guarantor and the person or persons whose obligations are guaranteed
is, or are, not also sued, Exide Lending Limited agrees to be bound
by its obligations as Guarantor whether or not the person whose
obligations are guaranteed is made a party to legal proceedings for
the recovery of the amount due or owing to the Agent as aforesaid by
the person whose obligations are guaranteed hereunder and whether the
formalities required by any law of Jersey whether existing or future
in regard to the rights or obligations of sureties shall or shall not
have been observed;
(iii) any right which Exide Lending Limited may have under the existing or
future laws of Jersey whether by virtue of the droit de division or
otherwise to require that any liability under its obligations as
Guarantor be divided or apportioned with any other person or reduced
in any manner whatsoever is hereby abandoned and waived.
Swedish Guarantees.
------------------
The shareholders stipulated that the access of Tudor AB to the Credit
and Guarantee Agreement shall be subject to the condition that the obligations
Tudor AB as Guarantor in respect of the Borrowers shall be limited to its equity
in accordance with Swedish law.
Portuguese Guarantees.
---------------------
The conditions upon which Sociedade Portuguesa do Acumulador Tudor
accepts to underwrite the present contract as a Guarantor are as follows:
a) that the limit of the guarantee does not exceed PTE 1,000,000,000
(one thousand million escudos);
b) that Sociedad Espanola del Acumulador Tudor, S.A. writes a letter to
Sociedade Portuguesa do Acumulador Tudor on the following terms:
Exide Corporation, an American group of companies, which presently
owns a majority share in the share capital of Sociedad Espanola del
Acumulador Tudor, S.A., shall write a letter to the board of
directors of Sociedade Portuguesa do Acumulador Tudor, S.A., in which
it is established that it is the intention that at least 10% of its
production is sold through Sociedade
Portuguesa do Acumulador Tudor, S.A., for the duration of the
guarantee, as well as to indicate that it intends to develop and
increase the operations with Sociedade Portuguesa do Acumulador Tudor,
S.A., in Portugal, showing in such letter a relationship of
unequivocal interest and understanding in Sociedade Portuguesa do
Acumulador Tudor, S.A.
Italian Guarantees.
------------------
The guarantee obligations under Section 10 with respect to Compagnia
Generale Accumulatori S.r.l., Societa Industriale Accumulatori S.r.I. and TS
Batterie S.r.I. (collectively, the "Italian Guarantors") shall at all time be
limited to the payment and performance when due of the Foreign Obligations
relating to such portion of the Tranche A Term Loans and Tranche B Term Loans
used for the repayment of obligations outstanding under the Existing Foreign
Credit Agreement, provided (i) that such guarantee obligations shall be
enforceable only to the extent they have been undertaken in connection with a
transaction to the benefit of the Italian Guarantors and provided further (ii)
that such guarantee obligations shall at all times not exceed an amount beyond
which an Italian Court might disallow such guarantee obligations on the basis of
the ultra xxxxx doctrine, to the extent it finds that such guaranteed amount is
----- -----
extremely high compared to the Italian Guarantor's financial conditions at the
time the guarantee obligations are undertaken.
United Kingdom Guarantees.
-------------------------
(i) Subject to paragraph (ii) below, the obligations of each
Guarantor incorporated in England and Wales (each a "UK GUARANTOR") under
Section 10 of this Agreement (or otherwise pursuant to this Agreement) (together
"THE OBLIGATIONS") shall at all times be limited to the extent, and only to the
extent, necessary to ensure that such UK Guarantor shall not by undertaking such
Obligations breach Section 151 (Unlawful Financial Assistance) Companies Act
1985 ("THE ACT") as a consequence of it being a party to this Agreement and its
assumption of the Obligations.
(ii) Each UK Guarantor (and all shareholders of each UK Guarantor to
the extent a party to this Agreement) shall on 21 days' written notice from the
Administrative Agent, to the extent each of them is lawfully able using all
reasonable endeavours (pursuant to the provisions of Sections 155 - 158 of the
Act or otherwise) pass all necessary resolutions and procure (if appropriate)
that its directors swear the necessary statutory declarations and shall
undertake all such other acts and deeds to ensure that the provisions of
Sections 155 - 158 of the Act are complied with such that the limitation
specified in paragraph at (i) above shall no longer apply in relation to such UK
Guarantor.
Danish Guarantees.
-----------------
The obligations of CMP Batterier A/S and Exide Danmark A/S under the
Credit and Guarantee Agreement shall at all times be limited so that the
liability of CMP Batterier A/S and Exide Danmark A/S respectively as a Guarantor
shall at no time require the payment of any monies which (i) results in it then
being unable to honour its other financial obligations to its other creditors at
such time as they are due for payment, the position of such creditors to be
determined by Danish law, (ii) constitutes a violation of Danish bankruptcy law
and other relevant Danish statutory provisions, (iii) is an amount in excess of
- for CMP Batterier - A/S - DKK 3,400,000 and - for Exide Danmark A/S - DKK
8,500,000.
Spanish Guarantees.
------------------
The obligations under Section 10 with respect to Sociedad Espanola del
Accumulador Tudor, S.A., Fulmen Iberica, S.A., Electro Mercantil Industrial,
S.A., Xxxxxxxxxx, X.X. and Terrenos y Construcctiones, S.A. shall be enforceable
only to the extent that these obligations have been undertaken in furtherance of
the corporate interest of those companies.
Polish Guarantees.
-----------------
The execution of the present agreement by Centra S.A. is subject to
the condition precedent that Centra S.A. is granted by the President of the
National Bank of Poland the exchange permit necessary in connection herewith, in
particular with regard to Centra's commitments as Guarantor under Section 10,
pursuant to Article 9.1.4. of the Polish Foreign Exchange Act dated December 2,
1994, as amended.
FIRST AMENDMENT
FIRST AMENDMENT, dated as of May 27, 1998 (this "Amendment"), to (i) the
---------
Credit and Guarantee Agreement, dated as of December 19, 1997, (as amended,
supplemented or otherwise modified from time to time, the "Credit and Guarantee
--------------------
Agreement"), among Exide Corporation, a Delaware corporation (the "Company"),
--------- -------
the Borrowing Subsidiaries signatory thereto, the Guarantors signatory thereto,
the several lenders from time to time parties thereto (the "Lenders"), Xxxxxx
-------
Commercial Paper Inc., as Syndication Agent for the Lenders (in such capacity,
the "Syndication Agent") and Credit Suisse First Boston, as Administrative Agent
-----------------
for the Lenders (in such capacity, the "Administrative Agent") and (ii) the
--------------------
Collateral Agreement, dated December 19, 1997, (the "Collateral Agreement"),
--------------------
made by the Company and certain of its Subsidiaries parties thereto in favor of
the Syndication Agent and the Administrative Agent for the Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit and Guarantee Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
the Company and the Borrowing Subsidiaries; and
WHEREAS, the Company and the Borrowing Subsidiaries have requested, and,
upon this Amendment becoming effective, the Lenders have agreed, that certain
provisions of the Credit and Guarantee Agreement and Collateral Agreement be
amended in the manner provided for in this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. (a) General. Terms defined in the Credit and
------------- -------
Guarantee Agreement and used herein shall, unless otherwise indicated, have the
meanings given to them in the Credit and Guarantee Agreement. Terms defined and
used in this Amendment shall have the meanings given to them in this Amendment.
