<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 18, 1995
EXIDE CORPORATION
-----------------
(Exact name of registrant as specified in its charter)
DELAWARE
--------
(State or other jurisdiction of incorporation)
1-11263 23-0552730
- -------------------------- ----------
(Commission File Number) (I.R.S. Employer
Identification No.)
1400 North Woodward Avenue, Bloomfield Hills, Michigan 48304
- ------------------------------------------------------ -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (313) 258-0080
--------------
Not Applicable
--------------
(Former name or former address, if changed
since last report.)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
------------------------------------
(a) Pursuant to agreements dated as of March 17, 1995 (attached hereto as
Exhibit 2.2), between the Registrant and Fiat S.p.A. and one of its affiliates,
on May 18, 1995, the Registrant acquired 99.7% of the outstanding shares of
Compagnie Europeene d'Accumulateurs S.A. ("CEAC"), one of the largest producers
of starting, lighting and ignition and industrial batteries in Europe. Such
acquisition remains subject to completion of review by French and Spanish
competition authorities, but based upon their actions to date the Registrant
does not anticipate that any divestiture requirements or other material
limitations will be imposed. The purchase price for the shares was
approximately $425.8 million in cash, which amount was financed with net
proceeds (and investment income thereon) of approximately $293.9 million from a
$300 million offering of 10% Senior Notes due 2005 (issued pursuant to an
Indenture attached hereto as Exhibit 99.3) which was closed on April 28, 1995
and approximately $ $131.9 million of borrowings under the revolving credit
portion of the Registrant's Credit Agreement (attached hereto as Exhibit 99.1).
Immediately after the CEAC acquisition, CEAC and certain of its subsidiaries
refinanced approximately $153.8 million of their debt pursuant to a Facilities
Agreement (attached hereto as Exhibit 99.2). Under French law, the Registrant is
required to offer to purchase shortly the remaining 0.3% of CEAC's shares.
(b) The assets acquired by the Registrant are used by CEAC for the
manufacture and sale of automotive and industrial batteries in Western Europe
and Poland. The Registrant currently intends to continue the use of such assets
for the same purposes.
It is impracticable for the Registrant to provide the required financial
statements of the business acquired or the pro forma financial statements at the
time of this filing. The Registrant will file such statements under cover of
Form 8 within 60 days from the date hereof.
Item 7. Financial Statements and Exhibits.
---------------------------------
(a) Financial statements of business acquired./*/
(b) Pro forma financial information./*/
(c) Exhibits.
2.2 Stock Purchase Agreement and Warranty Agreement dated March
17, 1995, between the Registrant and Fiat S.p.A. and one of
its affiliates.
99.1 Composite copy of Credit Agreement (the "Credit Agreement")
dated as of August 30, 1994, among the Registrant, various
financial institutions, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of
Montreal, as Agents, and Bankers Trust Company, as
Administrative Agent.
99.2 Facilities Agreement dated February 28, 1995, among the
Registrant (CEAC and certain of its subsidiaries have joined
as borrowers and guarantors), the banks listed for the
Credit Agreement, Dresdner Bank Luxembourg and other lenders
and Amendment No. 1 thereto.
99.3 Indenture dated as of April 28, 1995 between the Registrant
and The Bank of New York, as trustee.
- ---------------------
/*/To be filed under cover of Form 8 within 60 days from the date hereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EXIDE CORPORATION
-----------------
(Registrant)
Date: June 2, 1995 By:/s/ ALAN E. GAUTHIER
Alan E. Gauthier
Executive Vice President,
Chief Financial Officer
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
------- ----------- -----------
<S> <C> <C>
2.2 Stock Purchase Agreement and Warranty
Agreement dated March 17, 1995, between
the Registrant and Fiat S.p.A. and one of
its affiliates
99.1 Composite copy of Credit Agreement (the
"Credit Agreement") dated as of August 30,
1994, among the Registrant, various
financial institutions, Bankers Trust
Company, Bank of America National Trust
and Savings Association and Bank of Montreal,
as Agents, and Bankers Trust Company, as
Administrative Agent.
99.2 Facilities Agreement dated February 28,
1995, among the Registrant (CEAC and
certain of its subsidiaries have joined as
borrowers and guarantors), the banks listed
for the Credit Agreement, Dresdner Bank
Luxembourg and other lenders and
Amendment No. 1 thereto.
99.3 Indenture dated as of April 28, 1995 between the
Registrant and The Bank of New York, as trustee.
</TABLE>
<PAGE>
EXHIBIT 2.2
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
EXIDE CORPORATION,
FIAT SPA
AND
SICIND SPA
Dated March 17, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Article 1 Definitions .........................................
Article 2 Purchase and Sale of the Shares ....................
Article 3 Purchase Price ......................................
Article 4 Audit of Purchase Price Adjustments .................
Article 5 Closing .............................................
Article 6 Conditions Precedent ................................
Article 7 Information .........................................
Article 8 Non-Competition .....................................
Article 9 Termination .........................................
Article 10 Governing Law and Arbitration .......................
Article 11 Miscellaneous .......................................
Annex A Warranty Agreement
</TABLE>
<PAGE>
Schedules to Stock Purchase Agreement
<TABLE>
<S> <C>
Schedule 3.7 Item 1 -- List of Unfavorable Indebtedness
Item 2 -- Aggregate Below Market Rate Value
Schedule 3.8A Fiat Guarantees
Schedule 3.8B Guarantees Issued by CEAc Group in favor of Fiat
Schedule 3.9 Continuing Fiat Group Arrangements
Schedule 5.2.2 CEAc Group Directors whose resignations are not required
Schedule 6.1.5 Contractual Consents required to be obtained at Closing
Schedule 6.1.8 Form of Fiat Auto/CEAc Supply Agreement
Schedule 8 CEAc Employees Fiat is Permitted to Employ
</TABLE>
<PAGE>
ON THE 17TH OF MARCH 1995
BETWEEN THE UNDERSIGNED
EXIDE CORPORATION, a Delaware corporation, with offices at 1400 North
Woodward Avenue, Bloomfield Hills, Michigan 48304, USA (hereinafter referred to
as the "BUYER")
ON THE FIRST PART,
AND
FIAT SpA, an Italian corporation, with offices at Corso G. Marconi, 10,
10125 Torino, Italy (hereinafter referred to as "FIAT"), and
SICIND SpA, an Italian corporation and a wholly-owned subsidiary of Fiat,
with offices at Corso G. Marconi, 20, 10125 Torino, Italy (hereinafter referred
to as "SICIND"),
ON THE SECOND PART.
The Buyer, Fiat and SICIND being collectively referred to as the "PARTIES"
and individually as a "PARTY".
WITNESSETH
WHEREAS, SICIND owns 13,129,735 shares in the capital of Compagnie
Europeenne d'Accumulateurs, a French societe anonyme, having its registered
office at 5-7, allee des Pierres Mayettes, 92636 Gennevilliers, France and
registered with the Trade and Company Register of Nanterre under the number B
682 030 895 ("CEAC");
WHEREAS, SICIND, pursuant to an agreement dated June 5, 1991, has an
option to acquire from SAMAG S.A. 7,859,512 shares in the capital of CEAc (the
"OPTION SHARES" and, together with the shares owned by SICIND, the "SHARES");
WHEREAS, the Shares represent approximately 99.7% of the 21,051,836
outstanding shares in CEAc's capital;
WHEREAS, the Buyer desires to purchase the Shares from SICIND, and
SICIND desires to sell the Shares to the Buyer, in each case upon the terms and
subject to the conditions hereinafter set forth, and SICIND is willing to
exercise its option on the Option Shares in order to sell such shares to the
Buyer;
<PAGE>
2.
WHEREAS, in connection with this Agreement, the Buyer and Fiat have
simultaneously executed the Warranty Agreement as defined in Article 1
hereafter, which Warranty Agreement is hereby incorporated in and made a part
hereof.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, warranties and indemnities contained herein and in the Warranty
Agreement, the Parties agree as follows.
ARTICLE 1
DEFINITIONS
-----------
1.1. DEFINED TERMS. For the purposes of this Agreement and the Warranty
Agreement, including the above recitals, the following terms shall mean:
"Accounting Referee" shall have the meaning
specified in Article 4.
"Affiliate" with respect to any person,
means any person which,
directly or indirectly,
controls, is controlled by,
or is under common control
with such person.
"Agreement" means this Stock Purchase
Agreement and the Schedules
hereto, as amended from time
to time.
"Audit Procedure" shall have the meaning
specified in Article 3.2.1.
"Buyer" shall have the meaning
specified in the Recitals.
"CEAc" shall have the meaning
specified in the Recitals.
"CEAc Group" means CEAc and the
Subsidiaries.
"CEAc Group
Intercompany Indebtedness" means the amount as of any
date of the Intercompany
Indebtedness (including
accrued interest) owed by the
CEAc Group to the Fiat Group.
<PAGE>
3.
"Closing" means the closing of the purchase and
sale of the Shares contemplated by this
Agreement.
"Closing Date" means the date on which the Closing
takes place.
"Confidential Information" shall have the meaning specified in
Article 7.1.
"Estimated 1994 Consolidated
Net Financial Position" shall have the meaning specified in
Article 3.3.2(i).
"Estimated 1994 Net Equity" shall have the meaning specified in
Article 3.2.2(i) .
"Estimated 1994 Sold
Receivables Amount" shall have the meaning specified in
Article 3.3.2(i).
"Fiat" shall have the meaning specified in the
Recitals.
"Fiat Group" means Fiat and any company or entity in
which Fiat owns, directly or
indirectly, more than 50% of the
outstanding equity or voting rights
other than CEAc and the Subsidiaries.
"Fiat Group
Intercompany Indebtedness" means the amount as of any date of
Intercompany Indebtedness (including
accrued interest) owed by the Fiat
Group to the CEAc Group.
"Governmental Authority" means any domestic or foreign court or
governmental body, department, agency,
commission, authority or
instrumentality.
"Intercompany Indebtedness" means any financial debt (including
debt arising
<PAGE>
4.
under cash pooling arrangements) (i)
owed to CEAc or any of the Subsidiaries
by any member of the Fiat Group or (ii)
owed by CEAc or any of the Subsidiaries
to any member of the Fiat Group.
"Laws" means all constitutions, statutes,
codes, ordinances, decrees, rules,
regulations, municipal by-laws,
judicial or arbitral or administrative
or ministerial or departmental or
regulatory judgments, orders,
decisions, rulings or awards,
applicable to the person or asset
referred to in the context in which
such word is used.
"LIBOR" means as of any date for any relevant
currency, the London InterBank Offered
Rate fixed at 11 a.m., London time, on
such date as quoted on Reuters pages
FRBD through FRBH.
"1994 Consolidated Financial
Statements" means the audited consolidated balance
sheet of CEAc for the fiscal year
ending December 31, 1994 and the
accompanying profit and loss statement
(compte de resultat) and all notes
thereto (annexe), prepared in
accordance with generally accepted
accounting principles and practices
consistent with the 1993 Consolidated
Financial Statements (as defined in the
Warranty Agreement), as certified by
Ernst & Young.
<PAGE>
5.
"1994 Consolidated Net
Financial Position" means the sum of the following line
items (i) dettes financieres a moyen et
long terme, plus (ii) dettes financieres
----
a court terme less (iii) disponibilites,
----
in each case as shown on the
consolidated balance sheet of CEAc as of
December 31, 1994 included in the 1994
Consolidated Financial Statements, as
determined in accordance with generally
accepted accounting principles and
practices consistent with prior periods;
provided, however, that in determining
-------- -------
1994 Consolidated Net Financial
Position, (i) no amounts in respect of
the assignment, factoring or other sale
of accounts receivable shall be included
as dettes of any nature, (ii) the item,
effets remis a l'encaissement (in the
case of CEAc only), will be included in
disponibilites, and (iii) no amounts in
respect of the obligations of CEAc under
the Leasing Agreements relating to its
corporate offices at Gennevilliers shall
be included as dettes of any nature.
"1994 Net Equity" means the sum of the following line
items (i) total des capitaux propres du
groupe plus (ii) total de la part des
----
tiers dans les capitaux propres, in each
case as shown on the consolidated
balance sheet of CEAc as of December 31,
1994 included in the 1994 Consolidated
Financial
<PAGE>
6.
Statements, as determined in accordance with
generally accepted accounting principles and
practices consistent with prior periods.
"1994 Sold Receivables Amount" shall have the meaning specified in Article
3.1.
"Notice" shall have the meaning specified in Article 4.
"Option Shares" shall have the meaning specified in the
Recitals.
"Party(ies)" shall have the meaning specified in the
Recitals.
"person" shall have the meaning specified in Article
1.2.
"Prepayment Penalties" means, with respect to any item of Unfavorable
Indebtedness, any prepayment charges and
penalties actually paid and duly documented to
Fiat under the documents governing such
Unfavorable Indebtedness in connection with the
repayment of such indebtedness at Closing
pursuant to Article 3.7.
"Price Adjustment
Elements" means the 1994 Consolidated Net Financial
Position, the 1994 Sold Receivables Amount, the
1994 Net Equity and the difference between the
1994 Net Equity and the Reference Net Equity.
"Purchase Price" means the price (including all adjustments
thereto) to be paid for the Shares pursuant to
Article 3 hereof.
"Reference Market
Rate of Interest" means, with respect to any item of
indebtedness, the
<PAGE>
7.
sum of (i) LIBOR (if the rate of interest on
such debt is fixed for periods shorter than one
year) or the Swap Rate (if the rate of interest
is fixed for periods longer than one year) for
the currency in which such item of indebtedness
is denominated and for the term which best
approximates the final maturity date or the
next interest reset date, as the case may be,
of such item of indebtedness plus a spread of
----
0.75%.
"Reference Net Equity" means 1,659,270,164 French francs (such number
being the sum of the following line items (i)
total des capitaux propres du groupe plus (ii)
----
total de la part des tiers dans les capitaux
propres, in each case as shown on the
consolidated balance sheet of CEAc as of
December 31, 1993 less (iii) the amount of
----
dividends paid during 1994 in respect of 1993).
"Shares" shall have the meaning specified in the
Recitals.
"SICIND" shall have the meaning specified in the
Recitals.
"Subsidiaries" shall have the meaning specified in Article
2.2.3 of the Warranty Agreement.
"Swap Rate" means, as of any date for any relevant
currency, the offered rate fixed at 11 a.m.,
London time, on such date as quoted on Reuters
pages ICAP through ICAT.
"Unfavorable Indebtedness" means any item of financial indebtedness of
CEAc and
<PAGE>
8.
the Subsidiaries to parties other than members
of the Fiat Group which meets each of the
following conditions: (A) either (1) bears a
fixed rate of interest which is higher than the
Reference Market Rate of Interest as of the
Closing Date or (2) contains covenants that in
the Buyer's reasonable judgment impose
unacceptable limitations on the Buyer's or
CEAc's ability to obtain financing at normal
market terms or to operate their respective
businesses in the manner presently conducted
and (B) carries Prepayment Penalties.
---
"Warranty Agreement" means the Warranty Agreement between the Buyer
and Fiat dated as of the date hereof and
attached hereto as Annex A.
"Year End Exchange Rate" shall have the meaning specified in Article
3.3.1.
1.2. GENERAL PROVISIONS. References in this Agreement to articles are to
articles in this Agreement, unless otherwise indicated.
The meanings of the defined terms are applicable to both the singular and
plural forms thereof.
Any term defined by reference to any document shall have the meaning
ascribed to it therein.
The words "HEREOF", "HEREUNDER" and similar words shall be construed as
references to this Agreement as a whole and not limited to the particular
article or provision in which the relevant reference appears.
The word "PERSON" shall include any individual, firm, company, corporation,
partnership, incorporated body of persons or any state or government or any
agency thereof.
<PAGE>
9.
ARTICLE 2
PURCHASE AND SALE OF THE SHARES
-------------------------------
2.1. PURCHASE OF SHARES. On the terms and subject to the conditions of
------------------
this Agreement and the Warranty Agreement, the Buyer undertakes to acquire,
directly or through one or more of its wholly-owned subsidiaries, the Shares
from SICIND and SICIND undertakes to sell (and Fiat undertakes to cause SICIND
to sell) the Shares to the Buyer or such subsidiaries.
2.2. OPTION SHARES. SICIND will, prior to the Closing, take all steps
-------------
necessary to exercise its option to acquire, and to purchase and pay for, the
Option Shares (and will pursue all available action, including in court, to
cause the seller of the Option Shares to deliver the Option Shares) so that at
the Closing SICIND will be in a position to sell all of the Option Shares to the
Buyer, on the terms and subject to the conditions of this Agreement and the
Warranty Agreement. In the event that, notwithstanding the foregoing, the
seller of the Option Shares fails to deliver the Option Shares to SICIND upon
exercise of SICIND's option such that at the Closing SICIND is not in a position
to sell all of the Option Shares to the Buyer, (i) SICIND's failure shall not be
deemed to constitute a breach by either SICIND or Fiat of any provision of this
Agreement or the Warranty Agreement and (ii) if SICIND, within one year of such
refusal, purchases the Option Shares, SICIND will not resell any Shares for a
period of two years following such purchase.
2.3. EFFECT OF PURCHASE. The Buyer or its subsidiaries purchasing the
------------------
Shares will, upon transfer of the Shares at the Closing, become the owner of the
Shares and, as from the Closing, the Buyer or such subsidiaries will take the
Shares subject to and with benefit of all the rights and obligations attaching
thereto.
ARTICLE 3
PURCHASE PRICE
--------------
3.1. PURCHASE PRICE. The Buyer agrees to pay in consideration for the
--------------
Shares the amount of five hundred and fifty-three million five hundred thousand
(553,500,000) US dollars, adjusted, at the time and in the manner set forth in
Articles 3.2 and 3.3 below, for the following items:
(1) the difference between the Reference Net Equity and the 1994 Net Equity,
(2) the 1994 Consolidated Net Financial Position, and
<PAGE>
10.
(3) the aggregate amount of assigned, factored or sold accounts receivable
outstanding in the accounts of the CEAc Group at December 31, 1994, as
determined in accordance with CEAc's practices consistent with prior
periods (the "1994 SOLD RECEIVABLES AMOUNT").
3.2. NET EQUITY ADJUSTMENT. The Purchase Price shall be adjusted for the
---------------------
difference between the 1994 Net Equity and the Reference Net Equity in the
following manner.
3.2.1. If the procedure for determining the purchase price
adjustments provided for in Article 4 (the "AUDIT PROCEDURE") is completed
(which completion shall include, for the purposes of this Article 3, the final
resolution of all disagreements between the Parties in respect of the Price
Adjustment Elements in accordance with Article 4) prior to the Closing, then, in
the event that the 1994 Net Equity as determined by the Audit Procedure is less
than the Reference Net Equity, the Purchase Price shall be reduced by the amount
of such negative difference, converted into US dollars at the prevailing spot
French francs/US dollar exchange rate as reported on Reuters page FXFX at 11
a.m., London time, on the Closing Date.
3.2.2. If the Audit Procedure has not been completed prior to the
Closing, then:
(i) not less than 7 days prior to the Closing Date, Fiat shall deliver to the
Buyer a certificate of an appropriate officer of Fiat setting forth an
estimate of the 1994 Net Equity (the "ESTIMATED 1994 NET EQUITY") based
upon the best financial information available to Fiat at that time and the
purchase price shall, if necessary, be adjusted at or prior to the Closing
in accordance with Article 3.2.1 on the basis of the Estimated 1994 Net
Equity; and
(ii) upon completion of the Audit Procedure following the Closing the Parties
shall calculate the difference between the Estimated 1994 Net Equity and
the 1994 Net Equity as determined by the Audit Procedure and, if the amount
of the purchase price paid at Closing would have been greater or lesser had
the 1994 Net Equity rather than the Estimated 1994 Net Equity been utilized
in calculating such amount, then the Buyer shall pay to Fiat or Fiat shall
pay to the Buyer, as the case may be, an amount in French francs necessary
to correct such over- or under- payment.
3.3. NET FINANCIAL POSITION AND SOLD RECEIVABLES ADJUSTMENT. The
------------------------------------------------------
Purchase Price shall be adjusted for the
<PAGE>
11.
1994 Consolidated Net Financial Position and the 1994 Sold Receivables Amount in
the following manner.
3.3.1. If the Audit Procedure is completed prior to the Closing, then
the purchase price paid at the Closing shall be reduced by the sum of the 1994
Consolidated Net Financial Position and the 1994 Sold Receivables Amount as
determined by the Audit Procedure, converted into US dollars at the prevailing
spot French Francs/US dollar exchange rate as reported on Reuters page FXFX at
11 a.m., London time, on December 30, 1994 (the "YEAR END EXCHANGE RATE").
3.3.2. If the Audit Procedure has not been completed prior to the
Closing, then:
(i) not less than 7 days prior to the Closing Date Fiat shall deliver to the
Buyer a certificate of an appropriate officer of Fiat setting forth
estimates of the 1994 Consolidated Net Financial Position (the "ESTIMATED
1994 CONSOLIDATED NET FINANCIAL POSITION") and the 1994 Sold Receivables
Amount (the "ESTIMATED 1994 SOLD RECEIVABLES AMOUNT") based upon the best
financial information available to Fiat at that time and the purchase price
shall be reduced at the Closing in accordance with Article 3.3.1, on the
basis of the Estimated 1994 Consolidated Net Financial Position and the
Estimated 1994 Sold Receivables Amount; and
(ii) upon completion of the Audit Procedure, the Parties shall calculate the
difference between the Estimated 1994 Consolidated Net Financial Position
and the 1994 Consolidated Net Financial Position as determined by the
Audit Procedure and the Estimated 1994 Sold Receivables Amount and the 1994
Sold Receivables Amount as determined by the Audit Procedure, respectively
and:
(x) if the sum of such actual amounts as determined by the Audit Procedure
exceeds the sum of the estimated amounts, Fiat shall pay to the Buyer
an amount equal to such excess converted into US dollars at the Year
End Exchange Rate; and
(y) if the sum of the estimated amounts exceeds the sum of the actual
amounts as determined by the Audit Procedure, the Buyer shall pay to
Fiat an amount equal to such excess converted into US dollars at the
Year End Exchange Rate.
3.4. INTEREST AND MEANS OF PAYMENT. Any amount payable under Article
-----------------------------
3.2.2(ii) or 3.3.2(ii) shall be increased by interest at a rate per annum equal
to French franc or US dollar, as the case may be, 3-month LIBOR, for
<PAGE>
12.
the period running from the Closing (or, if the Closing has not occurred prior
to such date, from May 1, 1995) through the date on which such amount is paid.
Any such amount shall be paid within fifteen (15) days of completion of the
Audit Procedure by wire transfer to an account, details of which shall have been
given by the recipient to the Party making the payment within three (3) days of
completion of the Audit Procedure.
3.5. INTEREST ON PURCHASE PRICE. In the event that the Closing occurs
--------------------------
after March 31, 1995, the portion of the Purchase Price payable at Closing shall
be increased by interest at a rate per annum equal to US dollar 3-month LIBOR
for the period running from April 1, 1995 through the Closing Date.
3.6. INTERCOMPANY INDEBTEDNESS. On the Closing Date, Fiat shall, or shall
-------------------------
cause the appropriate member(s) of the Fiat Group to, pay in full the Fiat Group
Intercompany Indebtedness as of the Closing Date and take all steps necessary
prior to the Closing Date to ensure the availability of the funds necessary to
make such payments, and the Buyer shall, or shall cause the appropriate
member(s) of the CEAc Group to, pay in full the CEAc Group Intercompany
Indebtedness as of the Closing Date and take all steps necessary prior to the
Closing Date to ensure the availability of the funds necessary to make such
payments. All such payments shall be deemed to have occurred immediately
following the purchase of the Shares by the Buyer.
3.7. THIRD-PARTY INDEBTEDNESS. Item 1 of Schedule 3.7 sets forth a list
------------------------
identifying each item of Unfavorable Indebtedness. Not less than 7 days prior
to the Closing Date, the Buyer shall deliver to Fiat a certificate of an
appropriate officer of the Buyer indicating those items of Unfavorable
Indebtedness which the Buyer shall cause CEAc and the Subsidiaries to prepay on
the Closing Date.
At the Closing, Fiat shall pay to the Buyer (or, at the Buyer's option, the
purchase price shall be reduced by) an amount equal to the amount, if any, by
which the aggregate Prepayment Penalties of the Unfavorable Indebtedness prepaid
on the Closing Date exceeds the "Aggregate Below Market Rate Value" set forth as
Item 2 of Schedule 3.7.
3.8. GUARANTEES. On the Closing Date, each of the guarantees, letters of
----------
comfort and similar financial instruments issued by (i) any member of the Fiat
Group in favor of CEAc or any of the Subsidiaries listed on Schedule 3.8A hereto
(the "FIAT GUARANTEES") or (ii) any member of the CEAc Group in favor of any
member of the Fiat Group
<PAGE>
13.
listed on Schedule 3.8B hereto shall be terminated. The Buyer shall take all
steps necessary prior to the Closing Date (or, to the extent not possible,
within 60 days thereafter) to ensure that the Fiat Guarantees are replaced by a
similar instrument, acceptable to the relevant third-party beneficiary, issued
or arranged for by the Buyer. With respect to any Fiat Guarantees not so
replaced on or prior to the Closing Date, on the Closing Date the Buyer shall
furnish to the appropriate member of the Fiat Group a counter-guarantee from a
financial institution, and in form and substance, reasonably satisfactory to
Fiat.
3.9. FIAT GROUP ARRANGEMENTS. On the Closing Date, each of the agreements
-----------------------
or arrangements between one or more members of the Fiat Group and one or more
members of the CEAc Group (except for those representing ordinary course of
business commercial transactions and those listed on Schedule 3.9 hereto) shall
be terminated without liability to any party thereto (other than liabilities
accrued pursuant to the terms of such agreements or arrangements prior to such
termination).
ARTICLE 4
AUDIT OF PURCHASE PRICE ADJUSTMENTS
-----------------------------------
As soon as practicable after December 31, 1994, Fiat shall prepare (or
cause to be prepared) and shall cause Ernst & Young to audit the 1994
Consolidated Financial Statements and shall thereafter deliver to the Buyer a
copy of the 1994 Consolidated Financial Statements, Ernst & Young's audit letter
with respect thereto, and a certificate from Ernst & Young setting forth the
Price Adjustment Elements. Arthur Andersen & Co. shall be entitled to
participate, as a representative of the Buyer, in the audit of the 1994
Consolidated Financial Statements and to observe all physical inventory counts
in connection with such audit and review all workpapers of Ernst & Young
relating to such audit.
Within 60 days of its receipt of the 1994 Consolidated Financial Statements
and the audit letter and certificate relating thereto, the Buyer shall notify
Fiat of whether it accepts or disputes the accuracy of the Price Adjustment
Elements as set forth in the certificate. If the Buyer disputes the accuracy of
any Price Adjustment Element, it shall deliver a written notice thereof (the
"NOTICE") to Fiat.
The Notice shall set forth in reasonable detail those Price Adjustment
Elements that the Buyer believes have not been correctly determined and the
reasons for its opinion.
<PAGE>
14.
If no Notice is delivered in the time period set forth above, the Buyer shall be
deemed to have accepted the accuracy of the Price Adjustment Elements as set
forth in the certificate. If a Notice is delivered, the Parties shall meet and
in good faith use their best efforts to try to resolve their disagreements over
the disputed items.
If the Parties fail to resolve their disagreements in accordance with the
foregoing sentence within 15 days of delivery of the Notice the Parties shall
jointly submit those disputed items to a partner mutually acceptable to the
Parties, of the Paris office of one of the "big six" international accounting
firms other than Ernst & Young or Arthur Andersen & Co. (and in the event the
Parties cannot agree on the identity of such partner, the choice shall be made
by the President of the Tribunal de grande instance of Paris) (the "ACCOUNTING
REFEREE"), and the Accounting Referee shall make a binding determination of
those disputed items. The fees and expenses of Ernst & Young shall be paid by
CEAc (except that Fiat shall pay any fees and expenses of Ernst & Young that are
incremental to the fees and expenses related to CEAc's normal year-end audit),
the fees and expenses of Arthur Andersen & Co. shall be paid by the Buyer and
the fees and expenses of the Accounting Referee shall be shared by the Buyer and
Fiat as shall be determined by the Accounting Referee.
ARTICLE 5
CLOSING
-------
5.1. TIME AND PLACE. Subject to the terms and conditions hereof, the
--------------
Closing will take place at the offices of Gide Loyrette Nouel, 26 cours Albert
1er,75008 Paris, France, or at such other place as shall be agreed upon by the
Parties, on the date which is ten (10) days after the first date on which each
of the conditions set forth in Article 6 has been satisfied or waived.
5.2. FIAT DELIVERIES. At the Closing, in addition to the matters provided
---------------
for by Article 3, Fiat shall deliver or cause to be delivered to the Buyer:
5.2.1. share transfer orders (ordres de mouvement) duly signed by
SICIND, relating to all of the Shares;
5.2.2. letters from those members of the boards of directors or
supervisory boards of CEAc and the Subsidiaries (other than representatives
of employees and those not appointed by Fiat and Alcatel-Alsthom S.A. and
listed in Schedule 5.2.2) stating that they
<PAGE>
15.
are resigning from their positions as director of CEAc or its Subsidiaries,
as the case may be, as of the Closing and that they have no claim against
CEAc or the Subsidiaries relating to their service as director and
tendering to the Buyer any director's shares held by them;
5.2.3. minutes of the work council of CEAc and, if required by law,
of the Subsidiaries evidencing that they have been informed of the transfer
of the Shares in compliance with Article L-432-1 of the French Labor Code
or other relevant law or regulation; and
5.2.4. a certificate from a duly authorized officer of Fiat
evidencing the satisfaction of the conditions set forth in Articles 6.1.6.
and 6.1.7. below.
5.3. BUYER DELIVERIES. At the Closing, in addition to the matters
----------------
provided for by Article 3, the Buyer shall deliver or cause to be delivered to
Fiat:
5.3.1. the portion of the Purchase Price to be paid at Closing
pursuant to Article 3 by wire transfer in immediately available US dollar
funds to an account details of which shall be given to the Buyer at least
five (5) days prior to the Closing; and
5.3.2. a certificate by a duly appointed officer of the Buyer
evidencing the satisfaction of the conditions set forth in Articles 6.1.1,
6.1.2, 6.2.1. and 6.2.2. below.
ARTICLE
CONDITIONS PRECEDENT
--------------------
6.1. BUYER'S CONDITIONS. The obligation of the Buyer to consummate the
------------------
purchase of the Shares and pay the Purchase Price is subject to the prior
fulfillment at or prior to the Closing of each of the following conditions
(unless satisfaction of any such condition is expressly waived in a writing
delivered to Fiat, provided that in the case of any of the following conditions
except those set forth in Articles 6.1.4, 6.1.6 and 6.1.7, any such waiver shall
also be deemed a waiver of any claim by the Buyer for indemnification or any
other remedy, whether pursuant to the Warranty Agreement or otherwise, as a
result of the failure to satisfy such condition, including any breach or
inaccuracy of a representation or warranty or breach of agreement constituting
such failure):
<PAGE>
16.
6.1.1. The Treasury Department of the French Ministry of the Economy
and Finance (Direction du Tresor du Ministere de l'Economie et des
Finances) shall have authorized the transfer of the Shares to the Buyer;
6.1.2. The Buyer shall have obtained each of the consents or
approvals of any Governmental Authority relating to antitrust or the
regulation of competition in any of Germany, France, Spain, Portugal, the
United Kingdom, Belgium, Austria, Italy, Ireland, Sweden or the European
Community;
6.1.3. No injunction, restraining order or other order of a
Governmental Authority shall be in effect which restrains, prohibits or
invalidates the transfer of the Shares;
6.1.4. From the date of this Agreement through the Closing Date,
there shall have occurred no material adverse change (and no event shall
have occurred which will result in a material adverse change) in the
financial condition or results of operations of CEAc and the Subsidiaries,
taken as a whole, other than such changes attributable to developments
affecting manufacturers of lead acid batteries generally;
6.1.5. The Buyer or CEAc shall have obtained any consents required
under each of the agreements listed on Schedule 6.1.5 to avoid the
termination or modification of such agreements as a result of the transfer
of the Shares or a change in control of CEAc;
6.1.6. The representations and warranties made by Fiat in this
Agreement and in the Warranty Agreement shall have been true and correct in
all material respects as of the date hereof;
6.1.7. Fiat shall have performed and complied in all material
respects with all covenants, agreements and undertakings required by this
Agreement or the Warranty Agreement to be performed and complied with by
Fiat at or prior to the Closing;
6.1.8. Fiat Auto SpA shall have executed and delivered to CEAc for
signature a long term supply agreement in the form of Schedule 6.1.8 hereto
and each of Magnetti Marelli SpA, New Holland, IVECO SpA and Fiat Auto
Poland shall have executed and delivered to CEAc (or in the case of Fiat
Auto Poland, CENTRA) for signature a long term supply agreement
substantially in the form of Schedule 6.1.8 hereto.
<PAGE>
17.
Notwithstanding the foregoing, (i) the condition set forth in Article 6.1.2,
insofar as it relates to the consent or approval of any Governmental Authority
in any nation or jurisdiction other than France, Germany, Ireland, Austria or
Portugal, shall be deemed to have been satisfied from and after March 31, 1995;
(ii) the condition set forth in Article 6.1.2, insofar as it relates to the
consent or approval of any Governmental Authority in France, shall be deemed to
have been satisfied from and after April 28, 1995, unless prior to such date the
Buyer has obtained (and delivered a copy to Fiat) an effective, irrevocable
waiver of the conditions precedent contained in Clause 4.2 of the Facilities
Agreement dated February 28, 1995 among the Buyer, Bankers Trust Company, as
agent, and certain Lenders (as defined therein); and (iii) each of the
conditions set forth in Articles 6.1.4, 6.1.5 and 6.1.6 shall be deemed to have
been satisfied from and after May 1, 1995, in each case if the Closing has not
occurred prior to such date.
6.2. FIAT'S CONDITIONS. The obligations of Fiat to consummate the sale of
-----------------
the Shares are subject to the fulfillment at or prior to the Closing of each of
the following conditions (unless satisfaction of any such condition is expressly
waived in a writing delivered to the Buyer, provided that in the case of any of
the following conditions except those set forth in Articles 6.2.1 and 6.2.2, any
such waiver shall also be deemed a waiver of any claim by Fiat for
indemnification or any other remedy, whether pursuant to the Warranty Agreement
or otherwise, as a result of the failure to satisfy such condition, including
any inaccuracy of representation or warranty or breach of agreement constituting
such failure):
6.2.1. The representations and warranties made by the Buyer in this
Agreement and in the Warranty Agreement shall be true and correct in all
material respects when made and at and as of the Closing as if such
representations and warranties were made at and as of the Closing, except
for representations and warranties (a) made as of a specified date or for a
specified period, which shall be true and correct as of the specified date
or for the specified period, or (b) affected by any action taken after the
date hereof in accordance with the terms of this Agreement or the Warranty
Agreement or with the prior written consent of Fiat;
6.2.2. The Buyer shall have performed and complied in all material
respects with all covenants, agreements and undertakings required by this
Agreement or the Warranty Agreement to be performed and complied with by
the Buyer at or prior to the Closing; and
<PAGE>
18.
6.2.3. No valid injunction, restraining order or other order of a
competent Governmental Authority shall be in effect which restrains,
prohibits or invalidates the transfer of the Shares.
6.3. CONSENTS. The Buyer undertakes to use its best efforts to obtain
--------
each of the authorizations, approvals or consents of Governmental Authorities
referred to in Article 6.1.2 or third-parties referred to in Article 6.1.5 and
to avoid the entry of any injunction or order, referred to in Article 6.1.3, and
to satisfy any reasonable requirements or conditions that may be attached to
obtaining such authorizations, approvals or consents or to avoiding such entry.
6.4. COOPERATION. The Parties will cooperate with each other in making
-----------
all necessary filings or applications and in obtaining each of the
authorizations, approvals or consents of Governmental Authorities or third-
parties referred to in Article 6.1 and to avoid the entry of any injunction,
restraining order or other order of a Governmental Authority restraining,
prohibiting or invalidating the transfer of the Shares. Without limiting the
foregoing, the Parties each agree to make filings with relevant Governmental
Authorities required to be made by them or on their behalf as soon as
practicable. Each of the Buyer and Fiat will keep the other fully informed of
all developments or discussions with Governmental Authorities or third parties
relating such obtaining such authorizations, consents and approvals.
ARTICLE 7
INFORMATION
-----------
7.1. CONFIDENTIALITY. Each Party agrees that this Agreement and the
---------------
Warranty Agreement and all information obtained by such Party in the course of
negotiations in respect of such agreements and the transactions contemplated
thereby (the "CONFIDENTIAL INFORMATION") is confidential and must not be
divulged or communicated to third parties or used other than in connection with
the transactions contemplated hereby without the consent of the other Party,
except to Affiliates, officers, directors, other employees, counsel,
accountants, bankers, underwriters and other authorized representatives to the
extent necessary for the consummation of the transactions contemplated hereby
and provided that such persons are made aware of and agree to be bound by the
terms of this Article 7.1.; provided, however, that upon the Closing, the
-------- -------
Parties may issue press releases or otherwise provide information to the press
relating to the transactions contemplated hereby, the content of which
<PAGE>
19.
shall be subject to the approval of the other Party, which approval shall not be
unreasonably withheld. Neither the execution and performance of this Agreement
and the Warranty Agreement, nor the termination of this Agreement and the
Warranty Agreement shall relieve the Parties from their confidentiality
obligation under this Article 7.1.
Without limiting the foregoing, the Parties agree that they shall jointly
consult upon the text of any disclosure of any Confidential Information to any
securities commission or stock exchange authorities or in any prospectus or
other offering materials in connection with or related to any public tender
offer for the shares of CEAc or any offering of securities by any Party.
Notwithstanding the provisions of this Article 7.1., each Party
acknowledges that no information shall be deemed to be Confidential Information
if: (i) at the time of disclosure to any third party any such information is, or
following disclosure such information becomes, generally available to and known
by the public other than as a result of a disclosure by any Party in breach of
this Agreement or (ii) such information was in the possession of the recipient
Party prior to disclosure to the recipient Party by the proprietary Party other
than information received from a third person prohibited from transmitting such
information to the recipient Party by a contractual, legal or fiduciary
obligation to the proprietary Party.
In the event that a Party is requested or required (by interrogatory,
request for information, subpoena, deposition or other legal process) to
disclose any of the Confidential Information of the other Party, such Party
shall provide the proprietary Party with prompt notice of such request(s) so
that it may seek an appropriate protective order or other appropriate remedy
and/or waive compliance with the provisions of this Article 7.1. In the event
that such protective order or other remedy is not obtained, or that the
proprietary Party grants a waiver hereunder, the Party receiving the request may
furnish that portion (and only that portion) of the Confidential Information
which it is legally compelled to disclose and will exercise its best efforts to
obtain reliable assurance that confidential treatment will be accorded any
Confidential Information so furnished.
The above paragraph shall not apply to any disclosure to satisfy the
conditions set forth in Article 6 of this Agreement or any applicable stock
exchange regulations and national or supra-national antitrust authorities.
<PAGE>
20.
7.2. ACCESS. Pending the Closing, Fiat shall, and shall cause CEAc and
------
each of the Subsidiaries to, give to the Buyer and its bankers and underwriters
(and their respective representatives and counsel) access to CEAc's and the
Subsidiaries' personnel, property, records and such other documents and
information concerning the business and operations of CEAc and the Subsidiaries
as the Buyer shall reasonably request.
No investigations made by or on behalf of the Buyer, whether under this
Article 7.2 or any other provisions of this Agreement, will have the effect of
waiving, diminishing the scope of or otherwise affecting any representation,
warranty, covenant or indemnity made in this Agreement and the Warranty
Agreement.
Pending the Closing, Fiat and the Buyer shall also hold regular meetings,
at least monthly at times reasonably agreed between Fiat and the Buyer, for the
purpose of informing and consulting the Buyer with respect to the business and
management of the CEAc Group and Fiat shall furnish the Buyer with copies of the
monthly financial reports prepared by CEAc as soon as they become available.
7.3. NOTICE OF CERTAIN EVENTS. Each Party shall give or cause to be given
------------------------
to the other prompt written notice of any material development affecting the
ability of such Party to consummate the transactions contemplated by this
Agreement and the Warranty Agreement. Fiat shall promptly notify the Buyer upon
its becoming aware of any representation or warranty of Fiat contained in this
Agreement or the Warranty Agreement being or becoming untrue or incorrect in any
material respect between the date hereof and the Closing Date.
ARTICLE 8
NON-COMPETITION
---------------
For a period of five (5) years from the Closing, Fiat undertakes to and
covenants with the Buyer that it shall not, and shall not permit any member of
the Fiat Group to:
(i) engage directly or indirectly in the manufacture of automotive, stand-by or
traction batteries, provided that any such person may hold an equity
interest of not more than 10% in any other company or entity engaged in the
manufacture of such batteries in which it does not have, directly or
indirectly, any operational or advisory role;
<PAGE>
21.
(ii) except for the persons listed in Schedule 8, engage or employ any person
who is currently a director or senior management employee of CEAc or any of
the Subsidiaries.
This non-competition covenant shall apply to Eastern and Western European
countries (including without limitation the countries which were part in the
past of the USSR).
ARTICLE 9
TERMINATION
-----------
9.1. TERMINATION. This Agreement and the Warranty Agreement may be
-----------
terminated at any time prior to the Closing Date (a) by the written agreement of
each of the Buyer and Fiat or (b) by Fiat at any time after June 15, 1995 if the
Closing shall not have occurred on or prior to such date; provided, however,
-------- -------
that Fiat shall give the Buyer at least 15 days prior notice of its intention to
terminate and any time prior to such termination the Buyer shall be entitled to
waive the conditions precedent to its obligations hereunder and consummate the
purchase of the Shares. This Agreement and the Warranty Agreement shall
terminate automatically on September 30, 1995 if the Closing shall not have
occurred prior to such date, unless the Buyer and Fiat mutually agree to extend
such date.
9.2. EFFECT OF TERMINATION. If this Agreement and the Warranty Agreement
---------------------
are terminated as permitted under Article 9.1, such termination shall be without
liability to any Party to this Agreement or the Warranty Agreement or any
Affiliate, shareholder, director, officer or representative of such Party,
except for liability arising from a willful breach of this Agreement or the
Warranty Agreement. The Buyer agrees that for a period of three (3) years from
the date of any termination of this Agreement it shall not, and shall not permit
any of its subsidiaries to solicit for employment any person who is currently a
director or senior management employee of CEAc or any of the Subsidiaries.
ARTICLE 10
GOVERNING LAW AND ARBITRATION
-----------------------------
10.1. GOVERNING LAW. This Agreement and the Warranty Agreement shall be
-------------
governed by, and shall be construed in accordance with, the laws of France.
10.2. ARBITRATION. The Parties irrevocably agree that any disputes which
-----------
may arise out of or in connection with this Agreement or the Warranty Agreement
shall be settled by
<PAGE>
22.
arbitration in Paris, France in accordance with the following rules:
(a) The arbitral tribunal shall consist of two arbitrators and the
presiding arbitrator, each of whom shall be fluent in English and may be of
French, Italian or United States nationality. The party intending to institute
arbitration proceedings shall inform the other party in writing of its intention
and, at the same time, designate one arbitrator. The other party shall, within
30 days after receipt of this notice, designate a second arbitrator. Fiat and
SICIND shall for the purpose of this Article 10.2(a) be deemed to be a single
party and shall appoint a common arbitrator. If, within such time period, the
other party has not designated a second arbitrator, then at the request of the
party intending to institute arbitration proceedings, the second arbitrator
shall be appointed by the President of the Tribunal de grande instance of Paris,
acting upon request (par voie de requete). The two arbitrators thus appointed
shall choose the presiding arbitrator, who shall be a jurist. If, within 30 days
after the appointment of the second of the two arbitrators, the two arbitrators
have not agreed upon the choice of the presiding arbitrator, then at the request
of either party to the arbitration proceedings, the presiding arbitrator shall
be appointed by the President of the Tribunal de grande instance of Paris,
acting upon request (par voie de requete).
(b) All submissions and awards in relation to arbitration under this
Agreement or the Warranty Agreement shall be made in English and all arbitration
proceedings and all pleadings shall be in English. Original documents in
English, Italian or French may be submitted as evidence in their original
language; witnesses not fluent in English may give evidence in their native
tongue (with appropriate translation). Original documents in a language other
than English, Italian or French shall be submitted as evidence in English
translation accompanied by the original or true copy thereof.
(c) The Parties hereby adopt the rules of the French Nouveau Code de
Procedure Civile applicable to proceedings before the Tribunal de Grande
Instance as the procedural rules governing arbitrations hereunder, insofar as
such rules are not inconsistent with any provision of this Article 10, which
shall be controlling, and provided that (i) each party may call upon the other
to supply the arbitral panel with specified documents in such other party's
control relevant to the dispute; (ii) each party shall be entitled to present
the oral testimony of witnesses as to fact and expert witnesses; (iii) each
party shall be entitled to question directly any witnesses who present
<PAGE>
23.
testimony to the arbitral panel; and (iv) at the request of either party, a
written transcript shall be made of each hearing before the arbitral panel and
shall be furnished to the parties.
(d) Each party to such arbitration shall pay its own legal fees and
expenses incurred in connection with the arbitration and the expense of any
witness produced by it. The cost of any stenographic record and all transcripts
thereof, shall be prorated equally among all parties ordering copies and shall
be paid by such parties directly to the reporting agency. All other expenses of
the arbitration, including required travelling and other expenses and fees of
the arbitrators and the expenses of any witness or the cost of any proof
produced at the request of the arbitrators, shall be borne by the claimant and
the respondent as shall be determined by the arbitrators.
(e) Any award shall be made in the currency in which the obligation would
have been paid, if the obligation with respect to which the award is made was an
obligation to pay money, or in US dollars in all other cases.
(f) Any award shall be final and not subject to appeal and the parties
hereby waive all challenges to any award of an arbitral panel under this Article
10.
ARTICLE 11
MISCELLANEOUS
-------------
11.1. NOTICES. Any notice or other communication required or permitted to
-------
be given hereunder or under the Warranty Agreement shall not be valid unless
delivered in person, transmitted by telecopy or similar means of recorded
electronic communication or sent by international courier service or by
registered mail, charges prepaid, addressed as follows:
(i) if to Fiat or SICIND:
Fiat S.p.A.
Corso Marconi, 10
10125 Torino, Italy
Attention: Dott. M. Mosca
Telecopier no.: (39)(11) 686.3784
and
Attention: General Counsel
Telecopier no.: (39)(11) 686.2196
<PAGE>
24.
with copy to:
Cleary, Gottlieb, Steen & Hamilton
41, Avenue de Friedland
75008 Paris, France
Attention: Daniel S. Sternberg
Telecopier no.: (33)(1) 45.63.35.09
(ii) if to Buyer:
Exide Corporation
1400 North Woodward Avenue
Bloomfield Hills
Michigan 48304, USA
Attention: General Counsel
Telecopier no.: (1)(810) 258.5319
with copy to:
Gide Loyrette Nouel
26 cours Albert 1er
75008 Paris, France
Attention: Thierry Vassogne
Telecopier no.: (33)(1) 43.59.37.79
Any such notice or other communication shall be deemed to have been given
and received on the day on which such notice is actually received by the
addressee.
Any Party may at any time change its address for service from time to time
by giving notice to the other party in accordance with this Article 11.1.
11.2. EXPENSES. The Buyer and Fiat shall each bear their own expenses,
--------
costs and fees (including, without limitation, attorneys' and auditors' fees) in
connection with the transactions contemplated hereby, including the preparation
and execution of this Agreement and the Warranty Agreement and compliance with
its terms, whether or not the transactions contemplated hereby shall be
consummated. Without limiting the foregoing, Fiat shall not bill to CEAc any of
Fiat's expenses, costs or fees. Fiat shall further bear the expenses, costs and
fees in connection with the transactions contemplated hereby, if any, incurred
by CEAc that are incremental to the expenses, costs and fees incurred by CEAc in
the ordinary course of its business.
11.3. ASSIGNMENT, NO THIRD PARTY BENEFICIARIES. This Agreement and the
----------------------------------------
Warranty Agreement and all of the provisions hereof and thereof shall be binding
upon and inure to the benefit of each of the Parties and their respective
successors, designees and permitted assigns.
<PAGE>
25.
This Agreement, the Warranty Agreement and the rights, interests or obligations
hereunder and thereunder shall not be assigned by the Buyer (except to one or
more of its direct or indirect wholly-owned subsidiaries, provided that no such
assignment shall relieve the Buyer from any of its obligations hereunder or
under the Warranty Agreement) or by Fiat or SICIND without the prior written
consent of the other party, and any attempt to assign this Agreement and the
Warranty Agreement without such consent shall be void and of no effect.
11.4. INTEGRATION. This Agreement and the Warranty Agreement (including
-----------
the Disclosure Schedule and other Schedules referred to herein and therein) sets
forth the entire understanding and agreement between the Parties as to the
matters covered herein and supersedes and replaces any prior understanding,
agreement or statement of intent, in each case, written or oral, of any and
every nature with respect thereto. The Buyer acknowledges that it has conducted
its own independent review and analysis of the CEAc Group and its businesses and
that it has been provided access to the properties, records and personnel of the
CEAc Group for this purpose. In entering into this Agreement and the Warranty
Agreement, the Buyer has relied solely upon its own investigation and analysis
and the representations and warranties set forth in this Agreement and the
Warranty Agreement and acknowledges that none of Fiat, SICIND or any other
member of the Fiat Group or any of their respective Affiliates, directors,
officers, employees, agents, representatives or advisors has made any
representation or warranty, either express or implied, as to any matter
respecting or affecting the Shares, any member of the CEAc Group or the accuracy
or completeness of any of the information provided or made available to the
Buyer or its agents or representatives, except as and only to the extent
expressly provided for in this Agreement and the Warranty Agreement; provided,
--------
however, that nothing in this Article 11.4 shall be deemed to waive any claim
- -------
or cause of action the Buyer may have for a fraud (dol, reticence dolosive,
manquement aux obligations precontractuelles etc.).
11.5. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
----------------------
this Agreement or the Warranty Agreement shall be binding on any Party unless
consented to in writing by such Party. No waiver of any provision of this
Agreement or the Warranty Agreement shall constitute a waiver of any other
provision, nor shall any waiver constitute a continuing waiver unless otherwise
expressly provided.
11.6. COUNTERPARTS. This Agreement and the Warranty Agreement may be
------------
executed in counterparts, each of which
<PAGE>
26.
shall constitute an original and all of which taken together shall constitute
one and the same instrument.
11.7. INVALIDITY OF A PROVISION. If any provision of this Agreement or
-------------------------
the Warranty Agreement or any part thereof is rendered void, illegal or
unenforceable in any respect, the Parties shall seek to substitute for such
provisions valid provisions that in their economic effect come so close to the
original provisions that it can be reasonably assumed that the Parties would
have executed this Agreement and the Warranty Agreement including such new
provisions. In the event that such provisions cannot be found, the invalidity,
illegality or unenforceability of any provision of this Agreement or the
Warranty Agreement shall not affect the validity of such Agreements as a whole,
unless the invalid provisions are of such importance to this Agreement and the
Warranty Agreement that it can be reasonably assumed that the Parties would not
have executed this Agreement and the Warranty Agreement without the invalid
provisions.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by officers duly authorized thereunto as of the date first above
written.
FIAT SPA EXIDE CORPORATION
/s/ Umberto Quadrino
- ------------------------ ----------------------
By: By:
Name: Umberto Quadrino Name:
Title: Executive Vice President Title:
SICIND SPA
s/ Marco Mosca
- ------------------------
By:
Name: Marco Mosca
Title: Attorney-in-Fact
<PAGE>
26.
shall constitute an original and all of which taken together shall constitute
one and the same instrument.
11.7. INVALIDITY OF A PROVISION. If any provision of this Agreement or
-------------------------
the Warranty Agreement or any part thereof is rendered void, illegal or
unenforceable in any respect, the Parties shall seek to substitute for such
provisions valid provisions that in their economic effect come so close to the
original provisions that it can be reasonably assumed that the Parties would
have executed this Agreement and the Warranty Agreement including such new
provisions. In the event that such provisions cannot be found, the invalidity,
illegality or unenforceability of any provision of this Agreement or the
Warranty Agreement shall not affect the validity of such Agreements as a whole,
unless the invalid provisions are of such importance to this Agreement and the
Warranty Agreement that it can be reasonably assumed that the Parties would not
have executed this Agreement and the Warranty Agreement without the invalid
provisions.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by officers duly authorized thereunto as of the date first above
written.
FIAT SPA EXIDE CORPORATION
/s/ Arthur Hawkins
- ------------------------ ----------------------
By: By:
Name: Name: Arthur Hawkins
Title: Title: President & CEO
SICIND SPA
- ------------------------
By:
Name:
Title:
<PAGE>
EXECUTION COPY
--------------
AANNEX A
TO STOCK PURCHASE AGREEMENT
WARRANTY AGREEMENT
BY AND BETWEEN
EXIDE CORPORATION
AND
FIAT SpA
Dated March 17, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Article 1 Definitions .....................................
Article 2 Representations and Warranties
of Fiat .........................................
Article 3 Covenants of Fiat ...............................
Article 4 Representations, Warranties and Covenants
of the Buyer ....................................
Article 5 Survival of Representations and Warranties.......
Article 6 Indemnification .................................
Annex I Disclosure Schedule
</TABLE>
<PAGE>
3.
ON THE 17TH OF MARCH 1995
BETWEEN THE UNDERSIGNED
EXIDE CORPORATION, a Delaware corporation, with offices at 1400 North
Woodward Avenue, Bloomfield Hills, Michigan 48304, USA (hereinafter referred to
as the "BUYER"),
ON THE FIRST PART,
AND
FIAT SpA, an Italian corporation, with offices at Corso G. Marconi, 10,
10125 Torino, Italy (hereinafter referred to as "FIAT"),
ON THE SECOND PART.
The Buyer and Fiat being collectively referred to as the "PARTIES" and
individually as a "PARTY".
WITNESSETH
WHEREAS, the Buyer, Fiat and SICIND SpA, a wholly-owned subsidiary of
Fiat ("SICIND"), have executed a Stock Purchase Agreement, dated the date hereof
(the "STOCK PURCHASE AGREEMENT"), providing for the purchase by the Buyer of
certain shares in the capital of Compagnie Europeenne d'Accumulateurs, a French
societe anonyme ("CEAC") upon the terms and subject to the conditions set forth
in the Stock Purchase Agreement and herein;
WHEREAS, the Parties desire to provide each other with certain
representations, warranties, covenants and indemnities in connection with the
execution of the Stock Purchase Agreement and the purchase and sale of the
Shares (as defined in the Stock Purchase Agreement);
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, warranties and indemnities contained herein and in the Stock
Purchase Agreement, the Parties agree as follows.
ARTICLE I
DEFINITIONS
-----------
1.1. DEFINED TERMS. For the purposes of this Agreement, including the
-------------
above recitals, the following terms shall mean:
<PAGE>
4.
"Agreement" means this Warranty Agreement and the Annex
and Schedules hereto, as amended from time to
time.
"Authorization" means any permit, consent, authorization,
approval, registration or license granted by or
obtained from any Governmental Authority
necessary for the CEAc Group to carry on its
business as presently conducted or for the
ownership or use of its property and assets.
"Benefit Plan" means any profit sharing scheme, supplementary
insurance, retirement companies' savings plan,
stock purchase or stock option plan.
"Buyer" shall have the meaning specified in the
Recitals.
"CEAc" shall have the meaning specified in the
Recitals.
"CEAc Group" shall have the meaning specified in Article
2.3.
"Claim Notice" shall have the meaning specified in
Article 6.6.
"Contract" means any contract, agreement or legally
binding commitment (including any undertakings
connected to the grant of subsidies) to which
any member of the CEAc Group is a party.
"Direct Claim" shall have the meaning specified in Article
6.6.
"Disclosure Schedule" shall have the meaning specified in Article
1.2.
<PAGE>
5.
"Environmental Matter" means any matter relating to the environment or
the presence, use or treatment of any chemical,
toxic or hazardous substance; without limiting
the foregoing, "Environmental Matters" shall
include all matters relating to air, ground or
water pollution, air emissions, effluent
discharge, waste storage, treatment and
disposal and the health or safety of employees
or third parties in connection with the
presence, use or treatment of any of the
foregoing or any chemical, toxic or hazardous
substance.
"Fiat" shall have the meaning specified in the
Recitals.
"Indemnified Party" shall have the meaning specified in Article
6.6.
"Indemnifying Party" shall have the meaning specified in Article
6.6.
"Intellectual Property Rights" means any patent, patent application and
disclosure, trade secret, proprietary soft-
ware, know-how or other proprietary
information, trademark, trademark application
and registration, trade name, corporate name,
service mark, service mark application and
registration, service name or registered and
unregistered copyright, or inventions (whether
patentable or not), in each case owned by or
licensed to any member of the CEAc Group.
"Leased Properties" means, collectively, the real properties
forming the
<PAGE>
6.
subject matter of the Real Property Leases.
"Liability" means any liability or obligation of any
nature, accrued, absolute, contingent or
otherwise, and whether due or to become due.
"Lien" means any security interest, mortgage, lien,
charge, pledge, encumbrance, burden or other
restriction or limitation of any nature
whatsoever.
"Loss(es)" shall have the meaning specified in Article
6.3.
"Material Adverse Effect" means a material adverse effect on the
financial condition or results of operations of
the CEAc Group, taken as a whole.
"Material Contracts" shall have the meaning specified in Article
2.8.1.
"1994 CEAc Financial
Statements" means the audited balance sheet of CEAc for the
fiscal year ending December 31, 1994 and the
accompanying profit and loss statement (compte
de resultat) and all notes thereto (annexe), as
certified by Ernst & Young.
"1993 CEAc Financial
Statements" means the audited balance sheet of CEAc for the
fiscal year ending December 31, 1993 and the
accompanying profit and loss statement (compte
de resultat) and all notes thereto (annexe), as
certified by Ernst & Young.
<PAGE>
7.
"1993 Consolidated
Financial Statements" means the audited consolidated balance sheet of
CEAc for the fiscal year ending December 31,
1993 and the accompanying profit and loss
statement (compte de resultat) and all notes
thereto (annexe), as certified by Ernst &
Young.
"Owned Properties" shall have the meaning specified in Article
2.6.2.
"Party(ies)" shall have the meaning specified in the
Recitals.
"Permitted Encumbrances" means easements, encroachments and other minor
imperfections of title to property which would
not, individually or in the aggregate,
materially detract from the value of such
property, or materially impair the use of such
property as currently used.
"Real Property Leases" means the leases and subleases of real property
to which any member of the CEAc Group is a
party.
"Securities" means shares or other securities issued by any
member of the CEAc Group entitling the holder
thereof (by conversion, exchange, refund,
presentation or exercise of a warrant or in any
other manner) to the attribution of securities
constituting part of the share capital or the
voting rights of CEAc or any of the
Subsidiaries.
"Stock Purchase Agreement" shall have the meaning specified in the
Recitals.
<PAGE>
8.
"Subsidiary(ies)" shall have the meaning specified in Article
2.3.
"Subsidiary Shares" means shares in the capital of the Subsidiaries
held, directly or indirectly, by CEAc.
"Taxes" means all income taxes (including corporate
income tax, taxes on revenue (including value
added tax), local taxes (including taxe
professionnelle and taxe fonciere), withholding
taxes (including precompte), registration
taxes, stamp duties, taxes on salaries and
social security contributions, unemployment
contributions, retirement contributions, family
allowance contributions and all other similar
contributions assessed on salaries, including,
in each case any interest, penalties,
assessments or deficiencies thereon.
"Third Party Claim" shall have the meaning specified in Article
6.6. hereof.
"to Fiat's Best Knowledge" means to the actual knowledge, after due
inquiry, of any of Messrs. Leclercq, Pistone,
Claudel, Weisman or Lacape or, if no inquiry
was made, the deemed knowledge of Fiat had such
inquiry been made.
Except as otherwise expressly defined in this Agreement, all capitalized
terms shall have the meanings ascribed to them in the Stock Purchase Agreement.
1.2. GENERAL PROVISIONS. References in this Agreement to articles are to
------------------
articles in this Agreement, unless otherwise indicated.
<PAGE>
9.
The meanings of the defined terms are applicable to both the singular and
plural forms thereof.
Any term defined by reference to any document shall have the meaning
ascribed to it therein.
The words "HEREOF", "HEREUNDER" and similar words shall be construed as
references to this Agreement as a whole and not limited to the particular
article or provision in which the relevant reference appears.
The word "PERSON" shall include any individual, firm, company, corporation,
partnership, incorporated body of persons or any state or government or any
agency thereof.
Unless otherwise expressly indicated herein, any reference herein to a
numbered Schedule shall be a reference to the numbered Schedule contained in the
Disclosure Schedule attached as Annex I hereto and made a part hereof (the
"DISCLOSURE SCHEDULE").
This Agreement is incorporated in, and constitutes a part of, the Stock
Purchase Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF FIAT
--------------------------------------
Fiat represents and warrants to the Buyer as follows; provided that
--------
notwithstanding anything to the contrary contained herein, none of such
representations or warranties is given in respect of, or covers, any
Environmental Matter or any Law regulating, or Liability or Loss arising out of
or relating to, any Environmental Matter. Each of the following representations
and warranties are made as of the date hereof and, except for purposes of
Article 6.1.6 of the Stock Purchase Agreement, shall also be deemed to be
repeated at and as of the Closing Date, except for (a) representations and
warranties made as of a specified date or for a specified period or (b) to the
extent affected by any action taken after the date hereof in accordance with the
terms of this Agreement or the Stock Purchase Agreement or with the prior
written consent of the Buyer.
2.1. FINANCIAL STATEMENTS; LIABILITIES
---------------------------------
2.1.1. Financial Statements. (a) Fiat has provided the Buyer with
--------------------
true and complete copies of the 1993 Consolidated Financial Statements. Except
as noted therein, the 1993 Consolidated Financial Statements are, and the 1994
Consolidated Financial Statements when prepared will be, reguliers et sinceres
and give, and will give, as the case
<PAGE>
10.
may be, une image fidele, in conformity with generally accepted accounting
principles consistent with prior periods, of the consolidated assets and
financial position of CEAc and its consolidated subsidiaries as at December 31,
1993 or December 31, 1994, as the case may be, and of the consolidated result of
their operations for the year then ended.
(b) Fiat has provided the Buyer with true and complete copies of the
1993 CEAc Financial Statements. Except as noted therein, the 1993 CEAc
Financial Statements are, and the 1994 CEAc Financial Statements when prepared
will be, reguliers et sinceres and give, and will give, as the case may be, une
image fidele, in conformity with generally accepted accounting principles
consistent with prior periods, of the assets and financial position of CEAc as
at December 31, 1993 or December 31, 1994, as the case may be, and of the result
of its operations for the year then ended.
(c) To the best knowledge of Fiat, the corporate and accounting books
and records of the CEAc Group have been properly and accurately kept and
maintained in accordance with applicable Laws and relevant generally accepted
accounting principles and practices, except for such matters that would not have
a Material Adverse Effect.
2.1.2. Liabilities. (a) As of the date hereof no member of the CEAc
-----------
Group has any Liabilities required by generally accepted accounting principles
to be reflected, disclosed, provided for or reserved against in the consolidated
financial statements of CEAc except for (i) Liabilities which have been
sufficiently reflected, disclosed, provided for or reserved against in the 1993
Consolidated Financial Statements or which will be sufficiently reflected,
disclosed, provided for or reserved against in the 1994 Consolidated Financial
Statements, (ii) Liabilities that were incurred or arose in the usual and
ordinary course of business after December 31, 1994 and (iii) Liabilities
referenced on Schedule 2.1.2(a).
(b) As of the date hereof no member of the CEAc Group has any Liabilities
not required by generally accepted accounting principles to be reflected,
disclosed, provided for or reserved against in the consolidated financial
statements of CEAc, except for (i) Liabilities that were incurred or arose in
the usual and ordinary course of business, (ii) Liabilities that have not had
and would not reasonably be expected to have a Material Adverse Effect and (iii)
Liabilities referenced on Schedule 2.1.2(b).
<PAGE>
11.
2.2. CORPORATE MATTERS RELATING TO FIAT, SICIND AND
----------------------------------------------
THE CEAC GROUP
--------------
2.2.1. Due Incorporation, Authority of Fiat. (a) Fiat is a
------------------------------------
corporation duly incorporated and validly existing under the laws of Italy and
has full corporate power and authority to execute and deliver this Agreement and
the Stock Purchase Agreement, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the Stock
Purchase Agreement and the consummation of the transactions contemplated hereby
and thereby have been duly authorized and approved by all requisite corporate
and shareholder action on the part of Fiat and do not (and would not with the
giving of notice or the lapse of time or both) result in a violation or a breach
of, or a default under, or give rise to a right of termination, amendment or
cancellation or the acceleration of any obligation under: (i) the atto
costitutivo and the statuto of Fiat; (ii) any material contracts or instruments
to which Fiat is a party or by which Fiat is bound; or (iii) any Laws applicable
to Fiat; except in each case for any such matters that would not have a material
adverse effect on the ability of Fiat to perform its obligations under this
Agreement and the Stock Purchase Agreement. This Agreement and the Stock
Purchase Agreement constitute valid and legally binding obligations of Fiat
enforceable against Fiat in accordance with their terms.
2.2.2. Due Incorporation, Authority of SICIND. (a) SICIND is a
--------------------------------------
corporation duly incorporated and validly existing under the laws of Italy and
has full corporate power and authority to execute and deliver the Stock Purchase
Agreement, to perform its obligations thereunder and to consummate the
transactions contemplated thereby.
(b) The execution and delivery of the Stock Purchase Agreement and
the consummation of the transactions contemplated thereby have been duly
authorized and approved by all requisite corporate and shareholder action on the
part of SICIND and do not (and would not with the giving of notice or the lapse
of time or both) result in a violation or a breach of, or a default under, or
give rise to a right of termination, amendment or cancellation or the
acceleration of any obligation under: (i) the atto costitutivo and the statuto
of SICIND; (ii) any material contracts or instruments to which SICIND is a party
or by which SICIND is bound; or (iii) any Laws applicable to SICIND; except in
each case for any such matters that would not have a material adverse effect on
the ability of SICIND
<PAGE>
12.
to perform its obligations under the Stock Purchase Agreement. The Stock
Purchase Agreement constitutes a valid and legally binding obligation of SICIND
enforceable against SICIND in accordance with its terms.
2.2.3. The CEAc Group. Schedule 2.2.3 is a complete list of each
--------------
company, partnership or other business entity of which more than 50% of the
outstanding share capital or other equity interest is owned, directly or
indirectly, by CEAc (a "SUBSIDIARY" and, together, the "SUBSIDIARIES"). CEAc
together with the Subsidiaries are hereinafter sometimes referred to as the
"CEAC GROUP". Each of CEAc and the Subsidiaries is a corporation duly
incorporated and validly existing under its jurisdiction of incorporation and
has all requisite corporate power and authority to carry out its business as
currently conducted, except for such lack of power and authority as would not
have a Material Adverse Effect. Other than the Subsidiaries and as referenced
on Schedule 2.2.3, no member of the CEAc Group, directly or indirectly, owns any
interest in any other corporation, partnership or other business entity
(including any entity in which the liability of the members or partners is not
limited to their ownership interest). None of CEAc or any of the Subsidiaries
can be considered a de facto manager of any entity which is not itself a member
of the CEAc Group.
2.3. CAPITAL STRUCTURE
-----------------
2.3.1. Authorized Capital. The outstanding share capital of CEAc
------------------
consists of 21,051,836 shares. Schedule 2.3.1 sets forth, for each Subsidiary,
the number of Subsidiary Shares and the percentage of the outstanding share
capital of such Subsidiary represented by the Subsidiary Shares. The Shares,
and the Subsidiary Shares, have been duly authorized and validly issued, are
fully paid up and, except as referenced on Schedule 2.3.1, CEAc or the relevant
Subsidiary has good title to such shares, free and clear of any Liens. None of
the shares of any of the Subsidiaries are listed on any stock exchange nor have
any of the Subsidiaries made any offering of Shares to the public.
2.3.2. No Options, etc. Except as referenced on Schedule 2.3.2,
---------------
there is not outstanding or authorized any option, warrant, right, call,
commitment, subscription right, conversion right, exchange right or other right
or agreement obligating Fiat, SICIND, CEAc or any of the Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, any of the Shares or
any shares in the capital (whether or not currently issued) of any member of the
CEAc Group or any other Securities.
<PAGE>
13.
2.3.3. Capital Increase; Securities. Except as referenced on
----------------------------
Schedule 2.3.3, none of CEAc or any of the Subsidiaries has committed to any
capital increase or decrease nor has empowered any corporate body to decide upon
or commit to any capital increase or decrease or any issuance of any Securities.
2.4. ABSENCE OF VIOLATION
--------------------
The execution and delivery of this Agreement and the Stock Purchase
Agreement by Fiat, the execution and delivery of the Stock Purchase Agreement by
SICIND, and the consummation of the transactions contemplated hereby and thereby
will not (and would not, with the giving of notice or the lapse of time or
both):
(a) result in a breach or violation of any of the provisions of, or
constitute a default under, or create in any party the right to
terminate or modify, or to accelerate the performance of any
obligation of CEAc or any Subsidiary under: (i) any Material Contract;
(ii) any Authorization; (iii) any provision of the statuts or other
constituent documents of CEAc or any Subsidiary; or (iv) any Law
applicable to CEAc or any Subsidiary; or
(b) the creation or imposition of any Lien on any of the Shares or the
Subsidiary Shares or on any of the property or assets of the CEAc
Group;
except as referenced on Schedule 2.4 and except for any such matters that would
not have a Material Adverse Effect.
2.5. CONSENTS AND APPROVALS
----------------------
Except as referenced on Schedule 2.5 and except as contemplated under
Articles 6.1.1 and 6.1.2 of the Stock Purchase Agreement, no consent or
approval, or registration, declaration or filing with, any Governmental
Authority or labor body is required to be obtained or made by or on behalf of
Fiat, SICIND, CEAc or any Subsidiary in connection with the execution and
delivery of this Agreement and the Stock Purchase Agreement by Fiat, the
execution and delivery of the Stock Purchase Agreement by SICIND or the
consummation of any transaction contemplated by this Agreement or the Stock
Purchase Agreement.
2.6. CEAC GROUP PROPERTY
-------------------
2.6.1. Title to Property and Assets; Sufficiency. Except as
-----------------------------------------
referenced on Schedule 2.6.1, each member of the
<PAGE>
14.
CEAc Group has good title to, legal and beneficial ownership of, or a valid
leasehold interest in, all of its material property and assets, free and clear
of all Liens other than Permitted Encumbrances. The properties and other assets
owned or leased by the CEAc Group are sufficient in all material respects for
the conduct of the businesses and activities of the CEAc Group as of the date
hereof.
2.6.2. Real Property. (a) No member of the CEAc Group is the owner
-------------
of, or has any agreement or option to own, any real property or any equity
interest therein, other than the real property listed on Schedule 2.6.2 (the
"OWNED PROPERTIES").
(b) Except as referenced on Schedule 2.6.2(b), no condemnation or
legal proceeding (including expropriation proceeding) is pending (nor, to Fiat's
best knowledge, has any member of the CEAc Group received written notice
threatening any such proceeding) with respect to the Owned Properties or the
Leased Properties, which, if adversely determined, would preclude or materially
impair the use of any such real property for the purposes for which it is
currently used, or which challenges title to such real properties.
(c) Except as referenced on Schedule 2.6.2(c), none of the Owned
Properties nor any structure thereon or use thereof encroaches in any material
respect on any property owned by any other person.
2.6.3. Real Property Leases. (a) Schedule 2.6.3(a) lists all of the
--------------------
Real Property Leases.
(b) Except in each case as referenced on Schedule 2.6.3(b), none of
the Leased Properties is subleased by CEAc or any of the Subsidiaries and no
right of occupation or enjoyment or other rights have been acquired or are in
the process of being acquired by a third party in respect of all or part of such
Leased Properties, nor has any such right been granted to any third party.
(c) Each Real Property Lease creates a good and valid leasehold
estate in the Leased Properties thereby demised and is in full force and effect,
except as otherwise referenced on Schedule 2.6.3(c).
2.7. INTELLECTUAL PROPERTY RIGHTS
----------------------------
2.7.1. Schedule 2.7.1 lists (i) all patented and registered
Intellectual Property Rights and (ii) all pending patent applications (and
applications for the registration
<PAGE>
15.
of other Intellectual Property Rights) made by any member of the CEAc Group.
2.7.2. Schedule 2.7.2 lists (i) all trade or corporate names used by
the CEAc Group and (ii) all licenses and other rights granted by any member of
the CEAc Group to any third party with respect to the Intellectual Property
Rights.
2.7.3. Except as referenced on Schedule 2.7.3 and except in each case
for such matters that would not have a Material Adverse Effect:
(a) the CEAc Group owns and possesses (free and clear of any Liens
other than Permitted Encumbrances) all right, title and interest in, or has a
valid, enforceable and effective license to use, all of the Intellectual
Property Rights and the Intellectual Property Rights are sufficient in all
material respects for the conduct of the businesses and activities of the CEAc
Group as now being conducted;
(b) to Fiat's best knowledge, no claim by any third party contesting
the validity, enforceability, use or ownership of any Intellectual Property
Rights is currently outstanding; and
(c) to Fiat's best knowledge, the CEAc Group has not received any
notices of any infringement or misappropriation by, or conflict with, any third
party with respect to the Intellectual Property Rights or of any infringement or
misappropriation by the CEAc Group with respect to any intellectual property
rights of any third party.
2.8. MATERIAL CONTRACTS
------------------
2.8.1. Contracts. Schedule 2.8.1 lists all Contracts (but excluding
---------
all open purchase or sales orders between any member of the CEAc Group and any
of its customers or suppliers) which are either (a) Contracts between any member
of the CEAc Group and either any member of the Fiat Group or director or manager
of any member of the Fiat Group or Alcatel-Alsthom S.A (other than Contracts
representing ordinary course commercial relationships on arms-length terms) or
(b) Contracts which both involve the obligation by the CEAc Group to pay
amounts, or provide goods or services with a value, in excess of $250,000 in the
aggregate and cannot be terminated by the relevant member of the CEAc Group,
without penalty, on notice of six months or less or (c) Contracts with any
customer of the CEAc Group accounting for more than 5% of consolidated revenues
for the
<PAGE>
16.
year ended December 31, 1993 or (d) Contracts containing any non-competition
provision binding any member of the CEAc Group (the "MATERIAL CONTRACTS").
2.8.2. No Breach of Material Contracts. Except as referenced on
-------------------------------
Schedule 2.8.2, each of the Material Contracts is in full force and effect and
is a valid and binding obligation of the parties thereto, enforceable in
accordance with their respective terms, and none of CEAc or any Subsidiary is in
violation or breach, in any material respect, of any of the terms or conditions
of the Material Contracts. To Fiat's best knowledge, except as referenced on
Schedule 2.8.2, no other party to any Material Contract is in violation or
breach of such Material Contract in any material respect.
2.9. PRODUCT WARRANTIES AND PRODUCT LIABILITY
----------------------------------------
Fiat has previously provided to the Buyer accurate copies of the standard
terms and conditions of sale of each of the CEAc Group companies, which terms
and conditions contain the standard warranty given to the buyers of products
manufactured by the CEAc Group. To Fiat's best knowledge, no member of the CEAc
Group has given any warranty to any buyer of a product manufactured by such
company other than the warranty contained in its standard terms and conditions
of sale, except (i) as referenced on Schedule 2.9 or (ii) for warranties the
breach of which would not have a Material Adverse Effect.
2.10. CUSTOMERS AND SUPPLIERS
-----------------------
No member of the CEAc Group has received written notice pursuant to which
any of the ten largest customers and/or suppliers of the CEAc Group has
disclosed its intention, to cease or substantially reduce its commercial
relationship with such member of the CEAc Group, including, without limitation,
as a result of the transfer of the Shares to the Buyer or its designees.
2.11. INSOLVENCY
----------
(a) No receiver has been appointed to manage any of the properties, assets
or business of the CEAc Group; and
(b) No request or declaration has been made with a view to judicial
reorganization, judicial liquidation or dissolution of any member of the CEAc
Group and no member of the CEAc Group is subject to (nor has it been threatened
in writing with) any judicial or administrative proceedings to such effect.
<PAGE>
17.
2.12. LITIGATION
----------
Except as referenced on Schedule 2.12 and except in each case for matters
that have not had and, if adversely determined, would not have a Material
Adverse Effect: (i) none of CEAc or any of the Subsidiaries is a party to any
pending litigation or investigation as plaintiff or defendant, whether before
the ordinary courts or before administrative or other courts or arbitrators and,
to Fiat's best knowledge, no such litigation or investigation has been
threatened in writing by or against CEAc or any of the Subsidiaries; and (ii)
none of CEAc or any of the Subsidiaries is now subject to any judgment, order,
decree, ruling or injunction of any court, arbitrator or other judicial
authority or regulatory authority.
2.13. EMPLOYEE MATTERS
----------------
(a) Except as referenced on Schedule 2.13(a), there is no material labor
strike, dispute or negotiation or material work slowdown or stoppage actually
pending against CEAc or any of the Subsidiaries.
(b) Schedule 2.13(b) lists all collective bargaining agreements or similar
agreements involving employees by which CEAc or any of the Subsidiaries is
bound. Except as referenced on Schedule 2.13(a), no other agreement of similar
type is currently being negotiated. Each of CEAc and the Subsidiaries is and
has been in compliance in all material respects with such collective bargaining
agreements.
(c) Except as referenced on Schedule 2.13(c)(A), none of CEAc or any of
the Subsidiaries has failed to apply any mandatory Benefit Plan nor has adopted
any non-mandatory Benefit Plan. Except as referenced on Schedule 2.13(c)(B), all
of the Benefit Plans of the CEAc Group companies are fully funded.
(d) Except as referenced on Schedule 2.13(d), no payments of salary,
pension, bonuses or other compensation of any nature have been made or
authorized since December 31, 1993 to any officers, directors, former directors
or shareholders of CEAc or any Subsidiary except in the ordinary course of
business. Except as referenced on Schedule 2.13(d), no member of the CEAc Group
has entered into any employment or other contract with any employee or director
of any member of the CEAc Group which contains provisions granting the employee
or director benefits exceeding those provided by applicable Laws or collective
bargaining agreements.
<PAGE>
18.
2.14. INSURANCE
---------
(a) Schedule 2.14 lists all insurance policies with an individual premium
in excess of $75,000 per year which are maintained by the CEAc Group with
respect to their business, property and assets, or directors and employees. No
member of the CEAc Group is in default with respect to the payment of any
premiums under any such insurance policies, except for such defaults as would
not have a Material Adverse Effect.
(b) The insurance policies referenced on Schedule 2.14 are in full force
and effect and, to Fiat's best knowledge, no member of the CEAc Group has
received any notice of cancellation of any such insurance policy except that
substantially all of such insurance policies will terminate or become terminable
at such time as the CEAc Group ceases to be affiliated with Fiat.
(c) The CEAc Group carries insurance of the kind and in the amounts and
scope of coverage consistent with the insurance carried by members of the Fiat
Group engaged in similar businesses.
(d) Except as referenced on Schedule 2.14, no insurer has refused to cover
any material claim made against CEAc and/or the Subsidiaries relating to their
business as of the date of this Agreement.
2.15. TAXES AND SOCIAL SECURITY
-------------------------
Except, in each case, as referenced on Schedule 2.15 and for matters that
would not have a Material Adverse Effect:
(a) Each member of the CEAc Group has filed or caused to be filed, within
the requisite times and within the manner prescribed by Law, all Tax returns,
reports, computations, notices and information which are or have been required
to be filed by it. Such returns and reports reflect accurately all liability
for Taxes of such member of the CEAc Group for the periods covered thereby. The
1993 tax returns of each member of the CEAc Group accurately reflect, and the
1994 tax returns filed before the Closing Date, when filed will accurately
reflect, for tax purposes, the losses, if any, for such member for such year.
(b) All Taxes payable by or due from any member of the CEAc Group prior to
the date hereof have been fully and timely paid or adequately provided for in
the books and records of such company and/or the 1993 Consolidated
<PAGE>
19.
Financial Statements, and no interest or penalties are accrued with respect
thereto.
(c) There are no pending Tax examinations or Tax claims asserted, in any
jurisdiction, against any member of the CEAc Group.
(d) None of CEAc or any of the Subsidiaries is part of any tax
consolidation scheme.
2.16. AUTHORIZATIONS
--------------
Except, in each case, as referenced on Schedule 2.16 and for matters that
would not have a Material Adverse Effect: (i) each member of the CEAc Group has
all Authorizations necessary to carry on its business and operations as
currently conducted and to own its assets, (ii) all of such Authorizations are
valid and in full force and effect, and (iii) no member of the CEAc Group is in
default, nor, to Fiat's best knowledge, has it received any notice of any claim
of default with respect to any such Authorization and (iv) to Fiat's best
knowledge, no notice of any material modification, challenge or revocation in
respect of any Authorization has been received by any member of the CEAc Group.
2.17. COMPLIANCE WITH LAWS
--------------------
Except as referenced on Schedule 2.17 and except for instances of non-
compliance that would not have a Material Adverse Effect, the CEAc Group is
currently conducting (and to extent that past non-compliance would result in a
current or future Liability, has conducted) its business in compliance with all
applicable Laws of each jurisdiction in which such business is carried on and,
with respect only to each member of the CEAc Group which has fully implemented
the Fiat Code of Conduct, such member has taken all of the necessary steps to
implement such Code in accordance with Fiat's procedures and Fiat has no actual
knowledge of any failure to comply with such Code by any of the persons who have
agreed to be bound by it.
2.18. NO BROKERS
----------
All negotiations relating to this Agreement, the Stock Purchase Agreement
and the transactions contemplated hereby and thereby have been carried on
without the intervention of any person acting on behalf of Fiat or SICIND in
such a manner as to give rise to any valid claim against the Buyer or CEAc for
any brokerage or finder's commission, fee or similar compensation.
<PAGE>
20.
2.19. BANK ACCOUNTS AND POWERS OF ATTORNEY
------------------------------------
Schedule 2.19 is a correct and complete list as of the date of this
Agreement showing the name of each bank in which CEAc or any of the Subsidiaries
has an account or safe deposit box and the names of all persons authorized to
draw thereon or to have access thereto and the names of any Persons holding
powers of attorney from CEAc or any Subsidiary.
2.20. DOCUMENTS
---------
All of the documents listed on the Data Room Index attached hereto as
Schedule 2.20 were furnished to the Buyer in good faith and not with the purpose
of misleading the Buyer, and except for documents prepared at the Buyer's
request or with its knowledge, were prepared in the ordinary course of business
of the Fiat Group and/or the CEAc Group.
ARTICLE 3
COVENANTS OF FIAT
-----------------
3.1. NEGATIVE COVENANTS
------------------
Except as specifically contemplated by this Agreement or the Stock Purchase
Agreement or as set forth on Schedule 3.1 or as otherwise expressly consented to
by Buyer in writing (which consent shall not be unreasonably withheld and shall
be deemed to have been given unless notice to the contrary is given to Fiat
within 15 days after the receipt of a written request for consent), Fiat
covenants to the Buyer that from January 1, 1995 until the Closing:
(a) each member of the CEAc Group will conduct its business and operations
only in the ordinary course and consistent with past practices without
change of policy or procedure, including without limitation their
respective practices in connection with the treatment of expenses,
burdens, valuation of inventory, selling and purchasing policies and
accounting policies;
(b) no member of the CEAc Group will, except in the ordinary course of
business, make any loans, advances or capital contributions to, or
investment in the equity capital of, any other person;
(c) no member of the CEAc Group will increase the compensation (including
wages, salaries or bonuses) of any of its officers, directors,
<PAGE>
21.
executives or employees, except for such increases as are required by
Law or by collective labor agreements and for increases in accordance
with normal practices of the CEAc Group;
(d) no member of the CEAc Group will, except for sales of goods produced
and held for sale and otherwise in the ordinary course of business and
consistent with past practice, sell, transfer, or otherwise dispose of
any properties or assets (real, personal or mixed) for a purchase
price which individually exceeds $100,000 or in the aggregate exceeds
$1 million;
(e) no member of the CEAc Group will make any capital expenditure,
addition or improvement, except those made in the ordinary course of
business and consistent with past practice and capital expenditures,
additions and improvements which are either provided for in the Budget
for 1995 previously furnished to the Buyer or whose cost does not
exceed, in the aggregate, $1 million;
(f) no member of the CEAc Group will pay any dividend or allow any other
equity withdrawal or make any bonus or profit sharing distribution or
similar payment to its shareholders;
(g) no member of the CEAc Group will, except in the ordinary course of
business and consistent with past practice or as required to fund
capital expenditures, additions and improvements provided for in the
Budget for 1995, incur any indebtedness for borrowed money which
individually exceeds $500,000 or in the aggregate exceeds $3 million;
(h) no member of the CEAc Group will permit any of its material properties
or assets to be subjected to any material Liens (other than Permitted
Encumbrances), other than in the ordinary course of business and
consistent with past practice;
(i) no member of the CEAc Group will terminate any Material Contract or
waive any material claim or right thereunder or any material claim not
arising under a Contract, except in each case in the ordinary course
of business and consistent with past practice;
(j) no member of the CEAc Group will issue any shares in its capital or
other Securities;
<PAGE>
22.
(k) no member of the CEAc Group will cancel or reduce any of the insurance
policies listed on Schedule 2.14; and
(l) no member of the CEAc Group will agree, whether or not in writing, to
do any of the foregoing.
3.2. AFFIRMATIVE COVENANTS
---------------------
Except as specifically contemplated by this Agreement or the Stock Purchase
Agreement or set forth on Schedule 3.2 or as otherwise expressly consented to by
Buyer in writing (which consent shall not be unreasonably withheld), Fiat
undertakes that each member of the CEAc Group will use its reasonable efforts,
in the ordinary course of business and consistent with past practice, to:
(a) maintain adequate levels of inventories to carry on its business in
the ordinary course and consistent with past practice;
(b) maintain the services of its employees;
(c) maintain relations and goodwill with its suppliers, customers and
distributors;
(d) preserve the possession and control of its properties and assets;
(e) preserve the confidentiality of its confidential or proprietary
information; and
(f) pay and discharge its liabilities and collect its account receivables
in the ordinary course of business.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BUYER
------------------------------------------------------
The Buyer represents, warrants and covenants to Fiat as follows. Each of
the following representations and warranties are made as of the date hereof and
shall also be deemed to be repeated at and as of the Closing Date, except for
(a) representations and warranties made as of a specified date or for a
specified period or (b) to the extent affected by any action taken after the
date hereof in accordance with the terms of this Agreement or the Stock Purchase
Agreement or with the prior written consent of Fiat.
<PAGE>
23.
4.1. DUE INCORPORATION; AUTHORIZATION
--------------------------------
(a) The Buyer is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and has full corporate
power and authority to execute and deliver this Agreement and the Stock Purchase
Agreement, to perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the Stock Purchase
Agreement and the consummation of the transactions contemplated hereby and
thereby have been duly authorized and approved by all requisite corporate and
shareholder action on the part of the Buyer and do not (and would not with the
giving of notice or the lapse of time or both) result in a violation or a breach
of, or a default under, or give rise to a right of termination, amendment or
cancellation or the acceleration of any obligation under: (i) the certificate of
incorporation or by-laws of the Buyer; (ii) any material contracts or
instruments to which the Buyer is a party or by which the Buyer is bound; or
(iii) any Laws applicable to the Buyer; except in each case for any such matters
that would not, either individually or in the aggregate, have a material adverse
effect on the ability of the Buyer to perform its obligations under this
Agreement and the Stock Purchase Agreement. This Agreement and the Stock
Purchase Agreement constitute valid and legally binding obligations of the Buyer
enforceable against the Buyer in accordance with their terms.
4.2. CONSENTS AND APPROVALS
----------------------
Except as referenced on Schedule 4.2 and except as contemplated under
Articles 6.1.1 and 6.1.2 of the Stock Purchase Agreement, no consent, approval
or authorization of, or registration, declaration or filing with, any
Governmental Authority or labor body is required to be obtained or made by or on
behalf of the Buyer (or any subsidiary designated by the Buyer to purchase the
Shares) in connection with the execution and delivery of this Agreement and the
Stock Purchase Agreement or the consummation of its purchase of the Shares or
any other transaction contemplated hereby and thereby.
4.3. NO BROKERS
----------
All negotiations relating to this Agreement, the Stock Purchase Agreement
and the transactions contemplated hereby and thereby have been carried on
without the intervention of any person acting on behalf of the Buyer in such
manner as to give rise to any valid claim against Fiat or SICIND for
<PAGE>
24.
any brokerage or finder's commission, fee or similar compensation.
4.4. FINANCING
---------
The Buyer has entered into definitive financing agreements which will
provide the Buyer, no later than the Closing Date, with funds sufficient to
enable the Buyer to purchase the Shares for the Purchase Price and otherwise to
make all payments called for, and to consummate the transactions contemplated by
this Agreement and the Stock Purchase Agreement. Complete copies of such
definitive financing agreements have been delivered to Fiat. The Buyer will use
its best efforts to ensure the disbursement of funds under such financing
agreements on or prior to the Closing Date.
ARTICLE 5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
------------------------------------------
Any claim for indemnification under Article 6 must be made by the Party
claiming indemnification prior to the termination of the following periods:
(i) any claim for indemnification arising out of the breach of the
representations contained in Article 2.15 hereof must be made before the
expiration of a period equal to the applicable statute of limitations provided
by Law plus one (1) month; and
(ii) any other claim for indemnification of any nature must be made before
the date that is 30 months after the Closing Date.
Each representation or warranty in this Agreement and the Stock Purchase
Agreement shall survive the Closing for the applicable indemnification period
set forth above and shall thereafter expire and be of no further force and
effect.
ARTICLE 6
INDEMNIFICATION
---------------
6.1. INDEMNIFICATION BY FIAT
-----------------------
From and after the Closing and subject to the provisions of Article 5 and
this Article 6, Fiat agrees to indemnify, defend and hold harmless the Buyer
from and against all Losses suffered or incurred by the Buyer as a result of or
arising from or in connection with:
<PAGE>
25.
(a) any breach or inaccuracy of any representation or warranty of Fiat
contained in this Agreement or the Stock Purchase Agreement; or
(b) any material breach or non-performance by Fiat or SICIND of any
covenant made by, or undertaking to be performed by, it contained in
this Agreement or the Stock Purchase Agreement.
6.2. INDEMNIFICATION BY THE BUYER
----------------------------
From and after the Closing and subject to the provisions of Article 5 and
this Article 6, the Buyer agrees to indemnify, defend and hold harmless Fiat
from and against all Losses suffered or incurred by Fiat as a result of or
arising from or in connection with:
(a) any breach or inaccuracy of any representation or warranty of the
Buyer contained in this Agreement or the Stock Purchase Agreement; or
(b) any material breach or non-performance by the Buyer (or any designee
of the Buyer) of any covenant made by, or undertaking to be performed
by, it contained in this Agreement or the Stock Purchase Agreement.
6.3. DETERMINATION OF LOSSES
-----------------------
For purposes of this Article 6, "LOSS" or "LOSSES" means any liability,
damage, penalty, judgment, assessment, loss, cost or expense, grossed-up for the
payment of any tax on the indemnity received by the Indemnified Party under this
Article 6 and reduced by the amount of any benefit whatsoever obtained or to be
obtained by the Indemnified Party as a result of, or in connection with, the
fact or event giving rise to such Loss, including, without limitation, any tax
benefit, saving or refund (whether by creation of a deductible charge or
otherwise), any proceeds under any insurance policy or plan.
Without limiting the foregoing, it is expressly acknowledged that no Loss
resulting from a matter involving a Subsidiary that is not wholly-owned by CEAc
shall exceed an amount equal to the product of (x) the percentage of the share
capital of such Subsidiary owned by CEAc (except if the ownership of shares in
such Subsidiary carries unlimited liability on the part of the shareholders, in
which case the percentage shall be 100%) and (y) the liability, damage, penalty,
judgment, assessment, loss, cost or expense resulting in an out-of-pocket
payment suffered or incurred by such Subsidiary, regardless of the manner in
which the
<PAGE>
26.
shares in, and assets and liabilities of, such Subsidiary are reflected in
CEAc's accounts.
6.4. LIMITATIONS ON INDEMNITY
------------------------
The maximum aggregate amount of Losses against which the Buyer shall be
entitled to be indemnified under Article 6.1 with respect to any and all claims
thereunder shall be $100 million.
6.5. REMEDY EXCLUSIVE
----------------
From and after the Closing, the indemnification provided in this Article 6
shall be the sole and exclusive remedy (to the exclusion of any other remedies
provided by Law or otherwise; provided, however, that nothing in this Article
-------- -------
6.5 shall be deemed to waive any claim or cause of action the Buyer may have for
a fraud (dol, reticence dolosive, manquement aux obligations precontractuelles
etc.)), of each of the Parties in respect of any breach of any representation,
warranty, covenant or agreement of the other Party under this Agreement or the
Stock Purchase Agreement.
6.6. NOTICE OF CLAIMS
----------------
In the event that a Party entitled to indemnification under Article 6.1 or
6.2 (an "INDEMNIFIED PARTY") shall become aware of any claim, proceeding or
matter in respect of which it believes the other Party (an "INDEMNIFYING PARTY")
has an obligation to indemnify the Indemnified Party pursuant to this Article 6,
the Indemnified Party shall give written notice thereof (a "CLAIM NOTICE") to
the Indemnifying Party as soon as practicable after the Indemnified Party first
becomes aware of such claim, proceeding or matter; provided, however, that any
-------- -------
failure to give such notice will not waive any rights of the Indemnified Party
except to the extent that the rights of the Indemnifying Party are actually
prejudiced. The Claim Notice shall specify whether the claim for
indemnification arises as a result of a claim by a third-party against the
Indemnified Party (a "THIRD PARTY CLAIM") or whether the subject claim for
indemnification does not involve a Third Party Claim (a "DIRECT CLAIM"), and
shall also specify and document with reasonable particularity the factual basis
for the claim and the amount or estimated amount of such claim (which estimate
shall not be conclusive of the final amount of such claim).
<PAGE>
27.
6.7. DIRECT CLAIMS
-------------
With respect to any Direct Claim, the Indemnifying Party shall have 90 days
following its receipt of the relevant Claim Notice to make such investigation of
the underlying claim as it considers necessary or desirable. If the Parties
agree, on or prior to the expiration of such 90-day period (or any mutually
agreed upon extension thereof), upon the validity and amount of such claim, the
Indemnifying Party shall pay to the Indemnified Party, within 15 days following
the date of such agreement, the full agreed amount of the claim. If the Parties
do not reach agreement prior to the expiration of such 90-day period, the matter
will be referred to arbitration as provided for pursuant to the provisions of
Article 10 of the Stock Purchase Agreement.
6.8. THIRD PARTY CLAIMS
------------------
In the event of a Third Party Claim, the Indemnifying Party shall have the
right to conduct the defense of the claim and may retain counsel of its choice,
reasonably acceptable to the Indemnified Party, to represent the Indemnified
Party and any others the Indemnifying Party may reasonably designate in
connection with such claim and shall pay the fees and disbursements of such
counsel with regard thereto. If requested by the Indemnifying Party, the
Indemnified Party agrees to cooperate with the Indemnifying Party and its
counsel in contesting any claim or demand which the Indemnifying Party defends,
or, if appropriate and related to the claim in question, in making any
counterclaim against the person asserting the Third Party Claim, or any cross-
complaint against any person. The Indemnified Party may assist, at its expense,
in the defense against any Third Party Claim with counsel of its choice,
reasonably acceptable to the Indemnifying Party. The Indemnifying Party shall
afford the Indemnified Party and its counsel the opportunity to comment and the
right to object (which right shall not be unreasonably exercised) with respect
to the conduct of the defense of the claim and shall keep the Indemnified Party
fully informed of the development of such claim. No claim or demand may be
settled without the consent of the Indemnifying Party.
6.9. ACCESS
------
From and after the delivery of a Claim Notice hereunder, at the reasonable
request of the Indemnifying Party, the Indemnified Party shall grant the
Indemnifying Party and its representatives all reasonable information to
<PAGE>
28.
the extent reasonably related to the matters to which the Claim Notice relates.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by officers duly authorized thereunto as of the date first above
written.
FIAT SpA EXIDE CORPORATION
/s/ Umberto Quadrino
- --------------------- ______________________
By: By:
Name: Umberto Quadrino Name:
Title: Executive Vice President Title:
<PAGE>
28.
the extent reasonably related to the matters to which the Claim Notice relates.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by officers duly authorized thereunto as of the date first above
written.
FIAT SpA EXIDE CORPORATION
/s/ Arthur Hawkins
_____________________ ----------------------
By: By:
Name: Name: Arthur Hawkins
Title: Title: PRESIDENT: CEO
<PAGE>
EXHIBIT 99.1
FOR REFERENCE PURPOSES ONLY
---------------------------
[Composite Copy reflecting the First Amendment, dated as of October 21, 1994,
the Waiver, dated as of September 29, 1994, the Second Consent, Waiver and
Agreement, dated as of December 9, 1994, the Third Amendment, dated as of
February 3, 1995, the Consent and Waiver, dated as of February 21, 1995, the
Fourth Amendment, dated as of March 6, 1995, the Waiver, dated as of March 31,
1995, the Fifth Amendment and Consent, dated as of April 18, 1995, the Sixth
Amendment and Consent, dated as of April 21, 1995 and the Seventh Amendment and
Consent, dated as of April 24, 1995]
CREDIT AGREEMENT
among
EXIDE CORPORATION,
VARIOUS BANKS,
and
BANKERS TRUST COMPANY,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
and
BANK OF MONTREAL,
as AGENTS
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
__________________________________
Dated as of August 30, 1994
__________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. Amount and Terms of Credit................... 1
1.01 The Commitments.............................. 1
1.02 Minimum Amount of Each Borrowing............. 5
1.03 Notice of Borrowing.......................... 5
1.04 Disbursement of Funds........................ 6
1.05 Notes........................................ 7
1.06 Conversions.................................. 9
1.07 Pro Rata Borrowings.......................... 9
1.08 Interest..................................... 10
1.09 Interest Periods............................. 10
1.10 Increased Costs, Illegality, etc............. 12
1.11 Compensation................................. 14
1.12 Change of Lending Office..................... 14
1.13 Replacement of Banks......................... 14
SECTION 2. Letters of Credit; Bank Guarantees........... 16
2.01 Letters of Credit; Bank Guarantees........... 16
2.02 Minimum Stated Amount........................ 21
2.03 Letter of Credit Requests.................... 21
2.04 Letter of Credit Participations.............. 22
2.05 Agreement to Repay Letter of Credit Drawings. 26
2.06 Increased Costs.............................. 27
SECTION 3. Commitment Commission; Fees; Reductions
of Commitment.............................. 28
3.01 Fees......................................... 28
3.02 Voluntary Termination of Unutilized
Commitments................................ 29
3.03 Mandatory Reduction of Commitments........... 30
SECTION 4. Prepayments; Payments; Taxes................. 34
4.01 Voluntary Prepayments........................ 34
4.02 Mandatory Repayments; Cash Collateralizations
and Commitment Reductions.................. 36
4.03 Method and Place of Payment.................. 50
4.04 Net Payments................................. 50
SECTION 5. Conditions Precedent to Initial Credit Events 52
5.01 Execution of Agreement; Notes................ 52
5.02 Officer's Certificate........................ 52
(i)
<PAGE>
Page
----
5.03 Opinions of Counsel.......................... 53
5.04 Corporate Documents; Proceedings; etc........ 53
5.05 Employee Benefit Plans; Shareholders'
Agreements; Management Agreements;
Collective Bargaining Agreements;
Debt Agreements; Tax Sharing Agreements.... 54
5.06 Adverse Change, etc.......................... 55
5.07 Litigation................................... 55
5.08 Acquisition Documents and Initial Tender
Offer Documents............................ 55
5.09 Existing Indebtedness........................ 56
5.10 Repayment and Termination of the Existing
Chemical Credit Agreement.................. 56
5.11 Guaranty..................................... 57
5.12 Pledge Agreements............................ 58
5.13 Security Agreement........................... 58
5.14 Mortgages; Title Insurance; Surveys; etc..... 58
5.15 Projections; Pro Forma Financial Statements;
Accountants' Certificates.................. 59
5.16 Solvency Certificate; Environmental Analyses;
Insurance Analyses......................... 60
5.17 Consent Letter............................... 61
5.18 Anti-Takeover Laws........................... 61
5.19 Fees, etc.................................... 61
5.20 Notices to Holders of Certain Indebtedness... 61
5.21 Subrogation Rights Agreement................. 62
5.22 Amendment to Purchase Agreement.............. 62
SECTION 6. Conditions Precedent to Issuance of Secondary
Tender Offer Credit Support................ 62
6.01 Secondary Tender Offer Filing Date........... 62
6.02 Secondary Tender Offer Maximum Offered
Consideration.............................. 62
6.03 Liquidity.................................... 62
6.04 Treasury Stock Repurchase.................... 63
6.05 Secondary Tender Offer Documents............. 63
6.06 Further Assurances........................... 63
6.07 Governmental Approvals....................... 63
6.08 Litigation................................... 63
6.09 Anti-Takeover Laws........................... 64
SECTION 6A. Conditions Precedent To CEAc
Acquisition Date........................... 64
6A.01. Execution of Third, Fourth and Fifth
Amendments............................... 64
6A.02. Officer's Certificate...................... 64
6A.03. Opinions of Counsel........................ 64
6A.04. Corporate Documents; Proceedings; etc...... 65
6A.05 Due Diligence Reports...................... 65
(ii)
<PAGE>
Page
----
6A.06 Adverse Change, etc......................... 65
6A.07 Litigation.................................. 66
6A.08 Acquisition Documents....................... 66
6A.09 CEAc Indebtedness........................... 67
6A.10 Proceeds from the Subject Shares Issuance... 68
6A.11 2005 Senior Unsecured Note Issuance;
Escrow Release............................ 68
6A.12 Security Documents.......................... 69
6A.13 Financial Statements; Projections;
Pro Forma Financial Statements;
Accountants' Certificates................. 69
6A.14 Solvency Certificate; Environmental
Analyses; Insurance Analyses.............. 71
6A.15 Divestitures and/or Limitations;
Competition Authority Approvals........... 71
6A.16 Anti-Takeover Laws.......................... 74
6A.17 Fees, etc................................... 74
6A.18 Notices to Holders of Certain Indebtedness.. 74
6A.19 Schedules................................... 74
6A.20 CEAc Acquisition Amount; CEAc Refinancing
Amount.................................... 75
SECTION 7. Conditions Precedent to All Credit Events.... 75
7.01 No Default; Representations and Warranties... 75
7.02 Notice of Borrowing; Letter of
Credit Request; Etc........................ 75
7.03 Compliance with Indentures................... 76
SECTION 8. Representations, Warranties and Agreements... 76
8.01 Corporate Status............................. 77
8.02 Corporate Power and Authority................ 77
8.03 No Violation................................. 77
8.04 Governmental Approvals....................... 78
8.05 Financial Statements; Financial Condition;
Undisclosed Liabilities; Projections; etc.. 78
8.06 Litigation................................... 80
8.07 True and Complete Disclosure................. 80
8.08 Use of Proceeds; Margin Regulations.......... 81
8.09 Tax Returns and Payments..................... 81
8.10 Compliance with ERISA........................ 82
8.11 The Security Documents....................... 83
8.12 Representations and Warranties in Documents.. 83
8.13 Properties................................... 84
8.14 Capitalization............................... 84
8.15 Subsidiaries................................. 85
8.16 Compliance with Statutes, etc................ 85
8.17 Investment Company Act....................... 85
(iii)
<PAGE>
Page
----
8.18 Public Utility Holding Company Act........... 85
8.19 Environmental Matters........................ 86
8.20 Labor Relations.............................. 87
8.21 Patents, Licenses, Franchises and Formulas... 87
8.22 Indebtedness................................. 88
8.23 Tender Offers................................ 88
8.24 Treatment of Credit Agreement under
Indentures................................. 89
8.25 Restrictions on Subsidiaries................. 89
8.26 CEAc Acquisition............................. 89
SECTION 9. Affirmative Covenants........................ 90
9.01 Information Covenants........................ 90
9.02 Books, Records and Inspections............... 95
9.04 Corporate Franchises......................... 96
9.05 Compliance with Statutes, etc................ 96
9.06 Compliance with Environmental Laws........... 97
9.07 ERISA........................................ 98
9.08 End of Fiscal Years; Fiscal Quarters......... 98
9.09 Performance of Obligations................... 98
9.10 Payment of Taxes............................. 99
9.11 Additional Security; Further Assurances;
Surveys; etc............................... 99
9.12 Foreign Subsidiaries Security................101
9.13 UCC Searches.................................102
9.14 Currency Hedging Agreements; Interest
Rate Protection............................102
9.15 Permitted Acquisitions.......................103
9.16 Tender Offers................................105
9.17 Treasury Stock Repurchase....................105
9.18 Termination of Tender Offers.................106
9.19 Ownership of Subsidiaries....................106
9.20 New Domestic Wholly-Owned Subsidiaries.......107
9.21 Tudor Guaranty...............................108
SECTION 10. Negative Covenants.........................108
10.01 Liens.......................................108
10.02 Consolidation, Merger, Purchase or Sale of
Assets, etc...............................110
10.03 Dividends...................................113
10.04 Business....................................114
10.05 Indebtedness................................115
10.06 Advances, Investments and Loans.............119
10.07 Transactions with Affiliates................122
10.08 Capital Expenditures........................122
10.09 Consolidated Fixed Charge Coverage Ratio....124
(iv)
<PAGE>
Page
----
10.10 Minimum Consolidated EBITDA.................125
10.11 Maximum Leverage Ratio......................127
10.12 Limitation on Modifications of Indebtedness;
Modifications of Certificate of
Incorporation, By-Laws and Certain Other
Agreements; etc...........................129
10.13 Limitation on Certain Restrictions on
Subsidiaries..............................130
10.14 Limitation on Issuances of Capital Stock....131
10.15 Certain Sale-Leaseback Transactions.........131
10.16 Limitation on Creation of Subsidiaries......131
10.17 Initial Tender Offer........................132
10.18 Secondary Tender Offer......................133
10.19 Section 4.3(a)(i) Indebtedness..............133
SECTION 11. Events of Default..........................133
11.01 Payments....................................133
11.02 Representations, etc........................134
11.03 Covenants...................................134
11.04 Default Under Other Agreements..............134
11.05 Bankruptcy, etc.............................134
11.06 ERISA.......................................135
11.07 Security Documents..........................135
11.08 Guarantees..................................136
11.09 Judgments...................................136
11.10 Change of Control...........................136
11.11 Receivables Facility........................136
SECTION 12. Definitions and Accounting Terms...........137
12.01 Defined Terms...............................137
SECTION 13. The Agents.................................190
13.01 Appointment.................................190
13.02 Nature of Duties............................190
13.03 Lack of Reliance on the Agent...............190
13.04 Certain Rights of the Agents................191
13.05 Reliance....................................191
13.06 Indemnification.............................191
13.07 The Agents in their Individual Capacities...191
13.08 Holders.....................................192
13.09 Resignation by the Agents...................192
SECTION 14. Miscellaneous..............................193
14.01 Payment of Expenses, etc....................193
(v)
<PAGE>
Page
----
14.02 Right of Setoff.............................194
14.03 Notices.....................................194
14.04 Benefit of Agreement........................195
14.05 No Waiver; Remedies Cumulative..............196
14.06 Payments Pro Rata...........................197
14.07 Calculations; Computations..................197
14.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL...............198
14.09 Counterparts................................199
14.10 Effectiveness...............................199
14.11 Headings Descriptive........................199
14.12 Amendment or Waiver; etc....................199
14.13 Survival....................................201
14.14 Domicile of Loans...........................201
14.15 Register....................................202
14.16 Confidentiality.............................202
14.17 Entitlement of Obligations to Restricted
and Unrestricted Collateral...............203
14.18 Obligation to Make Payments in Dollars......204
14.19 Post-Closing Actions........................204
14.20 Agreement by Signatories to Fourth
Amendment for Benefit of Tranche C Banks..206
(vi)
<PAGE>
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Subsidiaries
SCHEDULE V Environmental Matters
SCHEDULE VI Existing Indebtedness
SCHEDULE VII Certain Restrictions on Subsidiaries
SCHEDULE VIII Insurance
SCHEDULE IX Existing Liens
SCHEDULE X Existing Investments
SCHEDULE XI Government Approvals
SCHEDULE XII CEAc Government Approvals
SCHEDULE XIII Real Property (including CEAc and its Subsidiaries)
SCHEDULE XIV Subsidiaries (including CEAc and its Subsidiaries)
SCHEDULE XV CEAc Environmental Matters
SCHEDULE XVI CEAc Existing Indebtedness
SCHEDULE XVII CEAc Restrictions on Subsidiaries
SCHEDULE XVIII CEAc Insurance
SCHEDULE XIX CEAc Existing Liens
SCHEDULE XX CEAc Existing Investments
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Tranche A Term Note
EXHIBIT B-2 Tranche B Term Note
EXHIBIT B-3 Revolving Note
EXHIBIT B-4 Swingline Note
EXHIBIT B-5 Tranche C Term Note
EXHIBIT C-1 Tender Offer Credit Support
EXHIBIT C-2 Treasury Stock Letter of Credit
EXHIBIT C-3 Tudor Convertible Bond Letter of Credit
EXHIBIT C-4 Banesto Letter of Credit (Direct Indebtedness)
EXHIBIT C-5 Banesto Letter of Credit (Guarantee)
EXHIBIT C-6 Secondary Tender Offer Credit Support
EXHIBIT D Letter of Credit Request
EXHIBIT E Section 4.04(b)(ii) Certificate
EXHIBIT F-1 Opinion of Kirkland & Ellis
EXHIBIT F-2 Opinion of J&A Garrigues
EXHIBIT F-3 Opinion of Counsel to the Seller and Banesto
EXHIBIT G Officers' Certificate
EXHIBIT H-1 Domestic Subsidiaries Guaranty
EXHIBIT H-2 Tudor Guaranty
EXHIBIT I-1 Initial Pledge Agreement
(vii)
<PAGE>
EXHIBIT I-2 First Amendment to Initial Pledge Agreement
EXHIBIT J Security Agreement
EXHIBIT K Solvency Certificate
EXHIBIT L Consent Letter
EXHIBIT M Subrogation Rights Agreement
EXHIBIT N Intercompany Note
EXHIBIT O Subordination Provisions
EXHIBIT P Assignment and Assumption Agreement
(viii)
<PAGE>
CREDIT AGREEMENT, dated as of August 30, 1994, among EXIDE
CORPORATION, a Delaware corporation (the "Company"), the BANKS party hereto
from time to time, BANKERS TRUST COMPANY, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION and BANK OF MONTREAL, as Agents, and BANKERS TRUST
COMPANY, as Administrative Agent (all capitalized terms used herein and
defined in Section 12 are used herein as therein defined).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Banks are willing to make available to the Company the respective
credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
--------------------------
1.01 The Commitments. (a) Subject to and upon the terms and
---------------
conditions set forth herein, each Bank with a Tranche A Term Loan Commitment
severally agrees to make a loan or loans (each, a "Tranche A Term Loan" and,
collectively, the "Tranche A Term Loans") to the Company, which Tranche A
Term Loans:
(i) may be incurred by the Company (x) on the Initial Borrowing
Date and (y) on a single date occurring on, or within 10 days after, the
Initial Tender Offer Date (each date upon which Tranche A Term Loans are
made being herein called a "Tranche A Term Loan Borrowing Date");
(ii) made on either Tranche A Term Loan Borrowing Date, shall
be made and initially maintained as a Borrowing of Base Rate Loans
(subject to the option to convert such Tranche A Term Loans pursuant to
Section 1.06); and
(iii) made on either Tranche A Term Loan Borrowing Date, shall
not exceed for any Bank, in initial principal amount for the Tranche A
Term Loans being made by such Bank on such date, that amount which
equals the Tranche A Term Loan Commitment of such Bank as in effect on
such date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(b)(i) or (ii) but after giving effect to any
reductions thereto on or prior to such date pursuant to Section
3.03(b)(iii)).
<PAGE>
Once repaid, Tranche A Term Loans incurred hereunder may not be reborrowed.
Notwithstanding anything to the contrary contained in this Agreement,
Revolving Loans shall not be permitted to be incurred after the Initial
Tender Offer Date unless the full amount of the Total Tranche A Term Loan
Commitment as in effect on the Initial Tender Offer Date has been utilized
through the incurrence of Tranche A Term Loans to finance the payments owing
pursuant to the Initial Tender Offer.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank with a Tranche B Term Loan Commitment severally agrees to make, on
the Initial Borrowing Date, a term loan (each, a "Tranche B Term Loan" and,
collectively, the "Tranche B Term Loans") to the Company, which Tranche B
Term Loans (i) shall be made and initially maintained as a single Borrowing
of Base Rate Loans (subject to the option to convert such Tranche B Term
Loans pursuant to Section 1.06) and (ii) shall be made by each Bank in that
initial aggregate principal amount as is equal to the Tranche B Term Loan
Commitment of such Bank on the Initial Borrowing Date (before giving effect
to any reductions thereto on such date pursuant to Section 3.03(c)(i) but
after giving effect to any reductions thereto on or prior to such date
pursuant to Section 3.03(c)(ii)). Once repaid, Tranche B Term Loans incurred
hereunder may not be reborrowed. Notwithstanding anything to the contrary
contained in this Agreement, on the Initial Borrowing Date the Company shall
be required to utilize in full the Total Tranche B Term Loan Commitment
through the incurrence of Tranche B Term Loans prior to the incurrence of any
Tranche A Term Loan or Revolving Loan.
(c) Subject to and upon the terms and conditions set forth herein
(including without limitation the last sentence of Section 1.01(a)), each
Bank with a Revolving Loan Commitment severally agrees, at any time and from
time to time on and after the Initial Borrowing Date and prior to the
Revolving Loan Maturity Date, to make a revolving loan or revolving loans
(each, a "Revolving Loan" and, collectively, the "Revolving Loans") to the
Company, which Revolving Loans:
(i) shall, at the option of the Company, be incurred and
maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that (A) except as otherwise specifically provided in
--------
Section 1.10(b), all Revolving Loans comprising the same Borrowing shall
at all times be of the same Type and (B) no Revolving Loans maintained
as Eurodollar Loans may be incurred (including as a result of a
conversion) prior to the Syndication Termination Date;
(ii) may be repaid and reborrowed in accordance with the
provisions hereof; and
(iii) shall not exceed for any Bank at any time outstanding
that aggregate principal amount which, when added to the product of (x)
such Bank's Adjusted RL Percentage and (y) the sum of (I) the amount of
all Revolving Letter of Credit Outstandings (exclusive of Unpaid
Drawings which are repaid with the proceeds of, and
-2-
<PAGE>
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time, and (II) the aggregate principal amount
of all Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) then outstanding, equals the
Adjusted Available Revolving Loan Commitment of such Bank at such time.
In addition to the foregoing requirements, on the Initial Borrowing Date the
Total Unutilized Revolving Loan Commitment less the Blocked Commitment, each
determined on such date after giving effect to all Credit Events on such
date, shall be equal to or greater than an amount equal to the Minimum
Unutilized Revolving Loan Commitment.
(d) Subject to and upon the terms and conditions herein set forth,
the Swingline Bank agrees to make at any time and from time to time after the
Initial Borrowing Date and prior to the Swingline Expiry Date, a loan or
loans (each, a "Swingline Loan" and, collectively, the "Swingline Loans") to
the Company, which Swingline Loans:
(i) shall be made and maintained as Base Rate Loans;
(ii) may be repaid and reborrowed in accordance with the
provisions hereof;
(iii) shall not exceed in aggregate principal amount at any
time outstanding, when combined with the aggregate principal amount of
(x) all Revolving Loans made by Non-Defaulting Banks then outstanding
and (y) the Revolving Letter of Credit Outstandings at such time, an
amount equal to the Adjusted Total Available Revolving Loan Commitment
at such time (after giving effect to any changes thereto on such date);
and
(iv) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
The Swingline Bank shall not make any Swingline Loan after receiving a
written notice from the Company or any Bank stating that a Default or an
Event of Default exists and is continuing until such time as the Swingline
Bank shall have received written notice of (i) rescission of all such notices
from the party or parties originally delivering such notice (which notice of
rescission such Person or Persons shall give to the Swingline Bank promptly
upon the discontinuance of such Default or Event of Default), (ii) the waiver
of such Default or Event of Default by the Required Banks or (iii) the
Administrative Agent in good faith believes that such Default or Event has
ceased to exist.
(e) On any Business Day, the Swingline Bank may, in its sole
discretion, give notice to the Banks that its outstanding Swingline Loans
shall be funded with a Borrowing of Revolving Loans (provided that such
--------
notice shall be deemed to have been
-3-
<PAGE>
automatically given upon the occurrence of a Default or an Event of Default
under Section 11.05 or upon the exercise of any of the remedies provided in
the last paragraph of Section 11), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all
Banks with a Revolving Loan Commitment (without giving effect to any
reductions thereto pursuant to the last paragraph of Section 11) pro rata
--- ----
based on each Bank's Adjusted RL Percentage (determined before giving effect
to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 11) and the proceeds thereof shall be applied directly
to the Swingline Bank to repay the Swingline Bank for such outstanding
Swingline Loans. Each such Bank hereby irrevocably agrees to make Revolving
Loans upon one Business Day's notice pursuant to each Mandatory Borrowing in
the amount and in the manner specified in the preceding sentence and on the
date specified in writing by the Swingline Bank notwithstanding (i) the
amount of the Mandatory Borrowing may not comply with the minimum amount for
Borrowings otherwise required hereunder, (ii) whether any conditions
specified in Section 7 are then satisfied, (iii) whether a Default or an
Event of Default then exists, (iv) the date of such Mandatory Borrowing and
(v) the amount of the Total Available Revolving Loan Commitment or the
Adjusted Total Available Revolving Loan Commitment at such time. In the
event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Company), then each such Bank hereby agrees that it shall forthwith purchase
(as of the date the Mandatory Borrowing would otherwise have occurred, but
adjusted for any payments received from the Company on or after such date and
prior to such purchase) from the Swingline Bank such participations in the
outstanding Swingline Loans as shall be necessary to cause such Banks to
share in such Swingline Loans ratably based upon their respective Adjusted RL
Percentages (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 11),
provided that (x) all interest payable on the Swingline Loans shall be for
--------
the account of the Swingline Bank until the date as of which the respective
participation is required to be purchased and, to the extent attributable to
the purchased participation, shall be payable to the participant from and
after such date and (y) at the time any purchase of participations pursuant
to this sentence is actually made, the purchasing Bank shall be required to
pay the Swingline Bank interest on the principal amount of participation
purchased for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date of payment
for such participation, at the overnight Federal Funds Rate for the first
three days and at the rate otherwise applicable to Revolving Loans maintained
as Base Rate Loans hereunder for each day thereafter.
(f) Subject to and upon the terms and conditions set forth herein,
each Bank with a Tranche C Term Loan Commitment severally agrees to make, on
the Tranche C Term Loan Borrowing Date, a term loan (each, a "Tranche C Term
Loan" and, collectively, the "Tranche C Term Loans") to the Company, which
Tranche C Term Loans (i) shall be made and initially maintained as a single
Borrowing of Base Rate Loans (subject
-4-
<PAGE>
to the option to convert such Tranche C Term Loans pursuant to Section 1.06)
and (ii) shall be made by each Bank in that initial aggregate principal
amount as is equal to the Tranche C Term Loan Commitment of such Bank on the
Tranche C Term Loan Borrowing Date (before giving effect to any reductions
thereto on such date pursuant to Section 3.03(n) but after giving effect to
any reductions thereto on or prior to such date pursuant to Section 3.03 (o)
and (p)). Once repaid, Tranche C Term Loans incurred hereunder may not be
reborrowed./1//
1.02 Minimum Amount of Each Borrowing. The aggregate principal
--------------------------------
amount of each Borrowing of any Tranche of Term Loans shall not be less than
$10,000,000. The aggregate principal amount of each Borrowing of Revolving
Loans shall be not less than (x) in the case of a Borrowing of Eurodollar
Loans, $10,000,000 and (y) in the case of a Borrowing of Base Rate Loans,
$1,000,000, provided that Mandatory Borrowings shall be made in the amounts
--------
required by Section 1.01(e). The aggregate principal amount of each
Borrowing of Swingline Loans shall not be less than $500,000. More than one
Borrowing may occur on the same date, but at no time shall there be
outstanding more than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Company desires to
-------------------
make a Borrowing hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office at least one Business Day's prior written (or telephonic notice
promptly confirmed in writing) notice of each Base Rate Loan and at least
three Business Days' prior written (or telephonic notice promptly confirmed
in writing) notice of each Eurodollar Loan to be made hereunder, provided
--------
that any such notice shall be deemed to have been given on a certain day only
if given before 1:00 P.M. (New York time) on such day. Each such written
notice or written confirmation of telephonic notice (each a "Notice of
Borrowing"), except as otherwise expressly provided in Section 1.10, shall be
irrevocable and shall be given by the Company in the form of Exhibit A,
appropriately completed to specify the aggregate principal amount of the
Loans to be made pursuant to such Borrowing, the date of such Borrowing
(which shall be a Business Day), whether the Loans being made pursuant to
such Borrowing shall constitute Tranche A Term Loans, Tranche B Term Loans,
Tranche C Term Loans or Revolving Loans and whether the Loans being made
pursuant to such Borrowing are to be initially maintained as Base Rate Loans
or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to
be applicable thereto. The Administrative Agent shall promptly give each
Bank which is required to make Loans of the Tranche specified in the
respective Notice of Borrowing, notice of such proposed Borrowing, of such
Bank's proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
- ----------
/1// The Tranche C Term Loan Commitment was terminated on April 19, 1995.
-5-
<PAGE>
(b)(i) Whenever the Company desires to make a Borrowing of
Swingline Loans hereunder, it shall give the Swingline Bank not later than
1:00 P.M. (New York time) on the date that a Swingline Loan is to be made,
written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be made hereunder. Each such notice shall be irrevocable
and specify in each case (A) the date of Borrowing (which shall be a Business
Day) and (B) the aggregate principal amount of the Swingline Loans to be made
pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified
in Section 1.01(e), with the Company irrevocably agreeing, by its incurrence
of any Swingline Loan, to the making of the Mandatory Borrowings as set forth
in Section 1.01(e).