(b) Replacement of Definitions. Subsection 1.1 of the Credit and
--------------------------
Guarantee Agreement is hereby amended by deleting therefrom the definitions of
the following definitions in their entirety and substituting in lieu thereof the
following definitions in the appropriate alphabetical order:
"'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
2
Closing 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 exceeding $125,000,000, but only if
such increases are approved in writing by the Required Lenders and (z)
other changes thereto approved by the 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 Maximum Commitment Amount': $125,000,000.
----------------------------------------------
`L/C Commitment': at any date, the amount equal to (a)
--------------
$50,000,000 plus (b) so long as any Letter of Credit described in
Schedule 1.1F (or any replacement thereof) remains outstanding, the
amount set forth on Schedule 1.1F with respect thereto; provided that
--------
$10,000,000 of such $50,000,000 amount shall be reserved solely for
the issuance of Letters of Credit used to support Indebtedness of
Subsidiaries of the Company incorporated in Italy."
`Optional Currencies': Marks, Pounds, Francs and, with respect
-------------------
to Swing Line Loans and Letters of Credit only, Lira and Pesetas, and,
with respect to Letters of Credit only, any other foreign currency
which is acceptable to the Issuing Lender in its sole discretion."
(c) Amendment of Definitions. (i) The definition of the term "Asset
------------------------
Sale" in subsection 1.1 of the Credit and Guarantee Agreement is hereby
amended by deleting the reference to clause (f) in the second line thereof
and substituting in lieu thereof a reference to clause (g).
(ii) The definition of "Domestic Obligations" in subsection 1.1 of
the Credit and Guarantee Agreement is hereby amended by (x) inserting
immediately after the words "Interest Rate Protection Agreements" in the
eighth and ninth lines thereof the phrase "or any foreign currency hedge
agreements or swaps" and (y) inserting immediately after the words
"Interest Rate Protection Agreement" in the twelfth line thereof the phrase
"or any foreign currency hedge agreement or swap".
(iii) The definition of "Foreign Obligations" in subsection 1.1 of
the Credit and Guarantee Agreement is hereby amended by (x) inserting
immediately after the words "Interest Rate Protection Agreements" in the
ninth and tenth lines thereof the phrase "or any foreign currency hedge
agreements or swaps" and (y) inserting immediately after the words
"Interest Rate Protection Agreement" in the thirteenth line thereof the
phrase "or any foreign currency hedge agreement or swap".
3
(iv) The definition of the term Revolving Credit Commitment is hereby
amended by deleting the amount "$100,000,000" in the penultimate line and
substituting in lieu thereof the amount "$125,000,000".
(c) Addition of Definitions. The following defined terms are hereby
-----------------------
added to subsection 1.1 of the Credit and Guarantee Agreement in
appropriate alphabetical order:
"'First Amendment': the First Amendment, dated as of May 27,
---------------
1998, to this Agreement.
'First Amendment Effective Date': the date each of the
------------------------------
conditions to effectiveness of each of the amendments, waivers and
agreements contained in the First Amendment described in paragraphs 23
and 24 thereof shall have been satisfied.
'GNB Acquisition': the acquisition by the Company of the
---------------
automotive battery manufacturing and metals divisions of GNB
Technologies.
'Interim Credit Facility': the collective reference to the
-----------------------
Senior Subordinated Credit Facility to be entered into by the Company
in lieu of the Senior Subordinated Note Indenture in the event the
Senior Subordinated Notes are not issued on the First Amendment
Effective Date, and all documents executed in connection therewith.
'Senior Subordinated Note Indenture': the Indenture to be
----------------------------------
entered into by the Borrower in connection with the issuance of the
Senior Subordinated Notes, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 8.9.
'Senior Subordinated Notes': the Senior Subordinated Notes of
-------------------------
the Borrower to be issued pursuant to the Senior Subordinated Note
Indenture, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 8.9.
'Specified Change of Control': a "Change of Control" as defined
---------------------------
in the Senior Subordinated Note Indenture or the Interim Credit
Facility."
2. Agreement with Respect to Additional Term Loans. Subject to the
-----------------------------------------------
conditions set forth herein, the Lenders party hereto hereby agree that the
Company shall be permitted to incur Indebtedness in respect of an additional
tranche of term loans under the Credit and Guarantee Agreement in an aggregate
principal amount not to exceed $100,000,000 (the "Additional Term Loans") with
---------------------
terms (including as to maturity, pricing, prepayments and collateral) equivalent
to the terms under the Loan Documents applicable to
4
the Tranche B Term Loans (after giving effect to this Amendment) and otherwise
on terms and conditions satisfactory to the Required Lenders; provided, that no
--------
Lender shall be obligated to provide any of the Additional Term Loans.
3. Amendment to Subsection 2.7(a). Subsection 2.7(a) of the Credit
------------------------------
and Guarantee Agreement is hereby amended by inserting at the end of the first
sentence thereof but prior to the period the following: "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".
4. Amendment to Subsection 2.7(b). Subsection 2.7(b) of the Credit
------------------------------
and Guarantee Agreement is hereby amended by inserting at the end of the first
sentence thereof but prior to the period the following: "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".
5. Amendment to Section 3.8(f). Subsection 3.8(f) of the Credit and
---------------------------
Guarantee Agreement is hereby amended by deleting such subsection in its
entirety and substituting in lieu thereof the following:
"(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
5
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."
6. Amendment to Subsection 5.21. Subsection 5.21 of the Credit
----------------------------
and Guarantee Agreement is hereby amended by adding at the end thereof the
following the following:
"The Obligations constitute, or in the event the Senior Subordinated Notes
are not issued on the First Amendment Effective Date, will constitute
"Senior Indebtedness" of the Company and the Borrowing Subsidiaries under
and as defined in the Senior Subordinated Note Indenture and the Interim
Credit Facility. The obligations of each Subsidiary Guarantor under the
Credit and Guarantee Agreement constitute, or in the event the Senior
Subordinated Notes are not issued on the First Amendment Effective Date,
will constitute "Guarantor Senior Indebtedness" (or such concept similar
6
thereto) of such Subsidiary Guarantor under and as defined in the Senior
Subordinated Note Indenture and the Interim Credit Facility."