(c) Without in any way limiting the obligation of the Company to
confirm in writing any telephonic notice of any Borrowing of Loans, the
Administrative Agent or the Swingline Bank, as the case may be, may act
without liability upon the basis of telephonic notice of such Borrowing,
believed by the Administrative Agent or the Swingline Bank, as the case may
be, in good faith to be from the Chairman of the Board, the Chief Financial
Officer, the President, the Treasurer, any Assistant Treasurer or any
Controller of the Company (or any other officer of the Company designated in
writing to the Administrative Agent and the Swingline Bank by the Chairman of
the Board, the Chief Financial Officer, the President or the Treasurer as
being authorized to give such notices under this Agreement) prior to receipt
of written confirmation. In each such case, the Company hereby waives the
right to dispute, absent manifest error, the Administrative Agent's and the
Swingline Bank's record of the terms of such telephonic notice of such
Borrowing of Loans.
1.04 Disbursement of Funds. Except as otherwise specifically
---------------------
provided in the immediately succeeding sentence, no later than 12:00 Noon
(New York time) on the date specified in each Notice of Borrowing (or (x) in
the case of Swingline Loans, not later than 3:00 P.M. (New York time) on the
date specified pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory
Borrowings, not later than 12:00 Noon (New York time) on the date specified
in Section 1.01(e), each Bank with a Commitment of the respective Tranche
will make available its pro rata portion (determined in accordance with
--- ----
Section 1.07) of each such Borrowing requested to be made on such date (or in
the case of Swingline Loans, the Swingline Bank shall make available the full
amount thereof). All such amounts shall be made available in Dollars and in
immediately available funds at the Payment Office of the Administrative
Agent, and the Administrative Agent will make available to the Company at the
Payment Office the aggregate of the amounts so made available by the Banks.
Unless the Administrative Agent shall have been notified by any Bank prior to
the date of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the Company a corresponding amount. If such corre-
-6-
<PAGE>
sponding amount is not in fact made available to the Administrative Agent by
such Bank, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Bank. If such Bank does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Company and the
Company shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover on demand
from such Bank or the Company, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Company until
the date such corresponding amount is recovered by the Administrative Agent,
at a rate per annum equal to (i) if recovered from such Bank, at the
overnight Federal Funds Rate and (ii) if recovered from the Company, the rate
of interest applicable to the respective Borrowing, as determined pursuant to
Section 1.08. Nothing in this Section 1.04 shall be deemed to relieve any
Bank from its obligation to make Loans hereunder or to prejudice any rights
which the Company may have against any Bank as a result of any failure by
such Bank to make Loans hereunder.
1.05 Notes. (a) The Company's obligation to pay the principal
-----
of, and interest on, the Loans made by each Bank shall be evidenced (i) if
Tranche A Term Loans, by a promissory note duly executed and delivered by the
Company substantially in the form of Exhibit B-1, with blanks appropriately
completed in conformity herewith (each, a "Tranche A Term Note" and,
collectively, the "Tranche A Term Notes"), (ii) if Tranche B Term Loans, by a
promissory note duly executed and delivered by the Company substantially in
the form of Exhibit B-2, with blanks appropriately completed in conformity
herewith (each, a "Tranche B Term Note" and, collectively, the "Tranche B
Term Notes"), (iii) if Revolving Loans, by a promissory note duly executed
and delivered by the Company substantially in the form of Exhibit B-3, with
blanks appropriately completed in conformity herewith (each, a "Revolving
Note" and, collectively, the "Revolving Notes"), (iv) if Swingline Loans, by
a promissory note duly executed and delivered by the Company substantially in
the form of Exhibit B-4, with blanks appropriately completed in conformity
herewith (the "Swingline Note") and (vi) if Tranche C Term Loans, by a
promissory note duly executed and delivered by the Company substantially in
the form of Exhibit B-5, with blanks appropriately completed in conformity
herewith (each, a "Tranche C Term Note" and, collectively, the "Tranche C
Term Notes").
(b) The Tranche A Term Note issued to each Bank shall (i) be
executed by the Company, (ii) be payable to the order of such Bank and be
dated the Initial Borrowing Date, (iii) be in a stated principal amount equal
to the Tranche A Term Loan Commitment of such Bank as in effect on the
Initial Borrowing Date (and before giving effect to any reductions thereto as
a result of the making of Tranche A Term Loans by such Bank on such date) and
be payable in the principal amount of Tranche A Term Loans evidenced thereby
from time to time, (iv) mature on the Tranche A Term Loan Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject
-7-
<PAGE>
to mandatory repayment as provided in Section 4.02 and (vii) be entitled to
the benefits of this Agreement and the other Credit Documents.
(c) The Tranche B Term Note issued to each Bank shall (i) be
executed by the Company, (ii) be payable to the order of such Bank and be
dated the Initial Borrowing Date, (iii) be in a stated principal amount equal
to the Tranche B Term Loans made by such Bank on the Initial Borrowing Date
and be payable in the principal amount of Tranche B Term Loans evidenced
thereby from time to time, (iv) mature on the Tranche B Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to mandatory repayment as provided in
Section 4.02 and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(d) The Tranche C Term Note issued to each Bank shall (i) be
executed by the Company, (ii) be payable to the order of such Bank and be
dated the Tranche C Term Loan Borrowing Date, (iii) be in a stated principal
amount equal to the Tranche C Term Loan made by such Bank on the Tranche C
Term Loan Borrowing Date and be payable in the principal amount of the
Tranche C Term Loan evidenced thereby from time to time, (iv) mature on the
Tranche C Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(e) The Revolving Note issued to each Bank shall (i) be executed
by the Company, (ii) be payable to the order of such Bank and be dated the
Initial Borrowing Date, (iii) be in a stated principal amount equal to the
Revolving Loan Commitment of such Bank and be payable in the principal amount
of the Revolving Loans evidenced thereby from time to time, (iv) mature on
the Revolving Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(f) The Swingline Note issued to the Swingline Bank shall (i) be
executed by the Company, (ii) be payable to the order of the Swingline Bank
and be dated the Initial Borrowing Date, (iii) be in a stated principal
amount equal to the Maximum Swingline Amount and be payable in the principal
amount of the Swingline Loans evidenced thereby from time to time, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans
evidenced thereby and (vi) be entitled to the benefits of this Agreement and
the other Credit Documents.
-8-
<PAGE>
(g) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not
affect the Company's obligations in respect of such Loans.
1.06 Conversions. The Company shall have the option to convert,
-----------
on any Business Day occurring on or after the Syndication Termination Date
(or, in the case of Tranche C Term Loans, the Tranche C Syndication
Termination Date), all or a portion equal to at least (x) in the case of a
conversion of Term Loans, $10,000,000 and (y) in the case of a conversion of
Revolving Loans, $10,000,000 (or $1,000,000 in the case of a conversion into
Revolving Loans to be maintained as Base Rate Loans) of the outstanding
principal amount of Loans (other than Swingline Loans, which may not be
converted pursuant to this Section 1.06) made pursuant to one or more
Borrowings (so long as of the same Tranche) of one Type of Loan into a
Borrowing (of the same Tranche) of another Type of Loan; provided, that (i)
--------
except as otherwise provided in Section 1.10(b), Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted and no such partial conversion of
Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than
$10,000,000, (ii) Base Rate Loans may only be converted into Eurodollar Loans
if no Default or Event of Default is in existence on the date of the
conversion and (iii) no conversion pursuant to this Section 1.06 shall result
in a greater number of Borrowings of Eurodollar Loans than is permitted under
Section 1.02. Each such conversion shall be effected by the Company by
giving the Administrative Agent at its Notice Office prior to 1:00 P.M. (New
York time) at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) (each, a "Notice of Conversion")
specifying the Loans to be so converted, the Borrowing(s) pursuant to which
such Loans were made and, if to be converted into Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent
shall give each Bank prompt notice of any such proposed conversion affecting
any of its Loans. Upon any such conversion the proceeds thereof will be
deemed to be applied directly on the day of such conversion to prepay the
outstanding principal amount of the Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
-------------------
Tranche B Term Loans, Tranche C Term Loans and Revolving Loans under this
Agreement shall be incurred from the Banks pro rata on the basis of their
--- ----
respective Tranche A Term Loan Commitments, Tranche B Term Loan Commitments,
Tranche C Term Loan Commitments or Revolving Loan Commitments, as the case
may be; provided, that all Borrowings of Revolving Loans made pursuant to a
--------
Mandatory Borrowing shall be incurred from the Banks with a Revolving Loan
Commitment pro rata on the basis of their Adjusted RL Percentages. It is
--- ----
understood that no Bank shall be responsible for any default by any other
Bank of its obligation to make Loans hereunder and that each Bank shall be
obligated to make the Loans provided to be made by it hereunder, regardless
of the failure of any other Bank to make its Loans hereunder.
-9-
<PAGE>
1.08 Interest. (a) The Company agrees to pay interest in respect
--------
of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Company until the earlier of (i)
the maturity (whether by acceleration or otherwise) of such Base Rate Loan
and the (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06, at a rate per annum which shall be equal to the sum
of the Applicable Margin plus the Base Rate in effect from time to time.
(b) The Company agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date the proceeds thereof
are made available to the Company until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Eurodollar Loan and (ii) the
conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06 or 1.09, as applicable, at a rate per annum which shall, during each
Interest Period applicable thereto, be equal to the sum of the Applicable
Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (i) 2% per annum in excess of the rate otherwise applicable to
Base Rate Loans prior to maturity of the respective Tranche of Loans from
time to time and (ii) the rate which is 2% in excess of the rate then borne
by such Loans, in each case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of
each Interest Period applicable thereto and, in the case of an Interest
Period in excess of three months, on each date occurring at three month
intervals after the first day of such Interest Period and (iii) in respect of
each Loan, on any repayment or prepayment (except voluntary prepayments of
Revolving Loans and Swingline Loans maintained as Base Rate Loans where the
Total Revolving Loan Commitment has not been, and is not then being,
terminated) (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for the respective Interest Period
or Interest Periods and shall promptly notify the Company and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
----------------
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period
applicable thereto) or on the third Business Day prior to the expiration of
an Interest Period applicable to such Eurodollar Loan (in the case of any
subsequent Interest Period), the Company shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period (each an
"Interest Period") appli-
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<PAGE>
cable to such Eurodollar Loan, which Interest Period shall, at the option of
the Company, be a one, two, three or six-month period; provided, that:
--------
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Loan of a different Type) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
-------- -------
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
Default or Event of Default is then in existence;
(vi) no Interest Period shall be selected which extends beyond
(x) in the case of Tranche A Term Loans, the Tranche A Term Loan
Maturity Date, (y) in the case of Tranche B Term Loans, the Tranche B
Term Loan Maturity Date or (z) in the case of Revolving Loans, the
Revolving Loan Maturity Date;
(vii) no Interest Period in respect of any Borrowing of
Tranche A Term Loans, Tranche B Term Loans or Tranche C Term Loans, as
the case may be, shall be selected which extends beyond any date upon
which a mandatory repayment of such Tranche of Term Loans will be
required to be made under Section 4.02(b), (c) or (n), as the case may
be, if the aggregate principal amount of Tranche A Term Loans, Tranche B
Term Loans or Tranche C Term Loans, as the case may be, which have
Interest Periods which will expire after such date will be in excess of
the aggregate principal amount of Tranche A Term Loans, Tranche B Term
Loans or Tranche C Term Loans, as the case may be, then outstanding less
the aggregate amount of such required prepayment; and
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<PAGE>
(viii) no Interest Period in respect of any Borrowing of
Revolving Loans shall be selected which extends beyond any date upon
which a mandatory repayment of the Revolving Loans will be required to
be made under Section 4.02(a), as a result of reductions to the Total
Revolving Loan Commitment pursuant to Section 3.03(d), unless the
aggregate principal amount of Revolving Loans which are Base Rate Loans
or which have Interest Periods which will expire on or before such date
will be sufficient to make such required prepayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Company has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Company shall be deemed to have elected to
convert such Eurodollar Loans into Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
---------------------------------
Bank shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect
to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, order, guideline or
request, such as, for example, but not limited to: (A) a change in the
basis of taxation of payment to any Bank of the principal of or interest
on the Notes or any other amounts payable hereunder (except for changes
with respect to any tax imposed on or measured by the net income or
profits of such Bank pursuant to the laws in which its principal office
or applicable lending office is located or any subdivision thereof or
therein), or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate and/or (y) other
circumstances since the date of this Agreement affecting such Bank or
the interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental
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<PAGE>
request (whether or not having force of law) or (z) impracticable as a
result of a contingency occurring after the date of this Agreement which
materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed
in writing) to the Company and, except in the case of clause (i) above, to
the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Company and the Banks that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of Borrowing or
Notice of Conversion given by the Company with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Company, (y) in the case of clause (ii) above, the
Company shall pay to such Bank, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to such Bank, showing the basis for
the calculation thereof, submitted to the Company by such Bank in good faith
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, the Company shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Company may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is
then being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Company was notified by the affected Bank
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii), or (y)
if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' written notice to the Administrative Agent, require the
affected Bank to convert such Eurodollar Loan into a Base Rate Loan;
provided, that, if more than one Bank is affected at any time, then all
--------
affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request
(whether or not having the force of law) concerning capital adequacy, or any
change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be maintained by
such Bank or any corporation controlling such Bank based on the existence of
such Bank's Commitments
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<PAGE>
hereunder or its obligations hereunder, then the Company shall pay to such
Bank, upon its written demand therefor, such additional amounts as shall be
required to compensate such Bank or such other corporation for the increased
cost to such Bank or such other corporation or the reduction in the rate of
return to such Bank or such other corporation as a result of such increase of
capital. In determining such additional amounts, each Bank will act
reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Bank's reasonable good faith
--------
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties
hereto. Each Bank, upon determining that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Company, which notice shall show the basis for calculation of
such additional amounts, although the failure to give any such notice shall
not release or diminish any of the Company's obligations to pay additional
amounts pursuant to this Section 1.10(c).
1.11 Compensation. The Company shall compensate each Bank, upon
------------
its written request (which request shall set forth the basis for requesting
such compensation), for all losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank
to fund its Eurodollar Loans) which such Bank may sustain: (i) if for any
reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on
a date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Company or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment (including any repayment made
pursuant to Section 4.01 or 4.02 or a result of an acceleration of the Loans
pursuant to Section 11) or conversion of any of its Eurodollar Loans occurs
on a date which is not the last day of an Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made
on any date specified in a notice of prepayment given by the Company; or (iv)
as a consequence of (x) any other default by the Company to repay its Loans
when required by the terms of this Agreement or any Note held by such Bank or
(y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that upon the
------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such
Bank, it will, if requested by the Company, use reasonable efforts (subject
to overall policy considerations of such Bank) to designate another lending
office for any Loans or Letters of Credit affected by such event; provided,
--------
that such designation is made on such terms that such Bank and its lending
office suffer no economic, legal or regulatory disadvantage, with the object
of avoiding the consequence of the event giving rise to the operation of such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Company or the right of any Bank provided in Sections
1.10, 2.06 and 4.04.
1.13 Replacement of Banks. If any Bank (x) becomes a Defaulting
--------------------
Bank, (y) refuses to consent to certain proposed changes, waivers, discharges
or terminations with
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<PAGE>
respect to this Agreement which have been approved by the Required Banks as
provided in Section 14.12(b) or, (z) is owed increased costs under Section
1.10(a)(ii) or (iii), Section 1.10(c), Section 2.06 or Section 4.04 in a
material amount in excess of those being generally charged by the other
Banks, the Company shall have the right, if no Default or Event of Default
then exists or will exist immediately after giving effect to the respective
replacement, to either replace such Bank (the "Replaced Bank") with one or
more Eligible Transferee or Transferees (collectively, the"Replacement
Bank"), none of whom shall constitute a Defaulting Bank at the time of such
replacement and each of whom shall be acceptable to the Administrative Agent
and each Bank which at the time of such replacement is an Issuing Bank with
respect to one or more outstanding Letters of Credit (unless the respective
Replacement Bank is not acquiring any participations in such outstanding
Letters of Credit) or, at the option of the Company, to replace only (a) the
Revolving Loan Commitment (and outstandings pursuant thereto) of the Replaced
Bank with an identical Revolving Loan Commitment provided by the Replacement
Bank or (b) in the case of a replacement as provided in Section 14.12(b)
where the consent of the respective Bank is required with respect to less
than all Tranches of its Loans or Commitments, the Commitments and/or
outstanding Term Loans of such Bank in respect of each Tranche where the
consent of such Bank would otherwise be individually required, with identical
Commitments and/or Loans of the respective Tranche provided by the
Replacement Bank; provided, that:
--------
(i) at the time of any replacement pursuant to this Section
1.13, the Replacement Bank shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 14.04(b) (and with all fees
payable pursuant to said Section 14.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of, and participations in Letters of
Credit by (or, in the case of the replacement of only (a) the Revolving
Loan Commitment, the Revolving Loan Commitment and outstanding Revolving
Loans and participations in Revolving Letter of Credit Outstandings, (b)
the Tranche A Term Loan Commitment, the Tranche A Term Loan Commitment
and outstanding Tranche A Term Loans and participations in Tranche A
Letter of Credit Outstandings, (c) the Tranche C Term Loan Commitment,
such Tranche C Term Loan Commitment and/or (d) the outstanding Term Loan
of one or more Tranches, the outstanding Term Loans of the respective
Tranche or Tranches) the Replaced Bank and, in connection therewith,
shall pay to (x) the Replaced Bank in respect thereof an amount equal to
the sum of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans (or of the Loans of the respective
Tranche or Tranches being replaced), (B) an amount equal to all Unpaid
Drawings (unless there are no Unpaid Drawings with respect to the
Tranche or Tranches being replaced) that have been funded by (and not
reimbursed to) such Replaced Bank, together with all then unpaid
interest with respect thereto at such time and (C) an amount equal to
all accrued, but theretofore unpaid, Fees owing to the Replaced Bank
(but only with respect to the relevant Tranche, in the case of the
replacement of less than all Tranches of Loans then held
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<PAGE>
by the respective Replaced Bank) pursuant to Section 3.01, (y) except in
the case of the replacement of only the outstanding Term Loans of one or
more Tranches of a Replaced Bank, the respective Issuing Bank an amount
equal to such Replaced Bank's Adjusted RL Percentage, in the case of the
assignment of Revolving Loans, and TL Percentage, in the case of an
assignment of Tranche A Term Loan Commitments (in each case for this
purpose, determined as if the adjustment described in clause (y) of the
immediately succeeding sentence had been made with respect to such
Replaced Bank) of any applicable Unpaid Drawing (which at such time
remains an Unpaid Drawing) of the relevant Tranche with respect to a
Letter of Credit issued by such Issuing Bank to the extent such amount
was not theretofore funded by such Replaced Bank and (z) in the case of
any replacement of Revolving Loan Commitments, the Swingline Bank an
amount equal to such Replaced Bank's Adjusted RL Percentage of any
Mandatory Borrowing to the extent such amount was not theretofore funded
by such Replaced Bank; and
(ii) all obligations of the Company owing to the Replaced Bank
(other than those (a) specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is
concurrently being, paid or (b) relating to any Tranche of Loans and/or
Commitments of the respective Replaced Bank which will remain
outstanding after giving effect to the respective replacement) shall be
paid in full to such Replaced Bank concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements,
the payment of amounts referred to in clauses (i) and (ii) above, recordation
of the assignment on the Register by the Administrative Agent pursuant to
Section 14.15 and, if so requested by the Replacement Bank, delivery to the
Replacement Bank of the appropriate Note or Notes executed by the Company,
(x) the Replacement Bank shall become a Bank hereunder and, unless the
respective Replaced Bank continues to have outstanding Term Loans, a Tranche
A Term Loan Commitment, a Tranche C Term Loan Commitment or a Revolving Loan
Commitment hereunder, the Replaced Bank shall cease to constitute a Bank
hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04,
14.01 and 14.06), which shall survive as to such Replaced Bank and (y) except
in the case of the replacement of only outstanding Term Loans (and not
Tranche A Term Loan Commitments) of one or more Tranches, the Adjusted RL
Percentages and/or TL Percentages, as the case may be, of the Banks shall be
automatically adjusted at such time to give effect to such replacement.
SECTION 2. Letters of Credit; Bank Guarantees.
----------------------------------
2.01 Letters of Credit; Bank Guarantees. (a) Subject to and upon
----------------------------------
the terms and conditions herein set forth, the Company may request:
(i) any Issuing Bank at any time and from time to time on or
after the Initial Borrowing Date and prior to the third Business Day
preceding the Revolving
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<PAGE>
Loan Maturity Date to issue, (x) for the account of the Company and for
the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Indebtedness of
the Company or any of its Subsidiaries (except Tudor and its
Subsidiaries), an irrevocable standby letter of credit in a form
customarily used by such Issuing Bank or in such other form as has been
approved by such Issuing Bank and the Administrative Agent (each such
standby letter of credit, a "Standby Letter of Credit"), in support of
said L/C Supportable Indebtedness and (y) for the account of the Company
and for the benefit of Sellers of raw materials or other supplies to the
Company of any of its Subsidiaries (except Tudor and its Subsidiaries),
an irrevocable documentary letter of credit in a form customarily used
by such Issuing Bank or in such other form as has been approved by such
Issuing Bank and the Administrative Agent (each such documentary letter
of credit, a "Trade Letter of Credit", and each such Trade Letter of
Credit and each Standby Letter of Credit, an "Exide Letter of Credit")
in support of commercial transactions of the Company and its
Subsidiaries (except Tudor and its Subsidiaries); and
(ii) BA to issue on the Initial Borrowing Date or at any time
thereafter and prior to December 31, 1994, for the account of the
Company in favor of Servicio de Liquidacion y Compensacion de Valores
("SLCV") for the benefit of Tudor Shareholders and Tudor Convertible
Bondholders, an irrevocable bank guarantee in substantially the form of
Exhibit C-1, in support of the payment obligations of the Company
pursuant to the Initial Tender Offer (such bank guarantee, the "Initial
Tender Offer Credit Support");
(iii) any Issuing Bank to issue on, or within 10 days after,
the Seller Tender Date, for the account of the Company and for the
benefit of the Seller, an irrevocable standby letter of credit, in
substantially the form of Exhibit C-2, in support of the obligations of
the Company to make payments in connection with the Treasury Stock
Repurchase as a result of the exercise of the put and call option in
accordance with the Purchase Agreement (such standby letter of credit,
the "Treasury Stock Letter of Credit");
(iv) any Issuing Bank to issue on, or within 10 days after, the
Seller Tender Date, for the account of the Company and for the benefit
of the Seller, an irrevocable standby letter of credit, in substantially
the form of Exhibit C-3 in support of the obligations of Tudor to make
payments with respect to the Tudor Convertible Bonds held by the Seller
which, in accordance with the Purchase Agreement, will not be converted
or tendered pursuant to the Tender Offer (such standby letter of credit,
the "Tudor Convertible Bond Letter of Credit");
(v) any Issuing Bank to issue on, or within 10 days after, the
Seller Tender Date, for the account of the Company and for the benefit
of Banesto (or the respective banking subsidiary or affiliate of Banesto
which is the creditor), one or
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<PAGE>
more irrevocable standby letters of credit, each in substantially the
form of Exhibit C-4 (in the case of indebtedness held by Banesto) or C-5
(in the case of indebtedness guaranteed by Banesto), in each case with
any changes agreed to by the Company and deemed necessary or desirable
by the respective Issuing Bank to take into account differences in the
underlying obligations being supported, with each such standby letter of
credit to be issued in support of the obligations of Tudor and/or its
Subsidiaries to make payments in respect of the Banesto Debt pursuant to
the Banesto Debt Documents (each such standby letter of credit, a
"Banesto Letter of Credit");
(vi) any Issuing Bank to issue on the Secondary Tender Offer Filing
Date, for the account of the Company in favor of SLCV and for the
benefit of Tudor Shareholders and Tudor Convertible Bondholders, a bank
guarantee in substantially the form of Exhibit C-6, in support of the
payment obligations of the Company pursuant to the Secondary Tender
Offer (such bank guarantee, the "Secondary Tender Offer Credit
Support"); and
(vii) any Issuing Bank at any time and from time to time on or
after the Initial Tender Offer Date and prior to the third Business Day
preceding the Revolving Loan Maturity Date, to issue, for the account of
the Company and for the benefit of any holders (or any trustee, agent or
other similar representative for any such holders) of Additional Tudor
Supportable Indebtedness of Tudor or any of its Subsidiaries, an
irrevocable standby letter of credit in a form customarily used by such
Issuing Bank or in such other form as has been approved by such Issuing
Bank and the Administrative Agent (each such standby letter of credit,
an "Additional Tudor Letter of Credit"), in support of said Additional
Tudor Supportable Indebtedness.
(b) All Letters of Credit shall be denominated in Dollars;
provided, however, that (i) the Initial Tender Offer Credit Support, the
-------- -------
Secondary Tender Offer Credit Support, the Tudor Convertible Bond Letter of
Credit and the Treasury Stock Letter of Credit shall be issued in Pesetas and
(ii) as requested by the Company, Banesto Letters of Credit and Additional
Tudor Letters of Credit shall be issued in Pesetas or Escudos or such other
currencies as are acceptable to the respective Issuing Bank and the
Administrative Agent, in each case as required to support the underlying
obligations covered by the respective Letter of Credit.
(c)(i) Each of BTCo, BA and BMO hereby agrees that it will,
subject to the terms and conditions contained herein, on the Initial Tender
Offer Filing Date in the case of the Initial Tender Offer Credit Support,
following its receipt of a Letter of Credit Request in respect thereof, issue
for the account of the Company the Initial Tender Offer Credit Support as
referenced in Section 2.01(a) and (ii) each Issuing Bank hereby agrees that
it will, subject to the terms and conditions contained herein, (I) at any
time and from time to time, on or after the Initial Borrowing Date and prior
to the third Business Day
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<PAGE>
preceding the Revolving Loan Maturity Date, in the case of Exide Letters of
Credit, (II) on, or within 10 days after, the Seller Tender Date in the case
of the Treasury Stock Letter of Credit, the Tudor Convertible Bond Letter of
Credit and the Banesto Letters of Credit, (III) on or after the Initial
Tender Offer Date and prior to the third Business Day preceding the Revolving
Loan Maturity Date, in the case of Additional Tudor Letters of Credit and
(IV) on the Secondary Tender Offer Filing Date, in the case of the Secondary
Tender Offer Credit Support, in each case following its receipt of the
respective Letter of Credit Request, issue for the account of the Company one
or more Letters of Credit as described above; provided, that, (x) in the case
--------
of any Letter of Credit to be denominated in a currency other than Dollars,
the respective Issuing Bank may designate a local affiliate of such Issuing
Bank to be the issuer of such Letter of Credit (and for purposes of this
Agreement, such Letter of Credit shall be treated fully as if issued by the
respective Issuing Bank) and (y) in no case shall any Issuing Bank be under
any obligation to issue any Letter of Credit as described above if at the
time of such issuance:
(A) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Bank from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Bank or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Bank shall prohibit, or request that such
Issuing Bank refrain from, the issuance of letters of credit or, in the
case of the Initial Tender Offer Credit Support or Secondary Tender
Offer Credit Support, bank guarantees generally or such Letter of Credit
in particular or shall impose upon such Issuing Bank with respect to
such Letter of Credit any restriction or reserve or capital requirement
(for which such Issuing Bank is not otherwise compensated) not in effect
on the date hereof, or any unreimbursed loss, cost or expense which was
not applicable, in effect or known to such Issuing Bank as of the date
hereof and which such Issuing Bank in good faith deems material to it;
or
(B) such Issuing Bank shall have received notice from any Bank
prior to the issuance of such Letter of Credit that one or more of the
applicable conditions specified in Section 5, 6 or 7 are not then
satisfied, or that the issuance of such Letter of Credit would violate
Section 2.01(d).
(d) Notwithstanding the foregoing:
(i) (x) no Letter of Credit shall be issued the initial Stated
Amount of which (or the Revolving Allocated Portion of which, in the
case of the Initial Tender Offer Credit Support), when added to the
Revolving Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid on the date of, and prior to the issuance of, the
respective Letter of Credit) at such time, would exceed either (1) the
Letter of Credit Limit at such time or (2) when added to the aggregate
principal amount of all Revolving Loans made by Non-Defaulting Banks
then outstanding and Swingline Loans then outstanding, an amount equal
to the Adjusted
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Total Available Revolving Loan Commitment at such time (after giving
effect to any changes thereto on such date, including as a result of the
decrease, if any, of the Blocked Commitment as a result of the issuance
of the respective Letter of Credit), provided that, with respect to
--------
Letters of Credit issued on the Initial Borrowing Date, it shall also be
required that the Total Unutilized Revolving Loan Commitment on the
Initial Borrowing Date (after giving effect to all Credit Events on such
date) less the Blocked Commitment on such date shall be equal to or
greater than an amount equal to the Minimum Unutilized Revolving Loan
Commitment, and (y) each Letter of Credit (other than the Initial Tender
Offer Credit Support and Secondary Tender Offer Credit Support, which
shall be in the forms required above) shall by its terms terminate on or
before the earlier of (A) the date which occurs 12 months after the date
of the issuance thereof (although any such Letter of Credit may be
extendable for successive periods of up to 12 months, but not beyond the
third Business Day preceding the Revolving Loan Maturity Date, on terms
acceptable to the Administrative Agent and the relevant Issuing Bank,
with any such extension to be treated for purposes of this Agreement as
a new issuance of the Letter of Credit being extended) and (B) the third
Business Day preceding the Revolving Loan Maturity Date, provided that
(1) Letters of Credit issued to back-stop letters of credit which were
issued pursuant to the Existing Chemical Credit Agreement prior to the
Initial Borrowing Date may have a maturity not later than December 31,
1995 (and shall not be required to meet the requirements of preceding
clause (A)) and (2) up to $1,000,000 aggregate Stated Amount of Letters
of Credit may be outstanding at any time which meet the requirements of
preceding clause (B) but not the preceding clause (A), and (z) no Letter
of Credit shall be issued which is scheduled to mature after a date
scheduled for a reduction to the Letter of Credit Limit unless the
aggregate Stated Amounts of all Letters of Credit theretofore issued
which extend beyond such date, when added to the Stated Amount of the
Letter of Credit then being issued, will not cause the Company to have
Revolving Letter of Credit Outstandings which will exceed the amount of
the Letter of Credit Limit after giving effect to the scheduled
reduction thereto; and
(ii) in addition to the requirements of preceding clause (i),
(u) the Stated Amount of the Initial Tender Offer Credit Support shall
not exceed 31,152,532,437 Pesetas, (v) the Stated Amount of the Treasury
Stock Letter of Credit shall not exceed 1,577,953,125 Pesetas (plus the
amount of any interest which may accrue on the purchase price of the
Option Shares in accordance with the Purchase Agreement during the
Option Period as defined therein), (w) the Stated Amount of the Tudor
Convertible Bond Letter of Credit shall not exceed 2,998,270,000 Pesetas
(plus the amount of the Interest Component as described in the Tudor
Convertible Bond Letter of Credit), (x) the aggregate Stated Amounts of
all Banesto Letters of Credit issued hereunder (excluding substitute or
replacement Letters of Credit) shall not exceed 9,264,694,445 Pesetas
(adjusted, in the case of Banesto Letters of Credit issued in currencies
other than Pesetas, for exchange rate fluctuations occurring after the
Effective Date) (plus the aggregate amounts of the Interest Components
of
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Banesto Letters of Credit issued in support of indebtedness other than
guarantees), (y) no Additional Tudor Letter of Credit shall be issued
the Stated Amount of which, when added to the Additional Tudor Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Additional
Tudor Letter of Credit) at such time, would exceed the Additional Tudor
Letter of Credit Sub-Limit as then in effect and (z) the Secondary
Tender Offer Credit Support shall not be issued if the initial Stated
Amount thereof would be in excess of the Secondary Tender Offer Blocked
Commitment as in effect immediately prior to the issuance thereof.
2.02 Minimum Stated Amount. The Stated Amount of each Letter of
---------------------
Credit shall be not less than $5,000, or such lesser amount as is acceptable
to the Issuing Bank issuing such Letter of Credit.
2.03 Letter of Credit Requests. (a) Whenever the Company desires
-------------------------
that a Letter of Credit be issued for its account, the Company shall give the
Administrative Agent and the respective Issuing Bank at least five Business
Days' (or, in the case of Letters of Credit to be issued in a form attached
to this Agreement as an Exhibit, two Business Days or, in any given case,
such shorter period as is acceptable to such Issuing Bank) written notice
prior to the proposed date of issuance (which shall be a Business Day). Each
notice shall be in the form of Exhibit D (each a "Letter of Credit Request").
The Administrative Agent shall promptly transmit copies of each Letter of
Credit Request to each Bank. Whenever the Company desires to utilize all or
a portion of the Blocked Commitment to have an appropriate Letter of Credit
issued for its account as provided in the definition of Blocked Commitment
and in the definitions of the defined terms used therein, the Letter of
Credit Request shall include a statement to such effect and the details of
such proposed utilization.
(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the Company that such Letter of Credit
may be issued in accordance with, and will not violate the requirements of,
Section 2.01(d). Unless the respective Issuing Bank has received notice from
any Bank before it issues a Letter of Credit that one or more of the
applicable conditions specified in Section 5, 6 or 7 are not then satisfied,
or that the issuance of such Letter of Credit would violate Section 2.01(d),
then such Issuing Bank shall issue on the date of issuance requested in the
applicable Letter of Credit Request the requested Letter of Credit for the
account of the Company in accordance with such Issuing Bank's usual and
customary practices. Upon its issuance of, or its entering into an amendment
with respect to, any Letter of Credit, the respective Issuing Bank shall
promptly notify the Administrative Agent of such issuance or amendment, which
notice shall be accompanied by a copy of the Letter of Credit actually issued
or amendment entered into, as the case may be, by such Issuing Bank.
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2.04 Letter of Credit Participations. (a)(i) Immediately upon
-------------------------------
the issuance by any Issuing Bank of the Initial Tender Offer Credit Support,
such Issuing Bank shall be deemed to have sold and transferred to each Bank
with a Tranche A Term Loan Commitment (each such Bank, in its capacity under
this Section 2.04(a), a "Tranche A Participant") and each such Tranche A
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from such Issuing Bank, without recourse or warranty, an
undivided interest and participation, to the extent of Tranche A
Participant's TL Percentage, in such Initial Tender Offer Credit Support,
each substitute letter of credit or bank guarantee, each drawing made
thereunder and the obligations of the Company under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto;
provided that the aggregate amount of the participations (and liability to
fund Drawings, excluding any interest owing thereon by the respective Tranche
A Participant) of the Tranche A Participants as provided above in this
Section 2.04(a) shall be limited from time to time to that amount which is
equal to the Tranche A Allocated Amount as then in effect. It is understood
and agreed that all drawings under, and payments required to be made in
respect of, the Initial Tender Offer Credit Support or any substitute letter
of credit or bank guaranty therefor, shall be required to be funded by the
Tranche A Participants until the aggregate amount of such payments required
to be so funded by the Tranche A Participants is equal to the Tranche A
Allocated Amount at the time the respective drawings are made and, only to
the extent in excess thereof, shall the payments be required to be
participated in by the Revolving Credit Participants as described in clause
(ii) below. Upon any change in the Tranche A Term Loan Commitments of the
Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with
respect to the outstanding Initial Tender Offer Letter of Credit and Unpaid
Drawings with respect thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04(a)(i) to reflect the new TL
Percentages of the assignor and assignee Banks or of all Banks with Tranche A
Term Loan Commitments, as the case may be.
(ii) Immediately upon the issuance by any Issuing Bank of the
Initial Tender Offer Credit Support, such Issuing Bank shall be deemed to
have sold and transferred to each Bank with a Revolving Loan Commitment (each
such Bank, in its capacity under this Section 2.04(a)(ii) and following
Section 2.04(b), a "Revolving Credit Participant"; with each Revolving Credit
Participant and each Tranche A Participant being herein called a
"Participant"), and each such Revolving Credit Participant shall be deemed
irrevocably and unconditionally to have purchased and received from such
Issuing Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such Revolving Credit Participant's Adjusted
RL Percentage, in such Initial Tender Offer Credit Support, each substitute
letter of credit or bank guaranty, each drawing made thereunder and the
obligations of the Company under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto; provided that the Revolving
Credit Participants' participations in such Initial Tender Offer Credit
Support and substitute letters of credit or bank guaranties shall only apply
to the extent that the aggregate payments required to be made with respect
thereto at any time exceed the Tranche A Allocated Amount as then in effect.
It is understood and agreed that, to the extent payments are required to be
made
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with respect to the Initial Tender Offer Credit Support or any substitute
letter of credit or bank guarantee, such payments shall first be required to
be funded by the Tranche A Participants to the extent of the Tranche A
Allocated Amount as then in effect, and that any excess shall be required to
be funded by the Revolving Credit Participants pursuant to this Section
2.04(a)(ii). Furthermore, it is acknowledged and agreed that the Tranche A
Allocated Amount may be reduced from time to time in accordance with the
definition thereof (as a result of the making of Tranche A Loans or the
funding of Drawings with respect to the Initial Tender Offer Credit Support)
and that, as a result thereof, the Revolving Allocated Portion of the Initial
Tender Offer Credit Support and any substitute letter of credit or bank
guarantee may increase as a result thereof. In addition to the changes
described above, upon any change in the Revolving Loan Commitments of the
Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that, with
respect to the outstanding Initial Tender Offer Credit Support and Unpaid
Drawings with respect thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.04(a)(ii) to reflect the new
Revolving Loan Percentages of the assignor and assignee Banks or of all Banks
with Revolving Loan Commitments, as the case may be.
(b) Immediately upon the issuance by any Issuing Bank of any
Letter of Credit (other than the Initial Tender Offer Credit Support, which
is covered by preceding clause (a)), such Issuing Bank shall be deemed to
have sold and transferred to each Bank with a Revolving Loan Commitment, and
each such Revolving Credit Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Bank,
without recourse or warranty, an undivided interest and participation, to the
extent of such Revolving Credit Participant's Adjusted RL Percentage in each
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Company under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto.
Upon any change in the Revolving Loan Commitments or Adjusted RL Percentages
of the Banks pursuant to Section 1.13 or 14.04, it is hereby agreed that,
with respect to all outstanding Letters of Credit (other than the Initial
Tender Offer Credit Support, which is covered by preceding clause (a)) and
Unpaid Drawings relating to any such Letters of Credit, there shall be an
automatic adjustment to the participations pursuant to this Section 2.04(b)
to reflect the new Adjusted RL Percentages of the assignor and assignee Banks
or of all Banks with Revolving Loan Commitments, as the case may be.
(c) In determining whether to pay under any Letter of Credit, no
Issuing Bank shall have any obligation relative to the other Banks other than
to confirm that the documents, if any, required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Issuing Bank under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence
or willful misconduct, shall not create for such Issuing Bank any resulting
liability to the Company or any Bank.
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(d) In the event that any Issuing Bank makes any payment under any
Letter of Credit and the Company shall not have reimbursed such amount in
full to the respective Issuing Bank pursuant to Section 2.05(a), the
respective Issuing Bank shall promptly notify the Administrative Agent, which
shall promptly notify (x) if the payment was made under the Initial Tender
Offer Credit Support at a time when the Tranche A Allocated Amount is greater
than zero, each Tranche A Participant of such failure, and each such Tranche
A Participant shall promptly pay to the Administrative Agent for the account
of such Issuing Bank the amount of such Participant's applicable TL
Percentage of such unreimbursed payment (or, if less, the Tranche A Allocated
Amount is then in effect) in Dollars (or, in the case of any unreimbursed
payment made pursuant to Section 2.05(a) in a currency other than Dollars, of
the Dollar Equivalent of such unreimbursed amount, as determined by the
Administrative Agent on the date on which such unreimbursed payment was made
by such Issuing Bank) and in the same day funds or (y) in the case of a
drawing under any other Letter of Credit (or in the case of any drawing under
the Initial Tender Offer Cedit Support to the extent the amount of the
respective Drawing is in excess of the Tranche A Allocated Amount as in
effect on the date of such drawing) each Revolving Credit Participant of such
failure, and each such Participant shall promptly and unconditionally pay to
the Administrative Agent for the account of such Issuing Bank the amount of
such Participant's applicable Adjusted RL Percentage of such unreimbursed
payment (or the amount thereof to the extent in excess of the Tranche A
Allocated Amount on such date, in the case of a payment with respect to the
Initial Tender Offer Credit Support) in Dollars (or, in the case of any
unreimbursed payment made pursuant to Section 2.05(a) in a currency other
than Dollars, of the Dollar Equivalent of such unreimbursed payment, as
determined by the Administrative Agent on the date on which such unreimbursed
payment was made by such Issuing Bank) and in same day funds. If the
Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any
Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to the Administrative Agent at
the Payment Office of the Administrative Agent for the account of such
Issuing Bank in Dollars such Participant's applicable TL Percentage (in the
case of a Tranche A Participant) or Adjusted RL Percentage (in the case of a
Revolving Credit Participant) of the amount of such payment on such Business
Day in same day funds. If and to the extent such Participant shall not have
so made its applicable TL Percentage (in the case of a Tranche A Participant)
or Adjusted RL Percentage (in the case of a Revolving Credit Participant) of
the amount of such payment available to the Administrative Agent for the
account of such Issuing Bank, such Participant agrees to pay to the
Administrative Agent for the account of such Issuing Bank, forthwith on
demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of such Issuing Bank at the overnight Federal Funds Rate. The
failure of any Participant to make available to the Administrative Agent for
the account of such Issuing Bank its applicable TL Percentage (in the case of
a Tranche A Participant) or Adjusted RL Percentage (in the case of a
Revolving Credit Participant) of any payment under any Letter of Credit shall
not relieve any other Participant of its obligation hereunder to make
available to the Administrative Agent for the account of such Issuing Bank
its applicable TL Percentage (in the case of a Tranche A Participant) or
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<PAGE>
Adjusted RL Percentage (in the case of a Revolving Credit Participant) of any
Letter of Credit on the date required, as specified above, but no Participant
shall be responsible for the failure of any other Participant to make
available to the Administrative Agent for the account of such Issuing Bank
such other Participant's applicable TL Percentage (in the case of a Tranche A
Participant) or Adjusted RL Percentage (in the case of a Revolving Credit
Participant) of any such payment.
(e) Whenever any Issuing Bank receives a payment of a
reimbursement obligation as to which the Administrative Agent has received
for the account of such Issuing Bank any payments from the Participants
pursuant to clause (d) above, such Issuing Bank shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay each
Participant which has paid its applicable TL Percentage (in the case of a
Tranche A Participant) or Adjusted RL Percentage (in the case of a Revolving
Credit Participant) thereof, in Dollars (or, in the case of any payment
received in a currency other than Dollars, of the Dollar Equivalent thereof)
and in same day funds, an amount equal to such Participant's share (based on
the proportionate aggregate amount funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(f) The relevant Issuing Bank shall furnish to each Tranche A
Participant copies of any Initial Tender Offer Credit Support issued by each
Issuing Bank and such other documentation as may reasonably be requested by
such Tranche A Participant. Upon the request of any Revolving Credit
Participant, the relevant Issuing Bank shall furnish to such Revolving Credit
Participant copies of any Letters of Credit issued by such Issuing Bank and
such other documentation as may be reasonably requested by such Revolving
Credit Participant.
(g) The obligations of each respective Participant to make
payments to the Administrative Agent for the account of the relevant Issuing
Bank with respect to Letters of Credit issued in which such Participant has a
participation shall be irrevocable and not subject to any qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Company may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), the Administrative Agent,
any Issuing Bank, any Agent, any Participant, or any other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
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(including any underlying transaction between the Company and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement or any
of the other Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The
--------------------------------------------
Company hereby agrees to reimburse the respective Issuing Bank, by making
payment to the Administrative Agent (in the case of any payment or
disbursement made by such Issuing Bank in a currency other than Dollars, of
the Dollar Equivalent of such payment or disbursement as determined on the
date of such payment or disbursement) in immediately available funds at the
Payment Office, for any payment or disbursement made by such Issuing Bank
under any Letter of Credit (each such amount, or the Dollar Equivalent
thereof as determined on the date of payment or disbursement, so paid until
reimbursed, an "Unpaid Drawing"), no later than five Business Days after the
date of such payment or disbursement, with interest on the amounts so paid or
disbursed by such Issuing Bank, to the extent not reimbursed prior to 1:00
P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but excluding the dates such Issuing
Bank was reimbursed by the Borrower therefor at a rate per annum which shall
be the Base Rate in effect from time to time plus the Applicable Margin for
Revolving Loans maintained as Base Rate Loans, provided, however, to the
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extent such amounts are not reimbursed prior to 1:00 P.M. (New York time) on
the fifth Business Day following such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Issuing Bank
(and until reimbursed by the Company) at a rate per annum which shall be the
Base Rate in effect from time to time plus the Applicable Margin for
Revolving Loans maintained as Base Rate Loans plus 2%, in each such case,
with interest to be payable on demand. The respective Issuing Bank shall
give the Company prompt notice of each Drawing under any Letter of Credit;
provided, that the failure to give any such notice shall in no way affect,
--------
impair or diminish the Company's obligations hereunder.
(b) The obligations of the Company under this Section 2.05 to
reimburse the respective Issuing Bank with respect to drawings on Letter of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall
be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Company may have or have had against any Bank (including in its capacity as
issuer of the Letter of Credit or as Participant), or any nonapplication or
misapplication by the beneficiary of the proceeds of such Drawing, the
respective Issuing
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Bank's only obligation to the Company being to confirm that any documents
required to be delivered under such Letter of Credit appear to have been
delivered and that they appear to comply on their face with the requirements
of such Letter of Credit. Any action taken or omitted to be taken by any
Issuing Bank under or in connection with any Letter of Credit if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create for such Issuing Bank any resulting liability to the Company.
2.06 Increased Costs. If at any time after the date of this
---------------
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Issuing Bank
or any Participant with any request or directive by any such authority
(whether or not having the full force of law), or any change in generally
acceptable accounting principles, shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit or bank guarantees, as the case may be, issued by
any Issuing Bank or participated in by any Participant, or (ii) impose on any
Issuing Bank or any Participant any other conditions relating, directly or
indirectly, to this Agreement or any Letter of Credit; and the result of any
of the foregoing is to increase the cost to any Issuing Bank or any
Participant of issuing, maintaining or participating in any Letter of Credit,
or reduce the amount of any sum received or receivable by any Issuing Bank or
any Participant hereunder or reduce the rate of return on its capital with
respect to Letters of Credit (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Issuing Bank or
such Participant, pursuant to the laws of the jurisdiction in which its
principal office or applicable lending office is located or any subdivision
thereof or therein), but without duplication of any amounts payable in
respect of Taxes pursuant to Section 4.04(a), then, upon demand to the
Company by such Issuing Bank or any Participant (a copy of which demand shall
be sent by such Issuing Bank or such Participant to the Administrative
Agent), the Company shall pay to such Issuing Bank or such Participant such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction in the amount receivable or reduction on the rate of return
on its capital. Any Issuing Bank or any Participant, upon determining that
any additional amounts will be payable pursuant to this Section 2.06, will
give prompt written notice thereof to the Company, which notice shall include
a certificate submitted to the Company by such Issuing Bank or such
Participant (a copy of which certificate shall be sent by such Issuing Bank
or such Participant to the Administrative Agent), setting forth in reasonable
detail the basis for the calculation of such additional amount or amounts
necessary to compensate such Issuing Bank or such Participant. The
certificate required to be delivered pursuant to this Section 2.06 shall, if
delivered in good faith and absent manifest error, be final and conclusive
and binding on the Company.
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SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
-----------------------------------------------------
3.01 Fees. (a) The Company agrees to pay the Administrative
----
Agent for distribution to each Non-Defaulting Bank with a Revolving Loan
Commitment a commitment commission (the "Commitment Commission") for the
period from the Initial Borrowing Date to and including the Revolving Loan
Maturity Date (or such earlier date as the Total Revolving Loan Commitment
shall have been terminated), computed at a rate for each day equal to the
Applicable Commitment Commission Percentage on the daily average Unutilized
Revolving Loan Commitment of such Non-Defaulting Bank. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the Revolving Loan Maturity Date or such earlier date
upon which the Total Revolving Loan Commitment is terminated.
(b) The Company agrees to pay to the Administrative Agent for
distribution to (x) each Non-Defaulting Bank with a Revolving Loan Commitment
(based on their respective Adjusted RL Percentages) a fee in respect of each
Letter of Credit issued hereunder (the "Revolver Letter of Credit Fee"), for
the period from and including the date of issuance of such Letter of Credit
to and including the termination of such Letter of Credit, computed at a rate
per annum equal to the Applicable Margin for Revolving Loans maintained as
Eurodollar Loans, as in effect from time to time, on the daily average Stated
Amount of such Letter of Credit or, in the case of the Initial Tender Offer
Credit Support, the Revolving Allocated Portion thereof and (y) each Tranche
A Participant (based on their respective TL Percentages) a fee in respect of
the Initial Tender Offer Credit Support (the "Tranche A Letter of Credit
Fee"), for the period from and including date of issuance of such Initial
Tender Offer Credit Support to and including the termination of such Initial
Tender Offer Credit Support, computed at a rate per annum equal to the
Applicable Margin for Tranche A Term Loans maintained as Eurodollar Loans, as
in effect from time to time, on the daily average Tranche A Allocated Portion
of such Initial Tender Offer Credit Support. Accrued Revolver Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
Accrued Tranche A Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the Initial Tender Offer Date
and on the first day after the Initial Tender Offer Date upon which the
Initial Tender Offer Credit Support has terminated in accordance with its
terms.
(c) The Company agrees to pay to the respective Issuing Bank, for
its own account, a facing fee in respect of each Letter of Credit issued for
its account hereunder (the "Facing Fee") for the period from and including
the date of issuance of such Letter of Credit to and including the
termination of such Letter of Credit, computed at a rate equal to 1/8 of 1%
per annum of the daily average Stated Amount of such Letter of Credit.
Accrued Facing Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date, and on any date upon which Revolver Letter of Credit
Fees or Tranche A Letter of Credit Fees are required to be paid pursuant to
preceding Section 3.01(b).
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(d) The Company shall pay, upon each drawing under, issuance of,
or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge which the respective Issuing Bank is
generally imposing in connection with such occurrence with respect to letters
of credit.
(e) The Company shall pay to the Agents and the Administrative
Agent, for their respective accounts, such other fees as have been agreed to
in writing by the Company, the Agents and the Administrative Agent.
(f) The Company agrees to pay the Administrative Agent for
distribution to each Bank with a Tranche C Term Loan Commitment a commitment
commission (the "Tranche C Commitment Commission") for the period from the
Fourth Amendment Effective Date to and including the first date upon which
the Total Tranche C Term Loan Commitment is terminated, computed at a rate
for each day equal to 1/2 of 1% on the daily average Tranche C Term Loan
Commitment of such Bank. Accrued Tranche C Commitment Commission shall be
due and payable quarterly in arrears on each Quarterly Payment Date and on
such date upon which the Total Tranche C Term Loan Commitment is terminated.
3.02 Voluntary Termination of Unutilized Commitments. (a) Upon
-----------------------------------------------
at least two Business Days' prior notice to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly transmit
to each of the Banks), the Company shall have the right, at any time or from
time to time, without premium or penalty, to terminate (1) if the Initial
Borrowing Date has not yet occurred, the Total Commitments (and the
Commitments of each Bank), in whole, or (2) after the Initial Tender Offer
Date, the Total Unutilized Revolving Loan Commitment, in whole or in part, in
each case in integral multiples of $5,000,000 in the case of partial
reductions; provided, that, with respect to reductions pursuant to this
--------
clause (2), (i) in no event may the Total Unutilized Revolving Loan
Commitment be reduced to an amount below the Blocked Commitment, if any, at
such time; provided, however, that after the Initial Tender Offer Date and
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prior to the Secondary Tender Offer Filing Date, the Total Unutilized
Revolving Loan Commitment may otherwise be reduced to the extent that any
such reduction also reduces (and so long as the Company specifies in writing
at the time of such prepayment that it shall reduce) the Secondary Tender
Offer Blocked Commitment by a corresponding amount (which reduction shall
diminish the amount of consideration which may be offered pursuant to the
Secondary Tender Offer), (ii) each such reduction shall apply proportionately
to permanently reduce the Revolving Loan Commitment of each Bank with such a
Commitment, (iii) the reduction to the Total Unutilized Revolving Loan
Commitment shall in no case be in an amount which would cause the Revolving
Loan Commitment of any Bank to be reduced (as required by preceding clause
(ii)) by an amount which exceeds the remainder of (x) the Unutilized
Revolving Loan Commitment of such Bank as in effect immediately before giving
effect to such reduction minus (y) such Bank's Adjusted RL Percentage of the
aggregate principal amount of Swingline Loans then outstanding, and (iv) any
partial reduction to the Total Revolving Loan Commitment shall apply to
reduce the remaining
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<PAGE>
Scheduled Commitment Reductions in direct order of maturity (based upon the
amount of each such remaining Scheduled Commitment Reduction).
(b) In the event of certain refusals by a Bank as provided in
Section 14.12(b) to consent to certain proposed changes, waivers, discharges
or terminations with respect to this Agreement which have been approved by
the Required Banks, the Company may, subject to its compliance with the
requirements of Section 14.12(b), upon five Business Days' written notice to
the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks) terminate
all of the Revolving Loan Commitment and/or the Tranche A Term Loan
Commitment of such Bank, so long as all Loans, together with accrued and
unpaid interest, Fees and all other amounts, owing to such Bank (other than
amounts owing in respect of any Tranche of Loans maintained by such Bank
which are not being repaid pursuant to Section 14.12(b)) are repaid
concurrently with the effectiveness of such termination (at which time
Schedule I shall be deemed modified to reflect such changed amounts), and at
such time, unless the respective Bank continues to have outstanding Loans of
one or more Tranches hereunder, such Bank shall no longer constitute a "Bank"
for purposes of this Agreement, except with respect to indemnifications under
this Agreement (including, without limitation, Sections 1.10, 1.11, 2.06,
4.04, 14.01 and 14.06), which shall survive as to such repaid Bank.
(c) Upon at least two Business Days' prior notice to the
Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), the Company shall have
the right, at any time or from time to time, without premium or penalty, to
terminate the Total Tranche C Term Loan Commitment (and the Tranche C Term
Loan Commitment of each Bank) in whole or in part, in each case in integral
multiples of $5,000,000 in the case of partial reductions; provided that (i)
each such reduction shall apply proportionately to permanently reduce the
Tranche C Term Loan Commitment of each Bank with such a Commitment and (ii)
any partial reduction to the Total Tranche C Term Loan Commitment shall apply
to reduce the then remaining Tranche C Scheduled Repayments in inverse order
of maturity.
3.03 Mandatory Reduction of Commitments. (a) The Total
----------------------------------
Commitment (and the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment and the Revolving Loan Commitment of each Bank) shall terminate in
its entirety on October 15, 1994 unless the Initial Borrowing Date shall have
occurred.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment shall
(i) be reduced on each date on which Tranche A Term Loans are incurred (after
giving effect to the making of Tranche A Term Loans on such date), in an
amount equal to the aggregate principal amount of Tranche A Term Loans
incurred on such date; (ii) terminate in its entirety on the tenth day after
the Initial Tender Offer Date (after giving effect to the making of any
Tranche A Term Loans on or prior to such date); and (iii) prior to the
termination of the
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<PAGE>
Total Tranche A Term Loan Commitment as provided in clause (ii) above, be
reduced from time to time to the extent required by Section 4.02.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche B Term Loan Commitment (and
the Tranche B Term Loan Commitment of each Bank) shall (i) terminate in its
entirety on the Initial Borrowing Date (after giving effect to the making of
the Tranche B Term Loans on such date) and (ii) prior to the termination of
the Total Tranche B Term Loan Commitment as provided in clause (i) above, be
reduced from time to time to the extent required by Section 4.02.
(d) In addition to any other mandatory commitment reduction
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
permanently reduced on each date set forth below (each a "Scheduled
Commitment Reduction Date"), in an amount equal to the amount set forth below
opposite such date (each such reduction, as such reduction may have been
reduced pursuant to Section 3.02, and/or 3.03(e), (h) or (i), a "Scheduled
Commitment Reduction"):
<TABLE>
<CAPTION>
Scheduled Commitment
Reduction Date Amount
-------------------- ------
<S> <C>
CEAc Acquisition Date $43,000,000
(if the same occurs)
December 31, 1995 $19,801,221.34, provided that if the CEAc
Acquisition Date has theretofore occurred,
such amount shall instead be $44,801,221.34
September 30, 1996 $15,000,000
September 30, 1997 $15,000,000
September 30, 1998 $15,000,000
</TABLE>
Notwithstanding anything to the contrary contained above in this Section
3.03(d) or in Section 3.02, reductions to the Total Revolving Loan Commitment
on or prior to the Seventh Amendment Effective Date shall not reduce, modify
or otherwise affect the amount of the Scheduled Commitment Reductions
otherwise provided above in this Section 3.03(d).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
permanently reduced on the dates, and in the amounts, required by Section
4.02(i) and, without duplication, on each other date on which (x) the Stated
Amount of the Tudor Convertible Bond Letter of Credit is permanently reduced,
other than as a result of a Drawing thereunder, applications made as required
by Section 4.02(i) or currency fluctuations, or (y) the aggregate Stated
Amounts of the Banesto Letters of Credit is permanently reduced other than as
a result of a Drawing thereunder, applications made as required by Section
4.02(i) or currency fluctuations, by
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<PAGE>
an amount equal to the amount of the respective such reduction (taking the
Dollar Equivalent thereof on the date of the respective reduction). All
reductions of the Total Revolving Loan Commitment pursuant to this Section
3.03(e) or pursuant to Section 4.02(i) shall be applied to reduce the then
remaining Scheduled Commitment Reductions in direct order of maturity (based
upon the amount of each such remaining Scheduled Commitment Reduction).
Notwithstanding anything to the contrary contained above, no commitment
reduction shall be made pursuant to this Section 3.03(e) for events of the
type otherwise described in this Section 3.03(e) to the extent same occur
after the Fifth Amendment Effective Date.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
permanently reduced on the date which is the sixth month anniversary of the
Initial Tender Offer Filing Date by an amount equal to the Secondary Tender
Offer Blocked Commitment as then in effect in the event that the Secondary
Tender Offer has not been commenced pursuant to the Secondary Offer to
Purchase prior to such date.
(g) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
permanently reduced (x) on the Secondary Tender Offer Filing Date by the
amount, if any, by which (i) the Secondary Tender Offer Blocked Commitment as
in effect immediately before the Secondary Tender Offer Filing Date exceeds
(ii) the Secondary Tender Offer Maximum Offered Consideration and (y) on the
Secondary Tender Offer Date by the amount, if any, by which (i) the Secondary
Tender Offer Maximum Offered Consideration exceeds (ii) the amount of the
Secondary Tender Offer Payment which is, or will be required to be, paid
based upon the actual number of Remaining Tudor Shares and Remaining Tudor
Convertible Bonds actually tendered pursuant to the Secondary Tender Offer.
(h) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the Initial Tender Offer Date the Total
Revolving Loan Commitment shall be permanently reduced by the Dollar
Equivalent (as determined on such date) of the sum of (x) the amount by which
2,998,270,000 Pesetas exceeds the Stated Amount of the Tudor Convertible Bond
Letter of Credit actually required to be issued on or prior to such date and
(y) the amount by which 9,264,694,445 Pesetas exceeds the aggregate Stated
Amounts (excluding the Interest Components of any Banesto Letters of Credit)
of all Banesto Letters of Credit actually required to be issued on or prior
to such date (converting any amounts issued in currencies other than Pesetas
into Pesetas at then prevailing exchange rates as determined by the
Administrative Agent). Any reduction to the Total Revolving Loan Commitment
pursuant to this clause (h) shall be applied to reduce the then remaining
Scheduled Commitment Reductions in the same manner as provided in the last
sentence of Section 3.03(e).
(i) In addition to any other mandatory commitment reduction
pursuant to this Section 3.03, the Total Revolving Loan Commitment shall be
permanently reduced on
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<PAGE>
such date, if any, occurring after the Initial Tender Offer Filing Date upon
which the Initial Tender Offer shall have been withdrawn, cancelled or
declared void, in each case within the meaning provided in the Initial Tender
Offer Credit Support (the "Initial Tender Offer Termination Date") by an
amount equal to $134,000,000. Any reduction to the Total Revolving Loan
Commitment pursuant to this clause (i) shall be applied to reduce the then
remaining scheduled Commitment Reductions in the same manner as provided in
the last sentence of Section 3.03(e).
(j) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment and
Total Tranche B Term Loan Commitment shall terminate in its entirety on such
date, if any, as a reduction is made to the Total Revolving Loan Commitment
as specified in preceding Section 3.03(i).
(k) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date upon which the Receivables
Facility Commitment is increased to an amount in excess of $40,000,000 (or in
excess of the highest amount in excess of $40,000,000 to which the
Receivables Maximum Commitment Amount has theretofore been raised after the
Effective Date and before such increase) then there shall be a reduction to
the Total Revolving Loan Commitment in the amount of such increase.
(l) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the (i) Total Revolving Loan Commitment (and
the Revolving Loan Commitment of each Bank) shall terminate in its entirety
on the Revolving Loan Maturity Date and (ii) the Total Tranche A Term Loan
Commitment (and the Tranche A Term Loan Commitment of each Bank) shall
terminate in its entirety on the Tranche A Term Loan Maturity Date.
(m) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Initial Borrowing Date
upon which a mandatory prepayment of Term Loans pursuant to Section 4.02(j)
(as a result of the application of the other requirements of Section 4.02) is
required (and exceeds in amount the sum of (x) the aggregate principal amount
of Term Loans then outstanding and (y) the Tranche A Letter of Credit
Outstandings (less any cash held as collateral therefor)) or would be
required if Term Loans were then outstanding, the Total Revolving Loan
Commitment shall be permanently reduced by the amount, if any, by which the
amount required to be applied pursuant to said Section (determined as if an
unlimited amount of Term Loans were actually outstanding) exceeds the sum of
(x) aggregate principal amount of Term Loans then outstanding and (y) the
Tranche A Letter of Credit Outstandings (less any cash held as collateral
therefor).
(n) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche C Term Loan Commitment (and
the Tranche C Term Loan Commitment of each Bank) shall terminate in its
entirety on the Tranche C Term
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<PAGE>
Loan Borrowing Date (after giving effect to the making of the Tranche C Term
Loans on such date).
(o) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the CEAc Acquisition Date the Tranche C
Term Loan Commitment shall be permanently reduced by the amount (as
determined on such date), if any, by which $421,850,000 exceeds the CEAc
Acquisition Amount as calculated on the CEAc Acquisition Date and contained
in the officer's certificate delivered to the Banks pursuant to Section
6A.23.
(p) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the CEAc Acquisition Date the Tranche C
Term Loan Commitment shall be permanently reduced by the Dollar Equivalent of
the amount (as determined on such date), if positive, by which the CEAc
Refinancing Amount as specified in the officer's certificate delivered to the
Banks pursuant to Section 6A.23 exceeds 830,000,000 French Francs.
(q) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche C Term Loan Commitment shall
terminate in its entirety on the Tranche C Expiration Date unless the Tranche
C Term Loan Borrowing Date has occurred.
(r) Each reduction to the Total Tranche A Term Loan Commitment,
the Total Tranche B Term Loan Commitment, the Total Tranche C Term Loan
Commitment or the Total Revolving Loan Commitment pursuant to this Section
3.03 (or pursuant to Section 4.02) shall be applied proportionately to reduce
the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment, the
Tranche C Term Loan Commitment or the Revolving Loan Commitment, as the case
may be, of each Bank with such a Commitment. Any reductions to the Total
Tranche C Term Loan Commitment pursuant to either of Sections 4.02(o) and/or
(p) shall apply to reduce the Tranche C Schedule Repayments in inverse order
of maturity.
SECTION 4. Prepayments; Payments; Taxes.
----------------------------
4.01 Voluntary Prepayments. (a) The Company shall have the right
---------------------
to prepay the Loans, without premium or penalty, in whole or in part at any
time and from time to time on the following terms and conditions:
(i) the Company shall give the Administrative Agent prior to
1:00 P.M. (New York time) at its Notice Office (x) at least one Business
Day's prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Base Rate Loans (or same day notice in
the case of Swingline Loans, provided such notice is given prior to 1:00
--------
P.M. (New York time)) and (y) at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of
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<PAGE>
its intent to prepay Eurodollar Loans, whether Term Loans, Revolving
Loans or Swingline Loans shall be prepaid, the amount of such prepayment
and the Types of Loans to be prepaid and, in the case of Eurodollar
Loans, the specific Borrowing or Borrowings pursuant to which made,
which notice the Administrative Agent shall promptly transmit to each of
the Banks;
(ii) each prepayment shall be in an aggregate principal amount
of at least $1,000,000 (or $500,000 in the case of Swingline Loans);
provided, that if any partial prepayment of Eurodollar Loans made
--------
pursuant to any Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than $10,000,000, then
such Borrowing may not be continued as a Borrowing of Eurodollar Loans
and any election of an Interest Period with respect thereto given by the
Company shall have no force or effect;
(iii) each prepayment in respect of any Loans made pursuant to
a Borrowing shall be applied pro rata among such Loans;
--- ----
(iv) in the event of certain refusals by a Bank as provided in
Section 14.12(b) to consent to certain proposed changes, waivers,
discharges or terminations with respect to this Agreement which have
been approved by the Required Banks, the Company may, upon 5 Business
Days' written notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each
of the Banks) repay all Loans, together with accrued and unpaid
interest, Fees, and other amounts owing to such Bank (or owing to such
Bank with respect to each Tranche which gave rise to the need to obtain
such Bank's individual consent) in accordance with, and subject to the
requirements of said Section 14.12(b) so long as (A) in the case of the
repayment of Revolving Loans of any Bank pursuant to this clause (iv)
the Revolving Loan Commitment of such Bank is terminated concurrently
with such repayment (at which time Schedule I shall be deemed modified
to reflect the changed Revolving Loan Commitments), and (B) the consents
required by Section 14.12(b) in connection with the repayment pursuant
to this clause (iv) have been obtained;
(v) voluntary prepayments of Term Loans effected pursuant to
this Section 4.01 (except pursuant to the preceding clause (iv)) shall
be applied to the Tranche A Term Loans, Tranche B Term Loans and Tranche
C Term Loans on a pro rata basis (based upon the then outstanding
--- ----
principal amount of Tranche A Term Loans, Tranche B Term Loans and
Tranche C Term Loans); and
(vi) at the Company's election in connection with any
prepayment of Revolving Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Revolving Loan of a Defaulting
Bank.
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<PAGE>
(b) Each prepayment of principal of Tranche A Term Loans, Tranche
B Term Loans and Tranche C Term Loans pursuant to this Section 4.01 shall be
applied to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans pro rata based upon the then remaining amount of
--- ----
Scheduled Repayments of the respective Tranche after giving effect to all
prior reductions thereto; provided, that repayments of any Tranche of Term
--------
Loans pursuant to clause (iv) of Section 4.01(a) shall only apply to reduce
the then remaining Scheduled Repayments of such Tranche to the extent such
Term Loans so repaid are not replaced pursuant to Section 14.12(b), with any
such reductions to reduce the then remaining Scheduled Repayments of the
respective Tranche in inverse order of maturity unless otherwise specifically
agreed by the Required Banks.
4.02 Mandatory Repayments; Cash Collateralizations and Commitment
------------------------------------------------------------
Reductions. (a)(i) On any day on which the sum of the aggregate outstanding
----------
principal amount of the Revolving Loans made by Non-Defaulting Banks,
Swingline Loans and Revolving Letter of Credit Outstandings exceeds the
Adjusted Total Available Revolving Loan Commitment as then in effect, the
Company shall prepay principal of Swingline Loans and, after the Swingline
Loans have been repaid in full, Revolving Loans of Non-Defaulting Banks in an
amount equal to such excess. If, after giving effect to the prepayment of
all outstanding Revolving Loans of Non-Defaulting Banks, the aggregate amount
of the Revolving Letter of Credit Outstandings exceeds the Adjusted Total
Available Revolving Loan Commitment as then in effect, the Company shall pay
to the Administrative Agent at the Payment Office on such date an amount of
cash or Cash Equivalents equal to the amount of such excess (up to a maximum
amount equal to the Revolving Letter of Credit Outstandings at such time),
such cash or Cash Equivalents to be held as security for all obligations of
the Company to the Revolving Credit Participants in a cash collateral account
to be established by the Administrative Agent.
(ii) On any day on which the aggregate outstanding principal
amount of the Revolving Loans made by any Defaulting Bank exceeds the
Available Revolving Loan Commitment of such Defaulting Bank, the Company
shall prepay principal of Revolving Loans of such Defaulting Bank in an
amount equal to such excess.
(iii) On any date upon which (x) the Letter of Credit Outstandings
at such time are in excess of the Letter of Credit Limit as then in effect,
the Company shall pay to the Administrative Agent at the Payment Office on
such date an amount of cash or Cash Equivalents as is necessary (taking into
account all other cash collateral then maintained with respect to the
Revolving Letter of Credit Outstandings) to secure an amount equal to the
amount of such excess, such cash or Cash Equivalents to be held as security
for all obligations of the Company to the Revolving Credit Participants in a
cash collateral account to be established by the Administrative Agent and (y)
the Letter of Credit Outstandings at such time are in excess of the
Additional Tudor Letter of Credit Sub-Limit as then in effect, the Company
shall pay to the Administrative Agent at the Payment Office on such date an
amount of cash or Cash Equivalents as is necessary (taking into account all
other cash collateral then maintained with respect to the Revolving Letter of
Credit Outstandings) to
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<PAGE>
secure an amount equal to the amount of such excess, such cash or Cash
Equivalents to be held as security for all obligations of the Company to the
Revolving Credit Participants in a cash collateral account to be established
by the Administrative Agent.
(iv) If on any date the Tranche A Letter of Credit Outstandings
are in excess of the Total Tranche A Term Loan Commitment as then in effect,
then the Company shall pay to the Administrative Agent at the Payment Office
on such date an amount of cash or Cash Equivalents equal to the amount of
such excess (up to a maximum amount equal to the Tranche A Letter of Credit
Outstandings at such time), such cash or Cash Equivalents to be held as
security for all obligations of the Company to the Tranche A Participants in
a cash collateral account to be established by the Administrative Agent.
Upon the occurrence of any Drawing under the Initial Tender Offer Credit
Support, any cash collateral held as contemplated by this clause (iv) shall
be applied to reimburse, to the extent of the cash collateral so applied, the
Issuer for such Drawing.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Company shall be required to repay that principal amount of Tranche A Term
Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(j), a "Tranche A Scheduled Repayment," and each such date, a
"Tranche A Scheduled Repayment Date"):
<TABLE>
<CAPTION>
Tranche A
Scheduled Repayment Date Amount
------------------------ ------
<S> <C>
March 31, 1995 $5,000,000.00
June 30, 1995 2,500,000.00
September 30, 1995 2,500,000.00
December 31, 1995 3,750,000.00
March 31, 1996 3,750,000.00
June 30, 1996 3,750,000.00
September 30, 1996 3,750,000.00
December 31, 1996 5,000,000.00
March 31, 1997 5,000,000.00
June 30, 1997 5,000,000.00
September 30, 1997 5,000,000.00
December 31, 1997 6,250,000.00
March 31, 1998 6,250,000.00
June 30, 1998 6,250,000.00
September 30, 1998 6,250,000.00
December 31, 1998 7,500,000.00
</TABLE>
-37-
<PAGE>
<TABLE>
<S> <C>
March 31, 1999 7,500,000.00
June 30, 1999 7,500,000.00
Tranche A Term Loan
Maturity Date 7,500,000.00
</TABLE>
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Company shall be required to repay that principal amount of Tranche B Term
Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(j), a "Tranche B Scheduled Repayment," and each such date, a
"Tranche B Scheduled Repayment Date"):
<TABLE>
<CAPTION>
Tranche B
Scheduled Repayment Date Amount
------------------------ ------
<S> <C>
March 31, 1995 $ 500,000.00
June 30, 1995 250,000.00
September 30, 1995 250,000.00
December 31, 1995 250,000.00
March 31, 1996 250,000.00
June 30, 1996 250,000.00
September 30, 1996 250,000.00
December 31, 1996 250,000.00
March 31, 1997 250,000.00
June 30, 1997 250,000.00
September 30, 1997 250,000.00
December 31, 1997 250,000.00
March 31, 1998 250,000.00
June 30, 1998 250,000.00
September 30, 1998 250,000.00
December 31, 1998 250,000.00
March 31, 1999 250,000.00
June 30, 1999 250,000.00
September 30, 1999 250,000.00
December 31, 1999 11,250,000.00
March 31, 2000 11,250,000.00
June 30, 2000 11,250,000.00
September 30, 2000 11,250,000.00
</TABLE>
-38-
<PAGE>
<TABLE>
<S> <C>
December 31, 2000 12,500,000.00
March 31, 2001 12,500,000.00
June 30, 2001 12,500,000.00
Tranche B Term Loan
Maturity Date 12,500,000.00
</TABLE>
(d)(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Effective
Date upon which the Company or any of its Subsidiaries (other than Tudor,
CEAc and their respective Subsidiaries) receives any proceeds from any sale
or issuance of its equity (including, without limitation, the issuance of
capital stock, or options or warrants to purchase such capital stock) or from
the exercise of options or warrants to purchase such equity (other than
proceeds received by any Subsidiary representing an investment therein
permitted to be made in accordance with this Agreement by the Company or any
Subsidiary of the Company), an amount equal to 66-2/3% of the Net Cash
Proceeds of the respective sale, issuance or exercise shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(j) and (k)./2//
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Initial
Tender Offer Date upon which Tudor or any of its Subsidiaries receives any
proceeds from any sale or issuance of its equity (including, without
limitation, the issuance of capital stock, or options or warrants to purchase
such capital stock) or from the exercise of options or warrants to purchase
such equity (other than proceeds received by Tudor or any such Subsidiary
representing an investment therein permitted to be made in accordance with
this Agreement by the Company or any Subsidiary of the Company) an amount
equal to 66-2/3% of the Net Cash Proceeds of the respective sale or issuance
shall be applied in accordance with the requirements of Section 4.02(i).
(iii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the CEAc
Acquisition Date upon which CEAc or any of its Subsidiaries receives any
proceeds from any sale or issuance of its equity (including, without
limitation, the issuance of capital stock, or options or warrants to purchase
such capital stock) or from the exercise of options or warrants to purchase
such equity (other than proceeds received by CEAc or any such Subsidiary
representing an investment therein permitted to be made in accordance with
this Agreement by the Company or any Subsidiary of the Company) an amount
equal to 66-2/3% of the Net Cash
- ----------
/2// The Net Cash Proceeds of the Subject Shares Issuance were not required to
be applied as required by Section 4.02(d)(i) pursuant to the Second
Consent, Waiver and Agreement and the Fourth Amendment.
-39-
<PAGE>
Proceeds of the respective sale or issuance shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Section 4.02(m).
(e)(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Fourth
Amendment Effective Date upon which the Company or any of its Subsidiaries
(other than Tudor, CEAc and their respective Subsidiaries) receives any
proceeds from any incurrence by the Company or any of its Subsidiaries (other
than Tudor, CEAc and their respective Subsidiaries) of Indebtedness for
borrowed money (other than Indebtedness for borrowed money permitted to be
incurred pursuant to Section 10.05 as such Section is in effect on the Fourth
Amendment Effective Date), an amount equal to 100% of the Net Cash Proceeds
of the respective incurrence of Indebtedness shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(j) and (k)./3//
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Initial
Tender Offer Date upon which Tudor or any of its Subsidiaries receives any
proceeds from any incurrence by Tudor or any of its Subsidiaries of
Indebtedness for borrowed money (excluding (x) proceeds received pursuant to
committed lines of credit of Tudor and its Subsidiaries in effect on the
Initial Tender Offer Date, in each case so long as the respective
Indebtedness is permitted to be incurred in accordance with Section 10.05 and
(y) proceeds received from refinancing Indebtedness permitted to be incurred
pursuant to Section 10.05(vi), but only to the extent that the proceeds
thereof are used to refinance Indebtedness other than Banesto Debt, Tudor
Convertible Bonds and other indebtedness which is supported by one or more
Additional Tudor Letters of Credit), an amount equal to 100% of the Net Cash
Proceeds of the respective incurrence of indebtedness shall be applied in
accordance with the requirements of Section 4.02(i).
(iii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the CEAc
Acquisition Date upon which CEAc or any of its Subsidiaries receives any
proceeds from any incurrence by CEAc or any of its Subsidiaries of
Indebtedness for borrowed money (other than Indebtedness for borrowed money
permitted to be incurred pursuant to Section 10.05 as such Section is in
effect on the Fourth Amendment Effective Date), an amount equal to 100% of
the Net Cash Proceeds of the respective incurrence of Indebtedness shall be
applied as a mandatory repayment and/or commitment reduction in accordance
with the requirements of Section 4.02(m).
- ----------
/3// The Net Cash Proceeds of the 2005 Senior Unsecured Notes Issuance were not
required to be applied as required by Section 4.02(e)(i) pursuant to the
Fifth Amendment, the Sixth Amendment and the Seventh Amendment.
-40-
<PAGE>
(f)(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Effective
Date upon which the Company or any of its Subsidiaries (other than Tudor,
CEAc and their respective Subsidiaries) receives proceeds from any sale of
assets (other than capital stock and securities held thereby, but excluding
(i) sales or transfers of inventory in the ordinary course of business and
(ii) sales of assets to the extent permitted by Section 10.02(ii) and (vi)
(as in effect on the Effective Date)), an amount equal to 100% of the Net
Sale Proceeds therefrom shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(j)
and (k).
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the Initial
Tender Offer Date upon which Tudor or any of its Subsidiaries receives
proceeds from any sale of assets (including capital stock and securities held
thereby, but excluding (i) sales or transfers of inventory and equipment in
the ordinary course of business and (ii) sales of assets to the extent
permitted by Section 10.02 (ii) (as in effect on the Effective Date)), an
amount equal to 100% of the Net Sale Proceeds therefrom shall be applied in
accordance with the requirements of Section 4.02(i).
(iii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date after the CEAc
Acquisition Date upon which CEAc or any of its Subsidiaries receives proceeds
from any sale of assets (including capital stock and securities held thereby,
but excluding (i) sales or transfers of inventory and equipment in the
ordinary course of business; (ii) sales of assets to the extent permitted by
Section 10.02(ii) and (xv) (as in effect on the Fourth Amendment Effective
Date) and (iii) sales of assets to the extent the proceeds thereof are
expressly excepted from the mandatory repayment requirements of the CEAc
Refinancing Credit Facility by reason of the exceptions contained in Section
7.3.1 of the CEAc Refinancing Credit Facility as originally in effect), an
amount equal to 100% of the Net Sale Proceeds therefrom shall be applied as a
mandatory repayment and/or commitment reduction in accordance with the
requirements of Section 4.02(m).
(g)(i) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to the
applicable Excess Cash Flow Percentage of the Company Excess Cash Flow for
the relevant Excess Cash Payment Period shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(j) and (k).
(ii) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to the
applicable Excess Cash Flow Percentage of the Tudor Excess Cash Flow for the
relevant Excess Cash Payment Period shall be applied in accordance with the
requirements of Section 4.02(i).
-41-
<PAGE>
(iii) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date occurring after the CEAc
Acquisition Date, an amount equal to the applicable Excess Cash Flow
Percentage of the CEAc Excess Cash Flow for the relevant Excess Cash Payment
Period shall be applied as a mandatory repayment and/or commitment reduction
in accordance with the requirements of Section 4.02(m).
(h)(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date
after the Effective Date on which the Company or any of its Subsidiaries
(other than Tudor, CEAc and their respective Subsidiaries) receives any
proceeds from any Recovery Event, an amount equal to 100% of the proceeds of
such Recovery Event (net of reasonable costs and taxes incurred in connection
with such Recovery Event) shall be applied as a mandatory repayment and/or
commitment reduction in accordance with the requirements of Sections 4.02(j)
and (k), provided that (x) so long as no Default or Event of Default then
--------
exists and such proceeds do not exceed $10,000,000, such proceeds shall not
be required to be so applied on such date to the extent that the Company has
delivered a certificate to the Administrative Agent on or prior to such date
stating that such proceeds shall be used to replace or restore any properties
or assets in respect of which such proceeds were paid within 12 months
following the date of such Recovery Event (which certificate shall set forth
the estimates of the proceeds to be so expended) and (y) so long as no
Default or Event of Default then exists and if (a) the amount of such
proceeds exceeds $10,000,000 but does not exceed $50,000,000, (b) the amount
of such proceeds is at least equal to 90% of the cost of replacement or
restoration of the properties or assets in respect of which such proceeds
were paid as determined by the Company and as supported by such estimates or
bids from contractors or subcontractors or such other supporting information
as the Administrative Agent may reasonably request, (c) the Company has
delivered to the Administrative Agent a certificate on or prior to the date
the application would otherwise be required pursuant to this Section
4.02(h)(i) in the form described in clause (x) above (although the time
period for the replacement or restoration of the properties or assets may be
extended from 12 months to 24 months following the date of such Recovery
Event) and also certifying its determination as required by preceding clause
(b) and certifying the sufficiency of business interruption insurance as
required by succeeding clause (d), and (d) the Company has delivered to the
Administrative Agent such evidence as the Administrative Agent may reasonably
request in form and substance satisfactory to the Administrative Agent
establishing that the Company has sufficient business interruption insurance
and that the Company will be receiving regular payments thereunder in such
amounts and at such times as are necessary to satisfy all obligations and
expenses of the Company (including without limitation all debt service
requirements, including pursuant to this Agreement) without any delay or
extension thereof, for the period from the date of the respective casualty,
condemnation or other event giving rise to the Recovery Event and continuing
through the completion of the replacement or restoration of the respective
properties or assets, then the entire amount and not just the portion in
excess of $10,000,000 shall be deposited with the Administrative Agent
pursuant to a cash collateral arrangement
-42-
<PAGE>
satisfactory to the Administrative Agent whereby such proceeds shall be
disbursed to the Company from time to time as needed to pay actual costs
incurred by it in connection with the replacement or restoration of the
respective properties or assets (pursuant to such certification requirements
as may reasonably be established by the Administrative Agent), provided
--------
further that at any time while an Event of Default has occurred and is
-------
continuing, the Required Banks may direct the Administrative Agent (in which
case the Administrative Agent shall, and is hereby authorized by the Company
to, follow said directions) to apply any or all proceeds then on deposit in
such collateral account to the repayment of Obligations hereunder in the same
manner as proceeds would be applied pursuant to the Security Agreement, and
provided further, that if all or any portion of such proceeds not required to
----------------
be applied to mandatory repayments and commitment reductions pursuant to the
second preceding proviso (whether pursuant to clause (x) or (y) thereof) are
not so used within 12 months (in the case of clause (x) to the second
preceding proviso) or 24 months (in the case of clause (y) to the second
preceding proviso) after the date of the respective Recovery Event, such
remaining portion shall be applied on the date which is 12 or 24 months, as
the case may be, after the date of the respective Recovery Event as a
mandatory repayment of principal of outstanding Term Loans in accordance with
the requirements of Sections 4.02(j) and (k).
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date
after the Effective Date on which Tudor or any of its Subsidiaries receives
any proceeds from any Recovery Event, an amount equal to 100% of the proceeds
of such Recovery Event (net of reasonable costs and taxes incurred in
connection with such Recovery Event) shall be applied in accordance with the
requirements of Section 4.02(i), provided that (x) so long as no Default or
--------
Event of Default then exists and such proceeds do not exceed $10,000,000,
such proceeds shall not be required to be so applied on such date to the
extent that the Company has delivered a certificate to the Administrative
Agent on or prior to such date stating that such proceeds shall be used to
replace or restore any properties or assets in respect of which such proceeds
were paid within 12 months following the date of such Recovery Event (which
certificate shall set forth the estimates of the proceeds to be so expended)
and (y) so long as no Default or Event of Default then exists and if (a) the
amount of such proceeds exceeds $10,000,000 but does not exceed $50,000,000,
(b) the amount of such proceeds is at least equal to 90% of the cost of
replacement or restoration of the properties or assets in respect of which
such proceeds were paid as determined by the Company and as supported by such
estimates or bids from contractors or subcontractors or such other supporting
information as the Administrative Agent may reasonably request, (c) the
Company has delivered to the Administrative Agent a certificate on or prior
to the date the application would otherwise be required pursuant to this
Section 4.02(h)(ii) in the form described in clause (x) above (although the
time period for the replacement or restoration of the properties or assets
may be extended from 12 months to 24 months following the date of such
Recovery Event) and also certifying its determination as required by
preceding clause (b) and certifying the sufficiency of business interruption
insurance as required by succeeding clause (d), and (d) the Company has
delivered to the Administrative
-43-
<PAGE>
Agent such evidence as the Administrative Agent may reasonably request in
form and substance satisfactory to the Administrative Agent establishing that
the Company and/or Tudor have sufficient business interruption insurance and
that the Company and/or Tudor will be receiving regular payments thereunder
in such amounts and at such times as are necessary to satisfy all obligations
and expenses of the Company and its Subsidiaries (including without
limitation all debt service requirements, including pursuant to this
Agreement) without any delay or extension thereof, for the period from the
date of the respective casualty, condemnation or other event giving rise to
the Recovery Event and continuing through the completion of the replacement
or restoration of the respective properties or assets, then the entire amount
and not just the portion in excess of $10,000,000 shall be deposited with a
bank acceptable to the Administrative Agent pursuant to a cash collateral
arrangement satisfactory to the Administrative Agent whereby such proceeds
shall be disbursed to Tudor from time to time as needed to pay actual costs
incurred by it in connection with the replacement or restoration of the
respective properties or assets (pursuant to such certification requirements
as may reasonably be established by the Administrative Agent), and provided
--------
further, that if all or any portion of such proceeds not required to be
-------
applied to mandatory repayments and commitment reductions pursuant to the
preceding proviso (whether pursuant to clause (x) or (y) thereof) are not so
used within 12 months (in the case of clause (x) to the preceding proviso) or
24 months (in the case of clause (y) to the preceding proviso) after the date
of the respective Recovery Event, such remaining portion shall be applied on
the date which is 12 or 24 months, as the case may be, in accordance with the
requirements of Section 4.02(i).
(iii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date
after the CEAc Acquisition Date on which CEAc or any of its Subsidiaries
receives any proceeds from any Recovery Event, an amount equal to 100% of the
proceeds of such Recovery Event (net of reasonable costs and taxes incurred
in connection with such Recovery Event) shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Section 4.02(m), provided that (x) so long as no Default or Event of Default
--------
then exists and such proceeds do not exceed $10,000,000, such proceeds shall
not be required to be so applied on such date to the extent that the Company
has delivered a certificate to the Administrative Agent on or prior to such
date stating that such proceeds shall be used to replace or restore any
properties or assets in respect of which such proceeds were paid within 12
months following the date of such Recovery Event (which certificate shall set
forth the estimates of the proceeds to be so expended) and (y) so long as no
Default or Event of Default then exists and if (a) the amount of such
proceeds exceeds $10,000,000 but does not exceed $50,000,000, (b) the amount
of such proceeds is at least equal to 90% of the cost of replacement or
restoration of the properties or assets in respect of which such proceeds
were paid as determined by the Company and as supported by such estimates or
bids from contractors or subcontractors or such other supporting information
as the Administrative Agent may reasonably request, (c) the Company has
delivered to the Administrative Agent a certificate on or prior to the date
the application would otherwise be required pursuant to this Section
4.02(h)(iii) in the form
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<PAGE>
described in clause (x) above (although the time period for the replacement
or restoration of the properties or assets may be extended from 12 months to
24 months following the date of such Recovery Event) and also certifying its
determination as required by preceding clause (b) and certifying the
sufficiency of business interruption insurance as required by succeeding
clause (d), and (d) the Company has delivered to the Administrative Agent
such evidence as the Administrative Agent may reasonably request in form and
substance satisfactory to the Administrative Agent establishing that the
Company and/or CEAc have sufficient business interruption insurance and that
the Company and/or CEAc will be receiving regular payments thereunder in such
amounts and at such times as are necessary to satisfy all obligations and
expenses of the Company and its Subsidiaries (including without limitation
all debt service requirements, including pursuant to this Agreement) without
any delay or extension thereof, for the period from the date of the
respective casualty, condemnation or other event giving rise to the Recovery
Event and continuing through the completion of the replacement or restoration
of the respective properties or assets, then the entire amount and not just
the portion in excess of $10,000,000 shall be deposited with a bank
acceptable to the Administrative Agent pursuant to a cash collateral
arrangement satisfactory to the Administrative Agent whereby such proceeds
shall be disbursed to CEAc from time to time as needed to pay actual costs
incurred by it in connection with the replacement or restoration of the
respective properties or assets (pursuant to such certification requirements
as may reasonably be established by the Administrative Agent), and provided
--------
further, that if all or any portion of such proceeds not required to be
-------
applied to mandatory repayments and commitment reductions pursuant to the
preceding proviso (whether pursuant to clause (x) or (y) thereof) are not so
used within 12 months (in the case of clause (x) to the preceding proviso) or
24 months (in the case of clause (y) to the preceding proviso) after the date
of the respective Recovery Event, such remaining portion shall be applied on
the date which is 12 or 24 months, as the case may be, as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Section 4.02(m).
(i) Each amount required to be applied pursuant to Sections
4.02(d)(ii), (e)(ii), (f)(ii), (g)(ii) and (h)(ii) shall be applied (i)
first, to permanently repay or prepay the principal of outstanding
-----
Indebtedness (but not Indebtedness owing to the Company or any of its
Subsidiaries) of Tudor and its Subsidiaries which is required to be repaid as
a result of the respective event giving rise to the required repayment
pursuant to this Section 4.02 (it being understood that any amount
permanently repaid or prepaid pursuant to this clause (i) may not be
reborrowed or refinanced and, if the respective repayment or prepayment is in
respect of a revolving or similar commitment, such revolving or similar
commitment shall be reduced by the amount of the respective repayment or
prepayment pursuant to this clause (i)), (ii) second, at the option of the
------
Company, to the extent in excess of the amounts required to be applied
pursuant to the preceding clause (i), the remaining amount may be applied to
permanently repay or prepay the principal of outstanding Indebtedness (but
not Indebtedness owing to the Company or any of its Subsidiaries) of Tudor
and its Subsidiaries (it being understood that any amount permanently repaid
or prepaid pursuant to this clause (ii) may not be reborrowed or refinanced
and, if the respective repayment or
-45-
<PAGE>
prepayment is in respect of a revolving or similar commitment, such revolving
or similar commitment shall be reduced by the amount of the respective
repayment or prepayment pursuant to this clause (ii)) and (iii) third, to the
-----
extent in excess of the amounts actually applied pursuant to the preceding
clauses (i) and (ii), the remaining amount shall otherwise be applied as
required by the immediately succeeding sentence. Any amount to be applied
pursuant to clause (iii) of the immediately preceding sentence shall (x) be
required to be repatriated to shareholders of Tudor or to the Company by way
of Dividends or repayments of intercompany indebtedness, (y) of the gross
amount repatriated as required by preceding clause (x), the Company (whether
directly or through repatriations received by it from its Wholly-Owned
Subsidiaries) shall be required to receive an amount which is at least equal
to the Tudor Percentage at the time the respective repatriation is made (net
of any applicable withholding taxes or other amounts required under
applicable law to be withheld in respect of the amount repatriated to the
Company) and (z) the net amount actually repatriated to the Company as
described in preceding clause (y) (taking the actual percentage received by
the Company of the amount distributed, whether same is based on the Tudor
Percentage or is a higher percentage) shall be applied as otherwise required
by Sections 4.02(j) and (k); provided that, notwithstanding anything to the
contrary contained above, to the extent that the repatriation of amounts as
required by this sentence would result in a violation of applicable
restrictions on repatriations contained in Indebtedness of Tudor and its
Subsidiaries (and so long as such restrictions are not more restrictive that
those permitted to exist pursuant to clause (ix) of Section 10.13), the
application pursuant to this sentence may be delayed until the respective
repatriations are permitted to be made (it being understood and agreed that
the Company shall be required to cause repatriations to occur from time to
time to the maximum extent permitted under the applicable such restrictions
in such Indebtedness until the full amount which otherwise would have been
required to be applied pursuant to clause (iii) of the immediately preceding
sentence has been applied in accordance with the requirements of this
sentence without giving effect to the proviso hereto) in accordance with such
restrictions contained in such Indebtedness."
(j) Each amount required to be applied to the Loans pursuant to
Sections 4.02(d)(i), (e)(i), (f)(i), (g)(i) and (h)(i), or required to be
applied pursuant to this Section 4.02(j) by the last sentence of Section
4.02(i) or pursuant to Section 4.02(m), shall be applied pro rata to each
--- ----
Tranche of Term Loans based upon the then remaining principal amounts (and,
in the case of the Tranche A Term Loans, the Tranche A Letter of Credit
Outstandings at such time) of the respective Tranches (with each Tranche of
Term Loans to be allocated that percentage of the amount to be applied as is
equal to a fraction (expressed as a percentage) the numerator of which is the
then outstanding principal amount of such Tranche of Term Loans and, in the
case of the Tranche A Term Loans, the Tranche A Letter of Credit Outstandings
at such time and the denominator of which is equal to the then outstanding
principal amount of all Term Loans and the Tranche A Letter of Credit
Outstandings at such time. Any amount required to be applied to each Tranche
of Term Loans pursuant to this Section 4.02(j) shall be applied to repay the
outstanding principal amount of Term Loans of the respective Tranche then
outstanding and, to the extent in excess thereof in the case of an
application to the Tranche A Term Loans, shall
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<PAGE>
next apply to cash collateralize the Tranche A Letter of Credit Outstandings
(and reduce the Total Tranche A Term Loan Commitment) by the amount of the
excess remaining to be applied. The amount of each principal repayment of
Term Loans made as required by this Section 4.02(j) shall be applied to
reduce the then remaining Scheduled Repayments of the respective Tranche on a
pro rata basis (based upon the then remaining amounts of the Scheduled
--- ----
Repayments of the respective Tranche).
(k) With respect to each repayment of Loans required by this
Section 4.02, the Company may designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings of the respective Tranche pursuant to which
such Eurodollar Loans were made, provided that: (i) repayments of Eurodollar
--------
Loans pursuant to this Section 4.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans of the
respective Tranche with Interest Periods ending on such date of required
repayment and all Base Rate Loans of the respective Tranche have been paid in
full; (ii) if any repayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than $10,000,000, such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Loans made pursuant to a
Borrowing shall, except as set forth in Section 4.02(a), be applied pro rata
--- ----
among such Loans. In the absence of a designation by the Company as
described in the preceding sentence, the Administrative Agent shall, subject
to the above, make such designation in its sole discretion with a view, but
no obligation, to minimize breakage costs owing under Section 1.11.
(l) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, (i) all then outstanding Swingline Loans shall be repaid
in full on the Swingline Expiry Date, (ii) all other Loans then outstanding
shall be repaid in full on the respective Maturity Date for such Loans and
(iii) on such date, if any, as a reduction is made to the Total Revolving
Loan Commitment pursuant to Section 3.03(i), all then outstanding Term Loans
shall be required to be repaid in full and the Total Tranche A Term Loan
Commitment shall terminate.
(m) Each amount required to be applied pursuant to Sections
4.02(d)(iii), (e)(iii), (f)(iii), (g)(iii) and (h)(iii) shall be applied (i)
first, to permanently repay or prepay the principal of outstanding
-----
Indebtedness (but not Indebtedness owing to the Company or any of its
Subsidiaries) of CEAc and its Subsidiaries which is required to be repaid as
a result of the respective event giving rise to the required repayment
pursuant to this Section 4.02 (it being understood that any amount
permanently repaid or prepaid pursuant to this clause (i) may not be
reborrowed or refinanced and, if the respective repayment or prepayment is in
respect of a revolving or similar commitment, such revolving or similar
commitment shall be reduced by the amount of the respective repayment or
prepayment pursuant to this clause (i)), (ii) second, at the option of the
------
Company, to the extent in excess of the amounts required to be applied
pursuant to the preceding clause (i), the
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<PAGE>
remaining amount may be applied to permanently repay or prepay the principal
of outstanding Indebtedness (but not Indebtedness owing to the Company or any
of its Subsidiaries) of CEAc and its Subsidiaries (it being understood that
any amount permanently repaid or prepaid pursuant to this clause (ii) may not
be reborrowed or refinanced and, if the respective repayment or prepayment is
in respect of a revolving or similar commitment, such revolving or similar
commitment shall be reduced by the amount of the respective repayment or
prepayment pursuant to this clause (ii)) and (iii) third, to the extent in
-----
excess of the amounts actually applied pursuant to the preceding clauses (i)
and (ii), the remaining amount shall otherwise be applied as required by the
immediately succeeding sentence. Any amount to be applied pursuant to clause
(iii) of the immediately preceding sentence shall (x) be required to be
repatriated to shareholders of CEAc Acquisition Corp. or to the Company by
way of Dividends or repayments of intercompany indebtedness, (y) of the gross
amount repatriated as required by preceding clause (x), the Company (whether
directly or through repatriations received by it from its Wholly-Owned
Subsidiaries) shall be required to receive an amount which is at least equal
to the CEAc Percentage at the time the respective repatriation is made (net
of any applicable withholding taxes or other amounts required under
applicable law to be withheld in respect of the amount repatriated to the
Company) and (z) the net amount actually repatriated to the Company as
described in preceding clause (y) (taking the actual percentage received by
the Company of the amount distributed, whether same is based on the CEAc
Percentage or is a higher percentage) shall be applied as otherwise required
by Sections 4.02(j) and (k); provided that, notwithstanding anything to the
contrary contained above, to the extent that the repatriation of amounts as
required by this sentence would result in a violation of applicable
restrictions on repatriations contained in or required by Indebtedness of
CEAc and its Subsidiaries (and so long as such restrictions are not more
restrictive that those contained in the CEAc Refinancing Credit Facility as
originally in effect), the application pursuant to this sentence may be
delayed until the respective repatriations are permitted to be made (it being
understood and agreed that the Company shall be required to cause
repatriations to occur from time to time to the maximum extent permitted
under the applicable such restrictions in such Indebtedness until the full
amount which otherwise would have been required to be applied pursuant to
clause (iii) of the immediately preceding sentence has been applied in
accordance with the requirements of this sentence without giving effect to
the proviso hereto) in accordance with such restrictions contained in such
Indebtedness.
(n) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Company shall be required to repay that principal amount of Tranche C Term
Loans, to the extent then outstanding, as is set forth opposite such date
(each such repayment, as the same may be reduced as provided in Sections 4.01
and 4.02(j), a "Tranche C Scheduled Repayment," and each such date, a
"Tranche C Scheduled Repayment Date"), provided that if either or both of the
first two Tranche C Scheduled Repayment Dates listed below occurs on or prior
to the Tranche C Term Loan Borrowing Date, then the amount of the Tranche C
Scheduled Repayment to occur on each such date which occurs on or prior to
the Tranche C Term
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<PAGE>
Loan Borrowing Date shall be reduced to $0 and the amount shown opposite such
date in the table below shall instead be added to the first Tranche C
Scheduled Repayment Date listed below which occurs after the Tranche C Term
Loan Borrowing Date:
<TABLE>
<CAPTION>
Tranche C
Scheduled Repayment Date Amount
------------------------ ------
<S> <C>
March 31, 1996 $ 625,000
June 30, 1996 625,000
September 30, 1996 625,000
December 31, 1996 625,000
March 31, 1997 625,000
June 30, 1997 625,000
September 30, 1997 625,000
December 31, 1997 625,000
March 31, 1998 625,000
June 30, 1998 625,000
September 30, 1998 625,000
December 31, 1998 625,000
March 31, 1999 625,000
June 30, 1999 625,000
September 30, 1999 625,000
December 31, 1999 625,000
March 31, 2000 19,000,000
June 30, 2000 19,000,000
September 30, 2000 19,000,000
December 31, 2000 19,000,000
March 31, 2001 19,000,000
June 30, 2001 19,000,000
September 30, 2001 19,000,000
December 31, 2001 19,000,000
March 31, 2002 19,000,000
Tranche C Term Loan
Maturity Date 19,000,000
</TABLE>
(o) If at any time after the CEAc Acquisition Date it is
determined that, because of a post-closing adjustment to the purchase price
pursuant to the CEAc Acquisition
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<PAGE>
Stock Purchase Agreement or otherwise (including, without limitation, because
of amounts received by the Company or its Subsidiaries as a result of claims
for breach of contract or warranty in connection with the CEAc Acquisition),
the CEAc Acquisition Amount will be less than the amount specified in the
officer's certificate delivered to the Banks on the CEAc Acquisition Date
pursuant to Section 6A.23 (including by way of payment by the CEAc Seller of
a post-closing adjustment to the Company or its Subsidiaries or by way of
payments by the CEAc Seller in respect of claims for breach of contract or
warranty), then on the date such amount is paid or reduction to the purchase
price is effected, the Term Loans shall be required to be repaid in the
amount of the negative adjustment to the CEAc Acquisition Amount in
accordance with the requirements of Sections 4.02(j) and (k), provided that
repayments pursuant to this Section 4.02(o) shall only be required to the
extent the aggregate amount of negative adjustments to the CEAc Acquisition
Amount have brought the amount thereof below $421,850,000; provided further,
that to the extent any amounts are received pursuant to claims for breach of
contract or warranty in connection with the CEAc Acquisition, up to 43% of
the amounts received in respect of said claims may be contributed by the
Company to the capital of CEAc and used by CEAc to permanently repay (and
reduce any related revolving or similar commitments) amounts outstanding
pursuant to the CEAc Refinancing Credit Facility to the extent said capital
contribution and repayment is required pursuant to the terms thereof.
4.03 Method and Place of Payment. Except as otherwise
---------------------------
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto not later than 12:00 Noon (New York time) on the date
when due and shall be made in Dollars in immediately available funds at the
Payment Office of the Administrative Agent. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Company
------------
hereunder or under any Note will be made without setoff, counterclaim or
other defense. Except as provided in Section 4.04(b), all such payments will
be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction
(including specifically, but without limitation, Spain) or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or profits of a
Bank pursuant to the laws of the jurisdiction in which the principal office
or applicable lending office of such Bank is located or any subdivision
thereof or therein) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If
any Taxes are so levied or imposed, the Company agrees to pay the full amount
of such Taxes, and such additional amounts as may be necessary so
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<PAGE>
that every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Taxes, will not be
less than the amount provided for under this Agreement or under any Note. If
any amounts are payable in respect of Taxes pursuant to the preceding
sentence, the Company agrees to reimburse each Bank, upon the written request
of such Bank, for taxes imposed on or measured by the net income or profits
of such Bank pursuant to the laws of the jurisdiction in which the principal
office or applicable lending office of such Bank is located or under the laws
of any political subdivision or taxing authority of any such jurisdiction in
which the principal office or applicable lending office of such Bank is
located and for any withholding of income or similar taxes imposed by the
United States of America as such Bank shall determine are payable by, or
withheld from, such Bank in respect of such amounts so paid to or on behalf
of such Bank pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Bank pursuant to this sentence. The Company
will furnish to the Administrative Agent within 45 days after the date the
payment of any Taxes is due pursuant to applicable law certified copies of
tax receipts (or other reasonably satisfactory evidence) evidencing such
payment by the Company. The Company agrees to indemnify and hold harmless
each Bank, and reimburse such Bank upon its written request, for the amount
of any Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Company
and the Administrative Agent on or prior to the Effective Date, or in the
case of a Bank that is an assignee or transferee of an interest under this
Agreement pursuant to Section 1.13 or 14.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer),
on the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Bank is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause
(i) above, (x) a certificate substantially in the form of Exhibit E (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Bank agrees
that from time to time after the Effective Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Company and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall
immediately notify the Company and the Administrative Agent of its inability
to
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<PAGE>
deliver any such Form or Certificate. Notwithstanding anything to the
contrary contained in Section 4.04(a), but subject to Section 14.04(b) and
the immediately succeeding sentence, (x) the Company shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Bank which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Bank has not provided to
the Company U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) the Company shall not be
obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made
to a Bank in respect of income or similar taxes imposed by the United States
if (I) such Bank has not provided to the Company the Internal Revenue Service
Forms required to be provided to the Company pursuant to this Section 4.04(b)
or (II) in the case of a payment, other than interest, to a Bank described in
clause (ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 14.04(b), the Company agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld
by it as described in the immediately preceding sentence as a result of any
changes after the Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of income or similar taxes.
SECTION 5. Conditions Precedent to Initial Credit Events. The
---------------------------------------------
obligation of each Bank to make Loans, and the obligation of each Issuing
Bank to issue Letters of Credit, on the Initial Borrowing Date, is subject at
the time of the making of such Loans or the issuance of such Letters of
Credit to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Initial
-----------------------------
Borrowing Date (i) the Effective Date shall have occurred and (ii) there
shall have been delivered to the Administrative Agent for the account of each
of the Banks the appropriate Tranche A Term Note, Tranche B Term Note and/or
Revolving Note executed by the Company and to the Swingline Bank, the
Swingline Note executed by the Company, in each case in the amount, maturity
and as otherwise provided herein.
5.02 Officer's Certificate. On the Initial Borrowing Date, the
---------------------
Administrative Agent shall have received a certificate, dated the Initial
Borrowing Date and signed on behalf of the Company by the President or the
Chief Financial Officer of the Company, stating that all of the conditions in
Sections 5.08, 5.09, 5.10, 5.18, 5.20, 5.22 and 7.01 have been satisfied on
such date.
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<PAGE>
5.03 Opinions of Counsel. On the Initial Borrowing Date, the
-------------------
Administrative Agent shall have received from (i) Kirkland & Ellis, U.S.
counsel to the Company and its Subsidiaries, an opinion addressed to the
Administrative Agent, the Agents, the Collateral Agent and each of the Banks
and dated the Initial Borrowing Date covering the matters set forth in
Exhibit F-1, (ii) J & A Garrigues, Spanish counsel to the Company, an opinion
addressed to the Administrative Agent, the Agents, the Collateral Agent and
each of the Banks and dated the Initial Borrowing Date covering the matters
set forth in Exhibit F-2, (iii) counsel to the Seller and Banesto acceptable
to the Agents, an opinion addressed to the Administrative Agent, the Agents,
the Collateral Agent and each of the Banks covering the matters set forth in
Exhibit F-3, (iv) counsel rendering such opinions, reliance letters addressed
to the Administrative Agent, the Agents, the Collateral Agent and each of the
Banks and dated the Initial Borrowing Date with respect to all legal opinions
delivered in connection with the Acquisition, which legal opinions and
reliance letters shall be in form and substance satisfactory to the Agents
and (v) local counsel (satisfactory to the Agents) legal opinions each of
which (x) shall be addressed to the Administrative Agent, the Agents, the
Collateral Agent and each of the Banks and dated the Initial Borrowing Date,
(y) shall be in form and substance satisfactory to the Agents and (z) shall
cover the perfection of the security interests granted pursuant to the
Security Documents and such other matters incident to the transactions
contemplated herein as the Agents may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the Initial
--------------------------------------
Borrowing Date, the Administrative Agent shall have received a certificate,
dated the Initial Borrowing Date, signed by the President or any Vice
President of each Credit Party, and attested to by the Secretary or any
Assistant Secretary of such Credit Party, in the form of Exhibit G with
appropriate insertions, together with copies of the certificate of
incorporation (or equivalent organizational document) and by-laws of such
Credit Party and the resolutions of such Credit Party referred to in such
certificate, and the foregoing shall be reasonably acceptable to the Agents.
(b) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Documents shall be reasonably satisfactory in form and
substance to the Agents and the Required Banks, and the Administrative Agent
shall have received all information and copies of all documents and papers,
including records of corporate proceedings, governmental approvals, good
standing certificates and bring-down telegrams or facsimiles, if any, which
the Agents reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate or
governmental authorities.
(c) On the Initial Borrowing Date, unless and to the extent
otherwise agreed by the Administrative Agent, the Administrative Agent shall
have received evidence of the amendment to the certificate of incorporation
(or equivalent organizational document) and by-laws of each Foreign
Subsidiary whose capital stock is to be pledged pursuant to the Initial
Pledge Agreement permitting the granting of a security interest in such
Foreign
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<PAGE>
Subsidiary's capital stock pursuant to the Initial Pledge Agreement, in form
and substance satisfactory to the Agents and local counsel to the Agents.
5.05 Employee Benefit Plans; Shareholders' Agreements; Management
------------------------------------------------------------
Agreements; Collective Bargaining Agreements; Debt Agreements; Tax Sharing
--------------------------------------------------------------------------
Agreements. On the Initial Borrowing Date, there shall have been delivered
----------
to the Administrative Agent true and correct copies, certified as true and
complete by an appropriate officer of the Company of:
(i) all "employee benefit plans" as defined in Section 3(3) of
ERISA (other than multiemployer plans as defined in Section 4001(a)(3)
of ERISA), and any other plans or arrangements for the benefit of
employees or senior management of the Company or any of its
Subsidiaries, or of Tudor or any of its Subsidiaries, and any profit
sharing plans and deferred compensation plans of the Company or any of
its Subsidiaries, or of Tudor or any of its Subsidiaries (collectively,
the "Employee Benefit Plans");
(ii) all agreements entered into by the Company or any of its
Subsidiaries, or of Tudor or any of its Subsidiaries, governing the
terms and relative rights of its capital stock and any agreements
entered into by shareholders relating to any such entity with respect to
its capital stock (collectively, the "Shareholders' Agreements");
(iii) all agreements with members of, or with respect to, the
senior management and management of the Company or any of its
Subsidiaries, or of Tudor or any of its Subsidiaries (collectively, the
"Management Agreements");
(iv) all collective bargaining agreements applying or relating
to any employee of the Company or any of its Subsidiaries, or of Tudor
or any of its Subsidiaries (collectively, the "Collective Bargaining
Agreements");
(v) all agreements evidencing or relating to Indebtedness of
the Company or any of its Subsidiaries, or of Tudor or any of its
Subsidiaries, which is to remain outstanding after giving effect to the
incurrence of Loans on the Initial Borrowing Date (collectively, the
"Existing Indebtedness Agreements"); and
(vi) all tax sharing, tax allocation and other similar
agreements entered into by the Company or any Subsidiary of the Company,
or by Tudor or any of its Subsidiaries (collectively, the "Tax Sharing
Agreements");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Collective Bargaining Agreements, Existing Indebtedness
Agreements and Tax Sharing Agreements shall be in form and substance
reasonably satisfactory to the Agents and the Required Banks.
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<PAGE>
5.06 Adverse Change, etc. (a) Since August 9, 1994, nothing
--------------------
shall have occurred (and the Banks shall have become aware of no facts,
conditions or other information not previously known) which the Agents or the
Required Banks shall determine could have a material adverse effect on the
rights or remedies of the Agents or the Banks, or on the ability of the
Company, Tudor or their respective Subsidiaries to perform their respective
obligations to the Agents and the Banks or which could have a material
adverse effect on the business, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of the Company,
of Tudor, or of either such Person and its Subsidiaries taken as a whole.
(b) All necessary governmental (domestic and foreign) and third
party approvals and/or consents in connection with the Transaction, the
transactions contemplated by the Documents and otherwise referred to herein
or therein (excluding governmental approvals and/or consents not required to
be obtained on or prior to the Initial Borrowing Date) shall have been
obtained and remain in effect, and all applicable waiting periods shall have
expired without any action being taken by any competent authority which
restrains, prevents, or imposes materially adverse conditions upon, the
consummation of the Transaction or the transactions contemplated by the
Documents or otherwise referred to herein or therein. Additionally, there
shall not exist any judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the
Transaction, the transactions contemplated by the Documents, the making of
the Loans or the issuance of Letters of Credit.
5.07 Litigation. On the Initial Borrowing Date, no litigation by
----------
any entity (private or governmental) shall be pending or threatened with
respect to this Agreement or any documentation executed in connection
herewith or the transactions contemplated hereby, or with respect to any
material Indebtedness of the Company or its Subsidiaries, or of Tudor and its
Subsidiaries, which is to remain outstanding after the consummation of the
Initial Borrowing Date, or which the Agents or Required Banks shall determine
could have a material adverse effect on the Transaction or on the business,
property, assets, nature of assets, liabilities, condition (financial or
otherwise) or prospects of the Company, of Tudor, or of either such Person
and its Subsidiaries taken as a whole.
5.08 Acquisition Documents and Initial Tender Offer Documents.
--------------------------------------------------------
(a) On the Initial Borrowing Date, there shall have been delivered to the
Banks true and correct copies of the Acquisition Documents, which Acquisition
Documents (including, without limitation, as to the price per share
(including the Dollar Equivalent thereof)) shall be in form and substance
satisfactory to the Agents and the Required Banks.
(b) On the Initial Borrowing Date, there shall have been delivered
to the Banks true and correct copies of the Initial Tender Offer Documents,
which Initial Tender Offer Documents (including, without limitation, the
price (including the Dollar Equivalent) and conditions to purchase contained
in the Initial Offer to Purchase) shall be in form and
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<PAGE>
substance satisfactory to the Agents and the Required Banks and shall not be
amended without the consent of the Agents and the Required Banks.
(c) All terms of, and the documentation for, the Acquisition and
the Initial Tender Offer (including, without limitation, as to the price per
share (including the Dollar Equivalent thereof), all terms and conditions
contained in the Initial Offer to Purchase (it being understood and agreed
that the Initial Tender Offer shall be conditioned upon the tender of at
least 51% (on a fully diluted basis) of the Tudor Shares) and all terms and
conditions contained in the Purchase Agreement), and any amendments thereto,
shall be satisfactory to the Agents and the Required Banks.
(d) On the Initial Borrowing Date, the Initial Tender Offer Filing
Date shall have occurred, and the Company shall have delivered to each Bank
true and correct copies, certified as true and correct by an appropriate
officer of the Company, of all documents filed by or on behalf of the Company
with the Comision Nacional Del Mercado de Valores ("CNMV") in connection with
seeking the Initial Approval, all of which shall be in form and substance
satisfactory to the Agents and the Required Banks.
5.09 Existing Indebtedness. On the Initial Borrowing Date, none
---------------------
of the Company, the Subsidiaries of the Company, Tudor and the Subsidiaries
of Tudor shall have any Indebtedness outstanding except for the Loans and the
Existing Indebtedness. On the Initial Borrowing Date, the aggregate
principal amount of (x) the outstanding Existing Indebtedness of the Company
and its Subsidiaries (other than Tudor and its Subsidiaries) shall not exceed
$290,000,000 and (y) the outstanding Existing Indebtedness of Tudor and its
Subsidiaries shall not exceed $185,000,000 (taking the Dollar Equivalent of
all amounts of such Existing Indebtedness based upon Exchange Rates
prevailing on August 26, 1994). On the Initial Borrowing Date, the Existing
Indebtedness referred to in the immediately preceding sentence shall not have
been incurred in connection with, or in contemplation of, the Transaction and
the terms and conditions of the Existing Indebtedness shall be satisfactory
to the Agents and the Required Banks. On the Initial Borrowing Date (and
after giving effect thereto), all of the Existing Indebtedness shall remain
outstanding without any defaults or events of default existing thereunder (or
which will arise thereunder as a result of the Transaction and the financing
of same as contemplated herein) and there shall not be any amendments or
modifications to the agreements and instruments or evidencing such
Indebtedness other than as requested or approved by the Agents or the
Required Banks.
5.10 Repayment and Termination of the Existing Chemical Credit
---------------------------------------------------------
Agreement. (a) On or prior to the Initial Borrowing Date, the total
---------
commitments under the Existing Chemical Credit Agreement shall have been
terminated and all loans thereunder shall have been repaid in full, together
with interest thereon, all letters of credit issued under the Existing
Chemical Credit Agreement shall have been terminated or supported by one or
more Letters of Credit issued hereunder, and all other amounts owing pursuant
to the Existing Chemical Credit Agreement shall have been repaid in full and
the Existing
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<PAGE>
Chemical Credit Agreement shall have been terminated and be of no further
force or effect, except for certain indemnity, expense or similar provisions
contained therein which by their express terms are intended to survive such
termination and as are satisfactory to the Administrative Agent and the
Required Banks, and the Agents shall have received evidence in form, scope
and substance satisfactory to it that the matters set forth in this Section
5.10(a) have been satisfied on such date.
(b) On or prior to the Initial Borrowing Date, the creditors under
the Existing Chemical Credit Agreement shall have terminated and released all
security interests and Liens on the assets owned by the Company or any of its
Subsidiaries granted in connection with the Existing Chemical Credit
Agreement. On or prior to the Initial Borrowing Date, the Agents shall have
received such releases of security interests in and Liens on the assets owned
by such Persons as may have been requested by the Agents, which releases
shall be in form and substance satisfactory to the Agents. Without limiting
the foregoing, there shall have been delivered (i) proper termination
statements (Form UCC-3 or the appropriate equivalent) for filing under the
UCC of each jurisdiction where a financing statement (Form UCC-1 or the
appropriate equivalent) was filed with respect to the Company or any of its
Subsidiaries in connection with the security interests created with respect
to the Existing Chemical Credit Agreement and the documentation related
thereto, (ii) terminations or assignments of any security interest in, or
Lien on, any patents, trademarks, copyrights, or similar interests of the
Company or any of its Subsidiaries on which filings have been made, (iii)
terminations of all mortgages, leasehold mortgages and deeds of trust created
with respect to property of the Company or any of its Subsidiaries, in each
case, to secure the obligations under the Existing Chemical Credit Agreement,
all of which shall be in form and substance satisfactory to the Agents and
(iv) all collateral owned by the Company or any of its Subsidiaries in the
possession of any collateral agent (whether such collateral has been
delivered directly to such collateral agent or reissued by such Person to
such collateral agent so long as no collateral remains in possession of such
collateral agent), in its capacity as collateral agent under the Existing
Chemical Credit Agreement or the collateral agent under any security document
or any other agent, collateral agent or trustee for the creditors under the
Existing Chemical Credit Agreement.
(c) The amount of all cash payments made, or required to be made,
by or on behalf of the Company and its Subsidiaries in connection with the
termination of the Existing Chemical Credit Agreement (including, without
limitation, payments of accrued interest with respect thereto and breakage
cost, if any, with respect to eurodollar rate loans) shall not exceed
$108,000,000.
5.11 Guaranty. On the Initial Borrowing Date, each Domestic
--------
Subsidiary of the Company shall have duly authorized, executed and delivered
a Guaranty in the form of Exhibit H-1 hereto (as modified, supplemented or
amended from time to time, the "Domestic Subsidiaries Guaranty").
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5.12 Pledge Agreements. On the Initial Borrowing Date, each
-----------------
Credit Party (other than Tudor) shall have duly authorized, executed and
delivered a Pledge Agreement in the form of Exhibit I (as modified,
supplemented or amended from time to time, the "Initial Pledge Agreement")
and shall have delivered to the Collateral Agent, as Pledgee, all the Pledged
Securities, if any, referred to therein then owned by such Credit Party, (x)
endorsed in blank in the case of promissory notes constituting Pledged
Securities and (y) together with executed and undated stock powers, in the
case of capital stock constituting Pledged Securities.
5.13 Security Agreement. On the Initial Borrowing Date, each
------------------
Credit Party (other than Tudor) shall have duly authorized, executed and
delivered a Security Agreement in the form of Exhibit J (as modified,
supplemented or amended from time to time, the "Security Agreement") covering
all of such Credit Party's present and future Security Agreement Collateral,
together with:
(i) proper Financing Statements (Form UCC-1) fully executed for
filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported
to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name the relevant Credit Party as debtor and that are
filed in the jurisdictions referred to in clause (a) above, together
with copies of such other financing statements (none of which shall
cover the Collateral except to the extent evidencing Permitted Liens or
in respect of which the Collateral Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall be
required by local law fully executed for filing);
(iii) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests intended to be created by
the Security Agreement; and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken.
5.14 Mortgages; Title Insurance; Surveys; etc. On the Initial
-----------------------------------------
Borrowing Date, the Collateral Agent shall have received:
(i) fully executed counterparts of mortgages, leasehold
mortgages or deeds to secure debt in each case in form and substance
reasonably satisfactory to the Agent (each, a "Mortgage" and,
collectively, the "Mortgages"), which
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Mortgages shall cover such of the Real Property of the Company or any
Subsidiary as shall be designated as such on Schedule III (each, a
"Mortgaged Property" and, collectively, the "Mortgaged Properties"),
together with evidence that counterparts of the Mortgages have been
delivered to the title insurance company insuring the Lien of the
Mortgages for recording in all places to the extent necessary or, in the
reasonable opinion of the Collateral Agent, desirable to effectively
create a valid and enforceable first priority mortgage lien on each
Mortgaged Property in favor of the Collateral Agent (or such other
trustee as may be required or desired under local law) for the benefit
of the Secured Creditors;
(ii) mortgagee title insurance policies on each Mortgaged
Property issued by title insurers reasonably satisfactory to the
Collateral Agent (the "Mortgage Policies") in amounts satisfactory to
the Agents assuring the Collateral Agent that the Mortgages on such
Mortgaged Properties are valid and enforceable first priority mortgage
liens on the respective Mortgaged Properties, free and clear of all
defects and encumbrances except Permitted Encumbrances and such Mortgage
Policies shall otherwise be in form and substance reasonably
satisfactory to the Agents and shall include, as appropriate, an
endorsement for future advances under this Agreement and the Notes and
for any other matter that the Collateral Agent in its reasonable
discretion may reasonably request, shall not include an exception for
mechanics' liens, and shall provide for affirmative insurance and such
reinsurance as the Collateral Agent in its discretion may reasonably
request; and
(iii) a survey, in form and substance satisfactory to the
Collateral Agent, to each Mortgaged Property, certified by a licensed
professional surveyor satisfactory to the Collateral Agent.
5.15 Projections; Pro Forma Financial Statements; Accountants'
---------------------------------------------------------
Certificates. On or prior to the Initial Borrowing Date, the Company shall
------------
have delivered to each Bank:
(i) projected financial statements for the Company and its
Subsidiaries for the period from the Initial Borrowing Date to and
including the seventh anniversary of the Initial Borrowing Date (the
"Projections"), which Projections (x) shall reflect the forecasted
financial condition and income and expenses of the Company and its
Subsidiaries after giving effect to the Transaction and the related
financing thereof and the other transactions contemplated hereby and
thereby, (y) shall be certified by the chief financial officer of the
Company and (z) shall be satisfactory in form and substance to the
Agents and the Required Banks;
(ii) pro forma financial statements (including a balance sheet
--- -----
and income statement) for the Company and its Subsidiaries (including
Tudor and its Subsidiaries) for the one year period ended on the last
day of the fiscal quarter of the Company last ended prior to the Initial
Borrowing Date, assuming (a) the
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Transaction (other than the Secondary Tender Offer) was effected on the
first day of such one year period, and, (b) the Company acquired 52% (on
a fully diluted basis) of the outstanding Tudor Shares on the first day
of such one-year period, and such pro forma financial statements shall
--- -----
have been certified by Arthur Andersen or such other independent public
accountants as shall be acceptable to the Agents, and the Agents and the
Required Banks shall be satisfied with such pro forma financial
--- -----
statements, and the accounting practices and procedures to be utilized
by the Company and its Subsidiaries following the consummation of the
Initial Tender Offer; and
(iii) the Banks shall have received such accountants'
certificates, calculations and pro forma financial data as shall be
--- -----
reasonably required by the Agents in order for them to determine
compliance with any applicable covenants contained in any Existing
Indebtedness, all of which shall be in form and substance satisfactory
to the Agents and the Required Banks.