7. Amendment to Subsection 7.2. Subsection 7.2 of the Credit and
---------------------------
Guarantee Agreement is hereby amended by (a) deleting the word "and" at the end
of paragraph (f) thereof, (b) relettering current paragraph (g) as paragraph (h)
and (c) inserting immediately after paragraph (f) the following new paragraph
(g):
"(g) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Senior
Subordinated Note Indenture, the Senior Subordinated Notes or the Interim
Credit Facility; and"
8. Amendment to Subsection 8.1(a). Subsection 8.1(a) of the Credit
------------------------------
and Guarantee Agreement is hereby amended by deleting the table contained
therein and substituting in lieu thereof the following table:
Consolidated
Period Leverage Ratio
------ --------------
March 31, 1998 5.50 to 1.0
April 1, 1998 through June 30, 1998 5.75 to 1.0
July 1, 1998 through September 30, 1998 5.50 to 1.0, or in the event the
GNB Acquisition is consummated, 6.00 to 1.0
October 1, 1998 through December 31, 1998 5.25 to 1.0, or in the event the
GNB Acquisition is consummated, 5.60 to 1.0
January 1, 1999 through March 31, 1999 4.70 to 1.0, or in the event the
GNB Acquisition iS consummated, 5.00 to 1.0
April 1, 1999 through June 30, 1999 4.70 to 1.0
July 1, 1999 through December 31, 1999 4.95 to 1.0
January 1, 2000 through June 30, 2000 3.75 to 1.0
July 1, 2000 through December 31, 2000 4.00 to 1.0
January 1, 2001 through June 30, 2001 3.25 to 1.0
July 1, 2001 through December 31, 2001 3.50 to 1.0
January 1, 2002 through June 30, 2002 2.75 to 1.0
July 1, 2002 through December 31, 2002 3.00 to 1.0
January 1, 2003 through June 30, 2003 2.75 to 1.0
July 1, 2003 through December 31, 2003 3.00 to 1.0
January 1, 2004 through June 30, 2004 2.75 to 1.0
July 1, 2004 through December 31, 2004 3.00 to 1.0
7
9. Amendment to Subsection 8.1(b). Subsection 8.1(b) of the Credit
------------------------------
and Guarantee Agreement is hereby amended by deleting the table contained
therein and substituting in lieu thereof the following table:
Period Charge Coverage Ratio
------ ---------------------
March 31, 1998 through June 30, 1998 0.95 to 1.0
July 1, 1998 through September 30, 1998 0.95 to 1.0, or in the event
the GNB Acquisition is consummated, 0.75 to 1.0
October 1, 1998 through December 31, 1998 1.10 to 1.0, or in the event
the GNB Acquisition is consummated, 0.90 to 1.0
January 1, 1999 through September 30, 1999 1.30 to 1.0, or in the event
the GNB Acquisition is consummated, 1.05 to 1.0
October 1, 1999 through December 31, 1999 1.30 to 1.0
January 1, 2000 through December 31, 2000 1.35 to 1.0
January 1, 2001 and thereafter 1.75 to 1.0
10. Amendment to Subsection 8.1(c). Subsection 8.1(c) of the Credit
------------------------------
and Guarantee Agreement is hereby amended by deleting the amount "$235,000,000"
and substituting in lieu thereof the following: "$230,000,000, or in the event
the GNB Acquisition is consummated $235,000,000".
11. Amendment to Subsection 8.2. Subsection 8.2 of the Credit and
---------------------------
Guarantee Agreement is hereby amended by (a) deleting the amount "$15,000,000"
from paragraph (m) and substituting in lieu thereof the amount "$20,000,000, (b)
deleting the word "and" at the end of the paragraph (m) thereof, (c) relettering
current paragraph (n) as paragraph (p), (d) adding thereto the following new
paragraph (n):
"(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
(p) shall not exceed $15,000,000 at any one time outstanding;"
and (e) adding thereto the following new paragraph (o):
"(o) Indebtedness of the Borrower in respect of the Senior
Subordinated Notes or, in the event the Senior Subordinated Notes are not
issued on the First Amendment
8
Effective Date, Indebtedness under the Interim Credit Facility, in an
aggregate principal amount in each such case not to exceed $150,000,000
(plus, in the case of the Interim Credit Facility, increases in the
principal amount thereof in connection with the accretion of the interest
thereon in accordance with its terms), in each case, on terms and
conditions satisfactory to the Required Lenders;".
12. Amendment to Subsection 8.5. Subsection 8.5 of the Credit and
---------------------------
Guarantee Agreement is hereby amended by (a) relettering current paragraphs (g)
and (h) as paragraphs (h) and (i) and (b) adding thereto the following new
paragraph (g):
"(g) the sale by the Company of its ownership interest in Yuasa
Inc.;"
13. Amendment to Subsection 8.7. Subsection 8.7 of the Credit and
---------------------------
Guarantee Agreement is hereby amended by deleting the amount "$100,000,000" in
the fourth line and substituting in lieu thereof the amount "$125,000,000".
14. Amendment to Subsection 8.8(h). Subsection 8.8(h) of the Credit
------------------------------
and Guarantee Agreement is hereby amended by adding after the word "thereof" but
prior to the semi-colon in the last line thereof the following:
"provided, further, that the foregoing shall not prohibit the consummation
-------- -------
of the GNB Acquisition for an aggregate purchase price not to exceed
$300,000,000 and aggregate fees and expenses in connection therewith not to
exceed $10,000,000, pursuant to documentation in form and substance
satisfactory to the Required Lenders".
15. Amendment to Subsection 8.9. Subsection 8.9 of the Credit and
---------------------------
Guarantee Agreement is hereby amended by (a) deleting such subsection in its
entirety and substituting in lieu thereof the following:
"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, the DM Notes, the Senior 10% Notes or the
Senior Subordinated 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, the Senior 10% Notes or the Senior Subordinated 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
9
any Indebtedness as "Designated Senior Indebtedness" for the purposes of
the Convertible Indenture or the Senior Subordinated 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.".
16. Amendment to Section 8.13. Section 8.13 of the Credit and
-------------------------
Guarantee Agreement is hereby amended by (a) deleting the word "and" the second
time it appears in the sixth line and substituting in lieu thereof a comma and
(b) adding thereto at the end thereof and prior to the period the following:
"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".
17. Amendment to Section 9. Section 9 of the Credit and Guarantee
----------------------
Agreement is hereby amended by (a) adding the word "or" at the end of paragraph
(l) thereof and (b) adding to the list of events therein the following:
"(m) (i) the Senior Subordinated Notes or, in the event the Senior
Subordinated Notes are not issued on the First Amendment Effective Date,
the obligations under the Interim Credit Facility, or, in each case, the
guarantees thereof, shall cease, for any reason, to be validly subordinated
to the Obligations, as provided in the Senior Subordinated Note Indenture
or the Interim Credit Facility, as the case may be, or the obligations of
the Subsidiary Guarantors under the Credit and Guarantee Agreement or (ii)
any Loan Party, any Affiliate of any Loan Party, the trustee in respect of
the Senior Subordinated Note Indenture (in the case of the Senior
Subordinated Notes) or the holders of at least 25% in aggregate principal
amount of the Senior Subordinated Note Indenture or the Interim Credit
Facility, as the case may be, shall so assert;".
18. Amendment to Subsection 12.1. Subsection 12.1 of the Credit and
----------------------------
Guarantee Agreement is hereby amended by (a) deleting the word "or" immediately
prior to the numeral "(viii)", (b) renumbering the current item "(viii)" as item
"(vii)" and (c) adding thereto a new item (viii) as follows:
"; or (viii) amend or modify subsection 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"
19. Amendment to Subsection 12.7(c). Subsection 12.7(c) of the
-------------------------------
Credit and Guarantee Agreement is hereby amended by deleting such subsection in
its entirety and substituting in lieu thereof the following:
"(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
10
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 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."
20. Amendment to Subsection 12.9. Subsection 12.9 of the Credit and
----------------------------
Guarantee Agreement is hereby amended by deleting the words "all the Lenders" in
both places in which they appear in the penultimate line thereof and
substituting in lieu thereof the words "the Majority Revolving Credit Facility
Lenders".
21. Replacement of Annex A. Annex A to the Credit and Guarantee
----------------------
Agreement is hereby amended by deleting such Annex A in its entirety and
substituting in lieu thereof the new Annex A attached hereto.