5.16 Solvency Certificate; Environmental Analyses; Insurance
-------------------------------------------------------
Analyses. On the Initial Borrowing Date, the Company shall cause to be
--------
delivered to the Agent:
(i) a certificate in the form of Exhibit K, addressed to the
Agents and each of the Banks and dated the Initial Borrowing Date, from
the chief financial officer of the Company, providing the opinion of the
chief financial officer of the Company that, after giving effect to the
Transaction and the incurrence of all financings contemplated herein,
each of the Company, on a stand-alone basis, and the Company and its
Subsidiaries (including Tudor and its Subsidiaries) taken as a whole, is
not insolvent and will not be rendered insolvent by the indebtedness
incurred in connection herewith, will not be left with unreasonably
small capital with which to engage in its business and will not have
incurred debts beyond its ability to pay such debts as they mature and
become due;
(ii) Phase I environmental assessment reports prepared by Pilko
& Associates with respect to the Real Property of the Company and its
Subsidiaries, and analyses by Pilko & Associates of their liabilities
with respect to "superfund sites" and worker safety issues, the results
of which shall be in form and substance acceptable to the Agents and the
Required Banks;
(iii) Phase I environmental assessments reports prepared by
Pilko & Associates with respect to the real property assets of Tudor and
its Subsidiaries, the results of which shall be in form and substance
acceptable to the Agents and the Required Banks; and
(iv) analyses and evidence of insurance complying with the
requirements of Section 9.03 for the business and properties of the
Company and its Subsidiaries,
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and of Tudor and its Subsidiaries, in scope, form and substance
satisfactory to the Agents and the Required Banks and, with respect to
all insurance maintained with respect to the Company and its
Subsidiaries (other than Tudor and its Subsidiaries) naming the
Collateral Agent and each of the Banks as an additional insured and the
Collateral Agent as loss payee, and stating that such insurance shall
not be cancelled or revised without 30 days prior written notice by the
insurer to the Administrative Agent.
5.17 Consent Letter. On the Initial Borrowing Date, the
--------------
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 1633 Broadway, New York, New York 10019, substantially
in the form of Exhibit L, indicating its consent to its appointment by each
Credit Party as its agent to receive service of process as specified in
Section 14.08.
5.18 Anti-Takeover Laws. No U.S. federal, state or foreign anti-
------------------
takeover law regulating the Acquisition or the Tender Offer shall prohibit or
be reasonably likely to have a material adverse effect on the Acquisition or
the Tender Offer.
5.19 Fees, etc. On the Initial Borrowing Date, the Company shall
----------
have paid to the Administrative Agent, each Agent and each Bank all costs,
fees and expenses (including, without limitation, legal fees and expenses)
payable to the Administrative Agent, such Agent and such Bank to the extent
then due.
5.20 Notices to Holders of Certain Indebtedness. (i) On the
------------------------------------------
Initial Borrowing Date, the Company shall have delivered to the trustee under
the Senior Note Indenture, notice to the effect that this Agreement (and only
this Agreement) constitutes the "Amended Credit Agreement" (as defined in
such indenture), and the Company shall have taken all other action as may be
necessary or, in the opinion of the Agents desirable, to ensure that this
Agreement is entitled to all the rights and benefits afforded the "Amended
Credit Agreement" under such indenture.
(ii) On the Initial Borrowing Date, the Company shall have
delivered to the trustee under the Senior Subordinated Note Indenture, notice
to the effect that this Agreement (and only this Agreement) constitutes the
"Amended Credit Agreement" (as defined in such indenture), and the Company
shall have taken all other action as may be necessary or, in the opinion of
the Agents desirable, to ensure that this Agreement is entitled to all the
rights and benefits afforded the "Amended Credit Agreement" under such
indenture.
(iii) On the Initial Borrowing Date, the Company shall have
delivered to the Administrative Agent evidence in form, scope and substance
satisfactory to the Agents that the matters set forth in this Section 5.20
have been satisfied as of such date.
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<PAGE>
5.21 Subrogation Rights Agreement. On or prior to the Initial
----------------------------
Borrowing Date, each of the Seller, Banesto and Tudor shall have duly
authorized, executed and delivered to the Administrative Agent a Subrogation
Rights Agreement in the form of Exhibit M hereto (as modified, supplemented
or amended from time to time, the "Subrogation Rights Agreement"), and the
Subrogation Rights Agreement shall be in full force and effect.
5.22 Amendment to Purchase Agreement. On or prior to the
-------------------------------
Effective Date, the parties thereto shall have entered into an amendment to
the Purchase Agreement, in form and substance satisfactory to the Agents,
whereby the Seller acknowledges and agrees to accept Letters of Credit in the
form provided to be issued pursuant to this Agreement in lieu of the
guarantees otherwise required to be delivered to the Seller pursuant to the
Purchase Agreement as originally executed.
SECTION 6. Conditions Precedent to Issuance of Secondary Tender
----------------------------------------------------
Offer Credit Support. The obligation of any Issuing Bank to issue the
--------------------
Secondary Tender Offer Credit Support is subject to the satisfaction of the
following conditions on the date of the issuance thereof (and no Issuing Bank
shall issue the Secondary Tender Offer Credit Support unless it believes that
the following conditions have been satisfied in all material respects):
6.01 Secondary Tender Offer Filing Date. The date of the issuance
----------------------------------
of the Secondary Tender Offer Credit Support shall be the Secondary Tender
Offer Filing Date, and such date shall occur within six months after the
Initial Tender Offer Filing Date.
6.02 Secondary Tender Offer Maximum Offered Consideration. Unless
----------------------------------------------------
the Required Banks otherwise agree in writing, the amount of the Secondary
Tender Offer Maximum Offered Consideration shall not exceed the Secondary
Tender Offer Blocked Commitment as in effect immediately before the Secondary
Tender Offer Filing Date. Furthermore, the price per share to be paid for
the Remaining Tudor Shares and Remaining Tudor Convertible Bonds shall be
consistent with the foregoing requirements and shall have been agreed upon by
the Company and CNMV.
6.03 Liquidity. On the Secondary Tender Offer Filing Date, the
---------
Agents and the Required Banks shall be reasonably satisfied that the Company
and its Subsidiaries have adequate working capital financing and liquidity to
carry on their respective businesses after giving effect to the consummation
of the Secondary Tender Offer for such period of time as shall be reasonably
acceptable to the Agents and the Required Banks, and the Agents and the
Required Banks shall have received such pro forma calculations and
--- -----
accountants' certificates as shall be reasonably required by, and as shall be
in form and substance reasonably satisfactory to, the Agents and the Required
Banks in order for them to determine compliance with this Section 6.03.
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<PAGE>
6.04 Treasury Stock Repurchase. Prior to the Secondary Tender
-------------------------
Offer Filing Date, the Treasury Stock Repurchase shall have been consummated
in accordance with the requirements of Section 9.17.
6.05 Secondary Tender Offer Documents. (i) On the Secondary
--------------------------------
Tender Offer Filing Date, there shall have been delivered to the Banks true
and correct copies of the Secondary Tender Offer Documents, which Secondary
Tender Offer Documents (including, without limitation, the conditions to
purchase contained in the Secondary Offer to Purchase) shall be in form and
substance satisfactory to the Agents and the Required Banks.
(ii) On the Secondary Tender Offer Filing Date, the Company shall
have delivered to each Bank true and correct copies, certified as true and
correct by an appropriate officer of the Company, of all documents filed by
or on behalf of the Company with CNMV in connection with seeking the
Secondary Approval.
6.06 Further Assurances. On or prior to the Secondary Tender
------------------
Offer Filing Date, the Agents and the Banks shall have received assurances
reasonably satisfactory to the Agents and the Required Banks (including,
without limitation, from the Company's financial advisors and Spanish
counsel) that (i) pursuant to the Secondary Tender Offer, all of the
Remaining Tudor Shares and Remaining Tudor Convertible Bonds shall be
acquired and (ii) upon the consummation of the Secondary Tender Offer, all
Tudor Shares and Tudor Convertible Bonds shall be delisted from all of the
Spanish stock exchanges and all other exchanges and trading systems.
6.07 Governmental Approvals. All necessary governmental (domestic
----------------------
and foreign) and third party approvals and/or consents in connection with the
Secondary Tender Offer, the transactions contemplated by the Documents
relating to the Secondary Tender Offer and otherwise referred to herein or
therein relating to the Secondary Tender Offer shall have been obtained and
remain in effect (except for governmental approvals and consents not required
to be obtained prior to the Secondary Tender Offer Filing Date), and all
applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents, or imposes materially
adverse conditions upon, the seeking of the Secondary Approval or the
Secondary Tender Offer or the transactions contemplated by the Documents
relating to the Secondary Tender Offer or otherwise referred to herein or
therein. Additionally, there shall not exist any judgment, order, injunction
or other restraint issued or filed or a hearing seeking injunctive relief or
other restraint pending or notified prohibiting or imposing materially
adverse conditions upon the Secondary Approval or the Secondary Tender Offer,
the transactions contemplated by the Documents relating to the Secondary
Tender Offer, the making of the Loans or the issuance of Letters of Credit.
6.08 Litigation. On the Secondary Tender Offer Filing Date, no
----------
litigation by any entity (private or governmental) shall be pending or
threatened with respect to this
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<PAGE>
Agreement or any documentation executed in connection herewith or the
transactions contemplated hereby, or with respect to the Secondary Tender
Offer or which the Agents or Required Banks shall determine could reasonably
be expected to have a material adverse effect on the ability of the Company
to consummate the Secondary Tender Offer.
6.09 Anti-Takeover Laws. No U.S. federal, state or foreign anti-
------------------
takeover law shall prohibit or have a material adverse effect on the ability
of the Company to consummate the Secondary Tender Offer.
SECTION 6A. Conditions Precedent To CEAc Acquisition Date. The
---------------------------------------------
obligation of each Bank to make Loans, and the obligation of each Issuing
Bank to issue Letters of Credit, on and after the CEAc Acquisition Date is
subject to the satisfaction of the following conditions:
6A.01. Execution of Third, Fourth and Fifth Amendments. On or
-----------------------------------------------
prior to the CEAc Acquisition Date, each of the Third Amendment Effective
Date, the Fourth Amendment Effective Date, the Fifth Amendment Effective
Date, the Sixth Amendment Effective Date and the Seventh Amendment Effective
Date shall have occurred.
6A.02. Officer's Certificate. On the CEAc Acquisition Date, the
---------------------
Administrative Agent shall have received a certificate, dated the CEAc
Acquisition Date and signed on behalf of the Company by the President or the
Chief Financial Officer of the Company, stating that all of the conditions in
Sections 6A.06, 6A.07, 6A.08, 6A.09(a) and (c), 6A.10, 6A.11, 6A.15, 6A.17,
6A.18, 6A.19, 6A.20, 7.01 and 7.03 have been satisfied on such date.
6A.03. Opinions of Counsel. On the CEAc Acquisition Date, the
-------------------
Administrative Agent shall have received from (i) Kirkland & Ellis, U.S.
counsel to the Company and its Subsidiaries, an opinion addressed to the
Administrative Agent, the Agents, the Collateral Agent and each of the Banks
and dated the CEAc Acquisition Date, which opinion shall cover matters, and
shall be in form and substance, satisfactory to each of the Agents, (ii) each
local European counsel to the Company, an opinion addressed to the
Administrative Agent, the Agents, the Collateral Agent and each of the Banks
and dated the CEAc Acquisition Date, each of which opinion shall cover
matters, and shall be in form and substance, satisfactory to each of the
Agents, (iii) counsel rendering such opinions, reliance letters addressed to
the Administrative Agent, the Agents, the Collateral Agent and each of the
Banks and dated the CEAc Acquisition Date with respect to the legal opinions,
if any, delivered in connection with the CEAc Acquisition, which legal
opinions and reliance letters shall be in form and substance reasonably
satisfactory to the Agents and (iv) local counsel (satisfactory to the
Agents), legal opinions each of which (x) shall be addressed to the
Administrative Agent, the Agents, the Collateral Agent and each of the Banks
and dated the CEAc Acquisition Date, (y) shall be in form and substance
satisfactory to the Agents and (z) shall cover the perfection of the security
interests granted pursuant
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<PAGE>
to the Security Documents and such other matters incident to the transactions
contemplated herein as the Agents may reasonably request.
6A.04. Corporate Documents; Proceedings; etc. All corporate and
--------------------------------------
legal proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Agents and the Required
Banks, and the Administrative Agent shall have received all information and
copies of all documents and papers, including records of corporate
proceedings, governmental approvals, good standing certificates and bring-
down telegrams or facsimiles, if any, which the Agents reasonably may have
requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
6A.05 Due Diligence Reports. On the CEAc Acquisition Date, there
---------------------
shall have been delivered to the Administrative Agent true and correct
copies, certified as true and complete by an appropriate officer of the
Company, of each Due Diligence Report, each of which Due Diligence Reports
shall be in form and substance reasonably satisfactory to the Agents and the
Required Banks.
6A.06 Adverse Change, etc. (a) Since the Fifth Amendment
--------------------
Effective Date (or since December 31, 1993 in the case of CEAc and its
Subsidiaries), nothing shall have occurred (and the Banks shall have become
aware of no facts, conditions or other information not previously known)
which the Agents or the Required Banks shall determine could have a material
adverse effect on the rights or remedies of the Agents or the Banks, or on
the ability of the Company, or the Company and its Subsidiaries, to perform
their respective obligations to the Agents and the Banks or which could have
a material adverse effect on the business, property, assets, nature of
assets, liabilities, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole or of CEAc and its Subsidiaries
taken as a whole.
(b) All necessary governmental (domestic and foreign) and third
party approvals and/or consents in connection with the CEAc Acquisition, the
transactions contemplated by the Documents and otherwise referred to herein
or therein (excluding governmental approvals and/or consents not required to
be obtained on or prior to the CEAc Acquisition Date pursuant to the express
provisions of Section 6A.15(c)) shall have been obtained and remain in
effect, and all applicable waiting periods shall have expired without any
action being taken by any competent authority which restrains, prevents, or
imposes materially adverse conditions upon, the consummation of the CEAc
Acquisition or the transactions contemplated by the Documents or otherwise
referred to herein or therein. Additionally, there shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting
or imposing materially adverse conditions upon the CEAc Acquisition, the
transactions contemplated by the Documents or the making of the Loans and/or
the issuance of Letters of Credit.
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<PAGE>
6A.07 Litigation. On the CEAc Acquisition Date, no litigation or
----------
investigation by any entity (private or governmental) shall be pending or
threatened with respect to this Agreement or any documentation executed in
connection herewith or the transactions contemplated hereby, or with respect
to the Subject Shares Issuance, the 2005 Senior Unsecured Note Documents or
any material Indebtedness of the Company or its Subsidiaries, or with respect
to any material Indebtedness of CEAc and its Subsidiaries which is to remain
outstanding after the consummation of the CEAc Acquisition, or which the
Agents or the Required Banks shall determine could have a material adverse
effect on the CEAc Acquisition or on the business, property, assets, nature
of assets, liabilities, condition (financial or otherwise) or prospects of
the Company and its Subsidiaries taken as a whole or of CEAc and its
Subsidiaries taken as a whole.
6A.08 Acquisition Documents. (a) The aggregate cash
---------------------
consideration to be paid by the Company and its Subsidiaries in connection
with the CEAc Acquisition (excluding payments of fees and expenses, and
excluding payments in respect of intercompany indebtedness owed by CEAc and
its Subsidiaries to the CEAc Seller or any of their respective other
Subsidiaries) shall not exceed $421,950,000.
(b) In addition to the payment made as contemplated by preceding
clause (a) of this Section 6A.08, at the time of the CEAc Acquisition, the
Company shall have caused CEAc to repay in full all intercompany indebtedness
owed by CEAc and its Subsidiaries to the CEAc Seller and any of their
respective other Subsidiaries in accordance with the requirements of the CEAc
Acquisition Stock Purchase Agreement, and the aggregate amount required for
such purpose shall be borrowed by CEAc under the CEAc Refinancing Credit
Facility referred to in Section 6A.09, the aggregate amount of which
borrowings shall not exceed 830,000,000 French Francs (or its equivalent
amount as calculated pursuant to the CEAc Refinancing Credit Facility).
(c) On the CEAc Acquisition Date, there shall have been delivered
to the Banks true and correct copies of the CEAc Acquisition Documents and
all terms and conditions contained in the CEAc Acquisition Documents, and any
amendments thereto, shall be in form and substance satisfactory to the Agents
and the Required Banks. Without limiting the foregoing, on the CEAc
Acquisition Date (w) the CEAc Acquisition Stock Purchase Agreement shall have
been executed and shall be in the form of the Final Draft CEAc Acquisition
Stock Purchase Agreement, with no changes from the Final Draft CEAc
Acquisition Stock Purchase Agreement except as may have been approved by the
Agents and the Required Banks in their sole discretion, (x) the CEAc
Acquisition Warranty Agreement shall have been executed and delivered and
shall be in the same form as the Final Draft CEAc Acquisition Warranty
Agreement, with no changes from the Final Draft CEAc Acquisition Warranty
Agreement except as may have been approved by the Agents and the Required
Banks in their sole discretion, (y) there shall have been no alterations to
the purchase price or terms of the CEAc Acquisition from that set forth in
the Final Draft CEAc Acquisition Stock Purchase Agreement and Final Draft
CEAc Acquisition Warranty Agreement, without the prior written approval of
the Agents and the Required Banks and
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<PAGE>
(z) the CEAc Supply Agreements shall have been entered into in the form of
Schedules 6.1.8 and 6.1.9 to the CEAc Acquisition Stock Purchase Agreement.
(d) All conditions precedent to the consummation of the CEAc
Acquisition as set forth in the CEAc Acquisition Stock Purchase Agreement
shall have been satisfied, and not waived except with the consent of the
Agents and the Required Banks, to the satisfaction of the Agents and the
Required Banks, and the CEAc Acquisition shall have been consummated in
accordance with the documentation therefor and all applicable laws.
6A.09 CEAc Indebtedness. (a) On the CEAc Acquisition Date (and
-----------------
after giving effect to the CEAc Transaction), the aggregate principal amount
of the outstanding Indebtedness of CEAc and its Subsidiaries (excluding (x)
Indebtedness pursuant to the CEAc Refinancing Credit Facility and (y)
intercompany Indebtedness owed by CEAc or any of its Subsidiaries to the
Company or any of the other Subsidiaries of the Company) (i) constituting
Indebtedness for borrowed money or guarantees thereof shall not exceed
$10,000,000 and (ii) constituting Indebtedness which is not Indebtedness for
borrowed money or guarantees thereof shall not exceed $70,000,000 (in each
case taking the Dollar Equivalent of all amounts of such Indebtedness based
upon Exchange Rates prevailing on January 31, 1995), and the terms and
conditions of all such Indebtedness (all such Indebtedness which is to remain
outstanding, herein called "CEAc Existing Indebtedness") shall be
satisfactory to the Agents and the Required Banks. On the CEAc Acquisition
Date (and after giving effect thereto), all of the Indebtedness referred to
in this Section 6A.09 shall remain outstanding without any defaults or events
of defaults existing thereunder (or which will arise thereunder as a result
of the CEAc Acquisition and the financing of same as contemplated herein) and
there shall not be any amendments or modifications to the agreements and
instruments or evidencing such Indebtedness other than as approved by the
Agents or the Required Banks.
(b) On or prior to the CEAc Acquisition Date, CEAc and/or its
Subsidiaries shall have entered into a credit agreement on terms, and
pursuant to documentation (as amended, modified and/or supplemented from time
to time pursuant to the terms hereof and thereof, the "CEAc Refinancing
Credit Facility"), reasonably satisfactory to the Required Banks, providing
credit facilities in the aggregate amount of 830,000,000 French Francs, which
will be available for the refinancing on or prior to the CEAc Acquisition
Date of the outstanding Indebtedness of CEAc and its Subsidiaries (other than
the CEAc Existing Indebtedness) at the time of the consummation of the CEAc
Acquisition (although the refinancing may occur immediately after giving
effect thereto) (with such refinancing herein called the "CEAc Refinancing",
and the CEAc Refinancing Credit Facility, together with all related
documentation, being herein called the "CEAc Refinancing Documents"). The
Company shall have delivered to the Banks true and correct copies of the CEAc
Refinancing Documents. On the CEAc Acquisition Date, the Banks shall have
received assurances satisfactory to them that the CEAc Refinancing has been,
or will on such date be, consummated and all terms and conditions contained
in the CEAc Refinancing
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<PAGE>
Documents (including, without limitation, any change of control provisions,
premiums, redemptions, prepayment terms, covenants, defaults, remedies,
interest rates, amortizations, restrictions on payments and dividends,
securing interests, guarantees and other provisions) shall be in form and
substance reasonably satisfactory to the Required Banks.
(c) On the CEAc Acquisition Date, all amounts to be used by the
Company and its Subsidiaries (excluding proceeds of Indebtedness incurred
directly by CEAc and its Subsidiaries) to effect the CEAc Acquisition shall
be loaned by the Company (except that a portion of such amounts reasonably
acceptable to the Agents and the Required Banks may be infused as a common
equity contribution, if so requested by the Company) to CEAc Acquisition
Corp. and/or one or more of its Subsidiaries (all such loans being herein
called the "CEAc Acquisition Intercompany Indebtedness"), which CEAc
Acquisition Intercompany Indebtedness shall be evidenced by intercompany
notes (the "CEAc Acquisition Intercompany Notes") which are pledged and
delivered for pledge pursuant to the Initial Pledge Agreement. All terms and
conditions, and the documentation for, the CEAc Acquisition Intercompany
Indebtedness shall be in form and substance reasonably satisfactory to the
Agents and the Required Banks.
6A.10 Proceeds from the Subject Shares Issuance. On or prior to
-----------------------------------------
January 30, 1995, the Company shall have received net cash proceeds of at
least $249,000,000 from the issuance of the Subject Shares pursuant to the
Subject Shares Issuance.
6A.11 2005 Senior Unsecured Note Issuance; Escrow Release. (a) On
---------------------------------------------------
or prior to May 15, 1995, (i) the Company shall have received gross cash
proceeds of at least $225,000,000 from the issuance of the 2005 Senior
Unsecured Notes pursuant to the 2005 Senior Unsecured Notes Issuance, and
shall have deposited $219,937,500 of such cash proceeds, plus an amount equal
to the Net Cash Proceeds of that principal amount of 2005 Senior Unsecured
Notes issued pursuant to the 2005 Senior Unsecured Notes Issuance to the
extent in excess of $225,000,000, into the 2005 Escrow Account in accordance
with the terms of Section 10.05(xvi) and (ii) the Banks shall have received
true and correct copies of the 2005 Senior Unsecured Note Documents, each of
which shall be in full force and effect and all terms and conditions of the
2005 Senior Unsecured Note Documents (including, without limitation, interest
rates, maturities, amortization schedules, covenants, redemption provisions,
escrow release provisions, escrow investment provisions, security, exchange
provisions, defaults and remedies with respect thereto), shall be in form and
substance satisfactory to the Agents and the Required Banks.
(b) On the CEAc Acquisition Date, all proceeds then on deposit in
the 2005 Escrow Account shall have been released in accordance with the terms
of the 2005 Escrow Agreement, which proceeds, together with such other funds
available to the Company on the CEAc Acquisition Date, shall be sufficient to
permit the Company to consummate the CEAc Acquisition and to pay all fees and
expenses in connection therewith, and the Agents shall have received such
evidence, in form and substance satisfactory to the Agents, of the completion
of such release. Prior to or concurrently with the incurrence of Revolving
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<PAGE>
Loans on the CEAc Acquisition Date, the Company shall utilize all proceeds
received by it as described in this clause (b) to effect the CEAc
Acquisition, including the payment of fees and expenses relating thereto to
the extent then due.
(c) On or prior to the CEAc Acquisition Date, each security
interest in and Lien on the 2005 Escrow Account and the 2005 Escrow
Agreement, including, without limitation, on any and all funds then on
deposit, or to be deposited, in the 2005 Escrow Account, shall have
terminated.
(d) The Company hereby represents and warrants that it will
utilize proceeds of Revolving Loans for the purpose of providing a
substantial portion of the financing in connection with the CEAc Acquisition.
6A.12 Security Documents. (a) On the CEAc Acquisition Date, each
------------------
Credit Party which is a party to the Initial Pledge Agreement shall have duly
authorized, executed and delivered an amendment to the Initial Pledge
Agreement in the form of Exhibit I-1 hereto and shall have delivered to the
Collateral Agent, as Pledgee, all the Pledged Securities, if any, referred to
therein then owned by CEAc US Holdco and/or such other Credit Party and not
previously delivered to the Collateral Agent, (x) endorsed in blank in the
case of promissory notes constituting Pledged Securities and (y) together
with executed and undated stock powers in blank, in the case of capital stock
constituting Pledged Securities, it being understood and agreed that the
Company shall only be required to deliver certificates representing 65% of
the capital stock owned by it in CEAc US Holdco.
(b) On or prior to the CEAc Acquisition Date, the Collateral Agent
shall have received fully executed counterparts of amendments (the "Mortgage
Amendments"), in form and substance satisfactory to the Collateral Agent, to
each of the Mortgages, together with evidence that counterparts of each of
the Mortgage Amendments have been delivered to the title company ensuring the
Lien of the existing Mortgages for recording in all places to the extent
necessary or desirable, in the judgment of the Collateral Agent, effectively
to maintain a valid and enforceable first priority mortgage lien on the
Mortgaged Properties in favor of the Collateral Agent for the benefit of the
Secured Creditors, and the Collateral Agent shall have received endorsements
to the existing Mortgage Policies assuring the Collateral Agent that each
Mortgage, after giving affect to the respective Mortgage Amendment, is a
valid and enforceable first priority mortgage lien on the respective
Mortgaged Properties, free and clear of all defects and encumbrances except
Permitted Encumbrances.
6A.13 Financial Statements; Projections; Pro Forma Financial
------------------------------------------------------
Statements; Accountants' Certificates. On or prior to the CEAc Acquisition
-------------------------------------
Date, the Company shall have delivered to each Bank:
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(1) the CEAc 1994 Consolidated Financial Statements, and the
results as reflected therein shall show no material adverse change in
the business, property, assets, nature of assets, liabilities, condition
(financial or otherwise) or prospects of CEAc and its Subsidiaries from
that shown in the CEAc 1993 Consolidated Financial Statements;
(2) projected financial statements for the Company and its
Subsidiaries for the period from January 1, 1995 to and including June
30, 2002 (the "CEAc Projections"), which CEAc Projections (x) shall
reflect the forecasted financial condition and income and expenses of
the Company and its Subsidiaries after giving effect to the CEAc
Transaction (as if same had occurred on January 1, 1995) and the related
financing thereof and the other transactions contemplated hereby and
thereby, (y) shall be certified by the chief financial officer of the
Company and (z) shall be reasonably satisfactory in form and substance
to the Agents and the Required Banks;
(3) pro forma financial statements (including a balance sheet
--- -----
and income statement) for the Company and its Subsidiaries (including
CEAc Acquisition Corp. and its Subsidiaries) for the period of four
consecutive fiscal quarters (taken as one accounting period) last ended
prior to the CEAc Acquisition Date for which financial information in
respect thereof is available, assuming (a) the CEAc Transaction was
effected on the first day of such one year period and (b) the Company
acquired 99.7% (on a fully diluted basis) of the outstanding equity
interests in CEAc and the Tudor Percentage (as then in effect) of the
outstanding equity interests in Tudor on the first day of such one-year
period, and such pro forma financial statements shall have been
--- -----
certified by the chief financial officer of the Company, and the Agents
and the Required Banks shall be reasonably satisfied with such pro forma
--- -----
financial statements, and the accounting practices and procedures to be
utilized by the Company and its Subsidiaries following the consummation
of the CEAc Acquisition; and
(4) the Banks shall have received such accountants' certificates
(including comfort satisfactory to the Agents from Arthur Andersen or
such other independent public accountants as shall be acceptable to the
Agents as to the pro forma financial statements delivered pursuant to
--- -----
preceding clause (iii) as well as the calculations described in this
clause (iv)), calculations and pro forma financial data as shall be
--- -----
reasonably required by the Agents in order for them to determine
compliance with any applicable covenants contained in any Existing
Indebtedness;
all of which shall be in form and substance satisfactory to the Agents and
the Required Banks.
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6A.14 Solvency Certificate; Environmental Analyses; Insurance
-------------------------------------------------------
Analyses. On the CEAc Acquisition Date, the Company shall have caused to be
--------
delivered to the Administrative Agent:
(i) a certificate in form and substance satisfactory to the
Agents, addressed to the Agents and each of the Banks and dated the CEAc
Acquisition Date, from the chief financial officer of the Company,
providing the opinion of the chief financial officer of the Company
that, after giving effect to the CEAc Transaction and the incurrence of
all financings contemplated herein, each of the Company, on a stand-
alone basis, and the Company and its Subsidiaries (including CEAc
Acquisition Corp. and its Subsidiaries) taken as a whole, is not
insolvent and will not be rendered insolvent by the indebtedness
incurred in connection herewith, will not be left with unreasonably
small capital with which to engage in its business and will not have
incurred debts beyond its ability to pay such debts as they mature and
become due;
(ii) true and correct copies, certified as true and complete by
an appropriate officer of the Company, of each Environmental Report, the
results of which shall be in form and substance reasonably satisfactory
to the Agents and the Required Banks; and
(iii) evidence of insurance complying with the requirements of
Section 9.03 for the business and properties of CEAc and its
Subsidiaries, in scope, form and substance reasonably satisfactory to
the Agents and the Required Banks.
6A.15 Divestitures and/or Limitations; Competition Authority
------------------------------------------------------
Approvals. (a) On or prior to the Fourth Amendment Effective Date (or the
---------
CEAc Acquisition Date with respect to the reliance letters described in
clause (i) below, although the Specified Competition Counsel Opinions shall
have been received by the Fourth Amendment Effective Date), the Banks shall
have received (i) from each Specified Competition Counsel, reliance letters
addressed to the Administrative Agent, the Agents and each Bank with respect
to the relevant Specified Competition Counsel Opinion with respect to the
status of the review of the CEAc Acquisition by the relevant governmental
authority relating to antitrust or the regulation of competition in the
relevant Specified Jurisdiction including the opinion of such Specified
Competition Counsel as to the possible outcomes (on both a "base case" and
"worst case" scenario) of such review including, without limitation, with
respect to the timing of the completion of such review, the likelihood that
the Company would be required to divest any of its or its Subsidiaries'
(including CEAc's and its Subsidiaries') operations, or would otherwise be
subject to limitations on its activities, in such Specified Jurisdiction (on
both a "base case" and "worst case" scenario) and a description of the
operations likely to be subject to any such divestiture or limitations, (ii)
from special European counsel to the Banks, an opinion addressed to the
Administrative Agent, the Agents and each Bank containing such counsel's
opinion with respect to the opinions delivered by the Specified Competition
Counsel pursuant to the preceding clause (i), and (iii) from the Company, the
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CEAc Divestiture Analysis, which contains an analysis of the financial impact
(including, without limitation, (x) the reduction in sales, market share,
revenue and cash flow and (y) the incremental costs) to the Company and its
Subsidiaries (including CEAc and its Subsidiaries) in the event that the
Company is required to make each of the possible divestitures, and is subject
to any other limitations, identified in the Specified Competition Counsel
Opinions, each of which opinions, reliance letters (including the relevant
opinion attached thereto) and CEAc Divestiture Analysis, including the
calculations and assumptions contained therein, shall be in form and
substance satisfactory to the Agents and the Required Banks. By executing
and delivering a copy of the Fourth Amendment, each signatory thereto agreed
(for itself and its successors) that the legal opinions and CEAc Divestiture
Analysis required by this Section 6A.15(a) have been received by it and are
in form and substance satisfactory to it, provided that it is understood and
agreed that the reliance letters with respect to the Specified Competition
Counsel Opinions have not been received by the Banks on or prior to the
Fourth Amendment Effective Date, and must be received by them on or prior to
the CEAc Acquisition Date and must be in form and substance satisfactory to
the Agents and the Required Banks.
(b) Subject to following clause (c), on the CEAc Acquisition Date,
the Company shall have obtained each of the consents or approvals of any
governmental authority relating to antitrust or the regulation of competition
in each of France, Spain, Portugal, the United Kingdom, Belgium and Austria
and shall have furnished evidence of such approvals to the Agents and the
Banks. In the event that any of the foregoing governmental authorities or
any other relevant governing or regulatory body or agency requires that any
operations of the Company, CEAc or their respective Subsidiaries be divested
in connection with the CEAc Acquisition (or to obtain the approvals
referenced in the immediately preceding sentence) or otherwise imposes any
limitations on the ability of the Company or CEAc to operate the Company's or
CEAc's (including their respective Subsidiaries') businesses, the Company
shall, on or prior to the CEAc Acquisition Date, have delivered to the Agents
and Banks a detailed description of any such actions or restrictions, as well
as a detailed description of the actions to be taken by the Company in
connection therewith, as well as an analysis of the financial impact
(including, without limitation, (x) the reduction in sales, market share,
revenue and cash flow and (y) the costs associated therewith) to the Company
and its Subsidiaries (including CEAc and its Subsidiaries) resulting from
such divestiture or limitation, and any such actions or restrictions,
including the Company's proposed response thereto, shall require the approval
of the Agents and the Required Banks, which may be withheld by any such
Persons in their reasonable judgment; provided, that if any such divestiture
--------
or limitation with respect to any Specified Jurisdiction would be in excess
of (or the financial effect which would be worse than) the "worst case"
scenario specified in the Specified Competition Counsel Opinions and CEAc
Divestiture Analysis originally delivered on or prior to the Fourth Amendment
Effective Date pursuant to Section 6A.15(a), then the approval of the Agents
and the Required Banks may be withheld by any such Persons in their sole
discretion; provided, further, that if any divestiture or limitation is
-------- -------
required or imposed with respect to Austria and/or Portugal, then the
approval of the Agents and the Required Banks may be withheld
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by them unless such Persons determine that the divestitures and/or
limitations required or imposed by or with respect to each such country are
non-material to the business, property, assets, nature of assets,
liabilities, condition (financial and otherwise) and prospects of the
Company, CEAc and their respective Subsidiaries (including, without
limitation, Tudor and its Subsidiaries) in the respective such country.
(c) Notwithstanding anything to the contrary contained in
preceding clause (b), if on the CEAc Acquisition Date, the approvals from one
or more of the governmental authorities relating to antitrust or the
regulation of competition in the United Kingdom, Belgium, France or Spain
have not yet been obtained, and so long as such approvals need not be
obtained in order for the Company to legally effect the CEAc Acquisition in
the respective Specified Jurisdiction, then the Company may effect the CEAc
Acquisition and Section 6A.15(b) with respect to each such Specified
Jurisdiction shall be satisfied if, and only if, the following conditions are
satisfied on the CEAc Acquisition Date with respect to each such Specified
Jurisdiction where such approvals have not been obtained on or prior to the
CEAc Acquisition Date: (i) on or prior to the CEAc Acquisition Date, the
Company shall have furnished to the Banks copies of all correspondence
furnished to, and received from, the relevant governmental authorities in
each such Specified Jurisdiction and shall have furnished updated legal
opinions from all counsel with respect to such Specified Jurisdictions
referenced in Section 6A.15(a) and an updated CEAc Divestiture Analysis with
respect to each such Specified Jurisdiction, as at the CEAc Acquisition Date,
which opinions and updated analysis shall be revised to take into account any
occurrences after the date of the legal opinions and CEAc Divestiture
Analysis furnished on or prior to the Fourth Amendment Effective Date
pursuant to Section 6A.15(a), and which updated legal opinions and CEAc
Divestiture Analysis shall be in form and substance reasonably satisfactory
to the Agents and the Required Banks (it being understood that such updated
legal opinions and CEAc Divestiture Analysis shall be satisfactory if there
have been no developments described therein which make the potential outcomes
worse than the "worst case" scenarios described in the Specified Competition
Counsel Opinions and CEAc Divestiture Analysis originally delivered pursuant
to Section 6A.15(a), and that such legal opinions and CEAc Divestiture
Analysis shall not be satisfactory if they conclude that there is any
reasonable likelihood of potential outcomes which are worse than such "worst
case" scenarios), (ii) none of the correspondence received from any
governmental authority (which has not been revoked and taking into account
any superseding correspondence from such governmental authority) shall
indicate that any divestitures would be required, or limitations imposed, in
excess of the "worst case" scenario specified in the Specified Competition
Counsel Opinions and CEAc Divestiture Analysis originally furnished to the
Banks on or prior to the Fourth Amendment Effective Date pursuant to Section
6A.15(a), and (iii) the Agents and the Required Banks shall be satisfied in
their reasonable judgment that it is likely that the approvals of each such
Specified Jurisdiction will ultimately be obtained and that there will be no
divestitures required as a result thereof or limitations on the activities of
the Company's and its Subsidiaries' (including CEAc's and its Subsidiaries')
businesses which would be in excess of (or the financial effect which would
be worse than) the "worst case" scenario specified in the Specified
Competition Counsel
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Opinions and CEAc Divestiture Analysis originally delivered on or prior to
the Fourth Amendment Effective Date pursuant to Section 6A.15(a).
6A.16 Anti-Takeover Laws. No U.S. federal, state or foreign anti-
------------------
takeover law regulating the CEAc Acquisition shall prohibit or be reasonably
likely to have a material adverse effect on the CEAc Acquisition.
6A.17 Fees, etc. On the CEAc Acquisition Date, the Company shall
----------
have paid to the Administrative Agent, each Agent and each Bank all costs,
fees and expenses (including, without limitation, legal fees and expenses)
payable to the Administrative Agent, such Agent and such Bank to the extent
then due.
6A.18 Notices to Holders of Certain Indebtedness. (a) On the
------------------------------------------
CEAc Acquisition Date, the Company shall have delivered to the trustee under
the Senior Note Indenture, notice to the effect that this Agreement, as
amended through the Fifth Amendment, constitutes the "Amended Credit
Agreement" (as defined in such indenture), and the Company shall have taken
all other action as may be necessary or, in the opinion of the Agents
desirable, to ensure that this Agreement is entitled to all the rights and
benefits afforded the "Amended Credit Agreement" under such indenture.
(b) On the CEAc Acquisition Date, the Company shall have delivered
to the trustee under the Senior Subordinated Note Indenture, notice to the
effect that this Agreement, as amended through the Fifth Amendment,
constitutes the "Amended Credit Agreement" (as defined in such indenture),
and the Company shall have taken all other action as may be necessary or, in
the opinion of the Agents desirable, to ensure that this Agreement is
entitled to all the rights and benefits afforded the "Amended Credit
Agreement" under such indenture.
(c) On or prior to the CEAc Acquisition Date, the Company shall
have entered into and delivered the First Supplemental Indenture to each of
the Senior Note Indenture and Senior Subordinated Note Indenture, each dated
as of January 3, 1995 and in the form furnished to the Banks prior to the
Fourth Amendment Effective Date, and each such supplement shall be in full
force and effect. True and correct copies of the executed First Supplemental
Indentures, and the related Consent Solicitation dated November 30, 1994, as
amended by amendments dated December 20, 1994, December 21, 1994 and December
23, 1994 (the "Consent Solicitation"), shall have been delivered to each of
the Banks prior to the Fourth Amendment Effective Date.
(d) On the CEAc Acquisition Date, the Company shall have delivered
to the Administrative Agent evidence in form, scope and substance
satisfactory to the Agents that the matters set forth in this Section 6A.18
have been satisfied as of such date.
6A.19 Schedules. On the CEAc Acquisition Date, the Company shall
---------
have delivered to the Banks true and correct copies of the Schedules referred
to in Sections 8.04,
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8.13, 8.15, 8.19, 8.22, 8.25, 9.03, 10.01(iii), 10.05(xvii), 10.06(xii) and
10.13 relating to CEAc Acquisition Corp. and its Subsidiaries and each such
Schedule shall be in form and substance satisfactory to the Agents and the
Required Banks.
6A.20 CEAc Acquisition Amount; CEAc Refinancing Amount. On the
------------------------------------------------
CEAc Acquisition Date, the Company shall have delivered to the Banks a
certificate, which certificate shall set forth the calculations required to
establish such amount, executed by the chief financial officer of the Company
setting forth the CEAc Acquisition Amount and the CEAc Refinancing Amount.
The acceptance of the proceeds of the Loans on and after the CEAc
Acquisition Date shall constitute a representation and warranty by the
Company to the Agents and each of the Banks that all the conditions specified
in this Section 6A and Section 7 exist as of that time. All of the
certificates, legal opinions and other documents and papers referred to in
this Section 6A and Section 7, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of
the Banks and in sufficient counterparts for each of the Banks and shall be
in form and substance reasonably satisfactory to the Required Banks.
SECTION 7. Conditions Precedent to All Credit Events. The
-----------------------------------------
obligation of each Bank to make Loans (including Loans made on the Initial
Borrowing Date, but excluding Mandatory Borrowings made thereafter, which
shall be made as provided in Section 1.01(e)) and the obligation of an
Issuing Bank to issue any Letter of Credit (including, without limitation,
the Initial Tender Offer Credit Support and the Secondary Tender Offer Credit
Support), is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
7.01 No Default; Representations and Warranties. At the time of
------------------------------------------
each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein or in any other Credit Document shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of
such Credit Event (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required
to be true and correct in all material respects only as of such specified
date).
7.02 Notice of Borrowing; Letter of Credit Request; Etc. (a)
---------------------------------------------------
Prior to the making of each Loan (excluding Swingline Loans), the Agent shall
have received a Notice of Borrowing meeting the requirements of Section
1.03(a). Prior to the making of any Swingline Loan, BTCo shall have received
the notice required by section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Issuing Bank shall have received a
Letter of Credit Request meeting the requirements of Section 2.03, and the
respective Issuing Bank shall have received any
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documentation reasonably requested by it in connection with the issuance of
the respective Letter of Credit.
7.03 Compliance with Indentures. So long as any Senior Notes, any
--------------------------
2005 Senior Unsecured Notes or any Senior Subordinated Notes remain
outstanding, at the time of each Borrowing of Revolving Loans and/or
Swingline Loans where, after giving effect to such Borrowing, the aggregate
principal amount of outstanding Revolving Loans and Swingline Loans would be
in excess of $255,000,000, the Banks shall have received the Certificate last
required to be delivered pursuant to Section 9.01(m), and such certificate
shall establish to the satisfaction of the Administrative Agent and Required
Banks that the amount of Revolving Loans and/or Swingline Loans, as the case
may be, requested pursuant to the respective Borrowing (x) are permitted to
be incurred without causing a violation of Section 4.3 of the Senior Note
Indenture, the 2005 Senior Unsecured Note Indenture or the Senior
Subordinated Note Indenture and (y) after giving effect thereto, the Interest
Coverage Ratio (as defined in the Indentures) would still be greater than
2.0:1. So long as any Senior Notes, any 2005 Senior Unsecured Notes or any
Senior Subordinated Notes remain outstanding, each Credit Event shall comply
with the requirements of Section 4.3 of the Senior Note Indenture, the 2005
Senior Unsecured Note Indenture and the Senior Subordinated Note Indenture,
and, if requested by any Agent or the Required Banks, the Banks shall have
received at the time of any Borrowing of Revolving Loans or Swingline Loans
such updated information with respect to the Certificate last required to be
delivered pursuant to Section 9.01(m) as may have been reasonably requested,
and any opinion of counsel (which opinion and counsel shall be required to be
reasonably satisfactory to the respective Agent or Required Banks requesting
same) as may have been reasonably requested to assure the Banks that the
requirements of this Section 7.03 and Section 4.3 of the Indentures are
satisfied.
The acceptance of the proceeds of each Credit Event shall
constitute a representation and warranty by the Company to the Agents and
each of the Banks that all the conditions specified in Sections 5 and 6 and
in this Section 7 and applicable to such Credit Event exist as of that time.
All of the Notes, certificates, legal opinions and other documents and papers
referred to in Sections 5 and 6 and in this Section 7, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice
Office for the account of each of the Banks and, except for the Notes, in
sufficient counterparts for each of the Banks and shall be in form and
substance reasonably satisfactory to the Banks.
SECTION 8. Representations, Warranties and Agreements. In order
------------------------------------------
to induce the Banks to enter into this Agreement and to make the Loans, and
issue (or participate in) the Letters of Credit as provided herein, the
Company makes the following representations, warranties and agreements for
itself and each of its Subsidiaries (including, for the purpose of this
Section 8, (x) Tudor and its Subsidiaries as Subsidiaries of the Company as,
and to the extent, contemplated by the last sentence of the definition of
Subsidiary contained herein and (y) at all times on and after the CEAc
Acquisition Date, CEAc and its Subsidiaries as Subsidiaries of the Company),
all of which shall survive the
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execution and delivery of this Agreement and the Notes and the making of the
Loans and issuance of the Letters of Credit, with the occurrence of each
Credit Event on or after the Initial Borrowing Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 8 are true and correct in all material respects on and as of the
Initial Borrowing Date and on the date of each such Credit Event (it being
understood and agreed that any representation or warranty which by its terms
is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
8.01 Corporate Status. Each of the Company and its Subsidiaries
----------------
(i) is a duly organized and validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation, (ii) has the
corporate power and authority to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and
(iii) is duly qualified and is authorized to do business and is in good
standing in each jurisdiction where the conduct of its business requires such
qualifications except for failures to be so qualified which, individually or
in the aggregate, could not reasonably be expected to have a material adverse
effect on the business, property, assets, nature of assets, liabilities,
condition (financial or otherwise) or prospects (x) of the Company or of the
Company and its Subsidiaries (other than CEAc, Tudor and their respective
Subsidiaries) taken as a whole or (y) unless the Initial Tender Offer
Termination Date has occurred (without consummation of the Initial Tender
Offer), Tudor or of Tudor and its Subsidiaries taken as a whole.
8.02 Corporate Power and Authority. Each of the Company and its
-----------------------------
Subsidiaries has the corporate power and authority to execute, deliver and
perform the terms and provisions of each of the Documents to which it is
party and has taken all necessary corporate action to authorize the
execution, delivery and performance by it of each of such Documents. Each
Credit Party has duly executed and delivered each of the Documents to which
it is party, and each of such Documents constitutes the legal, valid and
binding obligation of such Credit Party enforceable in accordance with its
terms.
8.03 No Violation. Neither the execution, delivery or performance
------------
by any Credit Party of the Documents to which it is a party, nor compliance
by it with the terms and provisions thereof, (i) will contravene in any
material respect any provision of any applicable law, statute, rule or
regulation or any applicable order, writ, injunction or decree of any court
or governmental instrumentality, (ii) will conflict with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (except pursuant to the Security
Documents) upon any of the material properties or assets of the Company or
any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, to which the Company or any of its
Subsidiaries is a party (including without limitation the Existing
Indebtedness and the Receivables Facility) or by which it or any of its
property or assets is bound or to which it may be subject or (iii) will
violate any
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provision of the Certificate of Incorporation or By-Laws of the Company or
any of its Subsidiaries.
8.04 Governmental Approvals. Except as set forth on Schedule XI
----------------------
or, in the case of the CEAc Transaction, as set forth on Schedule XII, no
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with (except as have been obtained or made prior to
the Initial Borrowing Date or the CEAc Acquisition Date, as the case may be),
or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Document (excluding
immaterial items required in connection with the performance of the
Documents) or (ii) the legality, validity, binding effect or enforceability
of any such Document.
8.05 Financial Statements; Financial Condition; Undisclosed
------------------------------------------------------
Liabilities; Projections; etc. (a) (i) The consolidated balance sheet of
------------------------------
the Company and its Subsidiaries (other than Tudor and its Subsidiaries) at
March 31, 1994, March 31, 1993, March 31, 1992 and June 30, 1994 and the
related consolidated statements of earnings and cash flows and shareholders'
equity of the Company and its Subsidiaries for the fiscal year or three-month
period ended on such dates, as the case may be, copies of which have
heretofore been furnished to the Banks prior to the Effective Date, (ii) the
consolidated balance sheet of Tudor and its Subsidiaries at December 31,
1993, December 31, 1992, December 31, 1991 and June 30, 1994 and the related
consolidated statements of earnings and shareholders' equity of Tudor and its
Subsidiaries for the fiscal year or six-month period ended on such dates, as
the case may be, copies of which have heretofore been furnished to the Banks
prior to the Effective Date, and (iii) the pro forma (after giving effect to
--- -----
the Transaction, the related financing thereof and the other transactions
contemplated hereby and thereby and prepared pursuant to the requirements
contained in Section 5.15(ii) hereof) financial statements of the Company and
its Subsidiaries furnished pursuant to Section 5.15(ii), copies of which have
been furnished to the Banks prior to the Effective Date, present fairly the
consolidated financial condition (or pro forma financial condition, in the
--- -----
case of the statements furnished pursuant to preceding clause (iii)) of the
respective entities purported to be covered thereby at the date of such
balance sheets and the consolidated results of the operations and the
consolidated cash flows (if included) and shareholders' equity (or pro forma
--- -----
consolidated results of operations and shareholder's equity in the case of
the financial statements required to be delivered pursuant to preceding
clause (iii)) of the entities purported to be covered thereby for such fiscal
year or six-month period, as the case may be. All such financial statements
(other than the pro forma financial statements furnished pursuant to clause
--- -----
(iii) of the immediately preceding sentence, to the extent expressly noted
therein) have been prepared in accordance with generally accepted accounting
principles and practices consistently applied. Since March 31, 1994 (or
December 31, 1993 in the case of Tudor and its Subsidiaries, but after giving
effect to the CEAc Transaction and the financing thereof) there has been no
material adverse change in the business, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of (x) the
Company or of the Company and its Subsidiaries (other
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than Tudor and its Subsidiaries) taken as a whole, or (y) unless the Initial
Tender Offer Termination Date has occurred (without consummation of the
Initial Tender Offer), Tudor or of Tudor and its Subsidiaries taken as a
whole.
(b) (i) On and as of the Initial Borrowing Date and the date of
each Credit Event, after giving effect to the Refinancing and to all
Indebtedness (including the Loans and Letters of Credit) being incurred or
assumed and Liens created by the Company and its Subsidiaries in connection
therewith, (a) the sum of the assets, at a fair valuation, of each of the
Company and each of its Subsidiaries will exceed its debts; (b) each of the
Company and each of its Subsidiaries has not incurred, and does not intend to
incur, and does not believe that it will incur, debts beyond its ability to
pay such debts as such debts mature; and (c) each of the Company and each of
its Subsidiaries, individually, will have sufficient capital with which to
conduct its business. For purposes of this Section 8.05(b), "debt" means any
liability on a claim, and "claim" means (i) 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 (ii) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(c) Except as fully reflected in the financial statements
delivered pursuant to Section 8.05(a) (including the footnotes to such
financial statements), there were as of the Initial Borrowing Date no
liabilities or obligations with respect to the Company or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent
or otherwise and whether or not due) which, either individually or in
aggregate, would be reasonably expected to be material to the Company or to
the Company and its Subsidiaries taken as a whole. As of the Initial
Borrowing Date, the Company does not know of any basis for the assertion
against the Company or any of its Subsidiaries of any liability or obligation
of any nature whatsoever that is not fully reflected in the financial
statements delivered pursuant to Section 8.05(a) which, either individually
or in the aggregate, would be reasonably expected to be material to the
Company or to the Company and its Subsidiaries taken as a whole.
(d) On and as of the Initial Borrowing Date, the Projections
delivered to the Agent and the Banks pursuant to Section 5.15(i) have been
prepared on a basis consistent with the financial statements referred to in
Section 8.05(a)(iii) (other than as set forth or presented in such
Projections), and there are no statements or conclusions in any of the
Projections which are based upon or include information known to the Company
to be misleading in any material respect or which fail to take into account
material information regarding the matters reported therein. On the Initial
Borrowing Date the Company believed that the Projections were reasonable and
attainable (although actual results may differ from the Projections and no
representation is made that the Projections will in fact be attained).
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(e) The Company has provided the Banks with true and complete
copies of (i) the CEAc 1993 Consolidated Financial Statements and the CEAc
1994 Consolidated Financial Statements, which CEAc 1993 Consolidated
Financial Statements are, and the CEAc 1994 Consolidated Financial Statements
when prepared will be, regulers et sinceres and will give, as the case may
be, une image fidele in conformity with generally accepted accounting
principles in France consistent with prior periods, of the consolidated
financial position of CEAc and its consolidated Subsidiaries as at December
31, 1993 or December 31, 1994, as the case may be, and of the consolidated
results of their operations for the year then ended and (ii) the pro forma
--- -----
(after giving effect to the CEAc Transaction and the related financing
therefor and prepared pursuant to the requirements contained in Section
6A.13(iii)) financial statements of the Company and its Subsidiaries
furnished pursuant to Section 6A.13(iii), which present fairly the pro forma
--- -----
consolidated results of operations and shareholders' equity of the entities
to be covered thereby for the period covered thereby. Since December 31,
1993, there has been no material adverse change in the business, property,
assets, nature of assets, liabilities, condition (financial or otherwise) or
prospects of CEAc or of CEAc and its Subsidiaries taken as a whole.
(f) On and as of the CEAc Acquisition Date, the CEAc Projections
delivered to the Agent and the Banks pursuant to Section 6A.13(ii) have been
prepared on a basis consistent with the financial statements referred to in
this Section 8.05 (other than as set forth in such projections), and there
are no statements or conclusions in any of such projections which are based
upon or include information known to the Company to be misleading in any
material respect or which fail to take into account material information
regarding the matters reported therein. On the CEAc Acquisition Date the
Company believed the projections were reasonable and attainable (although
actual results may differ from the projections and no representation is made
that such projections will in fact be attained).
8.06 Litigation. There are no actions, suits or proceedings
----------
pending or, to the best knowledge of the Credit Parties, threatened (i) with
respect to any Credit Document, (ii) with respect to any material
Indebtedness of the Company or any of its Subsidiaries or (iii) that are
reasonably likely to materially and adversely affect the business, property,
assets, nature of assets, liabilities, condition (financial or otherwise) or
prospects of (x) the Company or of the Company and its Subsidiaries (other
than Tudor and its Subsidiaries) taken as a whole or (y) unless the Initial
Tender Offer Termination Date has occurred (without consummation of the
Initial Tender Offer), Tudor, or of Tudor and its Subsidiaries taken as a
whole.
8.07 True and Complete Disclosure. All factual information (taken
----------------------------
as a whole) furnished by or on behalf of the Company or any of its
Subsidiaries in writing to the Agents or any Bank (including, without
limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement, the other Credit Documents or any transaction
contemplated herein or therein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of the Company or any
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of its Subsidiaries in writing to the Agents or any Bank will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary
to make such information (taken as a whole) not misleading in any material
respect at such time in light of the circumstances under which such
information was provided.
8.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
-----------------------------------
the Term Loans (I) incurred on the Initial Borrowing Date shall be used by
the Borrower (i) to finance, in part, the repayment of amounts owing pursuant
to the Existing Chemical Credit Agreement and (ii) to pay fees and expenses
in connection with this Agreement and the termination of the Existing
Chemical Credit Agreement and (II) incurred after the Initial Borrowing Date
shall be used by the Borrower to fund payments owing as a result of its
acceptance of Tudor Shares and Tudor Convertible Bonds pursuant to the
Initial Tender Offer and in accordance with the terms thereof (or to
reimburse the respective Issuing Bank for payments made pursuant to the
Initial Tender Offer Credit Support for such purposes).
(b) All proceeds of Revolving Loans and Swingline Loans shall be
used (I) to finance, in part, the Initial Tender Offer and the Secondary
Tender Offer (if same is consummated in accordance with the terms of this
Agreement) and (II) for the general corporate purposes and the working
capital needs of the Borrower and its Subsidiaries.
(c) No part of the proceeds of any Loan will be used to purchase
or carry any Margin Stock or to extend credit for the purpose of purchasing
or carrying any Margin Stock. Neither the making of any Loan nor the use of
the proceeds thereof nor the occurrence of any other Credit Event will
violate or be inconsistent with the provisions of Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System. None of the securities
to be acquired pursuant to the Initial Tender Offer or the Secondary Tender
Offer constitute Margin Stock.
(d) All proceeds of the Tranche C Term Loans shall be used by the
Company to finance, in part, the CEAc Acquisition and the payment of fees and
expenses relating to the CEAc Transaction.
8.09 Tax Returns and Payments. Each of the Company and its
------------------------
Subsidiaries have timely filed or caused to be timely filed, on the due dates
thereof or within applicable grace periods, with the appropriate taxing
authority, all federal, state and other material returns, statements, forms
and reports for taxes (the "Returns") required to be filed by or with respect
to the income, properties or operations of the Company and/or any of its
Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of the Company and its Subsidiaries for the periods
covered thereby. The Company and each of its Subsidiaries have paid all
material taxes payable by them other than taxes which are not delinquent, and
other than those contested in good faith and for which adequate reserves have
been established in accordance with generally accepted accounting principles.
There is no material action, suit, proceeding, investigation, audit, or claim
now pending or, to the
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best knowledge of the Company, threatened by any authority regarding any
taxes relating to the Company or any of its Subsidiaries. Neither the
Company nor any of its Subsidiaries has entered into an agreement or waiver
or been requested to enter into an agreement or waiver extending any statute
of limitations relating to the payment or collection of taxes of the Company
or any of its Subsidiaries, or is aware of any circumstances that would cause
the taxable years or other taxable periods of the Company or any of its
Subsidiaries not to be subject to the normally applicable statute of
limitations. Neither the Company nor any of its Subsidiaries has provided,
with respect to themselves or property held by them, any consent under
Section 341 of the Code. Neither the Company nor any of its Subsidiaries has
incurred, or will incur, any material tax liability in connection with the
Transaction.
8.10 Compliance with ERISA. (i) Each Plan is in substantial
---------------------
compliance with ERISA and the Code; no Reportable Event has occurred with
respect to a Plan; no Plan is insolvent or in reorganization; no Plan has an
Unfunded Current Liability; no Plan has an accumulated or waived funding
deficiency or has applied for an extension of any amortization period within
the meaning of Section 412 of the Code; all contributions required to be made
with respect to a Plan and a Foreign Pension Plan have been timely made;
neither the Company nor any Subsidiary of the Company nor any ERISA Affiliate
has incurred any material liability to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to
incur any liability (including any indirect, contingent, or secondary
liability) under any of the foregoing Sections with respect to any Plan; no
proceedings have been instituted to terminate or appoint a trustee to
administer any Plan; no condition exists which presents a material risk to
the Company or any Subsidiary of the Company or any ERISA Affiliate of
incurring a liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the
aggregate liabilities of the Company and its Subsidiaries and its ERISA
Affiliates to all Plans which are multiemployer plans (as defined in Section
4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such Plan ended prior to the
date of the most recent Credit Event, would not exceed $50,000; no lien
imposed under the Code or ERISA on the assets of the Company or any
Subsidiary of the Company or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and the Company and its Subsidiaries may cease making
contributions to or terminate an employee benefit plan maintained by any of
them without incurring any material liability.
(ii) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither
the Company nor any of its Subsidiaries has incurred any obligation in
connection with the termination of or withdrawal from any Foreign Pension
Plan. The present value of the accrued benefit liabilities (whether or not
vested) under each Foreign Pension Plan, determined as of the end of the
Company's most
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recently ended fiscal year on the basis of actuarial assumptions, each of
which is reasonable, did not exceed the current value of the assets of such
Foreign Pension Plan allocable to such benefit liabilities.
8.11 The Security Documents. (a) The provisions of the Security
----------------------
Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all the Collateral described therein, and the Security Agreement
(together with the filings required to be made pursuant thereto, which
filings have been made) creates a fully perfected first lien on, and security
interest in, all of the Collateral described therein, subject to no other
Liens other than Permitted Liens. The recordation of the Security Agreement
in the United States Patent and Trademark Office together with filings on
Form UCC-1 made pursuant to the Security Agreement will be effective, under
federal law, to perfect the security interest granted to the Collateral Agent
in the trademarks and patents covered by the Security Agreement and the
filing of the Security Agreement with the United States Copyright Office
together with filings on Form UCC-1 made pursuant to the Security Agreement
will be effective under federal law to perfect the security interest granted
to the Collateral Agent in the copyrights covered by the Security Agreement.
(b) So long as the Collateral Agent, as Pledgee, is in possession
of the Pledged Securities delivered to the Collateral Agent in certificated
form, the security interests created in favor of such Pledgee for the benefit
of the Secured Creditors under the Pledge Agreements constitute first
perfected security interests in the Pledged Securities described in the
respective Pledge Agreements, subject to no security interests of any other
Person. Other than the filing of the Tudor Shares Pledge Agreement with the
Clearing House System in the Kingdom of Spain, no filings or recordings are
required in order to perfect the security interests created in the Pledged
Securities under the Pledge Agreements.
(c) The Mortgages create, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected security
interest in and Lien on all of the Mortgaged Properties in favor of the
Collateral Agent (or such other trustee as may be named therein) for the
benefit of the Secured Creditors, superior to and prior to the rights of all
third persons (except that the security interest created in the Mortgaged
Properties may be subject to the Permitted Encumbrances related thereto) and
subject to no other Liens (other than Liens permitted under Section 10.01).
Schedule III contains a true and complete list of each Real Property owned or
leased by the Company on the Effective Date, and the type of interest therein
held by the Company. The Company has good and marketable title to all
Mortgaged Properties (or a valid leasehold interest with respect to any
Mortgaged Property which is a leased facility) free and clear of all Liens
except those described in the first sentence of this subsection (c).
8.12 Representations and Warranties in Documents. All
-------------------------------------------
representations and warranties of the Company and any of its Subsidiaries,
and of Tudor and any of its
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Subsidiaries, set forth in the other Documents were true and correct in all
material respects at the time as of which such representations and warranties
were made or deemed made.
8.13 Properties. The Company and each of its Subsidiaries have
----------
good and valid title to all properties owned by them, including all property
reflected in the most recent balance sheets referred to in each of Sections
8.05(a)(i), (ii) and (iii) (except as sold or otherwise disposed of since the
date of such balance sheets in the ordinary course of business or as
otherwise permitted by Section 10.02), free and clear of all Liens, other
than (i) as referred to in the respective balance sheet or in the notes
thereto or (ii) Permitted Liens. On the Effective Date, Schedule III sets
forth a true and complete description of all Real Property owned or leased by
the Company and/or its Subsidiaries and sets forth the direct owner or lessee
thereof. On the CEAc Acquisition Date, Schedule XIII sets forth a true and
complete description of all Real Property owned or leased by the Company
and/or its Subsidiaries (including CEAc and its Subsidiaries) and sets forth
the direct owner or lessee thereof.
8.14 Capitalization. (a) On the Initial Borrowing Date, the
--------------
authorized capital stock of the Company consists of (i) 30,000,000 shares of
the Common Stock, $.01 par value per share (the "Company Common Stock"), of
which 20,015,000 shares are issued and outstanding as of the Fourth Amendment
Effective Date, and (iii) 5,000,000 shares of a class designated as preferred
stock, $.01 par value per share of which no shares are issued and
outstanding. All such outstanding shares have been duly and validly issued,
are fully paid and non-assessable and have been issued free of preemptive
rights. The Company does not have outstanding any securities convertible
into or exchangeable for its capital stock or outstanding any rights to
subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, its capital stock,
or any stock appreciation or similar rights.
(b) On the Fourth Amendment Effective Date, the authorized capital
stock of Tudor consists of 27,562,500 shares, of which 26,184,375 shares are
issued and outstanding. Of such issued and outstanding shares, 24,636,363
shares are owned by the Company, of which 16,013,635 shares have been pledged
pursuant to the Tudor Shares Pledge Agreement. All such outstanding shares
have been duly and validly issued, are fully paid and nonassessable and have
been issued free of preemptive rights. Tudor does not have outstanding any
securities (other than the Tudor Convertible Bonds) convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for
or to purchase, or any options for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock, or any
stock appreciation or similar rights.
(c) On the Fourth Amendment Effective Date, the outstanding
capital stock of CEAc consists of 21,051,836 shares. All such outstanding
shares have been duly and validly issued, are fully paid and non-assessable
and have been issued free of preemptive
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rights. CEAc does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe or
to purchase, or any options for the purchase of, or any agreement providing
for the issuance (contingent or otherwise) of, or any calls, commitments or
claims of any character relating to, its capital stock, or any stock
appreciation or similar rights, except that the CEAc Seller has the option to
purchase the 7,859,512 Option Shares as described in the CEAc Acquisition
Stock Purchase Agreement. On and at all times after the Tranche C Term Loan
Borrowing Date, the Company shall directly or indirectly own at least 99.7%
of the issued and outstanding shares of capital stock of CEAc.
8.15 Subsidiaries. Schedule IV lists each Subsidiary of the
------------
Company (other than CEAc US Holdco and its Subsidiaries), and the direct and
indirect ownership interests of the Company therein, as of the Effective
Date. Schedule XIV lists each Subsidiary of the Company and of CEAc US
Holdco, and the direct and indirect ownership interests of the Company or
CEAc US Holdco, as the case may be, therein, in each case as of the CEAc
Acquisition Date. With respect to each Subsidiary of the Company (including
CEAc US Holdco and its Subsidiaries), Schedule IV and Schedule XIV accurately
set forth whether the declaration or payment of dividends or similar
distributions by such Subsidiary of its net income is restricted by the
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Subsidiary.
8.16 Compliance with Statutes, etc. Each of the Company and its
------------------------------
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and
the ownership of its property (including applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls and
labor laws), except such noncompliances as would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, property, assets, nature of assets, liabilities, condition
(financial or otherwise) or prospects of (x) the Company or of the Company
and its Subsidiaries (other than CEAc, Tudor and their respective
Subsidiaries) taken as a whole or (y) unless the Initial Tender Offer
Termination Date has occurred (without consummation of the Initial Tender
Offer), Tudor or of Tudor and its Subsidiaries taken as a whole or (z) CEAc
or of CEAc and its Subsidiaries taken as a whole.
8.17 Investment Company Act. Neither the Company nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
8.18 Public Utility Holding Company Act. Neither the Company nor
----------------------------------
any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding
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<PAGE>
company" within the meaning of the Public Utility Holding Company Act of
1935, as amended.
8.19 Environmental Matters. (a) The Company and each of its
---------------------
Subsidiaries have complied with, and on the date of each Credit Event are in
compliance with, all applicable Environmental Laws and the requirements of
any permits issued under such Environmental Laws, except such non-compliances
as would not individually or in the aggregate reasonably be expected to
materially and adversely affect the business, property, assets, nature of
assets, liabilities or condition (financial or otherwise) or prospects of the
Company, of the Company and its Subsidiaries (other than CEAc, Tudor and
their respective Subsidiaries) taken as a whole, of CEAc, of CEAc and its
Subsidiaries taken as a whole, of Tudor or of Tudor and its Subsidiaries
taken as a whole. Except as disclosed on Schedule V with respect to the
Company and its Subsidiaries (other than CEAc and its Subsidiaries) or
Schedule XV with respect to CEAc and its Subsidiaries, there are no pending
or, to the best knowledge of the Company after due inquiry, past or
threatened Environmental Claims against the Company or any of its
Subsidiaries (including any such claim arising out of the ownership or
operation by the Company or any of its Subsidiaries of any Real Property no
longer owned by the Company or such Subsidiary) or any Real Property
currently owned or operated by the Company or any of its Subsidiaries that
individually or in the aggregate would reasonably be expected to materially
and adversely affect the business, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of (x) the
Company or of the Company and its Subsidiaries (other than CEAc, Tudor and
their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor and
its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its Subsidiaries
taken as a whole. There are no facts, circumstances, conditions or
occurrences with respect to any Real Property owned or operated by the
Company or any of its Subsidiaries or, to the best knowledge of the Company
after due inquiry, any property adjoining or in the vicinity of any such Real
Property that, to the best knowledge of the Company after due inquiry, would
reasonably be expected (i) to form the basis of an Environmental Claim
against the Company or any of its Subsidiaries or any such Real Property that
individually or in the aggregate would reasonably be expected to materially
and adversely affect the business, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of (x) the
Company or of the Company and its Subsidiaries (other than CEAc, Tudor and
their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor and
its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its Subsidiaries
taken as a whole or (ii) to cause any such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property by the Company or any of its Subsidiaries under any applicable
Environmental Law, except such restrictions as would not individually or in
the aggregate reasonably be expected to materially and adversely affect the
business, property, assets, nature of assets, liabilities, condition
(financial or otherwise) or prospects of (x) the Company or of the Company
and its Subsidiaries (other than CEAc, Tudor and their respective
Subsidiaries) taken as a whole, (y) Tudor or of Tudor and its Subsidiaries
taken as a whole or (z) CEAc or of CEAc and its Subsidiaries taken as a
whole.
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(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by the Company or any of its Subsidiaries, except in such quantities
as are stored or used in compliance with all applicable Environmental Laws,
except such non-compliance as would not individually or in the aggregate
reasonably be expected to materially and adversely affect the business,
property, assets, nature of assets, liabilities, condition (financial or
otherwise) or prospects of (x) the Company or the Company and its
Subsidiaries (other than CEAc, Tudor and their respective Subsidiaries) taken
as a whole, (y) Tudor or of Tudor and its Subsidiaries taken as a whole or
(z) CEAc or of CEAc and its Subsidiaries taken as a whole, and are used in
connection with the operation of the business of the Company or any of its
Subsidiaries or the use and maintenance of any such Real Property. Hazardous
Materials have not at any time been Released on or from any Real Property
owned or operated by the Company or any of its Subsidiaries where such
Release would reasonably be expected to form the basis of Environmental
Claims against the Company, any such Subsidiary or any such Real Property and
would individually or in the aggregate reasonably be expected to materially
and adversely effect the business, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of (x) the
Company or of the Company and its Subsidiaries (other than CEAc, Tudor and
their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor and
its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its Subsidiaries
taken as a whole.
8.20 Labor Relations. Neither the Company nor any of its
---------------
Subsidiaries is engaged in any unfair labor practice that would reasonably be
expected to have a material adverse effect on (x) the Company or on the
Company and its Subsidiaries (other than CEAc, Tudor and their respective
Subsidiaries) taken as a whole, (y) Tudor or on Tudor and its Subsidiaries
taken as a whole or (z) CEAc or on CEAc and its Subsidiaries taken as a
whole. There is (i) no unfair labor practice complaint pending against the
Company or any of its Subsidiaries or threatened against any of them, before
the National Labor Relations Board, and no material grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending against the Company or any of its Subsidiaries or threatened against
any of them, (ii) no strike, labor dispute, slowdown or stoppage pending
against the Company or any of its Subsidiaries or threatened against the
Company or any of its Subsidiaries and (iii) no union representation
proceeding is pending with respect to the employees of the Company or any of
its Subsidiaries, except (with respect to any matter specified in clause (i),
(ii) or (iii) above, either individually or in the aggregate) such as would
not reasonably be expected to have a material adverse effect on the business,
property, assets, nature of assets, liabilities, condition (financial or
otherwise) or prospects of (x) the Company or of the Company and its
Subsidiaries (other than CEAc, Tudor and their respective Subsidiaries) taken
as a whole, (y) Tudor or of Tudor and its Subsidiaries taken as a whole or
(z) CEAc or of CEAc and its Subsidiaries taken as a whole.
8.21 Patents, Licenses, Franchises and Formulas. Each of the
------------------------------------------
Company and its Subsidiaries owns all material patents, trademarks, permits,
service marks, trade
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<PAGE>
names, copyrights, licenses, franchises and formulas, or rights with respect
to the foregoing, and has obtained assignments of all leases and other rights
of whatever nature, reasonably necessary for the present conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would result in a material
adverse effect on the business, operations, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of (x) the
Company or of the Company and its Subsidiaries (other than CEAc, Tudor and
their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor and
its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its Subsidiaries
taken as a whole.
8.22 Indebtedness. Schedule VI sets forth a true and complete
------------
list of all Existing Indebtedness as of the Initial Borrowing Date and
Schedule XVI sets forth a true and complete list of all CEAc Existing
Indebtedness and all CEAc Acquisition Intercompany Indebtedness as of the
CEAc Acquisition Date, and, in each case, accurately sets forth (i) the name
of the primary obligor thereon, (ii) the name of each additional obligor or
guarantor with respect thereto, (iii) the respective currency in which such
indebtedness is denominated, (iv) the amount of such indebtedness outstanding
on the Initial Borrowing Date or the CEAc Acquisition Date, as the case may
be, and, if the respective Indebtedness is pursuant to a revolving credit or
similar facility, the maximum commitments with respect thereto and (v)
whether the respective issue of Indebtedness or the agreements with respect
thereto contain any restrictions on the payment of dividends or the making of
distributions by the respective obligors or guarantors.
8.23 Tender Offers. At the time of consummation thereof, each
-------------
Tender Offer shall have been consummated in all material respects in
accordance with the terms of the respective Documents and all applicable
laws. At the time of consummation of each Tender Offer, all consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities
required in order to make or consummate such Tender Offer will have been
obtained, given, filed or taken and are or will be in full force and effect
(or effective judicial relief with respect thereto has been obtained). All
applicable waiting periods with respect thereto have or, prior to the time
when required, will have, expired without, in all such cases, any action
being taken by any competent authority which restrains, prevents, or imposes
material adverse conditions upon such Tender Offer. Additionally, at the
time of the consummation thereof, there shall not exist any judgment, order
or injunction prohibiting or imposing material adverse conditions upon either
Tender Offer or the performance by the Company of its obligations with
respect thereto. All actions taken by the Company pursuant to or in
furtherance of each Tender Offer have been, or will be, taken in compliance
in all material respects with the respective Documents and all applicable
laws. At the time of their dissemination to the public, each Offer to
Purchase and any amendments or supplements thereto and all documents required
to be filed by the Company, pursuant to the Securities Exchange Act of 1934,
as amended, or with the CNMV, copies of which documents have been delivered
to each Bank (other than exhibits to such filings, which have been made
available to each Bank upon request therefor), do not and will not contain
any untrue
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statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under
which made, not misleading.
8.24 Treatment of Credit Agreement under Indentures. From and
----------------------------------------------
after the Initial Borrowing Date, this Agreement (as same may be amended,
modified or supplemented from time to time) constitutes the "Amended Credit
Agreement" under, and as defined in, each of the Senior Note Indenture and
Senior Subordinated Note Indenture. As such, all Obligations pursuant to
this Agreement shall constitute "Senior Indebtedness" and "Designated Senior
Indebtedness" under, and as defined in, the Senior Subordinated Note
Indenture and will be entitled to the benefits of the subordination
provisions contained in Article 10 of the Senior Subordinated Note Indenture.
8.25 Restrictions on Subsidiaries. (i) Except for restrictions
----------------------------
contained in the Credit Documents, the Indentures or as described in
Schedules VII and XVII, of the CEAc Acquisition Date and after giving effect
thereto there are no contractual or consensual restrictions on the Company or
any of its Subsidiaries which prohibit or otherwise restrict the transfer of
cash or other assets (except that any holder of a Permitted Lien may restrict
the transfer of the assets subject thereto) (x) between the Company and any
of its Subsidiaries or (y) between any Subsidiaries of the Company and (ii)
there are no contractual or consensual restrictions which prohibit the
granting of the security interests pursuant to, and to the extent required
by, the Security Documents.
8.26 CEAc Acquisition. (a) All representations and warranties by
----------------
the Company and any of its Subsidiaries, and of CEAc and any of its
Subsidiaries, set forth in the CEAc Acquisition Documents were true and
correct in all material respects at the time of which such representations
and warranties were made or deemed made. To the best knowledge of the
Company after due inquiry, at the time of the consummation of the CEAc
Acquisition, all representations and warranties by the CEAc Seller contained
in the CEAc Acquisition Documents shall be true and correct in all material
respects (or, if made as of a specific date, shall have been true and correct
as of such specific date). Furthermore, to the best knowledge of the Company
after due inquiry, at the time of the consummation of the CEAc Acquisition,
the CEAc Seller shall have complied with all covenants on its part to be
performed by it pursuant to the CEAc Acquisition Documents, without any
waiver from the requirements therefrom without the written consent of the
Required Banks.
(b) As of the Fourth Amendment Effective Date (excluding Austria
and Portugal on the Fourth Amendment Effective Date, but not on the CEAc
Acquisition Date) and the CEAc Acquisition Date, the Company has received all
consents and approvals with respect to the CEAc Acquisition from the relevant
governmental authority relating to antitrust or the regulation of competition
in each of Austria, Germany, Ireland, Italy, Portugal and Sweden, and such
consents and approvals do not require that any operations of the Company,
CEAc or their respective Subsidiaries be divested in connection with the CEAc
Acquisition (or to obtain the approvals referenced above in this sentence) or
otherwise impose any limitations on the ability of the Company or CEAc to
operate the
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Company's or CEAc's (including their respective Subsidiaries') businesses,
except, in the case of Austria and Portugal, any immaterial such divestitures
or limitations which have been approved by the Agents and the Required Banks
pursuant to the last proviso to Section 6A.15(b).
SECTION 9. Affirmative Covenants. The Company hereby covenants
---------------------
and agrees, and the Company shall cause each of its Subsidiaries to covenant
and agree, that on and after the Effective Date and until the Total
Commitments and all Letters of Credit have terminated and the Loans, Notes
and Unpaid Drawings, together with interest, Fees and all other Obligations
(then due and payable in the case of such other Obligations) incurred
hereunder and thereunder, are paid in full:
9.01 Information Covenants. The Company will furnish to each Bank
---------------------
(except that the financial information required by clauses (a) through (f)
below with respect to CEAc Acquisition Corp. and its Subsidiaries shall only
be required to be delivered after the CEAc Acquisition Date);
(a) Monthly Reports. Within 30 days after the end of each fiscal
---------------
month of the Company the consolidated balance sheets of (w) the Company
and its Subsidiaries, (x) the Company and its Subsidiaries (excluding
Tudor, CEAc Acquisition Corp. and their respective Subsidiaries), (y)
Tudor and its Subsidiaries, and (z) CEAc Acquisition Corp. and its
Subsidiaries, each as at the end of such month and the related
statements of income and retained earnings and statement of cash flows
for such month and for the elapsed portion of the fiscal year ended with
the last day of such month, in each case in form satisfactory to the
Agents and setting forth comparative figures for the corresponding month
in the prior fiscal year and the budgeted figures for such month as set
forth in the respective budget delivered pursuant to Section 9.01(e).
(b) Quarterly Financial Statements. Within 60 days (or 120 days
------------------------------
in the case of the fourth fiscal quarter) after the close of each
quarterly accounting period in each fiscal year of the Company, the
consolidated balance sheets of (w) the Company and its Subsidiaries, (x)
the Company and its Subsidiaries (excluding Tudor, CEAc Acquisition
Corp. and their respective Subsidiaries), (y) Tudor and its Subsidiaries
and (z) CEAc Acquisition Corp. and its Subsidiaries, each as at the end
of such quarterly period and the related consolidated statements of
income and cash flows for such quarterly period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
period, in each case setting forth comparative figures for the related
periods in the prior fiscal year, all of which shall be certified by the
chief financial officer of the Company, subject to normal year-end audit
adjustments and the absence of footnotes.
(c) Annual Financial Statements. Within 120 days after the close
---------------------------
of each fiscal year of the Company, the consolidated (and, in the case
of the statements for
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the Company and its Subsidiaries, consolidating) balance sheets of (w)
the Company and its Subsidiaries, (x) the Company and its Subsidiaries
(excluding Tudor, CEAc Acquisition Corp. and their respective
Subsidiaries), (y) Tudor and its Subsidiaries and (z) CEAc Acquisition
Corp. and its Subsidiaries, each as at the end of such fiscal year and
the related consolidated (and, in the case of the statements for the
Company and its Subsidiaries, consolidating) statements of income and
retained earnings and of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and certified, in the
case of the consolidated financial statements, by Arthur Andersen & Co.
or such other independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent,
together with a report of such accounting firm stating that in the
course of its regular audit of the respective financial statements,
which audit was conducted in accordance with generally accepted auditing
standards, such accounting firm obtained no knowledge of any Default or
Event of Default which has occurred and is continuing or, if in the
opinion of such accounting firm such a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof.
(d) Management Letters. Promptly after the receipt thereof by the
------------------
Company or any of its Subsidiaries, a copy of any "management letter"
received by the Company or such Subsidiary from its certified public
accountants and the management's responses thereto.
(e) Budgets; Forecasts. Within 60 days after the first day of
------------------
each fiscal year of the Company, budgets (for (i) the Company and its
Subsidiaries taken as a whole, (ii) the Company and its Subsidiaries
(excluding Tudor, CEAc Acquisition Corp. and their respective
Subsidiaries), (iii) Tudor and its Subsidiaries and (iv) CEAc
Acquisition Corp. and its Subsidiaries) in form and scope reasonably
satisfactory to the Agents (including budgeted statements of income, and
sources and uses of cash and balance sheets) prepared by the Company for
the twelve months beginning on the first day of such fiscal year
accompanied by the statement of the chief financial officer of the
Company to the effect that, to the best of his knowledge, the budget is
a reasonable estimate for the period covered thereby.
(f) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Section 9.01(a), (b) and (c), a
certificate of the chief financial officer of the Company to the effect
that, to the best of his knowledge, no Default or Event of Default has
occurred and is continuing or, if any Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof,
which certificate shall set forth the calculations required to
establish, in the case of the statements delivered pursuant to Sections
9.01(b) and (c), (i) whether the Company, Tudor or CEAc Acquisition
Corp. (as the case may be) was in compliance with the provisions of
Sections 10.02, 10.03, 10.05, 10.06 and 10.08 through 10.11, inclusive,
at the end of such fiscal quarter or fiscal year, as the case
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may be, (ii) the amount of any mandatory prepayments and/or commitment
reductions required pursuant to Sections 3.03 and/or 4.02 during such
fiscal quarter or fiscal year (and in the case of the statements
delivered pursuant to Section 9.01(c), the calculations of Company
Excess Cash Flow, Tudor Excess Cash Flow and CEAc Excess Cash Flow for
the respective fiscal year), and (iii) the Company Retained Excess Cash
Flow Amount as at the end of such fiscal quarter or fiscal year (and
showing any changes thereto during the respective period).
(g) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within two Business Days (or five Business Days in the case of following
clauses (ii) and (iii)) after an officer of the Company or any of its
Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of
any event which constitutes a Default or Event of Default, (ii) any
litigation or governmental investigation or proceeding pending (a)
against the Company or any of its Subsidiaries (including for purposes
of this Section 9.01(g), CEAc Acquisition Corp. and its Subsidiaries)
which could materially and adversely affect the business, property,
assets, nature of assets, liabilities, condition (financial or
otherwise) or prospects of (w) the Company or of the Company and its
Subsidiaries (other than CEAc, Tudor and their respective Subsidiaries)
taken as a whole, (x) Tudor or of Tudor and its Subsidiaries taken as a
whole, (y) CEAc or CEAc and its Subsidiaries taken as a whole or (z)
unless the Tranche C Expiration Date has occurred (without consummation
of the CEAc Acquisition), CEAc Acquisition Corp. or of CEAc Acquisition
Corp. and its Subsidiaries taken as a whole or (b) with respect to any
Document and (iii) any other event which could reasonably be likely to
materially and adversely affect the business, property, assets, nature
of assets, liabilities, condition (financial or otherwise) or prospects
of (x) the Company or of the Company and its Subsidiaries (other than
CEAc, Tudor and their respective Subsidiaries) taken as a whole, (y)
Tudor or of Tudor and its Subsidiaries taken as a whole or (z) CEAc or
CEAc and its Subsidiaries taken as a whole.
(h) Other Reports and Filings. Promptly, copies of all financial
-------------------------
information, proxy materials and other information and reports, if any,
which the Company or any of its Subsidiaries shall file with the
Securities and Exchange Commission or any successor thereto (the "SEC")
or deliver to holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or
other representative therefor).
(i) Environmental Matters. Promptly upon, and in any event within
---------------------
five Business Days after, an officer of the Company or any of its
Subsidiaries obtains knowledge thereof, written notice of any of the
following environmental matters (including all reasonably related claims
or liabilities) which could reasonably be expected to result in a
remedial cost to the Company and its Subsidiaries in excess of
$5,000,000:
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(i) any pending or threatened Environmental Claim against
the Company or any of its Subsidiaries (including any such claim
arising out of the ownership or operation by the Company or any of
its Subsidiaries of any Real Property then no longer owned by the
Company or such Subsidiary) or any Real Property then owned or
operated by the Company or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any
Real Property owned or operated by the Company or any of its
Subsidiaries that (a) results in material noncompliance by the
Company or any of its Subsidiaries with any applicable
Environmental Law or (b) could reasonably be expected to form the
basis of an Environmental Claim against the Company or any of its
Subsidiaries (including any such claim arising out of the ownership
or operation by the Company or any of its Subsidiaries of any Real
Property then no longer owned by the Company or such Subsidiary) or
any Real Property then owned by the Company or any of its
Subsidiaries;
(iii) any condition or occurrence on any Real Property
owned or operated by the Company or any of its Subsidiaries that
could reasonably be expected to cause such Real Property to be
subject to any restrictions on the ownership, occupancy, use or
transferability by the Company or any of its Subsidiaries of such
Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in
response to the actual or alleged presence of any Hazardous
Material on any Real Property owned or operated by the Company or
any of its Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency; provided, that in any
event the Company shall deliver to each Bank all written notices
received by the Company or any of its Subsidiaries from any
government or governmental agency under, or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial
action and the Company's or such Subsidiary's response thereto. In
addition, the Company will provide the Banks with copies of such
detailed reports of any Environmental Claim as may reasonably be
requested by the Banks.
(j) ERISA Matters. The Company will deliver to each of the Banks,
-------------
within 10 Business Days after the filing thereof, a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the
Internal Revenue Service. In addition to any certificates or notices
delivered to the Banks pursuant to Section 9.07, copies of any annual
reports and any material notices received by the
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Company, any Subsidiary of the Company or any ERISA Affiliate with
respect to any Plan or Foreign Plan shall be delivered to the Banks no
later than 10 Business Days after the date such report has been filed
with the Internal Revenue Service or such notice has been received by
the Company, such Subsidiary or such ERISA Affiliate, as applicable.
(k) Annual Meetings with Banks. At the request of the
-------------------------------
Administrative Agent, the Company shall within 120 days after the close
of each fiscal year of the Company hold a meeting at a time and place
selected by the Company and reasonably acceptable to the Agents, with
all of the Banks at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of the
Company and each of its Subsidiaries and the budgets presented for the
current fiscal year of the Company and its Subsidiaries.
(l) Environmental Report Updates. Within 60 days after the end of
----------------------------
each fiscal year, an environmental audit report, satisfactory in form
and scope to the Required Banks and the Administrative Agent, from Pilko
& Associates or another environmental consulting firm acceptable to the
Administrative Agent and the Required Banks, which updates, as of the
end of such fiscal year, the environmental reports initially prepared
and delivered to the Banks pursuant to Sections 5.16(ii) and (iii) and
Section 6A.14(ii).
(m) Indenture Calculations. As long as any Senior Notes, 2005
----------------------
Senior Unsecured Notes or Senior Subordinated Notes are outstanding,
then as soon after the end of each fiscal quarter of the Company as the
financial information in respect thereof is available, and in any event
not later than the date of actual or, if sooner, required delivery of
the respective quarterly financial statements pursuant to Section
9.01(b), a certificate of the Chief Financial Officer of the Company
containing calculations required to establish (x) the Interest Coverage
Ratio (as such term is defined in the Indentures) and showing the
maximum amount of Loans which may be incurred by the Company under this
Agreement during the following fiscal quarter while remaining in
compliance with the first paragraph of Section 4.3(a) of the Indentures
and (y) showing the amount of Consolidated Net Tangible Assets (as such
term is defined in the Indentures) as determined on the last day of the
immediately preceding fiscal quarter. Each certificate required by the
immediately preceding sentence shall be accompanied by a report from
Arthur Andersen & Co., S.C., addressed to the Administrative Agent, the
Agents and the Banks then party to this Agreement, in substantially the
same form as the report of Arthur Andersen & Co., S.C. delivered
pursuant to Section 5.15(iii) on the Initial Borrowing Date, but
covering the certificate then being delivered pursuant to this Section
9.01(m). Notwithstanding anything to the contrary contained above,
after the CEAc Acquisition Date, the Company may, at its option, cease
complying with clause (x) of the first sentence of this Section 9.01(m)
(without giving rise to any violation of this Agreement); provided that,
if the Company requests any Borrowing of
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Revolving Loans or Swingline Loans and, immediately after giving effect
thereto, the aggregate principal amount of outstanding Revolving Loans
and Swingline Loans shall exceed $255,000,000, then no such Borrowing
shall be permitted until the information otherwise required by clause
(x) of the first sentence of this Section 9.01(m) is delivered and the
Banks have received any information or opinions required by Section 7.03
in connection with such Borrowing.
(n) Inventory and Receivables Report. Within 30 days after the
--------------------------------
end of each fiscal month, an inventory and accounts receivable report of
the Company and its Domestic Subsidiaries (in any event showing an aging
of receivables) in form and scope satisfactory to the Agents.
(o) Information Pursuant to CEAc Acquisition Documents; Etc. The
-------------------------------------------------------
Company will deliver to each of the Banks, within 3 Business Days after
its or any of its Subsidiaries' receipt thereof, copies of all written
information received by it or any of its Subsidiaries from (x) the CEAc
Seller, CEAc or any of CEAc's Subsidiaries pursuant to the CEAc
Acquisition Documents, including without limitation all copies of
monthly financial reports received by the Company or its Subsidiaries
with respect to CEAc pursuant to Section 7.2 of the CEAc Acquisition
Stock Purchase Agreement or (y) any governmental authority relating to
antitrust or the regulation of competition in any of Germany, France,
Spain, Portugal, the United Kingdom, Belgium, Austria, Italy, Ireland or
Sweden.
(p) Other Information. From time to time, such other information
-----------------
or documents (financial or otherwise) with respect to the Company or its
Subsidiaries (or CEAc Acquisition Corp. and its Subsidiaries) as any
Bank may reasonably request in writing.
9.02 Books, Records and Inspections. The Company will, and will
------------------------------
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all
dealings and transactions in relation to its business and activities. The
Company will, and will cause each of its Subsidiaries to, permit officers and
designated representatives of any Agent or any Bank to visit and inspect,
during regular business hours and under guidance of officers of the Company
or such Subsidiary, any of the properties of the Company or such Subsidiary,
and to examine the books of account of the Company or such Subsidiary and
discuss the affairs, finances and accounts of the Company or such Subsidiary
with, and be advised as to the same by, its and their officers and
independent accountants, all at such reasonable times and intervals and to
such reasonable extent as such Agent or such Bank may request.
9.03 Maintenance of Property; Insurance. Schedule VIII sets forth
----------------------------------
a true and complete listing of all insurance maintained by the Company and
its Subsidiaries (excluding CEAc and its Subsidiaries) as of the Effective
Date. Schedule XVIII sets forth
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a true and complete listing of all insurance maintained by, or by the Company
on behalf of, CEAc Acquisition Corp. and its Subsidiaries as of the CEAc
Acquisition Date and after giving effect to the CEAc Acquisition. The
Company will and will cause each of its Subsidiaries to, (i) keep all
property necessary in its business in good working order and condition
(ordinary wear and tear excepted), (ii) maintain insurance on all its
property in at least such amounts and against at least such risks as is
consistent and in accordance with industry practice and (iii) furnish to each
Bank, upon written request, full information as to the insurance carried. In
addition to the requirements of the immediately preceding sentence, the
Company and its Subsidiaries will at all times cause insurance of the types
described in Schedule VIII and Schedule XVIII to be maintained (with the same
scope of coverage as that described in Schedule VIII and Schedule XVIII) at
levels which are at least as great as the respective amount described
opposite the respective type of insurance on Schedule VIII and Schedule XVIII
under the column headed "Maximum Amount Required to be Maintained." The
provisions of this Section 9.03 shall be deemed to be supplemental to, but
not duplicative of, the provisions of any of the Security Documents that
require the maintenance of insurance.
9.04 Corporate Franchises. The Company will, and will cause each
--------------------
of its Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
-------- -------
this Section 9.04 shall prevent (i) sales of assets by the Company or any of
its Subsidiaries in accordance with Section 10.02, (ii) the dissolution or
liquidation of any Subsidiary of the Company which, at the time of
dissolution, had no material assets or liabilities (including, without
limitation, contingent liabilities) or (iii) the withdrawal by the Company or
any of its Subsidiaries of their qualification as a foreign corporation in
any jurisdiction where such withdrawal would not reasonably be expected to
have a material adverse effect on the business, property, assets, nature of
assets, liabilities, condition (financial or otherwise) or prospects of (x)
the Company or of the Company and its Subsidiaries (other than CEAc, Tudor
and their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor
and its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its
Subsidiaries taken as a whole.
9.05 Compliance with Statutes, etc. The Company will, and will
------------------------------
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such noncompliances as
would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of (x) the
Company or of the Company and its Subsidiaries (other than CEAc, Tudor and
their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor and
its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its Subsidiaries
taken as a whole.
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9.06 Compliance with Environmental Laws. (a) The Company will
----------------------------------
comply, and will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to ownership or use of its Real Property now or
hereafter owned or operated by the Company or any of its Subsidiaries, will
promptly pay or cause to be paid all costs and expenses incurred in such
compliance, and will keep or cause to be kept all such Real Property free and
clear of any Liens imposed pursuant to such Environmental Laws for such
period as such Real Property is owned or operated by the Company or any of
its Subsidiaries, except for such non-compliances, failures to pay or Liens
which individually or in the aggregate would not reasonably be expected to
materially or adversely affect the business, property, assets, nature of
assets, liabilities, condition (financial or otherwise) or prospects of (x)
the Company or of the Company and its Subsidiaries (other than CEAc, Tudor
and their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor
and its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its
Subsidiaries taken as a whole. Neither the Company nor any of its
Subsidiaries will generate, use, treat, store, release or dispose of, or
permit the generation, use, treatment, storage, release or disposal of
Hazardous Materials on any Real Property now or hereafter owned or operated
by the Company or any of its Subsidiaries, or transport or permit the
transportation of Hazardous Materials to or from any such Real Property
except for Hazardous Materials used or stored at, or transported from, any
such Real Properties in compliance with all applicable Environmental Laws and
used in connection with the operation, use and maintenance of any such Real
Property, except such non-compliances as would not reasonably be expected to
materially or adversely affect the business, property, assets, nature of
assets, liabilities, condition (financial or otherwise) or prospects of (x)
the Company or of the Company and its Subsidiaries (other than CEAc, Tudor
and their respective Subsidiaries) taken as a whole, (y) Tudor or of Tudor
and its Subsidiaries taken as a whole or (z) CEAc or of CEAc and its
Subsidiaries taken as a whole.
(b) At the written request of any Agent or the Required Banks,
which request shall specify in reasonable detail the basis therefor, at any
time and from time to time, the Company will provide, at the Company's sole
cost and expense, an environmental site assessment report concerning any Real
Property, prepared by an environmental consulting firm approved by the
Agents, addressing the matters in clause (i), (ii) or (iii) below which gives
rise to such request and estimating the range of the potential costs of any
removal, remedial or other corrective action in connection with any such
matter, provided that in no event shall such request be made unless (i) an
Event of Default has occurred and is continuing, (ii) the Banks receive
notice under Section 9.01(i) for any event for which notice is required to be
delivered for any such Real Property or (iii) the Agent or the Required Banks
reasonably believe that there was a breach of any representation, warranty or
covenant contained in Section 8.19 or 9.06(a). If the Company fails to
provide the same within ninety (90) days after such request was made, any of
the Agents may order the same, and the Company shall grant and hereby grants
to each of the Agents and the Banks and their agents access to such Real
Property and specifically grants each Agent and the Banks an irrevocable non-
exclusive license, subject to the rights of tenants, to undertake such an
assessment, all at the expense of the Company.
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9.07 ERISA. As soon as possible and, in any event, within 10 days
-----
after the Company, any Subsidiary of Company or any ERISA Affiliate knows or
has reason to know of the occurrence of any of the following, the Company
will deliver to each of the Banks a certificate of the chief financial
officer of the Company setting forth details as to such occurrence and the
action, if any, that the Company, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed
to be given to or filed with or by the Company, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with
respect thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency has been incurred or an application may be or has been
made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with
respect to a Plan; that a contribution required to be made to a Plan or
Foreign Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability giving rise to a lien
under ERISA or the Code; that proceedings may be or have been instituted to
terminate or appoint a trustee to administer a Plan; that a proceeding has
been instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the Company, any Subsidiary of the Company or
any ERISA Affiliate will or may incur any liability (including any indirect,
contingent, or secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975
or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA; or that the
Company or any Subsidiary of the Company may incur any material liability
pursuant to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any employee pension
benefit plan (as defined in Section 3(2) of ERISA).
9.08 End of Fiscal Years; Fiscal Quarters. The Company will, for
------------------------------------
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on March 31, (ii) each of its, and each of
its Subsidiaries', fiscal quarters to end consistently with said fiscal year
and with the current practice of the Company; provided that Tudor and its
Subsidiaries and/or CEAc and its Subsidiaries may continue to maintain fiscal
years which end on December 31 (and fiscal quarters consistent therewith) or
may at any time switch to a fiscal year (and fiscal quarters) consistent with
those maintained by the Company as described above.
9.09 Performance of Obligations. The Company will, and will cause
--------------------------
each of its Subsidiaries to, perform all of its obligations under the terms
of each mortgage, indenture, security agreement and other debt instrument
(and including, in any event, all Existing Indebtedness and the Receivables
Facility) by which it is bound, except such non-performances as would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, property, assets, nature of assets,
liabilities, con-
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dition (financial or otherwise) or prospects of (x) the Company or of the
Company and its Subsidiaries (other than CEAc, Tudor and their respective
Subsidiaries) taken as a whole, (y) Tudor or of Tudor and its Subsidiaries
taken as a whole or (z) CEAc or of CEAc and its Subsidiaries taken as a
whole.
9.10 Payment of Taxes. The Company will, and will cause each of
----------------
its Subsidiaries to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge (other than a Permitted Lien) upon any properties of
the Company or of any of its Subsidiaries; provided, that neither the Company
--------
nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and
by proper proceedings if it has maintained adequate reserves with respect
thereto in accordance with GAAP.
9.11 Additional Security; Further Assurances; Surveys; etc. (a)
-----------------------------------------------------
The Company will, and will cause each of its Domestic Subsidiaries to, grant
to the Collateral Agent security interests and mortgages (an "Additional
Mortgage") in such Real Property of the Company or any of its Domestic
Subsidiaries as are not covered by the original Mortgages, to the extent
acquired after the Effective Date, and as may be requested from time to time
by the Administrative Agent or the Required Banks (each such Real Property,
an "Additional Mortgaged Property"). All such Additional Mortgages shall be
granted pursuant to documentation reasonably satisfactory in form and
substance to the Administrative Agent (which shall be consistent with the
Mortgages originally executed and delivered, except for changes deemed
necessary or desirable pursuant to relevant local law) and shall constitute
valid and enforceable perfected Liens superior to and prior to the rights of
all third Persons and subject to no other Liens except as are permitted by
Section 10.01 at the time of perfection thereof. The Additional Mortgages or
instruments related thereto shall be duly recorded or filed in such manner
and in such places as are required by law to establish, perfect, preserve and
protect the Liens in favor of the Collateral Agent required to be granted
pursuant to the Additional Mortgages and all taxes, fees and other charges
payable in connection therewith shall be paid in full.
(b) If requested by the Administrative Agent or the Required
Banks, at any time after Tudor becomes a Subsidiary of the Company and so
long as one or more Banesto Letters of Credit remains outstanding, the
Company will cause Tudor and any Wholly-Owned Subsidiary of Tudor to grant
security interests in such of the assets (including, without limitation,
receivables, inventory, equipment, Real Property, capital stock, promissory
notes and intellectual property) of Tudor and its Wholly-Owned Subsidiaries
(in each case to the extent the respective assets do not secure Existing
Indebtedness which prohibits the granting of the security interest as
contemplated in this clause (b)) and securing its obligations pursuant to the
Tudor Guaranty. Notwithstanding anything to the contrary contained above
(and without limitation of the rights of the Administrative Agent or the
Banks pursuant to the preceding sentence), within 30 days after the Initial
Tender
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Offer Date, unless all Banesto Letters of Credit have terminated and have
been returned to the respective Issuing Bank not later than the 30th day
after the Initial Tender Offer Date, Tudor shall have granted security
interests, securing its obligations pursuant to the Tudor Guaranty, meeting
the requirements described in the two succeeding sentences in all Real
Property and capital stock and promissory notes owned by Tudor. All such
security interests shall be granted pursuant to documentation (the "Tudor
Security Documents") satisfactory in form and substance to the Administrative
Agent (it being understood that the form of the Tudor Security Documents and
the procedural requirements contained therein will be subject to the
applicable requirements of local law, provided that if, by reason of local
law, the Tudor Security Documents for any reason do not constitute valid and
enforceable perfected Liens as contemplated by this sentence, then it shall
be an immediate Event of Default pursuant to Section 11.03) and shall
constitute valid and enforceable perfected Liens superior to and prior to the
rights of all third Persons and subject to no other Liens except as are
permitted by Section 10.01 at the time of the perfection thereof. The Tudor
Security Documents and instruments related thereto shall have been duly
recorded or filed in such manner and in such places as are required by law to
establish, perfect, preserve and protect the Liens in favor of the Collateral
Agent required to be granted thereby and all taxes, fees and other charges
payable in connection therewith shall have been paid in full.
(c) If at any time the Senior Notes are repaid in full, or the
Senior Notes are (or the documentation with respect thereto is) amended,
modified or defeased in a manner which permits the following, the Company
shall cause the Domestic Subsidiaries Guaranty to be amended to delete the
limitations on the maximum liability of the Guarantors thereunder pursuant to
clauses (A) and (B) of the second sentence of Section 1 thereof.
Furthermore, at such time as the Senior Notes are repaid in full, or the
Senior Notes are (or the documentation with respect thereto is) amended,
modified, waived or defeased in a manner which permits the following, the
Company shall take such actions so that all Collateral secures in full all
Obligations hereunder, and to delete the limitations contained in Section
14.17(b) and under the analogous provisions of the Security Documents.
(d) The Company will, and will cause each of its Subsidiaries to,
at the expense of the Company, make, execute, endorse, acknowledge, file
and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps (x) relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require or (y) deemed
reasonably necessary or desirable by the Administrative Agent or Collateral
Agent to comply with, or obtain the benefits, of any provisions of applicable
local law (including Spanish law) with respect to the rights and remedies
under this Agreement or the other Credit Documents. Furthermore, the Company
shall cause to be delivered to the Collateral Agent such opinions of counsel,
title insurance and other related documents as may be reasonably requested by
the Collateral Agent to assure itself that this Section 9.11 has been
complied with.
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(e) The security interests required to be granted pursuant to this
Section 9.11 shall be granted pursuant to security documentation (which shall
be substantially similar to the Security Documents already executed and
delivered by the Company or its Subsidiaries, as applicable) or otherwise
satisfactory in form and substance to the Administrative Agent and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except such Liens
as are permitted by Section 10.01. The Additional Security Documents and
other instruments related thereto shall be duly recorded or filed in such
manner and in such places and at such times as are required by law to
establish, perfect, preserve and protect the Liens, in favor of the
Collateral Agent for the benefit of the respective Secured Creditors,
required to be granted pursuant to the Additional Security Documents and all
taxes, fees and other charges payable in connection therewith shall be paid
in full by the Company. At the time of the execution and delivery of the
Additional Mortgages, the Company shall cause to be delivered to the
Collateral Agent such opinions of counsel, Mortgage Policies, title surveys,
real estate appraisals and other related documents as may be reasonably
requested by the Agents or the Required Banks to assure themselves that this
Section 9.11 has been complied with.
(f) In the event that the Administrative Agent or the Required
Banks at any time after the Effective Date determine in its or their good
faith discretion (as a result of events or circumstances affecting the
Collateral Agent or the Required Banks after the Effective Date) that real
estate appraisals satisfying the requirements set forth in 12 C.F.R., Part
34-Subpart C, or any successor or similar statute, rule, regulation,
guideline or order (any such appraisal a "Required Appraisal") are or were
required to be obtained, or should be obtained, in connection with any or all
of the Mortgaged Properties or Additional Mortgaged Properties, then, within
120 days after receiving written notice thereof from the Administrative Agent
or the Required Banks, as the case may be, such Required Appraisal shall be
delivered, at the expense of the Company, to the Administrative Agent, which
Required Appraisal, and the respective appraiser, shall be satisfactory to
the Administrative Agent.
(g) The Company agrees that each action required by this Section
9.11 shall be completed as soon as possible, but in no event later than (x)
60 days after such action is requested to be taken by the Administrative
Agent or the Required Banks or (y) in the case of the actions required to be
taken pursuant to the second sentence of Section 9.11(b), the date required
by said sentence.
9.12 Foreign Subsidiaries Security. If following a change in the
-----------------------------
relevant sections of the Code, the regulations and rules promulgated
thereunder and any rulings issued thereunder and at the request of the
Administrative Agent or the Required Banks, counsel for the Company
acceptable to the Administrative Agent and the Required Banks does not within
30 days after such request deliver evidence satisfactory to the
Administrative Agent, with respect to any Foreign Subsidiary which is a
Wholly-Owned Subsidiary of the Company that (i) a pledge of 66-2/3% or more
of the total combined voting power of all classes of capital stock of such
Foreign Subsidiary entitled to vote, (ii)
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the entering into by such Foreign Subsidiary of a guaranty in substantially
the form of the Subsidiaries Guaranty or (iii) the entering into by such
Foreign Subsidiary of a security agreement in substantially the form of the
Security Agreement, in either case would cause the earnings of such Foreign
Subsidiary to be treated as a deemed dividend to such Foreign Subsidiary's
United States parent or would otherwise violate a material applicable law,
then in the case of a failure to deliver the evidence described in clause (i)
above, that portion of such Foreign Subsidiary's outstanding capital stock
not theretofore pledged pursuant to a Pledge Agreement shall be pledged to
the Collateral Agent for the benefit of the Secured Creditors pursuant to the
respective Pledge Agreement (or another pledge agreement in substantially
similar form, if needed), in the case of a failure to deliver the evidence
described in clause (ii) above, such Foreign Subsidiary shall execute and
deliver a guaranty (each a "Foreign Subsidiary Guaranty" and, collectively,
the "Foreign Subsidiary Guarantees") of the Obligations of the Company under
the Credit Documents and under any Secured Interest Rate Protection or Other
Hedging Agreements and (iii) in the case of a failure to deliver the evidence
described in clause (iii) above, such Foreign Subsidiary shall execute and
deliver a security agreement granting the Secured Creditors a security
interest in all of such Foreign Subsidiaries' assets pursuant to the
applicable Security Agreement (or another security agreement of substantially
similar form, if needed), in each case with all documents delivered pursuant
to this Section 9.12 to be in form and substance satisfactory to the
Administrative Agent and the Required Banks; provided, however, that so long
-------- -------
as any obligations under the CEAc Refinancing Credit Facility or any
permitted refinancing thereof remain outstanding, (x) neither CEAc nor any of
its Subsidiaries shall be required to take any of the actions required by
clauses (i) through (iii) above and (y) the capital stock of any Subsidiary
of CEAc shall not be required to be pledged to the Collateral Agent for the
benefit of the Secured Creditors.
9.13 UCC Searches. On or prior to the 60th day following the
------------
Initial Borrowing Date, the Company shall deliver to the Administrative Agent
(at the Company's own cost) copies of Request for Information or Copies (UCC-
11), or equivalent reports verifying that all Financing Statements necessary
or, in the opinion of the Collateral Agent desirable, to perfect the security
interest purported to be created by the Security Agreement shall have been
properly recorded and filed.
9.14 Currency Hedging Agreements; Interest Rate Protection. (a)
-----------------------------------------------------
No later than the Initial Borrowing Date, the Company shall enter into
Currency Hedging Agreements in form and substance satisfactory to the Agents,
which shall protect the Company against increases in the value of the Peseta
versus the Dollar, and shall provide protection against such currency
fluctuations covering a notional amount of 23 billion Pesetas for a period of
not less than 30 days but not more than 64 days after the Initial Borrowing
Date.
(b) No later than November 30, 1994, the Company shall enter into
Interest Rate Protection Agreements in form and substance satisfactory to the
Agents establishing a LIBOR cap of not more than 8% per annum for an
aggregate notional principal amount
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equal to $100 million for a period of three years; provided that such
notional principal amount shall be reduced (by $60,000,000) if the Existing
Swap in the notional amount of $60,000,000 remains outstanding after the
Initial Borrowing Date with no default or event of default thereunder
(whether the same is continued with the original bank party thereto or is
assigned to a Bank or another financial institution reasonably satisfactory
to the Agents prior to, on or immediately after the Initial Borrowing Date).
(c) Not later that 30 days after the Tranche C Term Loan Borrowing
Date, the Company shall enter into Interest Rate Protection Agreements in
form and substance satisfactory to the Agents with respect to a notional
principal amount equal to at least 50% of the principal amount of Tranche C
Term Loans incurred by the Company on the Tranche C Term Loan Borrowing Date
for a period of 3 years.
9.15 Permitted Acquisitions. Subject to the remaining provisions
----------------------
of this Section 9.15 applicable thereto and the requirements contained in the
definition of Permitted Acquisition, the Company may from time to time effect
Permitted Acquisitions, so long as (u) in the case of Permitted Acquisitions
effected after the Effective Date and on or prior to the last day of the
fiscal year of the Company ended in March, 1995, the consideration paid
therefor shall consist solely of cash, and the aggregate amount of cash paid
to effect Permitted Acquisitions during such period, when added to the
aggregate amount spent during such period for Permitted Sales Branch
Acquisitions, shall not exceed $3,000,000, (v) in the case of Permitted
Acquisitions effected during the fiscal year of the Company ended in March,
1996, the consideration paid therefor shall consist solely of (i) Net Cash
Proceeds received by the Company after the Effective Date from the issuance
of its common stock which are permitted to be retained by the Company
pursuant to Section 4.02(d)(i) and shares of common stock of the Company
directly issued as consideration for the respective Permitted Acquisition
and/or (ii) other cash available to the Company, provided that the aggregate
amount of cash consideration and the fair market value of common stock of the
Company issued as consideration for all such Permitted Acquisitions during
such fiscal year, when aggregated with the amount spent during such fiscal
year for Permitted Sales Branch Acquisitions, shall not exceed $10,000,000,
of which not more than $5,000,000 shall consist of cash available to the
Company as described in preceding clause (ii), (w) with respect to Permitted
Acquisitions effected after the last day of the Company's fiscal year ended
in March, 1996, the consideration paid for each Permitted Acquisition shall
consist solely of (i) Net Cash Proceeds received by the Company after the
Effective Date from the issuance of its common stock which are permitted to
be retained by the Company pursuant to Section 4.02(d)(i), other cash
available to the Company not to exceed, when added to the aggregate principal
amount of Acquired Indebtedness assumed or incurred by the Company and its
Subsidiaries as a result of the respective Permitted Acquisition, the Company
Retained Excess Cash Flow Amount as determined immediately before the
respective payment is made and shares of common stock of the Company directly
issued as part of the consideration for the respective Permitted Acquisition,
(x) after giving effect to all Permitted Acquisitions effected pursuant to
this Section 9.15 after March 31, 1996 the sum of (without duplication) (i)
the aggregate amount of all Net Cash Proceeds
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received by the Company from the issuance of its common stock which are (or
have been) used to finance, in whole or in part, Permitted Acquisitions made
after March 31, 1996, (ii) the aggregate fair market value (as determined in
good faith by the Board of Directors of the Company) of all common stock
issued by the Company as consideration to sellers in connection with
Permitted Acquisitions made after March 31, 1996, (iii) the aggregate amount
of other cash used to finance, in whole or in part, Permitted Acquisitions
made after March 31, 1996 and (iv) the aggregate principal amount of all
Acquired Indebtedness incurred or assumed in connection with Permitted
Acquisitions, shall not exceed $50,000,000 in the aggregate for all Permitted
Acquisitions made after March 31, 1996, (y) with respect to each Permitted
Acquisition where the amount of cash consideration and the fair market value
of any common stock of the Company issued as consideration exceeds
$5,000,000, the Company shall furnish to the Banks pro forma financial
--- -----
statements (for the period of the four consecutive fiscal quarters ended on
the last day of the last fiscal quarter for which financial statements have
therefore been delivered to the Banks pursuant to Section 9.01(b), showing
that, if pro forma effect were given to the Permitted Acquisition on the
--- -----
first day of said period, the Company would have been (i) in compliance with
Sections 10.09, 10.10 and 10.11 at all relevant test times during said period
and (ii) if the full amount of Loans available pursuant to this Agreement on
the date of said Permitted Acquisition were borrowed, on a pro forma basis
--- -----
the Company would be in compliance with the Interest Coverage Ratio
requirements contained in the first paragraph of Section 4.3(a) of the
Indentures and (z) with respect to each Permitted Acquisition, (A) no Default
or Event of Default shall be in existence at the time of the consummation of
such Permitted Acquisition or shall exist immediately after giving effect
thereto, (B) the Company shall have given the Agent and the Banks at least 30
days prior notice of any Permitted Acquisition (each such notice, a
"Permitted Acquisition Notice"), which notice shall contain (I) the date such
Permitted Acquisition is scheduled to be consummated, (II) the estimated
purchase price of such Permitted Acquisition, (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 paid in respect of such Permitted
Acquisition and (V) in the case 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, (C) such Permitted Acquisition shall not violate any term or
provisions of this Agreement, and (D) the Company shall have certified to the
Administrative Agent and the Banks, and the Agent and the Required Banks
shall have been satisfied in their reasonable discretion, that the proposed
Permitted Acquisition is not reasonably likely to result in material
increased tax, ERISA or environmental liabilities on the Company or on the
Company and its Subsidiaries taken as a whole; provided that, so long as the
Permitted Acquisition Notice has been given as required above and so long as
the Company has furnished to each Bank which has requested information as to
the liabilities of the type described in this clause (D) all information so
requested, if any Bank has not notified the Company or the Administrative
Agent on or prior to the 10th day prior to the consummation of a Permitted
Acquisition that such Bank has not yet been satisfied that the proposed
Permitted Acquisition would not be reasonably likely to result in material
increased tax, ERISA or
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environmental liabilities on the Company or on the Company and its
Subsidiaries taken as a whole, then such Bank shall be deemed for purposes of
preceding clause (D) to be so satisfied. The consummation of each Permitted
Acquisition shall be deemed to be a representation and warranty by the
Company that all conditions thereto have been satisfied and that same is
permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and
warranty for all purposes hereunder, including, without limitation, Sections
8 and 11./4//
9.16 Tender Offers. At the time of consummation of either Tender
-------------
Offer, such Tender Offer will be consummated in all material respects in
accordance with the terms of the Documents relating to such Tender Offer and
all applicable laws. At the time of consummation of the respective Tender
Offer, all consents and approvals of, and filings and registrations with, and
all other actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate such Tender Offer
will have been obtained, given, filed or taken and will be in full force and
effect (or effective judicial relief with respect thereto shall have been
obtained) and all applicable waiting periods with respect thereto shall have
expired without any action being taken by any competent authority which
restrains, prevents, or imposes material adverse conditions upon such Tender
Offer. Additionally, at the time of the consummation of the respective
Tender Offer there will not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon such Tender Offer,
or the occurrence of any Credit Event or the performance by the Company of
its obligations under the Documents relating to such Tender Offer. All
actions taken by the Company pursuant to or in furtherance of each Tender
Offer will be taken in material compliance with the Documents relating to
such Tender Offer and all applicable laws. At the time of their
dissemination to the public, respective Offer to Purchase and any amendments
or supplements thereto and all documents required to be filed by the Company
or any of its Subsidiaries, pursuant to the Securities Exchange Act of 1934,
as amended, or with the CNMV, copies of which documents shall be promptly
delivered to each Bank (other than exhibits to such filings, which will be
made available to each Bank upon request therefor), will not contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which made, not misleading.
9.17 Treasury Stock Repurchase. Within the Call Option Period
-------------------------
under, and as defined in, the Purchase Agreement, and in any event within 45
Business Days after the Initial Tender Offer Date, the Company shall cause
Tudor to purchase the Option Shares pursuant to the Call Option provided in
the Purchase Agreement, all in accordance with the terms thereof. In
effecting any such purchase, Tudor shall use its own funds and shall
- ----------
/4// Pursuant to the Fourth Amendment, the CEAc Acquisition shall not
constitute a Permitted Acquisition and, accordingly, shall not be subject
to the provisions of Section 9.15.
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make the purchase in a manner so that there is, and shall be, no drawing
under the Treasury Stock Letter of Credit.
9.18 Termination of Tender Offers. (a) If the Initial Tender
----------------------------
Offer is not consummated on or before December 31, 1994, the Company shall
cause the Initial Tender Offer to be withdrawn, cancelled or declared void,
in each case within the meaning provided in the Initial Tender Offer Credit
Support, and shall cause the Initial Tender Offer Credit Support to be
terminated in accordance with its terms at such time.
(b) If the Secondary Tender Offer is not consummated on or before
the 90th day after the Secondary Tender Offer Filing Date, the Company shall
cause the Secondary Tender Offer to be withdrawn, cancelled or declared void,
in each case within the meaning provided in the Secondary Tender Offer Credit
Support, and shall cause the Secondary Tender Offer Credit Support to be
terminated in accordance with its terms at such time.
9.19 Ownership of Subsidiaries. (a) With respect to each
-------------------------
Subsidiary of the Company (other than CAEc US Holdco, Tudor and their
respective Subsidiaries), the Company (directly or indirectly) shall at all
times own at least that percentage of the outstanding capital stock of such
Subsidiary as is shown as being owned (directly or indirectly) by the Company
in Schedule IV hereto.
(b) After the Initial Tender Offer Date, Tudor shall at all times
be required to be a Subsidiary of the Company in accordance with the
definition thereof (excluding the last sentence of said definition), and the
Company shall at all times be required to directly own at least 51% (or such
greater percentage of the outstanding Tudor capital stock as is purchased
pursuant to the Initial Tender Offer) of the outstanding capital stock of
Tudor. In addition to the foregoing requirements, the Company shall take all
action necessary so that, as the Tudor Percentage is increased from time to
time after the Initial Tender Offer Date, it shall never thereafter decline
to a percentage which is less than the highest Tudor Percentage which was
theretofore in effect. Accordingly, the Company shall at all times be
required to directly own the highest percentage of the outstanding Tudor
Shares which was at any time owned by the Company and its Subsidiaries after
the Initial Tender Offer Date.
(c) At all times after the Initial Tender Offer Date, Tudor shall
be required to own (directly or indirectly) at least that percentage of the
outstanding capital stock of each of its Subsidiaries which was owned by
Tudor and its Subsidiaries on the Initial Tender Offer Date, in each case
unless the respective Subsidiary is liquidated or otherwise disposed in a
sale permitted pursuant to Section 10.02.
(d) Notwithstanding anything to the contrary contained herein, the
provisions of this Section 9.19 shall not be violated by reason of any
dissolution or liquidation of a Subsidiary in compliance with the
requirements of Section 9.04(ii).
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(e) After the CEAc Acquisition Date, CEAc US Holdco shall at all
times be required to be a direct Wholly-Owned Subsidiary of the Company in
accordance with the definition thereof, CEAc Acquisition Corp. shall at all
times be required to be a direct Wholly-Owned Subsidiary of CEAc US Holdco in
accordance with the definition thereof, and the Company shall at all times be
required to indirectly own, through CEAc Acquisition Corp., at least 99.7% of
the outstanding capital stock of CEAc. In addition to the foregoing
requirements, the Company shall take all action necessary so that, if and as
the CEAc Percentage is increased from time to time after the CEAc Acquisition
Date, it shall never thereafter decline to a percentage which is less than
the highest CEAc Percentage which was theretofore in effect. Accordingly,
the Company shall at all times be required to indirectly own the highest
percentage of the outstanding equity interests in CEAc which was at any time
owned by the Company and its Subsidiaries after the CEAc Acquisition Date.
At all times, each of CEAc US Holdco and CEAc Acquisition Corp. shall be
operated as special purpose holding companies with (x) CEAc US Holdco having
no significant assets or liabilities other than its ownership interest in the
capital stock of CEAc Acquisition Corp. and any liabilities permitted
pursuant to the terms of this Agreement in connection therewith and (y) CEAc
Acquisition Corp. having no significant assets or liabilities other than its
ownership of the capital stock of CEAc and its beneficial ownership of 100%
of the capital stock of Exide France, which shall be another special purpose
Subsidiary which shall engage in no significant activities and have no
significant assets or liabilities.
(f) At all times after the CEAc Acquisition Date, CEAc shall be
required to own (directly or indirectly) at least that percentage of the
outstanding capital stock of each of its Subsidiaries which was owned by CEAc
on the CEAc Acquisition Date, in each case unless the respective Subsidiary
is liquidated or otherwise disposed in a sale permitted pursuant to Section
10.02.
9.20 New Domestic Wholly-Owned Subsidiaries. To the extent the
--------------------------------------
Company creates or acquires any Domestic Wholly-Owned Subsidiary after the
Effective Date in accordance with the other provisions of this Agreement
(whether as a result of a Permitted Acquisition, a Permitted Sales Branch
Acquisition or otherwise), each such Domestic Wholly-Owned Subsidiary shall
be required to become a party to the Domestic Subsidiaries Guaranty by
executing a counterpart thereof or enter into an amendment thereto
satisfactory to the Administrative Agent and, if requested by the
Administrative Agent or the Required Banks, shall be required to enter into
the Security Documents entered into by the entities which were Domestic
Subsidiary Guarantors on the Initial Borrowing Date, in each case by entering
into counterparts thereof or amendments thereto, in form and substance
satisfactory to the to the extent requested by the Administrative Agent or
the Collateral Agent, Administrative Agent and the Collateral Agent. In
connection with the foregoing, to the extent requested by the Administrative
Agent or the Collateral Agent, the Company shall be required to cause to be
delivered such relevant documentation (including opinions of counsel) of the
type described in Section 5 as the respective Subsidiary would have had
delivered if it were a Credit Party on the Initial
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Borrowing Date. Notwithstanding anything to the contrary contained above,
the actions otherwise required by this Section 9.20 shall only be required to
be taken to the extent requested by the Agents or the Required Banks.
9.21 Tudor Guaranty. Within 30 days after the Initial Tender Offer
--------------
Date, the Company shall have caused Tudor to have duly authorized, executed
and delivered a Guaranty in the form of Exhibit H-2 hereto (as modified,
supplemented or amended from time to time, the "Tudor Guaranty"). In
connection with the foregoing, the Company shall have delivered an opinion of
Spanish counsel reasonably acceptable to the Agents as to the legality,
validity and binding effect of the Tudor Guaranty and covering such matters
related thereto as may be reasonably requested by any Agent or the Required
Banks.