22. Amendment to Collateral Agreement. (a) Subsection 1.1 of the
---------------------------------
Collateral Agreement is hereby amended by adding thereto in the appropriate
alphabetical order the following defined term:
"'Domestic Receivables Collateral': each item of Collateral in
-------------------------------
which an interest has been conveyed pursuant to or as contemplated by
the Domestic Receivables Facility, including, without limitation, all
receivables, accounts, general intangibles, contract rights, property
rights (including, without limitation, intellectual property rights),
chattel paper, instruments, computer programs, proprietary information
and all other rights, powers and privileges arising therefrom or
related thereto, and all security interests, guaranties, insurance
policies and property securing or supporting payment thereto and all
proceeds and products of any of the foregoing."
(b) Section 2 of the Collateral Agreement is hereby amended by adding
thereto at the end thereof the following:
"Notwithstanding the foregoing, the Administrative Agent on behalf of
all the Lenders and the Company on behalf of itself, the Borrowing
Subsidiaries and
11
the Subsidiary Guarantors hereby expressly acknowledge that the
Collateral shall not include any of the Domestic Receivables
Collateral."
23. Conditions to Effectiveness of All Amendments. This Amendment
---------------------------------------------
shall become effective on and as of the date that the Administrative Agent shall
have received counterparts of this Amendment, duly executed by the Company, the
Borrowing Subsidiaries, the Guarantors, the Required Lenders and the Swing Line
Lenders.
24. Additional Conditions to Effectiveness of Certain Amendments. In
------------------------------------------------------------
addition to the conditions set forth in paragraph 23, the agreements and
amendments set forth in paragraphs 2, 6, 7, 11(e), 13, 14, 15 and 17 and the
amendment to the definition of "Domestic Receivables Maximum Commitment Amount"
shall be subject to the satisfaction of the following additional conditions:
(a) The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the and the
Administrative Agent, of the Company authorizing (i) the execution,
delivery and performance of this Amendment, (ii) the borrowings
contemplated hereunder, certified by the Secretary of the Company as of the
date hereof, which certificate shall be in form and substance satisfactory
to the Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(b) The Administrative Agent shall have received a certificate of the
Secretary of the Company, dated the date hereof, as to the incumbency and
signature of the officers of the Company executing this Amendment
satisfactory in form and substance to the Administrative Agent.
(c) All governmental and third party approvals (including landlords'
and other consents) necessary or advisable in connection with this
Amendment, the making of the Additional Term Loans and the GNB Acquisition
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 materially adverse conditions on the Credit and
Guarantee Agreement as amended by this Amendment, the making of the
Additional Term Loans or the GNB Acquisition.
(d) The GNB Acquisition shall have been consummated for an aggregate
purchase price not to exceed $300,000,000 pursuant to documentation in form
and substance satisfactory to the Required Lenders. The fees and expenses
in connection with the GNB Acquisition shall not exceed $10,000,000.
(e) An additional amendment to the Credit and Guarantee Agreement
shall have been executed and delivered by the Company, the Borrowing
Subsidiaries, the
12
Guarantors, the Required Lenders and the Swing Line Lenders, which shall
set forth the exact terms of, and the lenders providing, the Additional
Term Loans.
(f) The Administrative Agent shall have received the executed legal
opinion of Xxxxxxxx & Xxxxx, counsel to the Borrower dated the date hereof
and in form and substance satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received evidence in form and
substance satisfactory to it that all filings, recordings, registrations
and other actions necessary or, in the opinion of the Administrative Agent,
desirable to perfect the liens and security interests created by the
Security Documents in the property acquired in connection with the GNB
Acquisition, shall have been completed.
(h) The Administrative Agent shall have received the results of a
recent search of the Uniform Commercial Code, judgement and tax lien
filings which may have been filed with respect to property acquired in
connection with the GNB Acquisition in each of the jurisdictions and
offices where any such property is located, and such search shall reveal no
liens on any of such property except for liens permitted by the Loan
Documents.
(i) The Lenders shall have received a satisfactory solvency analysis
from the chief financial officer of the Company which shall document the
solvency of the Company and its subsidiaries after giving effect to the
Acquisition and the other transactions contemplated hereby.
25. Representations and Warranties. The Company as of the date
------------------------------
hereof and after giving effect to the amendment contained herein, hereby
confirms, reaffirms and restates that representations and warranties made by it
in Section 5 of the Credit and Guarantee Agreement; provided, that each
--------
reference to the Credit and Guarantee Agreement therein shall be deemed to be a
reference to the Credit and Guarantee Agreement after giving effect to this
Amendment.
26. Payment of Expenses. The Company agrees to pay or
-------------------
reimburse the Syndication Agent and the Administrative Agent for all of their
out-of-pocket costs and reasonable expenses incurred in connection with the
Amendment, any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Syndication Agent and the
Administrative Agent.
27. Reference to and Effect on the Loan Documents; Limited Effect.
--------------------------------------------------------------
On and after the date hereof and the satisfaction of the conditions contained in
Section 10 of this Amendment, each reference in the Credit and Guarantee
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit and Guarantee Agreement, and each reference in the other
Loan Documents to "the Credit and Guarantee
13
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit and Guarantee Agreement, shall mean and be a reference to the Credit and
Guarantee Agreement as amended hereby. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender or any Agent
under any of the Loan Documents, nor constitute a waiver of any provisions of
any of the Loan Documents. Except as expressly amended herein, all of the
provisions and covenants of the Credit and Guarantee Agreement and the other
Loan Documents are and shall continue to remain in full force and effect in
accordance with the terms thereof and are hereby in all respects ratified and
confirmed.
28. Counterparts. This Amendment may be executed by one or more of
------------
the parties hereto in any number of separate counterparts (which may include
counterparts delivered by facsimile transmission) and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. Any
executed counterpart delivered by facsimile transmission shall be effective as
for all purposes hereof.
29. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14
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:__________________________________________
Name:
Title:
EXIDE HOLDING EUROPE S.A.
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
EURO EXIDE CORPORATION LIMITED
SOCIEDAD ESPANOLA DEL ACUMULADOR
TUDOR X.X.
XXXXX A.B.
EXIDE VERWALTUNGS GMBH
MERCOLEC TUDOR B.V.,
each as a Borrowing Subsidiary and as a
Guarantor
By:_________________________________________
Name:
Title:
15
ACCUMULATORENFABRIK SONNENSCHEIN
GMBH
COMPAGNIA GENERALE ACCUMULATORI
S.P.A.
SINAC S.R.L.
FULMEN IBERICA S.A.
CMP BATTERIES LIMITED
CMP BATTERIJEN B.V.
SOCIETE FRANCAISE DES
ACCUMULATEURS XXXXX X.X.
CMP BATTERIER A/S
EXIDE AUTOMOTIVE BATTERIE GMBH
XXXXX BATTERIE A.G.
INDUSTRIA COMPOSIZIONI STAMPATE
S.P.A.
XXXXX BATTERIJEN B.V.
ELECTRO MERCANTIL INDUSTRIAL X.X.
XXXXXXXXXX S.A.
TERRENOS Y CONSTRUCCIONES S.A.
T.S. BATTERIE S.R.L.
EXIDE BATTERIES LIMITED
B.I.G. BATTERIES LIMITED
EXIDE (DAGENHAM) LIMITED
EXIDE FRANCE S.A.
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
CMP BATTERIJEN N.V.
SOCIEDAD PORTUGUESA DO
ACUMULADOR XXXXX X.X.
EXIDE DENMARK A/S
GEMALA SWEDEN AB
CENTRA S.A.
DETA AKKUMULATORENWERK GMBH
MAREG ACCUMULATOREN GMBH
FRIWO SILBERKRAFT MBH
EXIDE SONNAK A/S
CMP BATTERIJEN S.A.
EXIDE AUTOMOTIVE S.A.
EXIDE LENDING LIMITED
each as a Guarantor, subject to the limitations, if
any, contained in Schedule 10.1
By:_________________________________________________
Name:
Title:
16
GBC, INC.
as a Guarantor
By:_________________________________________________
Name:
Title:
GENERAL BATTERY CORPORATION
as a Guarantor
By: Exide Investments, Inc., trustee
By:_________________________________________________
Name:
Title:
EXIDE INTERNATIONAL, INC.
as a Guarantor
By:_________________________________________________
Name:
Title:
17
XXXXXX BROTHERS INC., as Arranger
By:___________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent and as a Lender
By:___________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as
Arranger and as Administrative Agent
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a
Lender
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
XXXXXX BROTHERS BANKHAUS AG
By:___________________________
Name:
Title:
18
ALPHA CREDIT BANK A.E.
By:___________________________
Name:
Title:
BANK OF MONTREAL
By:___________________________
Name:
Title:
BANQUE PARIBAS
By:___________________________
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO
S.A.
By:___________________________
Name:
Title:
SCOTIABANK EUROPE PLC
By:___________________________
Name:
Title:
BANCA POPOLARE DI BERGAMO-CREDITO
VARESINO S.C.A.R.L.
By:___________________________
Name:
Title:
19
BANKBOSTON, N.A.
By:___________________________
Name:
Title:
BANQUE ET CAISSE D'EPARGNE DE
L'ETAT, LUXEMBOURG
By:___________________________
Name:
Title:
BHF BANK AKTENGESELLSCHAFT
By:___________________________
Name:
Title:
BANQUE NATIONALE DE PARIS
By:___________________________
Name:
Title:
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA S.A.
By:___________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE NEW YORK
BRANCH
By:___________________________
Name:
Title:
20
COMERICA BANK
By:___________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:___________________________
Name:
Title:
DAI-ICHI KANGYO BANK, LTD.
By:___________________________
Name:
Title:
DRESDNER BANK AG NEW YORK & GRAND
CAYMAN BRANCHES
By:___________________________
Name:
Title:
NBD BANK
By:___________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:___________________________
Name:
Title:
21
CORESTATES BANK, N.A.
By:___________________________
Name:
Title:
INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By:___________________________
Name:
Title:
OSTERREICHISCHE INVESTITIONSKREDIT
AG
By:___________________________
Name:
Title:
MEESPIERSON N.V.
By:___________________________
Name:
Title:
MELLON BANK, N.A.
By:___________________________
Name:
Title:
THE MITSUBISHI TRUST & BANKING CORPORATION
By:___________________________
Name:
Title:
00
XXXXXXXX XXXXXXXX XXX XXXXX XX
XXXXXX, S.P.A.
By:___________________________
Name:
Title:
SOCIETE GENERALE
By:___________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:___________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD.
By:___________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:___________________________
Name:
Title:
PEOPLES SECURITY LIFE INSURANCE
COMPANY
By:___________________________
Name:
Title:
23
FRANKLIN FLOATING RATE TRUST
By:___________________________
Name:
Title:
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
By: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By:___________________________
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING CAPITAL ADVISORS, INC., as
Collateral Advisor
By:___________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:___________________________
Name:
Title:
METROPOLITAN LIFE INSURANCE
COMPANY
By:___________________________
Name:
Title:
24
ORIX USA CORPORATION
By:___________________________
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:___________________________
Name:
Title:
KZH HOLDING COMPANY III
By:___________________________
Name:
Title:
THE BANK OF SCOTLAND
By:___________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:___________________________
Name:
Title:
NATEXIS BANQUE
By:___________________________
Name:
Title:
25
ALLIANCE CAPITAL MANAGEMENT L.P., as
Manager on behalf of Alliance Capital Funding,
L.L.C.
By: Alliance Capital Management Corporation,
General Partner of Alliance Capital
Management L.P.
By:_________________________________________
Name:
Title:
ALLIANCE CAPITAL MANAGEMENT L.P., as
Manager on behalf of Alliance Investments
Limited
By: Alliance Capital Management Corporation,
General Partner of Alliance Capital
Management L.P.
By:_________________________________________
Name:
Title:
BALANCED HIGH YIELD FUND I LTD.,
By: BHF-Bank Aktiengesellschaft, acting
through its New York Branch, as
attorney-in-fact
By:_________________________________________
Name:
Title:
CHASE SECURITIES INC, as Agent for The
Chase Manhattan Bank
By:_________________________________________
Name:
Title:
26
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance
Company as Portfolio Manager
By:_________________________________________
Name:
Title:
DELANO COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By:_________________________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital Luxembourg, as
Collateral Manager
By:_________________________________________
Name:
Title:
KZH-CNC CORPORATION
By:_________________________________________
Name:
Title:
XXXXXX SYNDICATED LOANS INC.
By:_________________________________________
Name:
Title:
27
DEBT STRATEGIES FUND II, INC.
By:_________________________________________
Name:
Title:
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, as
Investment Advisor
By:_________________________________________
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX AND XXXXX
INCORPORATED
By:_________________________________________
Name:
Title:
OSPREY INVESTMENTS MANAGEMENT COMPANY
By: Citibank, N.A., as Manager
By:_________________________________________
Name:
Title:
ROYALTON COMPANY
By: Pacific Investments Management
Company, as Investment Advisor
By:_________________________________________
Name:
Title:
28
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:_________________________________________
Name:
Title:
XXXXXXX & XXXX FINANCIAL INC.
By:_________________________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE NEW YORK BRANCH
By:_________________________________________
Name:
Title:
Annex A
-------
PRICING GRID FOR REVOLVING CREDIT LOANS, SWING LINE LOANS,
TRANCHE A TERM LOANS AND COMMITMENT FEES
====================================================================================================================
Applicable Applicable
Margin Margin
for for
Revolving Tranche A
Credit Term Applicable
Loans Applicable Loans Applicable Margin Applicable
which are Margin for which are Margin for for Tranche Margin for
Base Rate Revolving Base Rate Tranche A B Term Tranche B
Loans or Credit Loans Loans or Term Loans Loans Term Loans
Consolidated Foreign which are Foreign which are which are which are Facility
Leverage Alternate Eurocurrency Alternate Eurocurrency Base Rate Eurocurrency Fee
Ratio Rate Loans Loans Rate Loans Loans Loans Loans Rate
--------------------------------------------------------------------------------------------------------------------
Greater than .75% 1.75% 1.25% 2.25% 1.50% 2.50% .50%
or equal to
5.25 to 1
--------------------------------------------------------------------------------------------------------------------
Greater than .50% 1.50% 1.00% 2.00% 1.25% 2.25% .50%
or equal to
4.50 to 1
and
Less than
5.25 to 1
--------------------------------------------------------------------------------------------------------------------
Greater than .25% 1.25% .75% 1.75% 1.25% 2.25% .50%
or equal to
4.00 to 1
and
Less than
4.50 to 1
--------------------------------------------------------------------------------------------------------------------
Greater than 0% 1.00% .50% 1.50% 1.00% 2.00% .50%
or equal to
3.50 to 1
and
Less than
4.00 to 1
--------------------------------------------------------------------------------------------------------------------
Greater than 0% .75% .25% 1.25% 1.00% 2.00% .50%
or equal to
3.00 to 1
and
Less than
3.50 to 1
-------------------------------------------------------------------------------------------------------------------
Less than 0% .625% 0% 1.00% .75% 1.75% .375%
3.00 to 1
====================================================================================================================
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 5.25 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 5.25 to 1. Each determination of the
Consolidated Leverage Ratio pursuant to this definition shall be made with
respect to the period of four consecutive fiscal quarters of the Company ending
at the end of the period covered by the relevant financial statements.