SECTION 10. Negative Covenants. The Company covenants and agrees,
------------------
and the Company shall cause each of its Subsidiaries to covenant and agree,
that on and after the Effective Date and until the Total Commitments and all
Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings,
together with interest, Fees and all other Obligations (then due and payable
in the case of such other Obligations) incurred hereunder and thereunder, are
paid in full:
10.01 Liens. The Company will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) of the Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable with recourse to
the Company or any of its Subsidiaries), or assign any right to receive
income or permit the filing of any financing statement under the UCC or any
other similar notice of Lien under any similar recording or notice statute;
provided that the provisions of this Section 10.01 shall not prevent the
--------
creation, incurrence, assumption or existence of the following (Liens
described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with US GAAP (or the equivalent thereof
in any country in which a Foreign Subsidiary is doing business, as
applicable);
(ii) Liens in respect of property or assets of the Company or
any of its Subsidiaries imposed by law, which were incurred in the
ordinary course of business and do not secure Indebtedness for borrowed
money, such as carriers', warehousemen's, materialmen's and mechanics'
liens and other similar Liens arising in the ordinary course of
business, and (x) which do not in the aggregate materially detract from
the value of the Company's or such Subsidiary's property or assets or
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materially impair the use thereof in the operation of the business of
the Company or such Subsidiary or (y) which are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence (x) on the Effective Date which are
listed, and the property subject thereto described, in Schedule IX and
(y) on the CEAc Acquisition Date on the property and assets of CEAc and
its Subsidiaries which are listed, and the property subject thereto
described, in Schedule XIX (Liens referred to in this clause (iii) are
herein referred to as "Existing Liens"), but only to the respective
date, if any, set forth in such Schedule IX or Schedule XIX, as the case
may be, for the removal and termination of any such Liens;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) Liens upon assets subject to Capitalized Lease Obligations
to the extent permitted by Section 10.05(ix), provided that such Liens
--------
only serve to secure the payment of Indebtedness arising under such
Capitalized Lease Obligation;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Company or any of its Subsidiaries at
the time of acquisition thereof by the Company or any such Subsidiary or
within 120 days thereafter to secure Indebtedness incurred to pay all or
a portion of the purchase price thereof provided that (x) the aggregate
--------
outstanding principal amount of all Indebtedness secured by Liens
permitted by this clause (vii) shall not at any time exceed $3,000,000
and (y) in all events, the Lien encumbering the equipment or machinery
so acquired does not encumber any other asset of the Company or such
Subsidiary;
(viii) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not materially
interfering with the conduct of the business of the Company or any of
its Subsidiaries;
(ix) 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;
(x) Liens on accounts receivable and proceeds thereof, in each
case so long as (x) said accounts receivable are sold pursuant to the
Receivables Facility in accordance with the requirements of Section
10.02(vi) and (y) the amount of
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Receivables Facility Attributed Indebtedness at such time shall not
exceed the Receivables Maximum Commitment Amount;
(xi) Liens securing Indebtedness permitted pursuant to Section
10.05(iv), (vi) or (xviii), so long as such Liens are limited to the
assets permitted to serve as security for such Indebtedness in
accordance with the provisions of said Section 10.05(iv), (vi) or
(xviii), as the case may be;
(xii) Liens (other than any Lien imposed by ERISA) (x) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, (y) to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money)
or (z) deposits made in the ordinary course of business to secure
liability for premiums to insurance carriers, provided that the
--------
aggregate amount of deposits at any time pursuant to sub-clause (y) and
sub-clause (z) shall not exceed $5,000,000 in the aggregate;
(xiii) Liens securing Acquired Indebtedness shall be permitted
so long as such Liens existed prior to, and were not created in
contemplation of, the respective Permitted Acquisition, and so long as
the Liens apply only to the properties or assets so acquired pursuant to
the respective Permitted Acquisition;
(xiv) Liens on cash and Cash Equivalents of the Company created
prior to the Effective Date and securing the BIG Notes shall be
permitted to remain in existence until the BIG Notes are repaid in full,
so long as no additional assets or property are pledged as security
therefor after the Effective Date (although earnings on funds deposited
prior to the Effective Date shall be permitted to be retained as
security) (with the amount of cash collateral for the BIG Notes as at
June 30, 1994 being (Pounds)22,186,416) (with such collateral being
herein called the "BIG Notes Cash Collateral");
(xv) Liens which may exist as a result of the transactions
described in Section 10.02(xii) shall be permitted; and
(xvi) Until the consummation of the CEAc Acquisition or the
earlier repayment of the 2005 Senior Unsecured Notes, the 2005 Senior
Unsecured Notes may be secured by the amounts deposited (and maintained
as cash and Cash Equivalents) in the 2005 Escrow Account.
10.02 Consolidation, Merger, Purchase or Sale of Assets, etc. The
-------------------------------------------------------
Company will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or
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dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any sale-leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of
the property or assets (other than purchases or other acquisitions of
inventory, materials, equipment and intangible assets in the ordinary course
of business) of any Person, except that:
(i) Capital Expenditures by the Company and its Subsidiaries
shall be permitted to the extent not in violation of Section 10.08;
(ii) each of the Company and its Subsidiaries may, in the
ordinary course of business, (x) sell, lease or otherwise dispose of any
assets which, in the reasonable judgment of such Person, have become
obsolete or worn out, provided that each such sale or disposition shall
be for fair market value and at least 75% of the consideration therefor
shall be in the form of cash and, provided, further, that the aggregate
Net Sale Proceeds of any sale permitted pursuant to this clause (x)
shall not exceed $50,000 and (y) sell, lease or dispose of any assets,
provided that each such sale or disposition shall be for fair market
value and at least 75% of the consideration therefor shall be in the
form of cash and, provided, further, that the aggregate Net Sale
Proceeds of all assets subject to sale or other dispositions pursuant to
this clause (y) shall not exceed $5,000,000 in the aggregate in any
fiscal year of the Company;
(iii) Investments may be made to the extent permitted by
Section 10.06;
(iv) each of the Company and its Subsidiaries may lease (as
lessee) real or personal property in the ordinary course of business;
(v) each of the Company and its Subsidiaries may make sales or
transfers of inventory in the ordinary course of business and consistent
with past practices;
(vi) the Company and its Subsidiaries may sell accounts
receivable pursuant to the Receivables Facility, so long as (x) unless
the Required Banks otherwise consent in writing, no Sears receivables
are sold pursuant thereto and (y) the amount of Receivables Facility
Attributed Indebtedness shall at no time outstanding exceed the
Receivables Maximum Commitment Amount;
(vii) purchases of Tudor Shares and Tudor Convertible Bonds
shall be permitted to be made by the Company pursuant to the terms of
the Initial Offer to Purchase or Secondary Offer to Purchase, in each
case in accordance with the requirements of this Agreement, and the
Treasury Stock Repurchase may be effected by Tudor in accordance with
the requirements of this Agreement;
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(viii) the Company may effect Permitted Acquisitions in
accordance with the requirements of Section 9.15;
(ix) so long as no Default or Event of Default then exists, the
Company may acquire sales branches (or 100% of the capital stock of any
corporation substantially all of whose assets will constitute a sales
branch) so long as (x) the aggregate amount of expenditures for such
acquisitions ("Permitted Sales Branch Acquisitions") do not exceed
$3,000,000 in any fiscal year of the Company and (y) in the case of
Permitted Sales Branch Acquisitions made after the Effective Date and
prior to March 31, 1996, the aggregate amount of the consideration paid
therefor, when added to the amount of consideration paid for Permitted
Acquisitions during the relevant period, does not exceed the amount
permitted to be paid pursuant to Section 9.15(u) or (v), as the case may
be;
(x) the Company may, pursuant to a bankruptcy plan finally
approved by the respective bankruptcy court, acquire assets of Evanite,
so long as no consideration (other than (i) the conversion of
Indebtedness of Evanite currently held by the Company, (ii) the
assumption by the Company of accounts payable and accrued expenses of
Evanite in an amount not to exceed $1,000,000 and (iii) the assumption
by the Company of certain pre-petition tax obligations of Evanite in an
amount not to exceed $200,000) is required to be paid to obtain such
assets; provided that in no event (and notwithstanding any other
--------
contrary provision of this Agreement) shall the Company or any of its
Subsidiaries acquire Evanite's facilities located in Corvallis,
Oregon;/5//
(xi) a Subsidiary of Euro Exide may acquire, for consideration
consisting of not more than a 20% ownership interest in the entity
acquiring said assets (and with no other consideration to be payable in
connection therewith), intangible assets and/or personal property (but
not Real Estate or fixtures) of Gemala, provided that (and
notwithstanding any other provision of this Agreement) the Company shall
not acquire any Real Property owned or leased by Gemala without the
prior written consent of the Required Banks;
(xii) within 30 days before the last day of any fiscal year of
the Company, so long as no Default or Event of Default then exists, the
Company may sell receivables with an aggregate face amount not exceeding
$70,000,000 to General Battery Corporation (so long as General Battery
Corporation is a Wholly-Owned Subsidiary of the Company) so long as (a)
the purchase price is paid through the issuance by General Battery
Corporation of an intercompany promissory note in the form of Exhibit N
which is pledged pursuant to the Pledge Agreement, (b) any cash
- ----------
/5// The Company was permitted to purchase the Corvallis, Oregon facilities
pursuant to the Consent and Waiver, dated as of February 21, 1995.
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collections made on the respective receivables so sold are used to pay
interest or principal on said intercompany note and (c) to the extent
the receivables are not repaid in full within 30 days after the sale
thereof, the Company shall repurchase said receivables from General
Battery Corporation with the consideration for such repurchase being the
cancellation of the intercompany note described above;
(xiii) the CEAc Acquisition may be effected so long as all
conditions precedent contained in Section 6A are met at the time such
acquisition is effected and the CEAc Acquisition Date occurs
simultaneously therewith; and
(xiv) CEAc may sell accounts receivable pursuant to, and
subject to the limitations contained in, Section 13.2.8(g) of the CEAc
Refinancing Credit Facility, as same is originally in effect without
giving effect to any subsequent amendments, modifications or waivers
with respect thereto, in each case so long as all proceeds thereof are
applied as required by said Section 13.2.8(g) and the provisions
referenced therein as said sections are originally in effect and without
giving effect to any subsequent amendments, modifications or waivers
with respect thereto.
To the extent the Required Banks waive the provisions of this Section 10.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 10.02, such Collateral (unless sold to the Company
or a Domestic Wholly-Owned Subsidiary of the Company) shall be sold free and
clear of the Liens created by the Security Documents, and the Administrative
Agent and Collateral Agent shall be authorized to take any actions deemed
appropriate in order to effect the foregoing.
10.03 Dividends. The Company shall not, and shall not permit any
---------
of its Subsidiaries to, authorize, declare or pay any Dividends with respect
to the Company or any of its Subsidiaries, except that:
(i) any Subsidiary of the Company (x) may pay Dividends to the
Company or any Wholly-Owned Subsidiary of the Company and (y) if such
Subsidiary is not a Wholly-Owned Subsidiary, pay Dividends to its
shareholders generally, so long as the Company or its respective
Subsidiary which owns the equity interest or interests in the Subsidiary
paying the Dividends receives at least its proportionate share thereof
(based upon its relative holdings of capital stock in the Subsidiary
paying such Dividends);
(ii) Tudor may (x) effect the Treasury Stock repurchase in
accordance with the requirements of the Purchase Agreement, and (y) so
long as no Default or Event of Default then exists, (i) after the
Initial Tender Offer Date, purchase Tudor Shares and Tudor Convertible
Bonds from time to time at prices which are not in excess of those
previously offered pursuant to the Initial Tender Offer and (ii) after
the Initial Tender Offer Date, effect a reverse stock split or take such
other action which requires that payments be made to holders of Tudor
Shares (other than the
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Company and its Subsidiaries) to liquidate their positions in Tudor, so
long as the consideration payable by Tudor to eliminate any Tudor Shares
or Tudor Convertible Bonds or fractional interests would not exceed the
amount required to be paid therefor pursuant to the Initial Tender
Offer;
(iii) the Company may repurchase the Company Common Stock
and/or options to purchase the Company Common Stock held by directors,
executive officers, members of management or employees of the Company or
any of its Subsidiaries upon the death, disability, retirement or
termination of such director, executive officers, member of management
or employee, so long as (x) no Default or Event of Default then exists
or would exist after giving effect thereto and (y) the aggregate amount
of cash expended by the Company pursuant to this clause (ii) in any
fiscal year shall not exceed $500,000; provided that, in addition to
amounts available pursuant to preceding clause (y) (but subject to the
requirements of preceding clause (x)), the Company may make additional
cash purchases in respect of the Company Common Stock and/or options to
purchase the Company Common Stock previously held by any Person listed
above, after the death of such Person, with proceeds of key-man life
insurance maintained by the Company on such Person;
(iv) so long as no Default or Event of Default then exists or
would exist after giving effect thereto, the Company may pay regular
quarterly dividends on its outstanding shares of comon stock, so long as
the aggregate amount of dividends paid pursuant to this clause (iv) does
not exceed $2,000,000 in any fiscal year of the Company; and
(v) so long as no Default or Event of Default then exists or
would exist after giving effect thereto, the Company may pay additional
Dividends in an aggregate amount not to exceed $5,000,000 in any fiscal
year of the Company, in each case so long as, at the time the respective
Dividend is paid, the amount thereof does not exceed the Company
Retained Excess Cash Flow Amount as in effect immediately before the
payment of such Dividend.
10.04 Business. (a) The Company will not permit (x) CEAc US
--------
Holdco to engage in any business activities other than the ownership of the
capital stock of CEAc Acquisition Corp., (y) CEAc Acquisition Corp. to engage
in any business activities other than the ownership of the capital stock of
CEAc and Exide France, or (z) Exide France to engage in any business
activities whatsoever.
(b) The Company will not, and will not permit any of its
Subsidiaries (including CEAc and its Subsidiaries) to, engage (directly or
indirectly) in any business other than the businesses in which the Company
and its Subsidiaries (including CEAc and its Subsidiaries) are engaged on the
Fourth Amendment Effective Date and any other reasonably related businesses.
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10.05 Indebtedness. The Company will not, and will not permit any
------------
of its Subsidiaries to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Indebtedness which may be deemed to exist pursuant to the
Receivables Facility, so long as the Receivables Facility Attributed
Indebtedness at no time exceeds the Receivables Maximum Commitment
Amount as then in effect;
(iii) Existing Indebtedness (excluding any such Existing
Indebtedness described under items 3, 8, 9, 10, 11, 12, 13, 14 and 17 of
Part I of Schedule VI, which shall only be permitted in accordance with,
and to the extent in compliance with, the requirements of preceding
clause (ii) or following clause (iv)) shall be permitted to the extent
the same is listed in Part I of Schedule VI, but no refinancings or
renewals thereof, provided that the Existing Indebtedness evidenced by
--------
(x) the Senior Notes shall not exceed $150,000,000 (as reduced by any
repayments of principal thereof after the Effective Date) in aggregate
principal amount at any time outstanding and (y) Senior Subordinated
Notes shall not exceed $110,000,000 (as reduced by any repayments of
principal thereof after the Effective Date) in aggregate principal
amount at any time outstanding (it being understood that, as of June 30,
1994, the accredit amount of said Senior Subordinated Notes was
approximately $73,000,000);
(iv) each of Euro Exide and its Subsidiaries, and Exide Canada
and its Subsidiaries may incur Indebtedness for their respective working
capital purposes from time to time pursuant to one or more revolving
credit or similar agreements of such Person, provided that (x) the
aggregate principal amount of such Indebtedness at any time outstanding
pursuant to this clause (iv) shall not exceed (Pounds)15,000,000, in the
case of Euro Exide and its Subsidiaries, and Cdn.$20,000,000 in the case
of Exide Canada and its Subsidiaries, (y) such Indebtedness may be
secured, but only with the assets of Euro Exide and its Subsidiaries, or
Exide Canada and its Subsidiaries, as the case may be, and (z) no Person
other than Euro Exide and its Subsidiaries or Exide Canada and its
Subsidiaries, as the case may be, shall have guaranteed or be
contingently liable for the repayment of such Indebtedness;
(v) Existing Indebtedness of Tudor and its Subsidiaries listed
in Part II of Schedule VI but no refinancings or renewals thereof except
in compliance with Section 10.05(vi) below, provided that (x) the
Existing Indebtedness evidenced by the Seller Convertible Bonds shall
not exceed 2,998,270,000 Pesetas (as reduced by repayment of principal
thereof and the principal amount of such Seller Convertible Bonds
actually purchased pursuant to either Tender Offer) in aggregate
principal amount at any time outstanding and (y) the amount of Existing
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Indebtedness permitted to remain outstanding pursuant to this clause (v)
shall be reduced to the extent any such Existing Indebtedness is paid
through a drawing under a Letter of Credit which has not been reimbursed
to the respective Issuing Bank or the Company by Tudor;
(vi) Existing Indebtedness of Tudor and its Subsidiaries as
described in preceding clause (v) shall be permitted to be refinanced or
successively refinanced, provided that (a) the aggregate principal
amount of the outstanding Indebtedness of Tudor and its Subsidiaries is
not increased as a result thereof, (b) if such Indebtedness is to be
secured, only assets of Tudor and its Subsidiaries shall serve as
security therefor, and the granting of such security shall not violate
the terms of any Indebtedness of the Company and its Subsidiaries which
is to remain outstanding after giving effect thereto (and shall
specifically be required to comply with the provisions of Section 4.8 of
the Senior Note Indenture and Senior Subordinated Note Indenture), (c)
the respective issue of refinancing Indebtedness shall have no
restrictions (x) which would violate the provisions of Section 4.5 of
the Senior Note Indenture or Senior Subordinated Note Indenture or (y)
which would violate any terms of any other Indebtedness of the Company
and its Subsidiaries which is to remain outstanding;
(vii) accrued expenses and current trade accounts payable
incurred in the ordinary course;
(viii) Indebtedness under Interest Rate Protection Agreements
or other Hedging Agreements entered into in compliance with Section
9.14;
(ix) Indebtedness evidenced by Capitalized Lease Obligations not
to exceed $10,000,000 in the aggregate outstanding at any one time;
(x) Indebtedness subject to Liens permitted under Section
10.01(vii);
(xi) intercompany Indebtedness among (x) the Company and its
Subsidiaries to the extent permitted by Section 10.06(vi) through (ix)
and Section 10.06(xv) and (y) CEAc and its Subsidiaries to the extent
permitted by Section 10.06(xvii);
(xii) Indebtedness of any Wholly-Owned Subsidiary to the
Company or another Wholly-Owned Subsidiary 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;
(xiii) letters of credit issued pursuant to the Existing
Chemical Credit Agreement may remain outstanding so long as supported by
Letters of Credit issued pursuant to this Agreement;
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<PAGE>
(xiv) Acquired Indebtedness may be assumed or continued after March 31,
1996 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 Acquired Indebtedness incurred or assumed pursuant to this
Agreement does not exceed $15,000,000;
(xv) additional unsecured Indebtedness of the Company and its
Subsidiaries not to exceed $5,000,000 in aggregate principal amount
outstanding at any time;
(xvi) Indebtedness of the Company evidenced by the 2005 Senior
Unsecured Notes in an aggregate principal amount not to exceed
$300,000,000, so long as (x) on the date of the incurrence of such
Indebtedness, the Agents and the Banks shall have received (I) the
certificate last required to be delivered pursuant to Section 9.01(m),
together with accountants' certificates of the type described in Section
6A.13(iv), in each case in form and substance satisfactory to the Agents
and the Required Banks and addressed to the Banks, supporting the
opinion that the 2005 Senior Unsecured Notes may be incurred without
causing any violation of the Senior Note Indenture or the Senior
Subordinated Note Indenture and (II) a legal opinion from Kirkland &
Ellis, in form and substance satisfactory to the Agents and the Required
Banks and addressed to the Banks, to the effect that (A) each Credit
Event under this Agreement, as amended through and including the date of
the delivery of such opinion, may occur without causing any violation of
the Senior Note Indenture, the Senior Subordinated Note Indenture or the
2005 Senior Unsecured Note Indenture, (B) neither the execution,
delivery nor performance by the Company or any of its Subsidiaries of
this Agreement and the other Credit Documents, as this Agreement and
such other Credit Documents have been amended through and including the
date of the delivery of such opinion, will cause a violation under the
Senior Note Indenture, the Senior Subordinated Note Indenture or the
2005 Senior Unsecured Note Indenture (except, in each case, such opinion
need not cover Credit Events the result of which will cause the
outstanding principal amount of Revolving Loans and Swingline Loans to
exceed $255,000,000 in which case the occurrence of such Credit Event
will be required to comply with the coverage ratio referred to in the
Indentures), and (C) neither the incurrence of the 2005 Senior Unsecured
Notes nor the execution, delivery and performance by the Company of the
2005 Senior Unsecured Note Indenture and the other 2005 Senior Unsecured
Note Documents will cause a violation of the Senior Note Indenture or
the Senior Subordinated Note Indenture and (y) on the date of the
receipt thereof, $219,937,500 of the proceeds plus proceeds in an amount
equal to the Net Cash Proceeds of that principal amount of 2005 Senior
Unsecured Notes issued pursuant to the 2005 Senior Unsecured Notes
Issuance to the extent in excess of $225,000,000 received by the Company
from the 2005 Senior Unsecured Note Issuance shall be deposited in a
segregated escrow account (the "2005 Escrow Account") established
pursuant to an escrow agreement (the "2005 Escrow Agreement"), which
2005 Escrow Agreement (I) shall provide that the funds
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deposited in the 2005 Escrow Account shall be invested only in cash and
Cash Equivalents, (II) shall provide that the funds deposited in the
2005 Escrow Account shall only be released (x) on the CEAc Acquisition
Date for the purpose of providing the financing, in part, of the CEAc
Acquisition or (y) in the event the CEAc Acquisition Date does not
occur, on the earlier of (i) July 31, 1995 and (ii) the date upon which
the Company's obligations to consummate the CEAc Acquisition pursuant to
the CEAc Stock Purchase Agreement has been terminated, for the purpose
of prepaying (A) the then outstanding principal, accrued interest and
premium with respect to all of the then outstanding 2005 Senior
Unsecured Notes and (B) to the extent any amounts remain in the 2005
Escrow Account after giving effect to the application provided in the
immediately preceding clause (A), Loans in the manner provided in
Section 4.02(e)(i), and (III) shall otherwise be in form and substance
satisfactory to the Agents;
(xvii) CEAc Existing Indebtedness listed on Schedule XVI but no
refinancings or renewals thereof except in compliance with Section
10.05(xix), as the outstanding principal amount of said CEAc Existing
Indebtedness may be permanently reduced from time to time as required by
Section 4.02(m);
(xviii) Indebtedness of CEAc and its Subsidiaries pursuant to
the CEAc Refinancing Credit Facility, so long as the aggregate
outstanding principal amount at no time exceeds an amount equal to (x)
927 million French Francs (or its equivalent amount as calculated
pursuant to the CEAc Refinancing Credit Facility) less (y) the amount of
any permanent repayments and/or prepayments of the principal of
outstanding Indebtedness under the CEAc Refinancing Credit Facility made
as required by Section 4.02(m) and/or (o); and
(xix) Indebtedness of CEAc and its Subsidiaries as described in
preceding clauses (xvii) and (xviii) shall be permitted to be refinanced
or successively refinanced, provided that (a) the aggregate principal
amount of the outstanding Indebtedness of CEAc and its Subsidiaries is
not increased as a result thereof, (b) if such Indebtedness is to be
secured, only assets of CEAc and its Subsidiaries shall serve as
security therefor, and the granting of such security shall not violate
the terms of any Indebtedness of the Company and its Subsidiaries which
is to remain outstanding after giving effect thereto (and shall
specifically be required to comply with the provisions of Section 4.8 of
the Senior Note Indenture, the 2005 Senior Unsecured Note Indenture and
the Senior Subordinated Note Indenture) and (c) the respective issue of
refinancing Indebtedness shall have no restrictions (x) which would
violate the provisions of Section 4.5 of the Senior Note Indenture, the
2005 Senior Unsecured Note Indenture or the Senior Subordinated Note
Indenture or (y) which would violate any terms of any other Indebtedness
of the Company and its Subsidiaries which is to remain outstanding.
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10.06 Advances, Investments and Loans. The Company will not, and
-------------------------------
will not permit any of its Subsidiaries to, directly or indirectly, lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract, or
hold any cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the Company and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary terms;
(ii) the Company and its Subsidiaries may acquire and hold cash
and Cash Equivalents;
(iii) the Company and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed $1,000,000;
(iv) the Company may enter into Interest Rate Protection
Agreements and Hedging Agreements to the extent permitted in Section
10.05(iii) or (viii);
(v) transactions expressly permitted pursuant to Sections 10.02
and 10.03 shall, to the extent constituting Investments, be permitted
pursuant to this Section 10.06;
(vi) the Company or any of its Wholly-Owned Domestic
Subsidiaries may make intercompany loans to the Company or any other
Wholly-Owned Domestic Subsidiary, provided that (x) each such
intercompany loan is evidenced by an intercompany note in the form of
Exhibit N (each, an "Intercompany Note"), (y) each Intercompany Note
shall be pledged to the Collateral Agent pursuant to the Pledge
Agreement and (z) the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed $10,000,000;
(vii) the Company or any of its Wholly-Owned Domestic
Subsidiaries may make intercompany loans to any Wholly-Owned Foreign
Subsidiary, so long as the aggregate principal amount thereof does not
exceed $10,000,000 at any time outstanding (determined without regard to
any write-downs or write-offs thereof);
(viii) Wholly-Owned Foreign Subsidiaries may make intercompany
loans to one another;
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(ix) Foreign Subsidiaries may make intercompany loans to Company and its
Domestic Subsidiaries so long as each such intercompany loan is subject
to the terms of the subordination provisions in the form of Exhibit O;
(x) Investments in Subsidiaries which exist from time to time as
a result of the issuance of Letters of Credit from time to time
hereunder shall be permitted;
(xi) the Company may establish Subsidiaries to the extent
permitted by Section 10.16;
(xii) Investments of (w) the Company and its Subsidiaries
(other than CEAc Acquisition Corp. and its Subsidiaries) existing on the
Effective Date and listed on Schedule X, (x) the Company in CEAc US
Holdco in connection with the initial capitalization thereof (including
for this purpose the equity capitalization thereof and any indebtedness
capitalization represented by CEAc Acquisition Intercompany
Indebtedness) in an amount not to exceed $421,950,000, (y) CEAc US
Holdco in CEAc Acquisition Corp. in connection with the initial
capitalization thereof in an amount not to exceed $421,950,000 and (z)
CEAc Acquisition Corp. and its Subsidiaries existing on the CEAc
Acquisition Date and listed on Schedule XIX (such Investments permitted
pursuant to this clause (xii), "Existing Investments") shall be
permitted;
(xiii) as the outstanding principal amount of the BIG Notes is
repaid after the Effective Date (x) to the extent the BIG Notes Cash
Collateral is used to make such payments, intercompany loans shall exist
from the Company to BIG in the amount of the cash collateral so applied,
and such intercompany loans shall be permitted so long as the Company
meets the requirements of clauses (x) and (y) of preceding clause (vi),
and (y) if BIG directly makes the respective payment of principal on the
BIG Notes then, to the extent BIG Notes Cash Collateral is released as a
result thereof, the amount of the BIG Notes Cash Collateral so released
may be loaned by the Company to BIG so long as the intercompany loan
meets the requirements of clauses (x) and (y) of preceding clause (vi);
and
(xiv) the Company and its Subsidiaries may in the ordinary
course of business enter into non-speculative commodities futures
agreements for raw materials reasonably related to the production needs
of the Company and its Subsidiaries;
(xv) the Company may effect open market purchases of Remaining
Tudor Shares and/or Remaining Tudor Convertible Bonds, provided that (v)
--------
no Default or Event of Default shall have occurred and be continuing or
result from such purchase, (w) such purchase is not made in connection
with a Secondary Tender Offer, (x) the price per share paid by the
Company in connection with each such purchase of Remaining Tudor Shares
shall not exceed 1145 Pesetas, (y) the
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aggregate price paid by the Company in connection with all such
purchases of Remaining Tudor Shares and Remaining Tudor Convertible
Bonds shall not exceed the Secondary Tender Offer Maximum Offered
Consideration and (z) the Company shall enter into such amendments to
the Tudor Shares Pledge Agreement as may be requested by the Collateral
Agent to reflect the increased ownership interest of the Company in
Tudor;
(xvi) Investments represented by the CEAc Acquisition
Intercompany Notes executed and delivered in accordance with Section
6A.09(c) shall be permitted;
(xvii) CEAc or any of its Subsidiaries may make intercompany
loans to CEAc or any other Subsidiary of CEAc provided that the
aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and
advances) shall not exceed the amounts permitted pursuant to the CEAc
Refinancing Credit Facility as in effect from time to time (but without
giving effect to any termination thereof and without giving effect to
any amendments, modifications or waivers which permit additional
intercompany loans to non-Wholly-Owned Subsidiaries of CEAc);
(xviii) Investments made by CEAc or any of its Subsidiaries in
an aggregate amount not to exceed $6,000,000 pursuant to the Sale
Agreement, dated October 1, 1994, between the State Treasury of the
Republic of Poland and CEAc;
(xix) CEAc or any of its Wholly-Owned Subsidiaries may acquire
the equity interests of Sonnenschien outstanding on the CEAc Acquisition
Date and not owned by them, provided that the aggregate amount of the
consideration therefor does not exceed $10,000,000;
(xx) the Company may make Investments in Tudor in an aggregate
amount not to exceed $20,000,000, provided, that any such Investment
--------
permitted by this clause (xix) shall only be permitted to be made (x) to
the extent required in connection with a refinancing in full of the
Banesto Debt and (y) so long as all Banesto Letters of Credit shall have
been terminated and no amounts thereunder shall remain outstanding; and
(xxi) to the extent the Company receives payments in respect of
claims for breach of contract or warranty in connection with the CEAc
Acquisition, up to 43% of the amounts received in respect of said claims
may be contributed by the Company to the capital of CEAc and used by
CEAc to permanently repay (and in the case of a repayment of revolving
or similar loans, to reduce the related revolving or similar
commitments) amounts outstanding pursuant to the CEAc Refinancing Credit
Facility to the extent said capital contribution and repayment is
required pursuant to the terms thereof.
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10.07 Transactions with Affiliates. The Company will not, and
----------------------------
will not permit any of its Subsidiaries to, enter into any transaction or
series of related transactions, whether or not in the ordinary course of
business, with any Affiliate of the Company or any of its Subsidiaries, other
than in the ordinary course of business and on terms and conditions
substantially as favorable to the Company or such Subsidiary as would
reasonably be obtained by the Company or such Subsidiary at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that:
(i) Dividends may be paid to the extent provided in Section
10.03;
(ii) Investments may be made to the extent provided in Section
10.06;
(iii) in the case of any transaction between the Company and
one or more of its Subsidiaries, or between a Subsidiary and a direct or
indirect parent of such Subsidiary which is also a Subsidiary of the
Company, the respective transaction shall only be required to be on
terms and conditions substantially as favorable to the Company or the
respective parent Subsidiary as would have been obtained by such Person
at such time in a comparable arms'-length transaction with a Person
other than an Affiliate;
(iv) customary fees may be paid to non-officer directors of the
Company;
(v) the Company may 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; and
(vi) transactions disclosed in Note 13 to the Company's fiscal
year 1994 audited financial statements delivered to the Banks prior to
the Effective Date shall be permitted.
10.08 Capital Expenditures. (a) (i) The Company will not, and
--------------------
will not permit any of its Subsidiaries (other than CEAc US Holdco, Tudor and
their respective Subsidiaries) to, make any Capital Expenditures, except that
(A) during the period from the Effective Date until March 31, 1997, the
Company may make Capital Expenditures of up to $20,000,000 to build and
construct improvements with respect to the Bristol Facility and (B) the
Company and its Subsidiaries (other than CEAc US Holdco, Tudor and their
respective Subsidiaries) shall be permitted to make other Capital
Expenditures, (w) during the period from the Effective Date to and including
the last day of the fiscal year ending March 31, 1995, so long as the
aggregate amount thereof does not exceed $20,000,000, (x) during the fiscal
year of the Company ended in March 1996, so long as the aggregate amount
thereof does not exceed $30,000,000, (y) during the fiscal year of the
Company ended in March 1997, so long as the aggregate amount thereof does not
exceed
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<PAGE>
$32,000,000 and (z) during any fiscal year of the Company ending thereafter,
not in excess of $40,000,000.
(ii) In addition to Capital Expenditures permitted pursuant to the
preceding clause (i) and the following clause (iii), to the extent that the
amount of Capital Expenditures (including all Capital Expenditures made
during the respective fiscal year pursuant to preceding clause (i)(B) or as a
result of this clause (ii), but excluding Capital Expenditures made pursuant
to preceding clause (i)(A) or following clause (iii)) made by the Company and
its Subsidiaries (other than CEAc US Holdco, Tudor and their respective
Subsidiaries) during any fiscal year of the Company are less than the amount
permitted to be made pursuant to preceding clause (i)(B) (without giving
effect to any additional amount available as a result of this clause (ii) or
following clause (iii)), such amount may be carried forward and utilized by
the Company and its Subsidiaries (other than CEAc US Holdco, Tudor and their
respective Subsidiaries) to make Capital Expenditures in excess of the amount
permitted above in the immediately succeeding fiscal year, provided that no
amount once carried forward to the next fiscal year may be carried forward to
a fiscal year thereafter.
(iii) In addition to the Capital Expenditures permitted to be made
pursuant to preceding clauses (i) and (ii), the Company and its Subsidiaries
(other than CEAc US Holdco, Tudor and their respective Subsidiaries, except
as permitted by subclause (z) below) may (x) make additional Capital
Expenditures at any time so long as the amount of such Capital Expenditures
made at any time does not exceed the Company Retained Excess Cash Flow Amount
at such time (as determined immediately before giving effect to the
respective Capital Expenditures), (y) with proceeds of Environmental
Insurance Recoveries actually received by the Company after the Effective
Date (and which will be retained by the Company for its own account after
giving effect to any payments by the Company as described in Section 10.07),
make additional Capital Expenditures (not exceeding $10,000,000 million in
the aggregate) to fund the innovative technology cleanup of the Brown Battery
Site and (z) make additional Capital Expenditures to effect the CEAc
Acquisition in accordance with the relevant requirements of Section 10.02.
(b) (i) The Company will not permit Tudor or any of its
Subsidiaries to make any Capital Expenditures, except that Tudor and its
Subsidiaries shall be permitted to make Capital Expenditures (x) during the
period from the Initial Tender Offer Date to and including March 31, 1995, so
long as the aggregate amount thereof does not exceed $15,000,000 (or the
equivalent amount in Pesetas) and (y) during any fiscal year of Tudor ending
thereafter, not in excess of $25,000,000 (or the equivalent amount in
Pesetas).
(ii) In addition to Capital Expenditures permitted pursuant to the
preceding clause (i), to the extent that the amount of Capital Expenditures
(including all Capital Expenditures pursuant to preceding clause (i) and
pursuant to this clause (ii)) made by Tudor and its Subsidiaries during any
fiscal year of Tudor are less than the amount permitted to be made pursuant
to preceding clause (i) (without giving effect to any
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<PAGE>
additional amount available as a result of this clause (ii)), such amount may
be carried forward and utilized by Tudor and its Subsidiaries to make Capital
Expenditures in excess of the amount permitted above in the immediately
succeeding fiscal year, provided that no amount once carried forward to the
next fiscal year may be carried forward to a fiscal year thereafter.
(c) (i) The Company will not permit CEAc US Holdco or any of its
Subsidiaries to make any Capital Expenditures, except that CEAc and its
Subsidiaries shall be permitted to make Capital Expenditures during any
fiscal year of the Company (or, if shorter in the case of the Company's
fiscal year ended March 31, 1996, the period from the CEAc Acquisition Date
to the last day of said fiscal year) not in excess of (x) in the case of the
Company's fiscal year ended March 31, 1996, that amount which is equal to
$50,000,000 multiplied by a fraction, the numerator of which is the number of
days elapsed during the fiscal year of the Company ended March 31, 1996 from
and including the CEAc Acquisition Date and the denominator of which is 365
and (y) for any fiscal year ended thereafter, $50,000,000.
(ii) In addition to Capital Expenditures permitted pursuant to the
preceding clause (i), to the extent that the amount of Capital Expenditures
(including all Capital Expenditures pursuant to preceding clause (i) and
pursuant to this clause (ii)) made by CEAc and its Subsidiaries during any
fiscal year of the Company (or the shorter period in the fiscal year ended
March 31, 1996 which elapsed from and after the CEAc Acquisition Date) are
less than the amount permitted to be made pursuant to preceding clause (i)
(without giving effect to any additional amount available as a result of this
clause (ii)), such amount may be carried forward and utilized by CEAc and its
Subsidiaries to make Capital Expenditures in excess of the amount permitted
above in the immediately succeeding fiscal year, provided that no amount once
carried forward to the next fiscal year may be carried forward to a fiscal
year thereafter.
(iii) In addition to the Capital Expenditures permitted to be made
pursuant to preceding clauses (i) and (ii), the CEAc Acquisition may be
effected in accordance with the applicable requirements of Section 10.02.
10.09 Consolidated Fixed Charge Coverage Ratio. The Company will
----------------------------------------
not permit the Consolidated Fixed Charge Coverage Ratio for (i) the period
beginning on October 1, 1994 and ended on the last day of the fiscal quarter
ended closest to March 31, 1995 (taken as one accounting period), to be less
than .30:1, (ii) the period beginning on October 1, 1994 and ended on the
last day of the fiscal quarter ended closest to June 30, 1995 (taken as one
accounting period), to be less than .30:1 or (iii) the period of four
consecutive fiscal quarters (taken as one accounting period) ended on the
date set forth below to be less than the ratio set forth opposite such date
below:
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<PAGE>
<TABLE>
<CAPTION>
Date Ratio
---- ------
<S> <C>
September 30, 1995 .70:1
December 31, 1995 .75:1
March 31, June 30, September 30 and December 1.00:1
31, 1996
March 31, June 30, September 30 and December 1.05:1
31, 1997
March 31, 1998 and each fiscal quarter 1.25:1
thereafter
</TABLE>
10.10 Minimum Consolidated EBITDA. (a) The Company will not
---------------------------
permit the Company Consolidated EBITDA for (i) the period beginning on
October 1, 1994 and ended on the last day of the fiscal quarter ended closest
to March 31, 1995 (taken as one accounting period), to be less than
$24,000,000, (ii) the period beginning on October 1, 1994 and ended on the
last day of the fiscal quarter ended closest to June 30, 1995 (taken as one
accounting period), to be less than $35,000,000 or (iii) any period of four
consecutive fiscal quarters, in each case taken as one accounting period,
ended during a period set forth below to be less than the amount set forth
opposite such period below:
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
Ended after July 1, 1995 to but excluding $ 70,000,000
the last day of the fiscal quarter ended in
December, 1995
Thereafter from and including the last day $ 80,000,000
of the fiscal quarter ended in December,
1995 to but excluding the last day of the
fiscal quarter ended in March, 1996
Thereafter from and including the last day $100,000,000
of the fiscal quarter ended in March,
1996 to but excluding the last day of the
fiscal quarter ended in March, 1997
Thereafter from and including the last day $120,000,000
of the fiscal quarter ended in March,
1997 to but excluding the last day of the
fiscal quarter ended in March, 1998
</TABLE>
-125-
<PAGE>
<TABLE>
<S> <C>
Thereafter from and including the last day $140,000,000
of the fiscal quarter ended in March,
1998 to but excluding the last day of the
fiscal quarter ended in March, 1999
Thereafter $145,000,000
</TABLE>
(b) The Company will not permit the Combined Consolidated EBITDA
for (i) the period beginning on October 1, 1994 and ended on the last day of
the fiscal quarter ended closest to March 31, 1995 (taken as one accounting
period), to be less than $50,000,000 or (ii) any period of four consecutive
fiscal quarters, in each case taken as one accounting period, ended during a
period set forth below to be less than the amount set forth opposite such
period below:
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
Ended after April 1, 1995 to but excluding $150,000,000
the last day of the fiscal quarter ended in
September, 1995
Thereafter from and including the last day $175,000,000
of the fiscal quarter ended in September,
1995 to but excluding the last day of the
fiscal quarter ended in December, 1995
Thereafter from and including the last day $200,000,000
of the fiscal quarter ended in December,
1995 to but excluding the last day of the
fiscal quarter ended in March, 1996
Thereafter from and including the last day $225,000,000
of the fiscal quarter ended in March,
1996 to but excluding the last day of the
fiscal quarter ended in March, 1997
Thereafter from and including the last day $275,000,000
of the fiscal quarter ended in March,
1997 to but excluding the last day of the
fiscal quarter ended in March, 1998
Thereafter $300,000,000
</TABLE>
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<PAGE>
10.11 Maximum Leverage Ratios. (a) The Company will not permit,
-----------------------
at any time during a period listed below, the ratio of Company Consolidated
Indebtedness at such time to Company Consolidated EBITDA for the period of
four consecutive fiscal quarters (taken as one accounting period) last ended
prior to the date of determination, to exceed the ratio set forth below
opposite the respective period in which the determination is being made:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Beginning January 1, 1995 to and 6.50:1
including the last day of the fiscal
quarter ended March, 1995
Thereafter from and including April 1, 14.00:1
1995 to but excluding the last day of the
fiscal quarter ended in September, 1995
Thereafter from and including the last day 13.00:1
of the fiscal quarter ended in September,
1995 to but excluding the last day of the
fiscal quarter ended in December, 1995
Thereafter from and including the last day 11:00:1
of the fiscal quarter ended in December,
1995 to but excluding the last day of the
fiscal quarter ended in March, 1996
Thereafter from and including the last day 8.50:1
of the fiscal quarter ended in March,
1996 to but excluding the last day of the
fiscal quarter ended in March, 1997
Thereafter from and including the last day 7.50:1
of the fiscal quarter ended in March,
1997 to but excluding the last day of the
fiscal quarter ended in March, 1998
Thereafter from and including the last day 6.50:1
of the fiscal quarter ended in March,
1998 to but excluding the last day of the
fiscal quarter ended in March, 1999
</TABLE>
-127-
<PAGE>
<TABLE>
<S> <C>
Thereafter from and including the last day 5.50:1
of the fiscal quarter ended in March,
1999 to but excluding the last day of the
fiscal quarter ended in March, 2000
Thereafter 4.50:1
</TABLE>
(b) The Company will not permit, at any time during a period
listed below, the ratio of Combined Consolidated Indebtedness at such time to
Combined Consolidated EBITDA for the period of four consecutive fiscal
quarters (taken as one accounting period) ended prior to the date of
determination, to exceed the ratio set forth below opposite the respective
period in which the determination is being made:
<TABLE>
<CAPTION>
Period Ratio
------ ------
<S> <C>
Beginning January 1, 1995 to and including 6.50:1
the last day of the fiscal quarter ended
March, 1995
Thereafter from and including April 1, 1995 7.25:1
to but excluding the last day of the fiscal
quarter ended in September, 1995
Thereafter from and including the last day of 7.00:1
the fiscal quarter ended in September, 1995
to but excluding the last day of the fiscal
quarter ended in December, 1995
Thereafter from and including the last day of 6.25:1
the fiscal quarter ended in December, 1995
to but excluding the last day of the fiscal
quarter ended in March, 1996
Thereafter from and including the last day of 5.50:1
the fiscal quarter ended in March, 1996 to
but excluding the last day of the fiscal
quarter ended in March, 1997
Thereafter from and including the last day of 4.50:1
the fiscal quarter ended in March, 1997 to
but excluding the last day of the fiscal
quarter ended in March, 1998
</TABLE>
-128-
<PAGE>
<TABLE>
<S> <C>
Thereafter from and including the last day of 3.75:1
the fiscal quarter ended in March, 1998 to
but excluding the last day of the fiscal
quarter ended in March, 1999
Thereafter from and including the last day of 3.50:1
the fiscal quarter ended in March, 1999 to
but excluding the last day of the fiscal
quarter ended in March, 2000
Thereafter 3.0:1
</TABLE>
10.12 Limitation on Modifications of Indebtedness; Modifications
----------------------------------------------------------
of Certificate of Incorporation, By-Laws and Certain Other Agreements; etc.
---------------------------------------------------------------------------
The Company will not, and will not permit any of its Subsidiaries to:
(i) amend or modify, or permit the amendment or modification of,
any provision of the Existing Indebtedness, the CEAc Existing
Indebtedness, the CEAc Refinancing Credit Facility, and CEAc Acquisition
Intercompany Note, the 2005 Senior Unsecured Note Indenture, any 2005
Senior Unsecured Note or of the Receivables Facility or of any agreement
(including, without limitation, any purchase agreement, indenture, loan
agreement or security agreement) relating thereto other than any
amendments or modifications to the Existing Indebtedness (except that
amendments or modification to either Indenture shall require the consent
of the Required Banks), the CEAc Existing Indebtedness, the CEAc
Refinancing Credit Facility or the Receivables Facility which do not in
any way adversely affect the interests of the Banks;
(ii) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for value
of, or any prepayment or redemption as a result of any asset sale,
change of control or similar event of, any Senior Notes or Senior
Subordinated Notes or 2005 Senior Unsecured Notes (it being understood
and agreed that the 2005 Senior Unsecured Note Exchange will be
permitted as described in the third "WHEREAS" clause contained in the
Fifth Amendment);
(iii) amend, modify or change its certificate of incorporation
or analogous organizational documentation (including, without
limitation, by the filing or modification of any certificate of
designation) or by-laws, or any agreement entered into by it, with
respect to its capital stock (including any Shareholders' Agreement), or
enter into any new agreement with respect to its capital stock, in each
case which would in any way adversely affect the interests of the Banks;
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<PAGE>
(iv) amend or modify or change any provision of the Acquisition
Documents or the Initial Tender Offer Documents (other than
modifications to the Initial Tender Offer Documents which (x) do not
increase the consideration payable in connection with the Initial Tender
Offer, (y) do not alter the conditions contained in the Initial Offer to
Purchase and (z) are not adverse in any respect to the interests of the
Banks) or, after the approval thereof by the Banks, the Secondary Tender
Offer Documents (other than modifications to the Secondary Tender Offer
Documents which (x) do not increase the consideration payable in
connection with the Secondary Tender Offer, (y) do not alter the
conditions contained in the Secondary Offer to Purchase and (z) are not
adverse in any respect to the interests of the Banks); or
(v) amend or modify or change any provision of the CEAc
Acquisition Documents, other than modifications which (x) do not
materially alter the price or terms of the CEAc Acquisition and (y) are
not adverse in any respect to the interests of the Banks.
10.13 Limitation on Certain Restrictions on Subsidiaries. The
--------------------------------------------------
Company will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Subsidiary to (a)
pay dividends or make any other distributions on its capital stock or any
other interest or participation in its profits owned by the Company or any
Subsidiary of the Company, or pay any Indebtedness owed to the Company or a
Subsidiary of the Company, (b) make loans or advances to the Company or any
of the Company's Subsidiaries or (c) transfer any of its properties or assets
to the Company, except for such encumbrances or restrictions existing under
or by reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) restrictions contained in the Receivables Facility as an
effect on the Effective Date, (iv) restrictions contained in any other issue
of Existing Indebtedness to the extent such restrictions are described in
Schedule VII and any restrictions contained in the CEAc Refinancing Credit
Facility or any issue of CEAc Existing Indebtedness to the extent such
restrictions are described on Schedule XVII, (v) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the Company or a Subsidiary of the Company, (vi) customary
provisions restricting assignment of any licensing agreement entered into by
the Company or a Subsidiary of the Company in the ordinary course of
business, (vii) any holder of a Lien permitted pursuant to this Agreement may
restrict the transfer of the respective asset or assets subject thereto,
(viii) restrictions contained in any issue of Indebtedness which refinanced
Indebtedness described in preceding clause (iv) so long as the restrictions
are no more restrictive than those contained in the Indebtedness being
refinanced and are no more restrictive than the restrictions described in
Schedule VII or XVII, as the case may be, and (ix) restrictions existing or
created with respect to Tudor or any of its Subsidiaries, related to
Indebtedness of Tudor or any of its Subsidiaries, and which expressly provide
that (except in the case of (x) an event of default which has lead to an
acceleration of such Indebtedness or (y) the failure to pay such Indebtedness
in full at the final maturity of such
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<PAGE>
Indebtedness) Tudor or such Subsidiary, as the case may be, may make
payments, loans, advances and transfers to the Company in an amount equal to
100% of its Adjusted Consolidated Net Income (as such term is defined in the
Indentures (other than the 2005 Senior Unsecured Note Indenture) as in effect
on February 3, 1995) subsequent to October 2, 1994 (provided that in the
event such payments, loans, advances and transfers are made in the form of
asset transfers, such assets shall be valued at the value of such assets set
forth on the Company's books under GAAP).
10.14 Limitation on Issuances of Capital Stock. (a) The Company
----------------------------------------
shall not issue any capital stock or any options or warrants to purchase, or
securities convertible into, capital stock, except for issuances of common
stock of the Company or any options or warrants to purchase common stock of
the Company.
(b) Except as expressly permitted by Section 10.02(xi), the
Company shall not permit any of its Subsidiaries to issue any capital stock
(including by way of sales of treasury stock) or any options or warrants to
purchase, or securities convertible into, capital stock, except (i) for
transfers and replacements of then outstanding shares of capital stock, (ii)
for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of the Company or any of its Subsidiaries
in any class of the capital stock of such Subsidiary, and (iii) to qualify
directors to the extent required by applicable law. All capital stock issued
in accordance with this Section 10.14 shall, to the extent required by a
Pledge Agreement, be delivered to the Collateral Agent for pledge pursuant to
the respective Pledge Agreement.
10.15 Certain Sale-Leaseback Transactions. The Company shall not
-----------------------------------
enter into, or suffer to exist, any Attributable Indebtedness within the
meaning of Section 4.08 of the Senior Note Indenture, whether arising from
sale-leaseback transactions or otherwise.
10.16 Limitation on Creation of Subsidiaries. Except for the
--------------------------------------
acquisition of Tudor, CEAc, Permitted Acquisitions and Permitted Sales Branch
Acquisitions, and except for the creation of CEAc US Holdco as a direct
Wholly-Owned Subsidiary of the Company, of CEAc Acquisition Corp. as a direct
Wholly-Owned Subsidiary of CEAc US Holdco and of Exide France as a direct
Wholly-Owned Subsidiary of CEAc Acquisition Corp., in each case to effect the
CEAc Acquisition and for the creation of new Wholly-Owned Subsidiaries as
contemplated by the definition of Permitted Acquisitions and by Section
10.02(x), (xi) and (xiv), in each case effected or established in accordance
with the applicable requirements of this Agreement, neither the Company nor
any of its Subsidiaries shall establish, create or acquire any additional
Subsidiaries without the prior written consent of the Required Banks. At the
time of the creation, establishment or acquisition of any Subsidiary, any
capital stock thereof required to be pledged pursuant to any Pledge Agreement
shall be pledged in accordance with the terms thereof, and all action
required to be taken pursuant to Section 9.20 shall be taken in connection
with the creation, establishment or acquisition of the respective Subsidiary.
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<PAGE>
10.17 Initial Tender Offer. The Company shall not permit the
--------------------
Initial Tender Offer to be consummated or the Initial Tender Offer Date to
occur, unless each of the following conditions is satisfied at the time
thereof:
(i) all conditions to the consummation of the Initial Tender
Offer contained in the Initial Offer to Purchase have been satisfied;
(ii) as a result of the consummation of the Initial Tender
Offer, the Company shall directly own at least 51% of the outstanding
shares of capital stock of Tudor on a fully diluted basis, and at least
51% of the outstanding voting stock of Tudor;
(iii) the purchase price per Tudor Share shall not exceed that
set forth in the Purchase Agreement, and the capitalization of Tudor
shall be as represented in the Purchase Agreement (which Purchase
Agreement shall be in the form delivered to the Banks prior to the
Effective Date, without giving effect to any changes thereto after the
Effective Date);
(iv) the Spanish agencies responsible for the defense of
competition shall have expressly approved the acquisition by the Company
of the majority shareholding of Tudor pursuant to the Initial Tender
Offer;
(v) the Government (as such term is defined in the Initial Offer
to Purchase) shall not have made its authorization subject to compliance
with any condition (other than immaterial conditions complied with by
the Company);
(vi) the Initial Tender Offer Date shall occur on or before
December 31, 1994;
(vii) the requirements of Section 9.16 shall have been
satisfied with respect to the Initial Tender Offer; and
(viii) on the Initial Tender Offer Date, the Company shall have
duly authorized, executed and delivered before a notary in the kingdom
of Spain a pledge agreement governed by Spanish law and in form and
substance satisfactory to the Collateral Agent and its U.S. and Spanish
counsel pursuant to which the Company shall pledge all Tudor Shares and
Tudor Convertible Bonds acquired by it pursuant to the Initial Tender
Offer (subject to the percentage limitations for Foreign Subsidiaries
voting stock as contemplated by the Initial Pledge Agreement) (as
modified, supplemented or amended from time to time, the "Tudor Shares
Pledge Agreement"), which pledge agreement shall secure the Obligations
on the same basis as the Initial Pledge Agreement, but shall be in
appropriate form under Spanish law, and the Company shall have taken all
action deemed necessary or desirable by the Collateral Agent or its
Spanish counsel in connection therewith.
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<PAGE>
10.18 Secondary Tender Offer. (a) The Company shall not permit
----------------------
the Secondary Tender Offer to be commenced unless all conditions contained in
Section 6 are satisfied (whether or not the Secondary Tender Offer Credit
Support is issued in connection with the Secondary Tender Offer) prior to the
commencement thereof.
(b) The Company shall not permit the Secondary Tender Offer to be
consummated or the Secondary Tender Offer Date to occur, unless each of the
following conditions is satisfied at the time thereof:
(i) all conditions to the consummation of the Secondary Tender
Offer contained in the Secondary Offer to Purchase have been satisfied;
(ii) the aggregate purchase price offered pursuant to the
Secondary Tender Offer shall not be in excess of the amount permitted to
be paid pursuant to Section 6.02 of this Agreement;
(iii) the Secondary Tender Offer Filing Date shall have
occurred within six months after the Initial Tender Offer Filing Date,
and the Secondary Tender Offer Date shall have occurred within 90 days
after the Secondary Tender Offer Filing Date; and
(iv) the requirements of Section 9.16 shall have been satisfied
with respect to the Secondary Tender Offer.
10.19 Section 4.3(a)(i) Indebtedness. The Company will not, and
------------------------------
will not permit any of its Subsidiaries to, incur any Indebtedness under
Section 4.3(a)(i) of the Senior Note Indenture, under Section 4.3(a)(i) of
the 2005 Senior Unsecured Note Indenture or under Section 4.3(a)(i) of the
Senior Subordinated Note Indenture, in any case other than Indebtedness
constituting Revolving Loans and Swingline Loans incurred under this
Agreement.
SECTION 11. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each an "Event of Default"):
11.01 Payments. The Company shall (i) default in the payment when
--------
due of any principal of any Loan, any Note or any Unpaid Drawing or (ii)
default, and such default shall continue unremedied for two or more Business
Days, in the payment when due of any interest on any Loan or Note, or any
Fees or any other amounts owing hereunder or thereunder; or
11.02 Representations, etc. Any representation, warranty or
---------------------
statement made by any Credit Party herein or in any other Credit Document or
in any certificate delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed made;
or
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<PAGE>
11.03 Covenants. The Company shall (i) default in the due
---------
performance or observance by it of any term, covenant or agreement contained
in Section 9.01(g)(i), 9.08, the second sentence of Section 9.11(b), 9.14 ,
9.15, 9.17, 9.18, 9.19, 9.21 or Section 10 or Section 14.19 or (ii) default
in the due performance or observance by it of any other term, covenant or
agreement (other than those referred to in Sections 11.01 and 11.02 and
clause (i) of this Section 11.03) contained in this Agreement and such
default shall continue unremedied for a period of 30 days after written
notice to the Company by any Agent or any Bank; or
11.04 Default Under Other Agreements. The Company or any of its
------------------------------
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (ii)
default in the observance or performance of any agreement or condition
relating to any Indebtedness (other than the Obligations) 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 holders of
such Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause (determined without regard to whether any notice is required), any
such Indebtedness to become due prior to its stated maturity, or (iii) any
Indebtedness (other than the Obligations) of the Company or any of its
Subsidiaries shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the
stated maturity thereof, provided that it shall not be a Default or Event of
--------
Default under this Section 11.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) through (iii), inclusive,
is at least $5,000,000; or
11.05 Bankruptcy, etc. The Company or any of its Subsidiaries
----------------
shall commence a voluntary case concerning itself under Title 11 of the
United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the Company or any of its Subsidiaries and the petition is
not controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code)
is appointed for, or takes charge of, all or substantially all of the
property of the Company or any of its Subsidiaries, the Company or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency
or liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Company or any of its Subsidiaries, or there is
commenced against the Company or any of its Subsidiaries any such proceeding
which remains undismissed for a period of 60 days, or the Company or any of
their Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or
the Company or any of its Subsidiaries suffers any appointment of any
custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or the Company or
any of its Subsidiaries makes a general assignment for the benefit of
creditors; or any corporate action
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is taken by the Company or any of its Subsidiaries for the purpose of
effecting any of the foregoing; or
11.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
-----
funding standard required for any plan year or part thereof or a waiver of
such standard or extension of any amortization period is sought or granted
under Section 412 of the Code, any Plan shall have had or is likely to have a
trustee appointed to administer such Plan, any Plan is, shall have been or is
likely to be terminated or to be the subject of termination proceedings under
ERISA, any Plan shall have an Unfunded Current Liability, a contribution
required to be made to a Plan or a Foreign Pension Plan has not been timely
made, the Company or any Subsidiary of the Company or any ERISA Affiliate has
incurred or is likely to incur a liability to or on account of a Plan under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212
of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code, or the
Company or any Subsidiary of the Company has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired employees
or other former employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of ERISA) or
Foreign Pension Plans; (b) there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a liability
or a material risk of incurring a liability; (c) which lien, security
interest or liability, individually and/or in the aggregate, in the opinion
of the Required Banks, will have a material adverse effect upon the business,
operations, condition (financial or otherwise) or prospects of the Company or
any Subsidiary of the Company; or
11.07 Security Documents. At any time after the execution and
------------------
delivery thereof, any of the Security Documents shall cease to be in full
force and effect, or shall cease in any material respect to give the
Collateral Agent for the benefit of the Secured Creditors the Liens, rights,
powers and privileges purported to be created thereby (including, without
limitation, a perfected security interest in, and Lien on, all of the
Collateral), in favor of the Collateral Agent, superior to and prior to the
rights of all third Persons (except as permitted by Section 10.01), and
subject to no other Liens (except as permitted by Section 10.01), or any
Credit Party shall default in any material respect in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any of the Security Documents and such default shall
continue beyond any grace period specifically applicable thereto pursuant to
the terms of such Security Document; or
11.08 Guarantees. (i) After the execution and delivery thereof,
----------
any Guaranty or any provision thereof shall cease to be in full force or
effect as to the relevant Guarantor, or any Guarantor or Person acting by or
on behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under the relevant Guaranty, or any Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to its Guaranty or (ii) for any
reason
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whatsoever (and whether or not through any fault or inability on the part of
the Company), the Tudor Guaranty is not executed and delivered by the date
required by Section 9.21; or
11.09 Judgments. One or more judgments or decrees shall be
---------
entered against the Company or any of its Subsidiaries involving in the
aggregate for the Company and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) of $5,000,000 or more,
and all such judgments and decrees either shall not have been vacated,
discharged or stayed or bonded pending appeal for any period of 60 days from
the entry thereof; or
11.10 Change of Control. A Change of Control shall occur; or
-----------------
11.11 Receivables Facility. At any time prior to September 1,
--------------------
1995, the Receivables Facility Commitment as then in effect shall be less
than $40,000,000, or at any time prior to September 1, 1995, the Receivables
Financier shall have ceased purchasing receivables pursuant to the
Receivables Facility (except to the extent such purchases are being made
pursuant to a replacement Receivables Facility) for a period in excess of
three consecutive Business Days;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent, upon the written
request of the Required Banks, shall by written notice to the Company, take
any or all of the following actions, without prejudice to the rights of the
Agents, any Bank or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section
--------
11.05 shall occur with respect to the Company, the result which would occur
upon the giving of written notice by the Administrative Agent to the Company
as specified in clauses (i) and (ii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitments
terminated, whereupon all Commitments of each Bank shall forthwith terminate
immediately and any Commitment Commission shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Credit
Party; (iii) terminate any Letter of Credit, which may be terminated, in
accordance with its terms; (iv) direct the Company to pay (and the Company
agrees that upon receipt of such notice, or upon the occurrence of an Event
of Default specified in Section 11.05 with respect to the Company, it will
pay) to the Collateral Agent at the Payment Office such additional amount of
cash, to be held as security by the Collateral Agent, as is equal to the
aggregate Stated Amount of all Letters of Credit then outstanding; (v)
enforce, as Collateral Agent, all of the Liens and security interests created
pursuant to the Security Documents; and (vi) apply any cash collateral held
for the benefit of the Banks pursuant to Section 4.02 to repay the respective
outstanding Obligations.
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SECTION 12. Definitions and Accounting Terms.
--------------------------------
12.01 Defined Terms. As used in this Agreement, the following
-------------
terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquired Indebtedness" means 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.
"Acquisition" shall mean the purchase by the Company for cash of at
least 52% of the Tudor Shares pursuant to the Purchase Agreement.
"Acquisition Documents" shall mean the Purchase Agreement and all
other documents entered into or delivered in connection with the Purchase
Agreement.