BORROWING SUBSIDIARY APPROVAL
BORROWING SUBSIDIARY APPROVAL, dated as of May 27, 1998 (this
"Approval"), in connection with the Credit and Guarantee Agreement, dated as of
---------
December 19, 1997, (as amended by the First Amendment, dated as of May 27, 1998
and as further amended, supplemented or otherwise modified from time to time,
the "Credit and Guarantee Agreement"), among Exide Corporation, a Delaware
------------------------------
corporation (the "Company"), the Borrowing Subsidiaries signatory thereto, the
-------
Guarantors signatory thereto, the several lenders from time to time parties
thereto (the "Lenders"), Xxxxxx Commercial Paper Inc., as Syndication Agent for
-------
the Lenders (in such capacity, the "Syndication Agent") and Credit Suisse First
-----------------
Boston, as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent").
---------------------
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit and Guarantee Agreement, the Lenders
have agreed to make, and have made, certain loans and other extensions of credit
to the Company and the Borrowing Subsidiaries; and
WHEREAS, the Credit and Guarantee Agreement permits Subsidiaries of
the Company to be added as additional Borrowing Subsidiaries upon satisfaction
of certain conditions set forth in the Credit and Guarantee Agreement, including
the approval of the Majority Revolving Credit Facility Lenders; and
WHEREAS, the Company has requested that the Lenders agree to add
certain Subsidiaries of the Company as Borrowing Subsidiaries under the Credit
and Guarantee Agreement and the Lenders are willing to agree to such addition
upon the terms and conditions set forth in this Approval and the Credit and
Guarantee Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit and Guarantee
-------------
Agreement and used herein shall, unless otherwise indicated, have the meanings
given to them in the Credit and Guarantee Agreement.
2. Approval of Addition of Subsidiaries as Borrowing Subsidiaries.
--------------------------------------------------------------
Subject to the terms and conditions of this Approval, the Credit and Guarantee
Agreement and the Joinder Agreement of even date herewith made by Exide Italia
S.p.A., (the "New Borrowing Subsidiary") in favor of the Administrative Agent
------------------------
for the benefit of the Lenders, substantially in the form attached as Exhibit A
hereto (the "Joinder Agreement"), the Lenders hereby approve the addition of the
-----------------
New Borrowing Subsidiary as a Borrowing Subsidiary under the Credit and
Guarantee Agreement.
3. Conditions to Effectiveness. This Approval shall become
---------------------------
effective upon the satisfaction of the following conditions precedent:
2
(a) The Administrative Agent shall have received counterparts of
this Approval, duly executed by the Company, the Borrowing
Subsidiaries, the Guarantors and the Majority Revolving Credit
Facility Lenders.
(b) The Administrative Agent shall have received counterparts of
the Joinder Agreement, duly executed and delivered by the Company and
the New Borrowing Subsidiary, and by its signature hereto each of the
Lenders is deemed to have accepted the contents of the Joinder
Agreement, including, without limitation, the Designated Maximum
specified therein.
(c) The Administrative Agent shall have received and be
reasonably satisfied with corporate resolutions, other corporate
documents, certificates and legal opinions in respect of the New
Borrowing Subsidiary substantially equivalent to comparable documents
delivered on the Closing Date in respect of the Borrowing Subsidiaries
party to the Credit and Guarantee Agreement on the Closing Date.
(d) The Administrative Agent shall have received counterparts of
the Foreign Obligations Guarantor Joinder Agreement, substantially in
the form of Exhibit B to this Approval, duly executed and delivered by
Exide Italia S.p.A.
(e) The Administrative Agent shall have received an additional
Pledge Agreement granting to the Administrative Agent, for the benefit
of the Foreign Lenders, a perfected first priority security interest
in the Capital Stock of Exide Italia S.p.A., and all such legal
opinions and any other documentation deemed necessary by the
Administrative Agent in connection with such pledge shall be in form
and substance, and, in the case of opinions, from counsel, reasonably
satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received such other
documents with respect to any of the foregoing matters as it shall
reasonably request.
4. Representations and Warranties. The Company as of the date
------------------------------
hereof and after giving effect to the amendment contained herein, hereby
confirms, reaffirms and restates that representations and warranties made by it
in Section 5 of the Credit and Guarantee Agreement; provided, that each
--------
reference to the Credit and Guarantee Agreement therein shall be deemed to be a
reference to the Credit and Guarantee Agreement after giving effect to this
Approval.
5. Payment of Expenses. The Company agrees to pay or reimburse the
-------------------
Syndication Agent and the Administrative Agent for all of their out-of-pocket
costs and reasonable expenses incurred in connection with the Approval, any
other documents prepared in connection herewith and the transactions
contemplated hereby, including, without
3
limitation, the reasonable fees and disbursements of counsel to the Syndication
Agent and the Administrative Agent.
6. Reference to and Effect on the Loan Documents; Limited Effect.
-------------------------------------------------------------
On and after the date hereof and the satisfaction of the conditions contained in
Section 3 of this Approval, each reference in the Credit and Guarantee Agreement
to "this Agreement", "hereunder", "hereof" or words of like import referring to
the Credit and Guarantee Agreement, and each reference in the other Loan
Documents to "the Credit and Guarantee Agreement", "thereunder", "thereof" or
words of like import referring to the Credit and Guarantee Agreement, shall mean
and be a reference to the Credit and Guarantee Agreement as amended hereby. The
execution, delivery and effectiveness of this Approval shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
any Lender or any Agent under any of the Loan Documents, nor constitute a waiver
of any provisions of any of the Loan Documents. Except as expressly amended
herein, all of the provisions and covenants of the Credit and Guarantee
Agreement and the other Loan Documents are and shall continue to remain in full
force and effect in accordance with the terms thereof and are hereby in all
respects ratified and confirmed.
7. Counterparts. This Approval may be executed by one or more of
------------
the parties hereto in any number of separate counterparts (which may include
counterparts delivered by facsimile transmission) and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. Any
executed counterpart delivered by facsimile transmission shall be effective as
for all purposes hereof.
8. GOVERNING LAW. THIS APPROVAL AND THE RIGHTS AND OBLIGATIONS OF
-------------
THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4
IN WITNESS WHEREOF, the parties hereto have caused this Approval 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:_________________________________________
Name:
Title:
EXIDE HOLDING EUROPE S.A.
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
EURO EXIDE CORPORATION LIMITED
SOCIEDAD ESPANOLA DEL ACUMULADOR
TUDOR X.X
XXXXX A.B.
EXIDE VERWALTUNGS GMBH
MERCOLEC TUDOR B.V.,
each as a Borrowing Subsidiary and as a
Guarantor
By:_________________________________________
Name:
Title:
5
ACCUMULATORENFABRIK SONNENSCHEIN GMBH
COMPAGNIA GENERALE ACCUMULATORI S.P.A.
SINAC S.R.L.
FULMEN IBERICA S.A.
CMP BATTERIES LIMITED
CMP BATTERIJEN B.V.
SOCIETE FRANCAISE DES ACCUMULATEURS XXXXX X.X.
CMP BATTERIER A/S
EXIDE AUTOMOTIVE BATTERIE GMBH
XXXXX BATTERIE A.G.
INDUSTRIA COMPOSIZIONI STAMPATE S.P.A.
XXXXX BATTERIJEN B.V.
ELECTRO MERCANTIL INDUSTRIAL X.X.
XXXXXXXXXX S.A.
TERRENOS Y CONSTRUCCIONES S.A.
T.S. BATTERIE S.R.L.
EXIDE BATTERIES LIMITED
B.I.G. BATTERIES LIMITED
EXIDE (DAGENHAM) LIMITED
EXIDE FRANCE S.A.
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
CMP BATTERIJEN N.V.
SOCIEDAD PORTUGUESA DO ACUMULADOR XXXXX X.X.
EXIDE DENMARK A/S
GEMALA SWEDEN AB
CENTRA S.A.
DETA AKKUMULATORENWERK GMBH
MAREG ACCUMULATOREN GMBH
FRIWO SILBERKRAFT MBH
EXIDE SONNAK A/S
CMP BATTERIJEN S.A.
EXIDE AUTOMOTIVE S.A.
EXIDE LENDING LIMITED
each as a Guarantor, subject to the limitations,
if any, contained in Schedule 10.1
By:_____________________________________________
Name:
Title:
6
GBC, INC.
as a Guarantor
By:_____________________________________________
Name:
Title:
GENERAL BATTERY CORPORATION
as a Guarantor
By: Exide Investments, Inc., trustee
By:_____________________________________________
Name:
Title:
EXIDE INTERNATIONAL, INC.
as a Guarantor
By:_____________________________________________
Name:
Title:
7
XXXXXX BROTHERS INC., as Arranger
By:_________________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent and as a Lender
By:_________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as
Arranger and as Administrative Agent
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a
Lender
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
XXXXXX BROTHERS BANKHAUS AG
By:_________________________________________
Name:
Title:
8
ALPHA CREDIT BANK A.E.
By:_________________________________________
Name:
Title:
BANK OF MONTREAL
By:_________________________________________
Name:
Title:
BANQUE PARIBAS
By:_________________________________________
Name:
Title:
BANK POLSKA KASA OPIEKI S.A. - PEKAO S.A.
By:_________________________________________
Name:
Title:
SCOTIABANK EUROPE PLC
By:_________________________________________
Name:
Title:
BANCA POPOLARE DI BERGAMO-CREDITO
VARESINO S.C.A.R.L.
By:_________________________________________
Name:
Title:
9
BANKBOSTON, N.A.
By:_________________________________________
Name:
Title:
BANQUE ET CAISSE D'EPARGNE DE L'ETAT,
LUXEMBOURG
By:_________________________________________
Name:
Title:
BHF BANK AKTENGESELLSCHAFT
By:_________________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS
By:_________________________________________
Name:
Title:
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA S.A.
By:_________________________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE NEW YORK BRANCH
By:_________________________________________
Name:
Title:
10
COMERICA BANK
By:_________________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:_________________________________________
Name:
Title:
DAI-ICHI KANGYO BANK, LTD.
By:_________________________________________
Name:
Title:
DRESDNER BANK AG NEW YORK & GRAND
CAYMAN BRANCHES
By:_________________________________________
Name:
Title:
NBD BANK
By:_________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:_________________________________________
Name:
Title:
11
CORESTATES BANK, N.A.
By:_________________________________________
Name:
Title:
INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By:_________________________________________
Name:
Title:
OSTERREICHISCHE INVESTITIONSKREDIT AG
By:_________________________________________
Name:
Title:
MEESPIERSON N.V.
By:_________________________________________
Name:
Title:
MELLON BANK, N.A.
By:_________________________________________
Name:
Title:
THE MITSUBISHI TRUST & BANKING CORPORATION
By:_________________________________________
Name:
Title:
00
XXXXXXXX XXXXXXXX XXX XXXXX XX
XXXXXX, S.P.A.
By:_________________________________________
Name:
Title:
SOCIETE GENERALE
By:_________________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:_________________________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD.
By:_________________________________________
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:_________________________________________
Name:
Title:
PEOPLES SECURITY LIFE INSURANCE COMPANY
By:_________________________________________
Name:
Title:
13
FRANKLIN FLOATING RATE TRUST
By:_________________________________________
Name:
Title:
ING HIGH INCOME PRINCIPAL PRESERVATION
FUND HOLDINGS, LDC
By: ING CAPITAL ADVISORS, INC.,
as Investment Advisor
By:_________________________________________
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING CAPITAL ADVISORS, INC.,
as Collateral Advisor
By:_________________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By:_________________________________________
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By:_________________________________________
Name:
Title:
14
ORIX USA CORPORATION
By:_________________________________________
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:_________________________________________
Name:
Title:
KZH HOLDING COMPANY III
By:_________________________________________
Name:
Title:
THE BANK OF SCOTLAND
By:_________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_________________________________________
Name:
Title:
NATEXIS BANQUE
By:_________________________________________
Name:
Title:
15
ALLIANCE CAPITAL MANAGEMENT L.P., as
Manager on behalf of Alliance Capital
Funding, L.L.C.
By: Alliance Capital Management Corporation,
General Partner of Alliance Capital
Management L.P.
By:_________________________________________
Name:
Title:
ALLIANCE CAPITAL MANAGEMENT L.P., as
Manager on behalf of Alliance Investments
Limited
By: Alliance Capital Management Corporation,
General Partner of Alliance Capital
Management L.P.
By:_________________________________________
Name:
Title:
BALANCED HIGH YIELD FUND I LTD.,
By: BHF-Bank Aktiengesellschaft, acting
through its New York Branch, as
attorney-in-fact
By:_________________________________________
Name:
Title:
CHASE SECURITIES INC, as Agent for The
Chase Manhattan Bank
By:_________________________________________
Name:
Title:
16
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance
Company as Portfolio Manager
By:_________________________________________
Name:
Title:
DELANO COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By:_________________________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital Luxembourg, as
Collateral Manager
By:_________________________________________
Name:
Title:
KZH-CNC CORPORATION
By:_________________________________________
Name:
Title:
XXXXXX SYNDICATED LOANS INC.
By:_________________________________________
Name:
Title:
17
DEBT STRATEGIES FUND II, INC.
By:_________________________________________
Name:
Title:
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, as
Investment Advisor
By:_________________________________________
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX AND
XXXXX INCORPORATED
By:_________________________________________
Name:
Title:
OSPREY INVESTMENTS MANAGEMENT
COMPANY
By: Citibank, N.A., as Manager
By:_________________________________________
Name:
Title:
ROYALTON COMPANY
By: Pacific Investments Management
Company, as Investment Advisor
By:_________________________________________
Name:
Title:
18
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:_________________________________________
Name:
Title:
XXXXXXX & XXXX FINANCIAL INC.
By:_________________________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE NEW YORK BRANCH
By:_________________________________________
Name:
Title:
EXHIBIT A
---------
BORROWING SUBSIDIARY JOINDER AGREEMENT
BORROWING SUBSIDIARY JOINDER AGREEMENT, dated as of May 27, 1998, made
by Exide Italia S.p.A., an Italian corporation (the "Borrowing Subsidiary")
--------------------
pursuant to the Credit and Guarantee Agreement, dated as of December 19, 1997
(as amended by the First Amendment, dated as of May 27, 1998 and as may be
further amended, supplemented or otherwise modified from time to time, the
"Credit and Guarantee Agreement"), among Exide Corporation (the "Company"), the
------------------------------- -------
Borrowing Subsidiaries from time to time parties thereto (the "Borrowing
---------
Subsidiaries"; collectively with the Company, the "Borrowers"), the Subsidiary
------------ ---------
Guarantors from time to time parties thereto, the several Lenders from time to
time parties thereto, Credit Suisse First Boston, as administrative agent (in
such capacity, the "Administrative Agent") and Xxxxxx Commercial Paper Inc., as
--------------------
syndication agent (in such capacity, the "Syndication Agent"). Unless otherwise
-----------------
defined herein, terms defined in the Credit and Guarantee Agreement and used
herein shall have the meanings given to them in the Credit and Guarantee
Agreement.
For good and valid consideration, the sufficiency of which hereby is
acknowledged, the Borrowing Subsidiary hereby agrees as follows:
(a) It shall be a Borrowing Subsidiary for all purposes under the Credit
and Guarantee Agreement and the documents executed in connection
therewith.
(b) The Designated Maximum with respect to the Borrowing Subsidiary is
$40,000,000.
(c) It shall (i) be bound by all covenants, agreements, acknowledgements
and other terms and provisions applicable to it, as a Borrowing
Subsidiary pursuant to the Credit and Guarantee Agreement and the
documents executed in connection therewith to the same extent, and in
the same manner, as if it (in its capacity as a Borrowing Subsidiary)
were a direct party thereto and (ii) perform all obligations required
of it pursuant to the Credit and Guarantee Agreement and such other
documents.
The Borrowing Subsidiary hereby acknowledges that it has received and
reviewed a copy (in execution form) of the Credit and Guarantee Agreement
(including, without limitation, all amendments, supplements and other
modifications thereto) and each of the documents referred to therein (including,
without limitation, all amendments, supplements and other modifications
thereto).
The Borrowing Subsidiary hereby represents and warrants that (a) all
representations and warranties contained in the Credit and Guarantee Agreement
and such other documents which are applicable to it (after giving effect to this
Borrowing Subsidiary Joinder Agreement) are true and correct in all material
respects and (b) immediately prior to and immediately after the effectiveness of
this Borrowing Subsidiary Joinder Agreement, no Default or Event of Default
shall have occurred and be continuing.
2
The Company hereby agrees that its guarantees contained in Section 10
of the Credit and Guarantee Agreement shall remain in full force and effect
after giving effect to this Borrowing Subsidiary Joinder Agreement.
The address and jurisdiction of incorporation of the Borrowing
Subsidiary is set forth in Annex I to this Borrowing Subsidiary Joinder
Agreement.
THIS BORROWING SUBSIDIARY JOINDER AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3
IN WITNESS WHEREOF, the undersigned has caused this Borrowing
Subsidiary Joinder Agreement to be duly executed and delivered by its proper and
duly authorized officer as of the date first written above.
EXIDE ITALIA S.P.A.
By: ______________________________________
Title:
EXIDE CORPORATION
By: ______________________________________
Title:
ACKNOWLEDGED AND AGREED TO;
--------------------------
CREDIT SUISSE FIRST BOSTON, as Administrative Agent
By: ___________________________________
Title:
Annex I
-------
Administrative Information for Borrowing Subsidiary
Exhibit B
---------
FOREIGN OBLIGATIONS GUARANTOR
JOINDER AGREEMENT
FOREIGN OBLIGATIONS GUARANTOR JOINDER AGREEMENT, dated as of May 27,
1998, made by Exide Italia S.p.A., an Italian corporation (the "Subsidiary
----------
Guarantor") pursuant to the Credit and Guarantee Agreement, dated as of December
---------
19, 1997 (as amended by the First Amendment, dated as of May 27, 1998 and as may
be further amended, supplemented or otherwise modified from time to time, the
"Credit and Guarantee Agreement"), among Exide Corporation (the "Company"), the
------------------------------- -------
Borrowing Subsidiaries parties thereto (the "Borrowing Subsidiaries";
----------------------
collectively with the Company, the "Borrowers"), the Subsidiary Guarantors from
---------
time to time parties thereto, the several Lenders from time to time parties
thereto, Credit Suisse First Boston, as administrative agent (in such capacity,
the "Administrative Agent") and Xxxxxx Commercial Paper Inc., as syndication
--------------------
agent (in such capacity, the "Syndication Agent"). Unless otherwise defined
-----------------
herein, terms defined in the Credit and Guarantee Agreement and used herein
shall have the meanings given to them in the Credit and Guarantee Agreement.
For good and valid consideration, the sufficiency of which hereby is
acknowledged, the Subsidiary Guarantor hereby agrees as follows:
(a) It shall be a Foreign Subsidiary Guarantor for all purposes under the
Credit and Guarantee Agreement and the documents executed in
connection therewith, and, as such, shall guarantee, to the extent set
forth in the Credit and Guarantee Agreement, the Foreign Obligations.
(b) It shall (i) be bound by all covenants, agreements, acknowledgements
and other terms and provisions applicable to it, as a Foreign
Subsidiary Guarantor pursuant to the Credit and Guarantee Agreement
and the documents executed in connection therewith to the same extent,
and in the same manner, as if it (in its capacity as a Foreign
Subsidiary Guarantor) were a direct party thereto and (ii) perform all
obligations required of it pursuant to the Credit and Guarantee
Agreement and such other documents in such capacity.
2
The Subsidiary Guarantor hereby acknowledges that it has received and
reviewed a copy (in execution form) of the Credit and Guarantee Agreement
(including, without limitation, all amendments, supplements and other
modifications thereto) and each of the documents referred to therein (including,
without limitation, all amendments, supplements and other modifications
thereto).
The Subsidiary Guarantor hereby represents and warrants that (a) all
representations and warranties contained in the Credit and Guarantee Agreement
and such other documents which are applicable to it (after giving effect to this
Foreign Obligations Guarantor Joinder Agreement) are true and correct in all
material respects and (b) immediately prior to and immediately after the
effectiveness of this Foreign Obligations Guarantor Joinder Agreement, no
Default or Event of Default shall have occurred and be continuing.
The address and jurisdiction of incorporation of the Subsidiary
Guarantor is set forth in Annex I to this Foreign Obligations Guarantor Joinder
Agreement.
THIS FOREIGN OBLIGATIONS GUARANTOR JOINDER AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
3
IN WITNESS WHEREOF, the undersigned has caused this Foreign
Obligations Guarantor Joinder Agreement to be duly executed and delivered by its
proper and duly authorized officer as of the date first written above.
EXIDE ITALIA S.P.A.
By: ______________________________________
Title:
ACKNOWLEDGED AND AGREED TO;
--------------------------
CREDIT SUISSE FIRST BOSTON, as Administrative Agent
By: ______________________________
Title:
Annex I
-------
Administrative Information for Subsidiary Guarantor