"Additional Collateral" shall mean all property (whether real or
personal) in which security interests are granted (or have been purported to
be granted) (and continue to be in effect at the time of determination)
pursuant to Section 9.11 or 9.12.
"Additional Mortgage" shall have the meaning provided in Section
9.11(a).
"Additional Mortgaged Property" shall have the meaning provided in
Section 9.11(a).
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 9.11 or 9.12.
"Additional Tudor Letter of Credit" shall have the meaning provided
in Section 2.01(a)(vii).
"Additional Tudor Letter of Credit Sub-Limit" at any time shall
mean an amount equal to $25,000,000. Notwithstanding anything to the
contrary contained above, upon the occurrence of the Initial Tender Offer
Termination Date (without the successful consummation of the Initial Tender
Offer), the Additional Tudor Letter of Credit Sub-Limit shall be reduced to
$0.
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"Additional Tudor Supportable Indebtedness" shall mean obligations
of Tudor and its Subsidiaries in respect of their Indebtedness for borrowed
money (other than Banesto Debt and Tudor Convertible Bonds) incurred for
their working capital purposes.
"Adjusted Available Revolving Loan Commitment" for each Bank shall
mean at any time such Bank's Revolving Loan Commitment less such Bank's
Adjusted RL Percentage of the Blocked Commitment, if any, at such time.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the
sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing
(x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market
as published in the most recent Federal Reserve System publication entitled
"Select Interest Rates," published weekly on Form H.15 as of the date hereof,
or if such publication or a substitute containing the foregoing rate
information shall not be published by the Federal Reserve System for any
week, the weekly average offering rate determined by the Administrative Agent
on the basis of quotations for such certificates received by it from three
certificate of deposit dealers in New York of recognized standing or, if such
quotations are unavailable, then on the basis of other sources reasonably
selected by the Administrative Agent, by (y) a percentage equal to 100% minus
the stated maximum rate of all reserve requirements as specified in
Regulation D applicable on such day to a three-month certificate of deposit
of a member bank of the Federal Reserve System in excess of $100,000
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves), plus (2) the then daily net annual assessment
rate as estimated by the Administrative Agent for determining the current
annual assessment payable by the Administrative Agent to the Federal Deposit
Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted RL Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank, such Bank's RL Percentage and (y) at a time
when a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero
and (ii) for each Bank that is a Non-Defaulting Bank, the percentage
determined by dividing such Bank's Revolving Loan Commitment at such time by
the Adjusted Total Revolving Loan Commitment at such time, it being
understood that all references herein to Revolving Loan Commitments and the
Adjusted Total Revolving Loan Commitment at a time when the Total Revolving
Loan Commitment or Adjusted Total Revolving Loan Commitment, as the case may
be, has been terminated shall be references to the Revolving Loan Commitments
or Adjusted Total Revolving Loan Commitment, as the case may be, in effect
immediately prior to such termination, provided that (A) no Bank's Adjusted
--------
RL Percentage shall change upon the occurrence of a Bank Default from that in
effect immediately prior to such Bank Default if after giving effect to such
Bank Default, and any repayment of Revolving Loans and Swingline Loans at
such time pursuant to Section 4.02(a) or otherwise, the sum of (i) the
aggregate outstanding principal amount of Revolving Loans of all Non-
Defaulting Banks, plus (ii) the aggregate outstanding principal amount of
Swingline Loans, plus (iii) the Revolving Letter of Credit Outstandings,
exceed the Adjusted Total Revolving Loan Com-
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mitment; (B) the changes to the Adjusted RL Percentage that would have become
effective upon the occurrence of a Bank Default but that did not become
effective as a result of the preceding clause (A) shall become effective on
the first date after the occurrence of the relevant Bank Default on which the
sum of (i) the aggregate outstanding principal amount of the Revolving Loans
of all Non-Defaulting Banks, plus (ii) the aggregate outstanding principal
amount of Swingline Loans, plus (iii) the Letter of Credit Outstandings, is
equal to or less than the Adjusted Total Revolving Loan Commitment; and (C)
if (i) a Non-Defaulting Bank's Adjusted RL Percentage is changed pursuant to
the preceding clause (B) and (ii) any repayment of such Bank's Revolving
Loans or of Unpaid Drawings participated in by Revolving Credit Participants
or of Swingline Loans, that were made during the period commencing after the
date of the relevant Bank Default and ending on the date of such change to
its Adjusted RL Percentage must be returned to the Company as a preferential
or similar payment in any bankruptcy or similar proceeding of the Company,
then the change to such Non-Defaulting Bank's Adjusted RL Percentage effected
pursuant to said clause (B) shall be reduced to that positive change, if any,
as would have been made to its Adjusted RL Percentage if (x) such repayments
had not been made and (y) the maximum change to its Adjusted RL Percentage
would have resulted in the sum of the outstanding principal of Revolving
Loans made by such Bank plus such Bank's new Adjusted RL Percentage of the
outstanding principal amount of Swingline Loans and of Revolving Letter of
Credit Outstandings equalling such Bank's Revolving Loan Commitment at such
time.
"Adjusted Total Available Revolving Loan Commitment" shall mean at
any time the Total Available Revolving Loan Commitment at such time less the
aggregate Revolving Loan Commitments of all Defaulting Banks at such time.
"Adjusted Total Revolving Loan Commitment" shall mean at any time
the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall mean BTCo, in its capacity as
Administrative Agent for the Banks hereunder provided that (i) if BTCo shall
resign as an Agent hereunder, one of the remaining Agents (who, if there is
more than one remaining Agent, shall be selected by the then remaining
Agents) or, if there are no remaining Agents, the respective successor Agent,
shall become the replacement Administrative Agent, in each case so long as
the respective replacement Agent consents thereto, and (ii) BTCo or its
successor shall continue to act as Collateral Agent until such replacement
Administrative Agent shall have been selected.
"Affiliate" shall mean, with respect to any Person, any other
Person (including, for purposes of Section 10.07 only, all directors,
officers and partners of such Person) directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such Person;
provided, however, that for purposes of Section 10.07, an Affiliate of the
-------- -------
Company shall include any Person that directly or indirectly owns more than
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5% of any class of the capital stock of the Company and any officer or
director of the Company or any such Person. A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract
or otherwise.
"Agent" shall mean each of Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, each in its
capacity as Agent for the Banks hereunder, and shall (x) exclude any Person
which has theretofore resigned as an Agent pursuant to Section 13.09 and (y)
include any successor to any of the respective Agents appointed pursuant to
Section 13.09.
"Agreement" shall mean this Credit Agreement, as amended, modified
or supplemented from time to time.
"Applicable Commitment Commission Percentage" shall mean, at any
time, a percentage per annum equal to 1/2 of 1%; provided, that from and
--------
after the first day of any Margin Reduction Period (the "Start Date") to and
including the last day of such Margin Reduction Period (the "End Date"), the
Applicable Commitment Commission Percentage shall be 3/8 of 1% per annum if,
but only if, as of the last day of the most recent fiscal quarter ended
immediately prior to such Start Date (the "Test Date") all of the following
conditions are met:
(i) the Consolidated Interest Coverage Ratio for the Test Period
ended on such Test Date shall be greater than 3.5:1.00; and
(ii) Company Consolidated Indebtedness shall be equal to or less
than $575,000,000.
Notwithstanding anything to the contrary contained above, the Applicable
Commitment Commission Percentage shall be 1/2 of 1% per annum (x) at all
times prior to September 30, 1995 and (y) at any time that a Default or an
Event of Default shall exist.
"Applicable Margin" shall mean a percentage per annum equal to (I)
at any time prior to June 1, 1995, (i) (A) in the case of Loans other than
Tranche B Term Loans which are maintained as Base Rate Loans, 1.00% and (B)
in the case of Tranche B Term Loans which are maintained as Base Rate Loans,
1.50%, and (ii) (A) in the case of Loans other than Tranche B Term Loans
which are maintained as Eurodollar Loans, 2.25% and (B) in the case of
Tranche B Term Loans which are maintained as Eurodollar Loans, 2.75% and (II)
at any time on and after June 1, 1995, (i)(A) in the case of Loans other than
Tranche B Term Loans which are maintained as Base Rate Loans, 1.25%, less the
then applicable Interest Reduction Discount and (B) in the case of Tranche B
Term Loans which are maintained as Base Rate Loans, 1.75%, and (ii)(A) in the
case of Loans other than Tranche B Term Loans which are maintained as
Eurodollar Loans, 2.50%, less the then
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applicable Interest Reduction Discount and (B) in the case of Tranche B Term
Loans which are maintained as Eurodollar Loans, 3.00%.
"Available Revolving Loan Commitment" for any Bank shall mean, at
any time, the Revolving Loan Commitment of such Bank as then in effect less
such Bank's RL Percentage of the amount of the Blocked Commitment, if any, at
such time.
"BA" shall mean Bank of America National Trust and Savings
Association in its individual capacity (and shall include any local affiliate
designated by such Bank to issue Letters of Credit to be denominated in
currencies other than Dollars).
"Banesto" shall mean, collectively, Banco Espanol de Credito, S.A.
and its consolidated banks, affiliates and subsidiaries.
"Banesto Debt" shall mean the Indebtedness of the Company to
Banesto described in Part II on Schedule VI hereto and designated on a line
item as "Banesto" or "Banco de Santander."
"Banesto Debt Documents" shall mean any and all agreements,
certificates, instruments and other documentation at any time entered into by
the Tudor or any of its Subsidiaries in connection with the Banesto Debt.
"Banesto Letter of Credit" shall have the meaning provided in
Section 2.01(a)(v).
"Bank" shall mean each financial institution listed on Schedule I,
as well as any Person which becomes a "Bank" hereunder pursuant to Section
1.13 and/or 14.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing
(including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment under Section 2.03(c) or (ii) a Bank having notified in
writing the Company and/or the Administrative Agent that it does not intend
to comply with its obligations under Section 1.01(c) or Section 2, in the
case of either clause (i) or (ii) as a result of any takeover of such Bank by
any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 11.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1% in
excess of the Adjusted Certificate of Deposit Rate and (ii) the Prime Lending
Rate.
"Base Rate Loan" shall mean each Loan designated or deemed
designated as such by the Company at the time of the incurrence thereof or
conversion thereto.
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"BIG" shall mean B.I.G. Batteries Group, Limited.
"BIG Notes" shall mean the Existing Indebtedness described under
item 7 of Part I on Schedule VI.
"BIG Notes Cash Collateral" shall have the meaning provided in
Section 10.01.
"Blocked Commitment" shall mean (1) for the period from and
including the Initial Borrowing Date until the issuance of the Treasury Stock
Letter of Credit, the Tudor Convertible Bond Letter of Credit and each
Banesto Letter of Credit which is, or will be, required to be delivered to
the Seller or Banesto in accordance with the Purchase Agreement, the Initial
Blocked Commitment, (2) for the period, if any, after the issuance of each of
the Treasury Stock Letter of Credit, the Tudor Convertible Bond Letter of
Credit and each Banesto Letter of Credit required to be delivered in
accordance with the requirements of the Purchase Agreement until the Initial
Tender Offer Date, $0, (3) for the period from the Initial Tender Offer Date
until the Secondary Tender Offer Filing Date, that amount as is equal to the
Secondary Tender Offer Blocked Commitment as in effect from time to time, and
(4) for the period after the Secondary Tender Offer Filing Date, $0.
"BMO" shall mean Bank of Montreal in its individual capacity (and
shall include any local affiliate designated by such Bank to issue Letters of
Credit to be denominated in currencies other than Dollars).
"Borrowing" shall mean the borrowing of one Type of Loan of a
single Tranche from all the Banks having Commitments of the respective
Tranche (or from BTCo in the case of Swingline Loans) on a given date (or
resulting from a conversion or conversions on such date) having in the case
of Eurodollar Loans the same Interest Period, provided that Base Rate Loans
--------
incurred pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans.
"Brown Battery Site" shall mean the site located in Pennsylvania as
described in footnote 14 to the financial statements prepared by Arthur
Andersen & Co. and contained in the Company's Form 10-K, dated June 22, 1994,
for the fiscal year ended March 31, 1994.
"BTCo" shall mean Bankers Trust Company in its individual capacity
(and shall include any local affiliate designated by such Bank to issue
Letters of Credit to be denominated in currencies other than Dollars).
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day
which shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and
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determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i)
above and which is also a day for trading by and between banks in the New
York interbank Eurodollar market.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
GAAP, including all such expenditures with respect to fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs
which should be capitalized in accordance with GAAP) and the amount of
Capitalized Lease Obligations incurred by such Person. Notwithstanding to
the contrary contained above, (x) all amounts spent during the period from
the Effective Date to the last day of the Company's fiscal year ended in
March, 1995 in connection with Permitted Sales Branch Acquisitions and
Permitted Acquisitions shall be treated as Capital Expenditures and (y) all
amounts spent after March 31, 1995 in connection with Permitted Acquisitions
and Permitted Sales Branch Acquisitions shall be excluded from Capital
Expenditures.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under GAAP, are or will be required to be capitalized on
the books of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with such principles.
"Cash Equivalents" shall mean, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or
any agency or instrumentality thereof (provided that the full faith and
--------
credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) time deposits
and certificates of deposit of any commercial bank having, or which is the
principal banking subsidiary of a bank holding company organized under the
laws of the United States, any State thereof, the District of Columbia or any
foreign jurisdiction having capital, surplus and undivided profits
aggregating in excess of $200,000,000, with maturities of not more than one
year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clause (i) above entered into with any bank meeting
the qualifications specified in clause (ii) above, (iv) commercial paper
issued by any Person incorporated in the United States rated at least A-1 or
the equivalent thereof by Standard & Poor's Corporation or at least P-1 or
the equivalent thereof by Moody's Investors Service, Inc. and in each case
maturing not more than one year after the date of acquisition by such Person,
(v) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv)
above, (vi) demand deposit accounts maintained in the ordinary course of
business not in excess of $100,000 in the aggregate, (vii) with respect to
Foreign Subsidiaries organized under the laws of an Approved Country,
government obligations of Canada, the United Kingdom, the Kingdom of Spain
and of any other country approved by the Administrative Agent or whose debt
securities are rated by S&P and/or Moody's A-1 or P-1, or the equivalent
thereof (if a short-term debt rating is provided by either) or at least AA or
AA2, with equivalent thereof (if a long-term
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unsecured debt rating is provided by either) (each such country, and
"Approved Country"), in each case, with maturities of less than 12 months and
(viii) the investments by Foreign Subsidiaries in banks or other financial
institutions that are not otherwise provided for above to the extent
necessitated by commercial trade requirements or due to a lack of approved
bank investment alternatives as individually approved by a senior financial
officer of the Company, in each case, with maturities of less than 6 months.
"CEAc" shall mean Compagnie Europeenne d'Accumulateurs S.A., a
corporation organized under the laws of the Republic of France.
"CEAc Acquisition" shall mean the acquisition by the Company of
99.7% of the equity interests of CEAc pursuant to the CEAc Acquisition
Documents.
"CEAc Acquisition Amount" shall mean the aggregate cash
consideration (including fees and expenses payable in connection with the
CEAc Transaction, but excluding payments made in respect of intercompany
indebtedness owed by CEAc and its Subsidiaries to the CEAc Seller or any of
their respective Subsidiaries) to be paid by the Company to the CEAc Seller
in connection with the CEAc Acquisition; provided that the CEAc Acquisition
Amount shall be adjusted (upward or downward, as appropriate) by reason of
post-closing adjustments to the purchase price and any payments by the
relevant parties pursuant to claims for breach of contract or warranty or
similar claims in connection with the CEAc Acquisition.
"CEAc Acquisition Corp." shall mean Exide Holdings France, S.A., a
corporation organized under the laws of the Republic of France.
"CEAc Acquisition Date" shall mean the date upon which the CEAc
Acquisition is consummated in accordance with the terms and conditions
contained in the CEAc Acquisition Stock Purchase Agreement and the conditions
precedent contained in Section 6A shall have been satisfied pursuant to the
terms contained therein.
"CEAc Acquisition Documents" shall mean the CEAc Acquisition Stock
Purchase Agreement, the CEAc Acquisition Warranty Agreement, the CEAc Supply
Agreements and all other documents entered into or delivered in connection
with the CEAc Acquisition Stock Purchase Agreement.
"CEAc Acquisition Intercompany Indebtedness" shall have the meaning
provided in Section 6A.09.
"CEAc Acquisition Intercompany Notes" shall have the meaning
provided in Section 6A.09.
"CEAc Acquisition Stock Purchase Agreement" shall mean the Stock
Purchase Agreement between the Company and CEAc Seller, in form and substance
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satisfactory to the Agents and the Required Banks, as the same may be
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"CEAc Acquisition Warranty Agreement" shall mean the Warranty
Agreement by and between the Company and Fiat, in form and substance
satisfactory to the Agents and the Required Banks, as the same may be
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"CEAc Adjusted Consolidated Net Income" for any period shall mean
CEAc Consolidated Net Income for such period plus, without duplication, the
sum of the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest
expense, but excluding any net non-cash charges reflected in CEAc Adjusted
Consolidated Working Capital) and net non-cash losses which were included in
arriving at CEAc Consolidated Net Income for such period less the sum of the
amount of all net non-cash gains (exclusive of items reflected in CEAc
Adjusted Consolidated Working Capital) included in arriving at CEAc
Consolidated Net Income for such period.
"CEAc Adjusted Consolidated Working Capital" at any time shall mean
CEAc Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less CEAc Consolidated Current Liabilities.
"CEAc Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of CEAc Acquisition Corp. and its consolidated
Subsidiaries.
"CEAc Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of CEAc Acquisition Corp. and its
consolidated Subsidiaries at such time, but excluding (i) the current portion
of any long-term Indebtedness which would otherwise be included therein, (ii)
the current portion of Indebtedness constituting Capitalized Lease
Obligations and (iii) the amount of any Indebtedness of CEAc or any of its
Subsidiaries which is owed to the Company or any of its other Subsidiaries.
"CEAc Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of CEAc Acquisition Corp. and its
Subsidiaries determined on a consolidated basis in accordance with French
GAAP; provided that (x) to the extent that CEAc Acquisition Corp. or any of
its Subsidiaries pays any Dividends, or makes payments with respect to
Indebtedness (including without limitation the CEAc Acquisition Intercompany
Notes) owing, to the Company or any of its Domestic Wholly-Owned Subsidiaries
(other than CEAc Acquisition Corp. and its Subsidiaries) or any payments of
management fees or other amounts are paid to the Company or such Subsidiaries
of the Company during the respective period (but excluding all repatriations
to the extent required pursuant to Section 4.02(m)), such amounts shall be
deducted (without duplication of amounts already deducted in determining CEAc
Consolidated Net Income) in determining CEAc Consolidated Net Income (taking
the Dollar Equivalent of
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the amount of any such payment made in currencies other than Dollars at the
time the respective payment is made), regardless of the treatment of such
amounts under French GAAP and (y) except as provided in preceding clause (x),
CEAc Consolidated Net Income shall not be reduced by any interest or other
expenses associated with promissory notes payable by CEAc Acquisition Corp.
and/or its Subsidiaries to, or loans or advances incurred by CEAc Acquisition
Corp. and its Subsidiaries from, the Company and its Subsidiaries.
"CEAc Divestiture Analysis" shall mean, collectively, (i) the
letter, dated February 16, 1995, from Alan Gauthier to David Bailey of
Bankers Trust Company and (ii) the letter, dated February 22, 1995, from Alan
Gauthier to David Bailey of Bankers Trust Company.
"CEAc Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) CEAc Adjusted Consolidated Net Income for such period,
(ii) the decrease, if any, in CEAc Adjusted Consolidated Working Capital from
the first day to the last day of such period and (iii) the aggregate Net Sale
Proceeds from sales of assets (excluding sales of inventory in the ordinary
course of business) by CEAc Acquisition Corp. and its Subsidiaries during
such period to the extent the proceeds thereof were not required to be
applied pursuant to Section 4.02 and to the extent such proceeds are not
already reflected in CEAc Adjusted Consolidated Net Income for such period,
minus (b) the sum of (i) the amount of Capital Expenditures made by CEAc
Acquisition Corp. and its Subsidiaries on a consolidated basis during such
period pursuant to and in accordance with Section 10.08(c)(i) and (ii) (but
not including Capital Expenditures made pursuant to Section 10.08(c)(iii)),
except to the extent financed with the proceeds of Indebtedness or pursuant
to Capitalized Lease Obligations, (ii) the aggregate amount of permanent
principal payments of Indebtedness for borrowed money of CEAc Acquisition
Corp. and its Subsidiaries and the permanent principal payments of
Indebtedness for borrowed money of CEAc Acquisition Corp. and its
Subsidiaries and the permanent repayment of the principal component of
Capitalized Lease Obligations of CEAc Acquisition Corp. and its Subsidiaries
(excluding payments with proceeds of asset sales or Indebtedness and
excluding payments of Indebtedness to the Company or any of its Subsidiaries)
and (iii) the increase, if any, in CEAc Adjusted Consolidated Working Capital
from the first day to the last day of such period. The foregoing calculation
(and all components as used therein) shall be made in French Francs; provided
that the amount of CEAc Excess Cash Flow for any Excess Cash Payment Period
shall be the Dollar Equivalent of the amount so determined, with the
calculation of the Dollar Equivalent of such amount to be made on the
respective Excess Cash Payment Date.
"CEAc Existing Indebtedness" shall have the meaning provided in
Section 6A.09.
"CEAc 1994 Consolidated Financial Statements" shall mean the "1994
CEAc Financial Statements" as defined in the CEAc Acquisition Warranty
Agreement.
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"CEAc 1993 Consolidated Financial Statements" shall mean the "1993
CEAc Financial Statements" as defined in the CEAc Acquisition Warranty
Agreement.
"CEAc Percentage" shall mean, at any time, that percentage as is
equal to the aggregate percentage of outstanding common stock of CEAc owned
by the Company and its Subsidiaries.
"CEAc Projections" shall have the meaning provided in Section
6A.13.
"CEAc Refinancing" shall have the meaning provided in Section
6A.09.
"CEAc Refinancing Amount" shall mean an amount equal to the amount
of Indebtedness of CEAc to be assumed and/or refinanced in connection with
the CEAc Acquisition.
"CEAc Refinancing Credit Facility" shall have the meaning provided
in Section 6A.09.
"CEAc Refinancing Documents" shall have the meaning provided in
Section 6A.09.
"CEAc Seller" shall collectively mean Fiat and Sicind SpA, an
Italian corporation which is a wholly-owned subsidiary of Fiat.
"CEAc Supply Agreements" shall mean the long-term supply agreements
entered into in the form of Schedule 6.1.8 and 6.1.9 to the CEAc Acquisition
Stock Purchase Agreement, as same may thereafter be amended, modified or
supplemented from time to time in accordance with the terms hereof and
thereof.
"CEAc Transaction" shall mean, collectively, the CEAc Acquisition,
the CEAc Refinancing, the Subject Shares Issuance, the 2005 Senior Unsecured
Notes Issuance and the payment of all fees and expenses in connection
therewith.
"CEAc US Holdco" shall mean Exide International, Inc., a Delaware
corporation.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. (S) 9601 et seq.
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"Change of Control" shall mean at any time (i) a "Change of
Control" under and as defined in the Senior Note Indenture or the Senior
Subordinated Note Indenture shall have occurred; (ii) (y) any "Person" or
"group" (as such terms are used in Sections 13(d) and 14(d of the Exchange
Act), is or becomes the "beneficial owner" (as defined in Rules
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13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 20%
or more on a fully diluted basis of the voting and economic interests of the
Company or shall have the right to elect a majority of the directors of the
Company or (iii) the Board of Directors of the Company shall cease to consist
of a majority of Continuing Directors.
"CNMV" shall have the meaning provided in Section 5.08.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at
the date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal)
with respect to which any security interests have been granted (or purported
to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral, all Security Agreement
Collateral, all Mortgaged Properties, all cash and Cash Equivalents delivered
as collateral pursuant to Section 4.02 or 11 hereof and all Additional
Collateral, if any. Without limiting the foregoing, the term "Collateral"
includes all Restricted Collateral and all Unrestricted Collateral.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Collective Bargaining Agreements" shall have the meaning provided
in Section 5.05.
"Combined Consolidated EBIT" shall mean, for any period, Combined
Consolidated Net Income, before Combined Consolidated Interest Expense and
provision for taxes and without giving effect to any extraordinary gains or
losses or gains or losses from sales of assets other than inventory sold in
the ordinary course of business.
"Combined Consolidated EBITDA" shall mean, for any period, Combined
Consolidated EBIT, adjusted by adding thereto the amount of all amortization
of intangibles and depreciation, in each case that were deducted in arriving
at Combined Consolidated EBIT for such period. Notwithstanding anything to
the contrary contained above or elsewhere in this Agreement, in calculating
Combined Consolidated EBITDA (x) so long as the Company continues to own at
least 89% of the fully diluted equity of Tudor, Tudor shall be included as a
Wholly-Owned Subsidiary of the Company acquired on October 1, 1994 and (y)
from and after the CEAc Acquisition Date and so long as the Company directly
or indirectly owns at least 99.7% of the fully-diluted equity of CEAc, CEAc
shall be treated as a Wholly-Owned Subsidiary of the Company acquired on
April 1, 1994.
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"Combined Consolidated Indebtedness" shall mean, at any time, all
Indebtedness of the Company and its Subsidiaries (including Tudor and its
Subsidiaries and, from and after the CEAc Acquisition Date, CEAc Acquisition
Corp. and its Subsidiaries) determined on a consolidated basis required to be
accounted for as debt in accordance with GAAP; provided that (x) the
aggregate Letter of Credit Outstandings at any time (without duplication of
any underlying supported Indebtedness already included in Combined
Consolidated Indebtedness) shall be included as a component of Combined
Consolidated Indebtedness (and shall thereby increase same by the amount of
such Letter of Credit Outstandings, regardless of whether a different
treatment is required in accordance with GAAP), (y) at any time, the amount
of Receivables Facility Attributed Indebtedness shall be treated as Combined
Consolidated Indebtedness regardless of whether a different treatment is
required in accordance with GAAP and (z) to the extent the BIG Notes are
collateralized by cash or Cash Equivalents, such amount shall not be included
in Combined Consolidated Indebtedness regardless of whether a different
treatment is required in accordance with GAAP.
"Combined Consolidated Interest Expense" shall mean, for any
period, the total consolidated cash interest expense of the Company and its
Subsidiaries (including Tudor and its Subsidiaries and, if the CEAc
Acquisition Date has occurred, including CEAc Acquisition Corp. and its
Subsidiaries, on the same basis as is provided in the last sentence of the
definition of Combined Consolidated EBITDA) for such period plus, without
duplication, that portion of Capitalized Lease Obligations of the Company and
its Subsidiaries (including Tudor and its Subsidiaries and, from and after
the CEAc Acquisition Date, CEAc Acquisition Corp. and its Subsidiaries)
representing the interest factor (except to the extent not payable in cash)
for such period, in each case net of the total consolidated cash interest
income of the Company and its Subsidiaries (including Tudor, CEAc Acquisition
Corp. and their respective Subsidiaries) for such period, but excluding the
amortization of any deferred financing costs incurred in connection with this
Agreement, all determined on a combined basis; provided that in determining
Combined Consolidated Interest Expense (x) all fees, service charges and
other costs, as well as all collections or other amounts retained by the
Receivables Financier which are in excess of amounts paid to the Company by
it for the purchase of receivables pursuant to the Receivables Facility,
shall be treated as interest expense of the Company regardless of the
treatment of such amounts under GAAP and (y) such interest expense shall be
determined after giving effect to any Interest Rate Protection or Other
Hedging Agreements then in effect.
"Combined Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of the Company and its Subsidiaries
(including Tudor and its Subsidiaries and, if the CEAc Acquisition Date has
occurred, including CEAc Acquisition Corp. and its Subsidiaries, on the same
basis as is provided in the last sentence of the definition of Combined
Consolidated EBITDA) determined on a consolidated basis in accordance with
GAAP.
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"Commitment" shall mean any of the commitments of any Bank, i.e.
----
whether the Tranche A Term Loan Commitment, Tranche B Term Loan Commitment,
Tranche C Term Loan Commitment or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Company" shall have the meaning provided in the first paragraph of
this Agreement.
"Company Adjusted Consolidated Net Income" for any period shall
mean Company Consolidated Net Income for such period plus, without
duplication, the sum of the amount of all net non-cash charges (including,
without limitation, depreciation, amortization, deferred tax expense and non-
cash interest expense, but excluding any net non-cash charges reflected in
Company Adjusted Consolidated Working Capital) and net non-cash losses which
were included in arriving at Company Consolidated Net Income for such period
less the sum of the amount of all net non-cash gains (exclusive of items
reflected in Company Adjusted Consolidated Working Capital) included in
arriving at Company Consolidated Net Income for such period.
"Company Adjusted Consolidated Working Capital" at any time shall
mean Company Consolidated Current Assets (but excluding therefrom all cash
and Cash Equivalents) less Company Consolidated Current Liabilities.
"Company Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Company and its consolidated Subsidiaries
(excluding Tudor and its Subsidiaries and, from and after the CEAc
Acquisition Date, CEAc Acquisition Corp. and its Subsidiaries).
"Company Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Company and its consolidated
Subsidiaries (excluding Tudor and its Subsidiaries and, from and after the
CEAc Acquisition Date, CEAc Acquisition Corp. and its Subsidiaries) at such
time, but excluding (i) the current portion of any Indebtedness under this
Agreement and any other long-term Indebtedness which would otherwise be
included therein and (ii) the current portion of Indebtedness constituting
Capitalized Lease Obligations.
"Company Consolidated EBIT" shall mean, for any period, the Company
Consolidated Net Income, before Company Consolidated Interest Expense of the
Company and provision for taxes and without giving effect to any
extraordinary gains or losses or gains or losses from sales of assets other
than inventory sold in the ordinary course of business.
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"Company Consolidated EBITDA" shall mean, for any period, Company
Consolidated EBIT, adjusted by adding thereto the amount of all amortization
of intangibles and depreciation, in each case that were deducted in arriving
at Company Consolidated EBIT for such period.
"Company Consolidated Fixed Charges" for any period shall mean the
sum, without duplication, of (i) Company Consolidated Interest Expense for
such period and (ii) the aggregate scheduled principal amount of all
amortization payments on all Indebtedness (including, without limitation, all
Scheduled Repayments, but excluding payments pursuant to the CEAc Refinancing
and any payments which will be owing as a result of reductions, including
Scheduled Commitment Reductions, to the Total Revolving Loan Commitment) of
the Company and its Subsidiaries (other than Tudor, CEAc Acquisition Corp.
and their respective Subsidiaries) for such period (as determined on the
first day of the respective period).
"Company Consolidated Indebtedness" shall mean, at any time, all
Indebtedness of the Company and its Subsidiaries (excluding Tudor, CEAc and
their respective Subsidiaries) determined on a consolidated basis required to
be accounted for as debt in accordance with GAAP; provided that (x) the
aggregate Letter of Credit Outstandings at any time (but excluding the Stated
Amount of any outstanding Banesto Letters of Credit) shall be included
(without duplication of any underlying supported Indebtedness already
included in Company Consolidated Indebtedness) as a component of Company
Consolidated Indebtedness (and shall thereby increase same by the amount of
such Letter of Credit Outstandings, regardless of whether a different
treatment is required in accordance with GAAP), (y) at any time, the amount
of Receivables Facility Attributed Indebtedness shall be treated as Company
Consolidated Indebtedness regardless of whether a different treatment is
required in accordance with GAAP and (z) to the extent the BIG Notes are
collateralized by cash or Cash Equivalents, such amount shall not be included
in Company Consolidated Indebtedness regardless of whether a different
treatment is required in accordance with GAAP.
"Company Consolidated Interest Expense" shall mean, for any period,
the total consolidated cash interest expense of the Company and its
Subsidiaries (excluding Tudor, CEAc Acquisition Corp. and their respective
Subsidiaries) for such period plus, without duplication, that portion of
Capitalized Lease Obligations of the Company and its Subsidiaries (excluding
Tudor, CEAc Acquisition Corp. and their respective Subsidiaries) representing
the interest factor (except to the extent not payable in cash) for such
period, in each case net of the total consolidated cash interest income
(excluding any such interest income in respect of promissory notes payable
by, or in respect of loans or advances made to, Tudor, CEAc Acquisition Corp.
and their respective Subsidiaries) of the Company and its Subsidiaries
(excluding Tudor, CEAc Acquisition Corp. and their respective Subsidiaries)
for such period, but excluding the amortization of any deferred financing
costs incurred in connection with this Agreement, all determined on a
combined basis; provided that in determining Company Consolidated Interest
Expense (w) Tudor, CEAc Acquisition
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Corp. and their respective Subsidiaries shall be excluded (and shall not be
treated as Subsidiaries of the Company); (x) all Letter of Credit Fees paid
by the Company shall be treated as interest expense of the Company regardless
of the treatment of such fees under GAAP; (y) all fees, service charges and
other costs, as well as all collections or other amounts retained by the
Receivables Financier which are in excess of amounts paid to the Company by
it for the purchase of receivables pursuant to the Receivables Facility,
shall be treated as interest expense of the Company regardless of the
treatment of such amounts under GAAP and (z) such interest expense shall be
determined after giving effect to any Interest Rate Protection or Other
Hedging Agreements then in effect.
"Company Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of the Company and its Subsidiaries (other
than Tudor, CEAc Acquisition Corp. and their respective Subsidiaries)
determined on a consolidated basis in accordance with US GAAP; provided that
(x) except as provided below in clause (y), all net income of Tudor, CEAc
Acquisition Corp. and their respective Subsidiaries shall be excluded, (y)
for the purpose of determining Company Excess Cash Flow and for the purpose
of determining compliance with Section 10.09 only, to the extent that the
Company or any of its Domestic Wholly-Owned Subsidiaries receives any
payments of Dividends from Tudor and/or CEAc Acquisition Corp., any payments
from Tudor, CEAc Acquisition Corp. and their respective Subsidiaries in
respect of principal or interest on intercompany loans extended by the
Company or their respective Domestic Wholly-Owned Subsidiary to such Persons
or any payments of management fees or other amounts from Tudor, CEAc
Acquisition Corp. and their respective Subsidiaries during the respective
period (except that, for purposes of determining Company Excess Cash Flow,
amounts repatriated to it as required by Sections 4.02(i) and/or (m) shall
not be included as a component of Company Consolidated Net Income pursuant to
this clause (y)), such amounts shall be included (without duplication of
amounts already included therein) in Company Consolidated Net Income (taking
the Dollar Equivalent of the amount of any such payments made in currencies
other than Dollars at the time the respective payment is made), regardless of
the treatment of such amounts under US GAAP and (z) Company Consolidated Net
Income shall not include any amounts representing interest accrued (which has
not been paid in cash) on promissory notes payable to the Company and its
Subsidiaries by, or loans and/or advances made by the Company and its
Subsidiaries to, Tudor, CEAc Acquisition Corp. or their respective
Subsidiaries.
"Company Excess Cash Flow" shall mean, for any period, the
remainder of (a) the sum of (i) Company Adjusted Consolidated Net Income for
such period, (ii) the decrease, if any, in Company Adjusted Consolidated
Working Capital from the first day to the last day of such period and (iii)
the aggregate Net Sale Proceeds from the sales of assets (excluding sales of
inventory in the ordinary course of business) by the Company and its
Subsidiaries (other than Tudor, CEAc Acquisition Corp. and their respective
Subsidiaries) during such period to the extent the proceeds thereof were not
required to be applied pursuant to Section 4.02 and to the extent such
proceeds are not already reflected in Company Adjusted Consolidated Net
Income for such period, minus (b) the sum of (i) the
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amount of Capital Expenditures made by the Company and its Subsidiaries
(other than Tudor, CEAc Acquisition Corp. and their respective Subsidiaries)
on a consolidated basis during such period pursuant to and in accordance with
Section 10.08(a)(i) or (ii), except to the extent financed with the proceeds
of Indebtedness or pursuant to Capitalized Lease Obligations, (ii) the
aggregate amount of permanent principal payments of Indebtedness for borrowed
money of the Company and its Subsidiaries (other than Tudor, CEAc Acquisition
Corp. and their respective Subsidiaries) and the permanent principal payments
of Indebtedness for borrowed money of the Company and its Subsidiaries (other
than Tudor, CEAc Acquisition Corp. and their respective Subsidiaries) and the
permanent repayment of the principal component of Capitalized Lease
Obligations of the Company and its Subsidiaries (other than Tudor, CEAc
Acquisition Corp. and their respective Subsidiaries) (excluding (1) payments
with proceeds of asset sales, (2) payments pursuant to the CEAc Refinancing
or with the proceeds of other Indebtedness or equity, (3) payments to Tudor,
CEAc Acquisition Corp. and their respective Subsidiaries and (4) payments of
Loans or other Obligations, provided that repayments of Loans shall be
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deducted in determining Company Excess Cash Flow if such repayments were (x)
required as a result of a Scheduled Repayment under Section 4.02(b), (c) or
(n) (but not as a reduction to the amount of Scheduled Repayments pursuant to
another provision of this Agreement) or (y) made as a voluntary prepayment
pursuant to Section 4.01 with internally generated funds (but in the case of
a voluntary prepayment of Revolving Loans, only to the extent accompanied by
a voluntary reduction to the Total Revolving Loan Commitment)) during such
period, (iii) the increase, if any, in Company Adjusted Consolidated Working
Capital from the first day to the last day of such period and (iv) the
aggregate amount of Dividends paid by the Company during such period pursuant
to Section 10.03(iv). Notwithstanding anything to the contrary contained
above, to the extent that any Environmental Insurance Recoveries would
otherwise be included in Company Excess Cash Flow, such amounts shall be
excluded therefrom.
"Company Retained Excess Cash Flow Amount" shall initially be $0,
which amount shall be (x) increased on each Excess Cash Payment Date, so long
as any repayment required pursuant to Section 4.02(g)(i) has been made, by an
amount equal to the Retained Excess Cash Flow Percentage of Company Excess
Cash Flow for the immediately preceding Excess Cash Payment Period and (y)
decreased (i) on each Excess Cash Payment Date where Company Excess Cash Flow
for the immediately preceding Excess Cash Payment Period is a negative
amount, by such amount, (ii) at the time any Capital Expenditure is made
pursuant to Section 10.08(a)(iii)(x), by the amount thereof, (iii) at the
time any Permitted Acquisition is made after March 31, 1996, by the amount of
cash expended (except to the extent representing retained proceeds of common
stock issuances by the Company), and the principal amount of Acquired
Indebtedness incurred or assumed by the Company and its Subsidiaries, in
connection therewith, (iv) on the date any Dividend is paid pursuant to
Section 10.03(v), by the amount thereof and (v) at the time any Permitted
Sales Branch Acquisition is made after March 31, 1996, by the amount of cash
expended in connection therewith.
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"Consent Solicitation" shall have the meaning provided in Section
6A.18.
"Consolidated Fixed Charge Coverage Ratio" for any period shall
mean the ratio of (x) Company Consolidated EBITDA less the amount of all
Capital Expenditures made by the Company and its Subsidiaries (other than
Tudor, CEAc Acquisition Corp. and their respective Subsidiaries, and
excluding Capital Expenditures made to effect the Acquisition or the CEAc
Acquisition) for such period to (y) Company Consolidated Fixed Charges for
such period.
"Consolidated Interest Coverage Ratio" shall mean, for any period,
the ratio of (x) Company Consolidated EBITDA for such period to (y) Company
Consolidated Interest Expense for such period.
"Consolidated Net Tangible Asset Amount" shall initially mean $43
million; provided that at the time of the delivery of any certificate
pursuant to Section 9.01(m) which shows that 10% of Consolidated Net Tangible
Assets (as defined in the Senior Note Indenture) is in excess of $40 million,
the Consolidated Net Tangible Asset Amount shall thereafter (until the
delivery of the next such certificate) be equal to the greater of (x) the
Consolidated Net Tangible Asset Amount as theretofore in effect or (y) 9.9%
of the amount of Consolidated Net Tangible Assets as shown in the officer's
certificate last delivered pursuant to Section 9.01(m).
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of such 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 (x) for the purchase or payment of any such primary
obligation or (y) 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 holder of such primary
obligation against loss in respect thereof; provided, however, that the term
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Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if the less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms
of the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by
such Person in good faith.
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"Continuing Directors" shall mean the directors of the Company on
the Effective Date and each other director, if such director's nomination for
election to the Board of Directors of the Company is recommended by a
majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, each Security Document, the Domestic Subsidiaries Guaranty, the Tudor
Guaranty and, after the execution and delivery thereof, each additional
guaranty or security document executed pursuant to Section 9.11 and Section
9.12.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean the Company and each Guarantor.
"Currency Hedging Agreements" shall mean any foreign exchange
contract, currency swap agreement, futures contract, option contract,
synthetic cap or other similar agreement designed to protect the Persons
entering into same against fluctuations in currency values.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Dividend" with respect to any Person shall mean that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or
delivery of property (other than common stock of such Person) or cash to its
stockholders as such, or redeemed, retired, purchased or otherwise acquired,
directly or indirectly, for a consideration any shares of any class of its
capital stock outstanding on or after the Effective Date (or any options or
warrants issued by such Person with respect to its capital stock), or set
aside any funds for any of the foregoing purposes, or shall have permitted
any of its Subsidiaries to purchase or otherwise acquire for a consideration
any shares of any class of the capital stock of such Person outstanding on or
after the Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing,
"Dividends" with respect to any Person shall also include all payments made
or required to be made by such Person with respect to any stock appreciation
rights, plans, equity incentive or achievement plans or any similar plans or
setting aside of any funds for the foregoing purposes.
"Documents" shall mean the Credit Documents, the Acquisition
Documents, the CEAc Acquisition Documents and the Tender Offer Documents.
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"Dollar Equivalent" shall mean, with respect to any currency other
than Dollars, the amount of Dollars into which such currency could be
converted at the Exchange Rate.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiaries Guaranty" shall have the meaning provided in
Section 5.11.
"Domestic Subsidiary" shall mean each Subsidiary of the Company
which is not a Foreign Subsidiary.
"Domestic Subsidiary Guarantor" shall mean each Domestic Subsidiary
of the Company which has executed the Domestic Subsidiaries Guaranty or a
counterpart thereof.
"Domestic Wholly-Owned Subsidiary" shall mean each Domestic
Subsidiary which is a Wholly-Owned Subsidiary of the Company.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Due Diligence Reports" shall mean, collectively, the due diligence
reports prepared in connection with the CEAc Acquisition by (i) Lovell White
Durrant, (ii) Loeff Claeys Verbeke, (iii) Gide Loyrette Nouel, (iv) De Bandt,
Van Hecke & Lagae, (v) Heller, Lober, Bahn & Partners, (vi) Gorrissen &
Federspiel, (vii) Gianni, Origoni & Partners, (viii) Zeyen Beghin Feider,
(ix) Bruckhaus Westrick Stegemann, (x) Wiersholm, Mellbye & Bech, (xi) Poroy
& Ozulku, (xii) Lagerlof & Leman and (xiii) J&H Garrigues, and any other due
diligence report, other than an Environmental Report, prepared by counsel in
connection with the CEAc Acquisition.
"Effective Date" shall have the meaning provided in Section 14.10.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"Employee Benefit Plans" shall have the meaning provided in Section
5.05.
"Employment Agreements" shall have the meaning provided in Section
5.05.
"End Date" shall have the meaning provided in the definition of
Applicable Commitment Commission Percentage.
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"Environmental Claims" means any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, directives, claims,
liens, notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Law or any permit issued, or any
approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in
connection with alleged injury or threat of injury to health, safety or the
environment due to the presence of Hazardous Materials.
"Environmental Insurance Recoveries" shall mean 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 Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, to the extent binding on
the Company or any of its respective Subsidiaries, relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. (S) 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. (S) 2601
-- ----
et seq.; the Clean Air Act, 42 U.S.C. (S) 7401 et seq.; the Safe Drinking
-- ---- -- ----
Water Act, 42 U.S.C. (S) 3803 et seq.; the Oil Pollution Act of 1990, 33
-- ----
U.S.C. (S) 2701 et seq.; the Emergency Planning and the Community Right-to-
-- ----
Know Act of 1986, 42 U.S.C. (S) 11001 et seq., the Hazardous Material
-- ----
Transportation Act, 49 U.S.C. (S) 1801 et seq. and the Occupational Safety
-- ----
and Health Act, 29 U.S.C. (S) 651 et seq. (to the extent it regulates
-- ----
occupational exposure to Hazardous Materials); and any state and local or
foreign counterparts or equivalents, in each case as amended from time to
time.
"Environmental Report" shall mean, collectively, the following
environmental reports prepared in connection with the CEAc Acquisition: (i)
Environmental Audit at the CEAc Auxerre Site prepared by Dames & Moore dated
January 12, 1995; (ii) Environmental Audit at the CEAc Clichy Site prepared
by Dames & Moore dated January 11, 1995; (iii) Environmental Audit at the
CEAc Lille Site prepared by Dames & Moore dated January 11, 1995; (iv)
Environmental Audit at the CEAc Nanterre Site prepared by Dames & Moore dated
January 12, 1995; (v) Environmental Audit at the CEAc Nimes Site prepared by
Dames & Moore dated January 11, 1995; (vi) Environmental Audit at the CEAc
Peronne Site prepared by Dames & Moore dated January 11, 1995; (vii)
Environmental Audit at the CEAc Group GAST Site, Pont-Sainte-Maxence,
prepared by Dames & Moore dated January 12, 1995; (viii) Environmental Audit
at the CEAc Vierzon
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Site prepared by Dames & Moore dated January 10, 1995; (ix) Legal Assessment
of Environmental Situation at CEAc Facilities in France prepared by Gide
Loyrette Nouel dated January 16, 1995; (x) Environmental Due Diligence
Report: Accumulateurs Tudor (Belgium) prepared by ERM Belgium dated January
1995; (xi) Environmental Due Diligence Report: CMP Batterijen (Mortsel)
prepared by ERM Belgium dated January 1995; (xii) Environmental Due Diligence
Report: prepared by De Bandt, Van Hecke & Lague dated January 9, 1995 and
supplemented January 17, 1995; (xiii) Phase I Environmental Site Assessment
AS GmbH Werk Weiden prepared by Fugro-Ecolyse B.V. dated January 1995; (xiv)
Phase I Environmental Site Assessment Sonnenschein Lithium GmbH (Budingen)
prepared by Fugro-Ecolyse B.V. dated January 1995; (xv) Phase I Environmental
Site Assessment AS GmbH Hauptverwaltung und Werk Budingen (Thiergarten)
prepared by Fugro-Ecolyse B.V. dated January 1995; (xvi) Environmental Audit
Report prepared by Bruckhaus Westrick Stegemann dated January 13, 1995;
(xvii) Environmental Due Diligence Report: CGA - Casalnuovo Plant, Italy
prepared by ERM Italia s.r.l. dated January 1995; (xviii) Environmental Due
Diligence Report: SINAC, Romano di Lombardia Plant, Italy prepared by ERM
Italia s.r.l. dated November 1994; (xix) Environmental Due Diligence Report:
F.A.Y. - Fumane Plant, Italy prepared by ERM Italia s.r.l. dated November
1994; (xx) Environmental Legal Audit prepared by Gianni, Origoni & Partners
dated January 13, 1995; (xxi) Draft Report Phase I Environmental Site
Assessment CMP Batterijen B.V. (Vlaardingen) prepared by Fugro-Ecolyse B.V.
dated January 1995; (xxii) Due Diligence Report prepared by Loeff Claeys
Verbeke dated January 13, 1995; (xxiii) Phase I Environmental, Health &
Safety Audit: Centra S.A., Poznan, Poland, prepared by ERM Polska dated
January 1995; (xxiv) Phase I Environmental, Health & Safety Audit: Centra
S.A. Czarnkow, Poland, prepared by ERM Polska dated January 1995; (xxv)
Environmental Due Diligence Report prepared by Gide Loyrette Nouel dated
January 1995; (xxvi) Environmental Health & Safety Audit of CMP Limited
prepared by Environmental Resources Management dated January 1995; and
(xxvii) Environmental Audit Report prepared by Lovell White Durrant dated
January 10, 1995, and any other environmental report prepared in connection
with the CEAc Acquisition.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section
3(9) of ERISA) which together with the Company or any Subsidiary of the
Company would be deemed to be a "single employer" (i) within the meaning of
Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the
Company or a Subsidiary of the Company being or having been a general partner
of such person.
"Escudos" shall mean the freely transferable lawful money of
Portugal.
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"Euro Exide" means Euro Exide, Ltd.
"Eurodollar Loan" shall mean each Loan designated as such by the
Company at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to first-
class banks in the New York interbank Eurodollar market by BTCo for Dollar
deposits of amounts in immediately available funds comparable to the
outstanding principal amount of the Eurodollar Loan of BTCo with maturities
comparable to the Interest Period applicable to such Eurodollar Loan
commencing two Business Days thereafter as of 10:00 A.M. (New York time) on
the date which is two Business Days prior to the commencement of such
Interest Period, divided (and rounded off to the nearest 1/16 of 1%) by (b) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or any
successor category of liabilities under Regulation D).
"Evanite" shall mean Evanite Fiber Corporation.
"Event of Default" shall have the meaning provided in Section 11.
"Excess Cash Flow Percentage" shall mean a percentage which shall
be equal to 75%; provided that if on the relevant Excess Cash Payment Date
the Interest Reduction Discount then in effect is 1/2 of 1% or greater, then
the Excess Cash Flow Percentage for the respective Excess Cash Payment Date
and Excess Cash Payment Period shall instead be 50%.
"Excess Cash Payment Date" shall mean the date occurring 95 days
after the last day of each fiscal year of the Company (beginning with its
fiscal year ended March 31, 1996).
"Excess Cash Payment Period" shall mean with respect to the
repayment required on each Excess Cash Payment Date, (x) in the case of
Company Excess Cash Flow, the immediately preceding fiscal year of the
Company, (y) in the case of Tudor Excess Cash Flow, the period of four
consecutive fiscal quarters (taken as one accounting period) ended closest to
the immediately preceding March 31 and (z) in the case of CEAc Excess Cash
Flow, the period of four consecutive (taken as one accounting period and
including the whole of such period, even if a portion thereof occurs prior to
the CEAc Acquisition Date) ended closest to the immediately preceding March
31.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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"Exchange Rate" shall mean, when converting any amount denominated
in a currency (the "First Currency") into another currency (the "Second
Currency"), the rate determined in good faith by the Administrative Agent at
the opening of business (or close of business in the case of determinations
of reimbursement obligations with respect to Drawings) in New York, on the
date as to which any determination thereof is to be made, as the spot rate at
which such First Currency is offered for sale to the Administrative Agent
against delivery of the Second Currency by the Administrative Agent. If for
any reason the Exchange Rate for any currency cannot be calculated as
provided above, the Administrative Agent shall calculate the Exchange Rate on
such basis as it deems fair and equitable. In determining the Stated Amount
of any Letter of Credit denominated in a currency other than Dollars, the
Stated Amount thereof shall be determined by converting any currency other
than Dollars into Dollars, with (A) for purposes of Sections 1.01(c),
1.01(d), 2.01(d) and 4.02(a), the Exchange Rate to be calculated (x) on the
date of the issuance of such Letter of Credit, and (y) on the first Business
Day of each calendar month thereafter and (B) for purposes of Section 3.01,
the Exchange Rate shall be calculated on the first day of each month in the
quarterly period in which the respective payment is due pursuant to said
Sections. The Exchange Rate for all reimbursement obligations with respect
to Letters of Credit (including, without limitation, pursuant to Sections
2.04 and 2.05) shall be determined by using the Exchange Rate for conversion
of any currency other than Dollars into Dollars as in effect on the date the
respective Unpaid Drawing was paid by the Administrative Agent.
"Exide Canada" shall mean Exide Canada, Inc.
"Exide France" shall mean Exide France SA, a corporation organized
under the laws of the Republic of France.
"Exide Letter of Credit" shall have the meaning provided in Section
2.01(a)(i).
"Existing Chemical Credit Agreement" shall mean that certain
Amended and Restated Credit Agreement, dated as of December 17, 1992 among
the Company, the various lending institutions party thereto and Chemical
Bank, as agent thereunder, as in effect on the Effective Date.
"Existing Indebtedness" shall mean all Indebtedness of the Company
and its Subsidiaries or of Tudor and its Subsidiaries which is to remain
outstanding after giving effect to the Initial Borrowing Date, provided that
such Indebtedness shall only constitute Existing Indebtedness to the extent
same is listed on Schedule VI and does not exceed in principal amount at any
time outstanding the respective amount listed in said Schedule VI.
"Existing Indebtedness Agreements" shall have the meaning provided
in Section 5.05.
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"Existing Investments" shall have the meaning provided in Section
10.06.
"Existing Liens" shall have the meaning provided in Section
10.01(iii).
"Existing Swap" shall mean the rate swap transaction originally
entered into prior to the Effective Date between the Company and Chemical
Bank, which provides, for the period from September 1, 1995 through September
1, 2000, that the Company shall pay interest on the notional amount of
$60,000,000 to Chemical Bank at a fixed rate of 8.98% per annum and that
Chemical Bank shall pay interest to the Company on such notional amount at a
floating 6-month LIBOR rate.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to 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 for
such day (or, if such day is not a Business Day, for the next preceding
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 such day on such transactions received by the Agent from three
Federal Funds brokers of recognized standing selected by the Administrative
Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Fiat" shall mean Fiat SpA, a corporation organized under the laws
of Italy.
"Fifth Amendment" shall mean the Fifth Amendment to this Agreement,
dated as of April 18, 1995.
"Fifth Amendment Effective Date" shall have the meaning provided in
the Fifth Amendment.
"Final Draft CEAc Acquisition Stock Purchase Agreement" shall mean
the draft of the CEAc Acquisition Stock Purchase Agreement, draft dated March
1, 1995, in the form furnished to the Agents and the Banks prior to the date
of the Fourth Amendment.
"Final Draft CEAc Acquisition Warranty Agreement" shall mean the
draft of the CEAc Acquisition Warranty Agreement, attached as Annex A to the
Final Draft CEAc Acquisition Stock Purchase Agreement in the form furnished
to the Agents and the Banks on or prior to the date of the Fourth Amendment.
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"Foreign Pension Plan" means any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Company or any one or
more of its Subsidiaries primarily for the benefit of employees of the
Company or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA
or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the Company that
is incorporated under the laws of any jurisdiction other than the United
States of America, any State thereof, the United States Virgin Islands or
Puerto Rico.
"Foreign Subsidiary Guaranty" shall have the meaning provided in
Section 9.12.
"Fourth Amendment" shall mean the Fourth Amendment to this
Agreement, dated as of March 6, 1995.
"Fourth Amendment Effective Date" shall have the meaning provided
in the Fourth Amendment.
"French GAAP" shall mean generally accepted accounting principles
in the Republic of France consistently applied throughout the periods
involved (except to the extent a change is mandated pursuant to said
generally accepted accounted principles, is concurred in by the CEAc's
independent public accountants and is disclosed in writing with the
respective financial statements where the change is first made).
"GAAP" shall mean US GAAP, French GAAP or Spanish GAAP, as
applicable.
"Gemala" shall mean Gemala Holdings Limited.
"Guarantor" shall mean each Subsidiary Guarantor, each Foreign
Subsidiary party to a Foreign Subsidiary Guaranty, if any, and, after the
execution and delivery thereof, Tudor pursuant to the Tudor Guaranty.
"Guaranty" shall mean the Domestic Subsidiaries Guaranty, the Tudor
Guaranty and, after the execution and delivery thereof, each Foreign
Subsidiary Guaranty.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of polychlorinated biphenyls,
and radon gas; (b) any chemicals, materials
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<PAGE>
or substances defined as or included in the definition of "hazardous
substances," "hazardous waste," "hazardous materials," "extremely hazardous
substances," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants," or "pollutants," or words of similar import,
under any applicable Environmental Law; and (c) any other chemical, material
or substance, exposure to which is prohibited, limited or regulated by any
governmental authority under Environmental Laws.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all indebtedness (including principal, interest, fees and charges) of
such Person for borrowed money or for the deferred purchase price of property
or services, (ii) the maximum amount available to be drawn under all letters
of credit issued for the account of such Person and all unpaid drawings in
respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (to the extent of the value of
the respective property), (iv) the aggregate amount required to be
capitalized under leases under which such Person is the lessee, (v) all
obligations of such person to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
----
obligations, (vi) all Contingent Obligations of such Person and (vii) all
obligations under any Interest Rate Protection Agreement or Other Hedging
Agreement or under any similar type of agreement.
"Indentures" shall mean each of the Senior Note Indenture, the 2005
Senior Unsecured Note Indenture and the Senior Subordinated Note Indenture.
"Initial Approval" shall mean the approval of CNMV of the Initial
Tender Offer.
"Initial Blocked Commitment" at any time shall be the Dollar
Equivalent of all amounts which will be required to be covered through the
issuance of the Treasury Stock Letter of Credit, the Tudor Convertible Bond
Letter of Credit and each Banesto Letter of Credit which is, or will be,
required to be delivered to the Seller or Banesto in accordance with the
Purchase Agreement (it being understood that, as such Letters of Credit are
issued, the Initial Blocked Commitment will be reduced to such amounts, if
any, as must be reserved under the Total Revolving Loan Commitment to be
covered by such Letters of Credit that have not yet been issued), with the
amount of the Initial Blocked Commitment to be determined from time to time
in good faith by the Administrative Agent.
"Initial Borrowing Date" shall mean the date occurring on or after
the Effective Date on which the initial Credit Event hereunder occurs.
"Initial Offer to Purchase" shall mean the Offer to Purchase issued
by the Company in connection with the Initial Tender Offer, as amended,
modified or supplemented from time to time in accordance with Section 10.12
or with the consent of the Required Banks.
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"Initial Pledge Agreement" shall have the meaning provided in
Section 5.12.
"Initial Tender Offer" shall mean the tender offer commenced by the
Company pursuant to the Initial Offer to Purchase.
"Initial Tender Offer Credit Support" shall have the meaning
provided in Section 2.01(a)(ii).
"Initial Tender Offer Date" shall mean the date upon which the
Initial Tender Offer is consummated in accordance with the terms and
conditions contained in the Initial Tender Offer Documents.
"Initial Tender Offer Documents" shall mean, collectively, (i) the
Initial Offer to Purchase and related documents filed with the CNMV and/or
distributed to the Tudor Shareholders in connection therewith and (ii) the
Acquisition Documents.
"Initial Tender Offer Filing Date" shall mean the date upon which
the Company makes a filing with CNMV in connection with seeking the Initial
Approval.
"Initial Tender Offer Termination Date" shall have the meaning
provided in Section 3.03(i).
"Intercompany Note" shall have the meaning provided in Section
10.06.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate
swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement, interest rate floor agreement or other
similar agreement or arrangement.
"Interest Rate Protection or Other Hedging Agreement" shall mean
any Currency Hedging Agreement or Interest Rate Protection Agreement.
"Interest Reduction Discount" shall mean initially zero and from
and after any Start Date occurring on or after September 30, 1995 to and
including the corresponding End Date:
(A) 1/4 of 1% if, but only if, as of the Test Date for such Start
Date both of the following conditions are met and the conditions set
forth in none of clauses (B), (C), (D), (E) and (F) below are satisfied:
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(i) the Consolidated Interest Coverage Ratio for the Test Period
ended on such Test Date shall be greater than 2.00:1; and
(ii) Company Consolidated Indebtedness shall be equal to or less
than $800,000,000 at such time;
(B) 1/2 of 1% if, but only if, as of the Test Date for such Start
Date both of the following conditions are met and the conditions set
forth in none of clauses (C), (D), (E) and (F) below are satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test Period
ended on such Test Date shall be greater than 2.25:1; and
(ii) Company Consolidated Indebtedness shall be equal to or less
than $725,000,000 at such time;
(C) 3/4 of 1% if, but only if, as of the Test Date for such Start
Date both of the following conditions are met and the conditions set
forth in none of clauses (D), (E) and (F) below are satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test Period
ended on such Test Date shall be greater than 3.0:1; and
(ii) Company Consolidated Indebtedness shall be equal to or less
than $650,000,000 at such time;
(D) 1% if, but only if, as of the Test Date for such Start Date
both of the following conditions are met and the conditions set forth in
none of clauses (E) and (F) below are satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test Period
ended on such Test Date shall be greater than 3.5:1; and
(ii) Company Consolidated Indebtedness shall be equal to or less
than $575,000,000 at such time;
(E) 1-1/4% if, but only if, as of the Test Date for such Start
Date both of the following conditions are met and the conditions set
forth in clause (F) below are not satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test Period
ended on such Test Date shall be greater than 4.0:1; and
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(ii) Company Consolidated Indebtedness shall be equal to or less
than $500,000,000 at such time; or
(F) 1-1/2% if, but only if, as of the Test Date for such Start
Date both of the following conditions are met:
(i) the Consolidated Interest Coverage Ratio for the Test Period
ended on such Test Date shall be greater than 4.5:1; and
(ii) Company Consolidated Indebtedness shall be equal to or less
than $425,000,000 at such time.
Notwithstanding anything to the contrary contained above in this definition,
(x) the Interest Reduction Discount shall be reduced to zero at all times
when there shall exist a Default or an Event of Default and (y) in no event
shall the Interest Reduction Discount exceed (A) in the case of Loans other
than Tranche B Term Loans which are maintained as Base Rate Loans, 1.25% and
(B) in the case of Loans other than Tranche B Term Loans which are maintained
as Eurodollar Loans, 1.50%
"Investment" shall have the meaning provided in Section 10.6.
"Issuing Bank" shall mean any of BTCo, BA or BMO, and any Bank
which at the request of the Company and with the consent of each Agent
agrees, in such Bank's sole discretion, to become an Issuing Bank for the
purpose of issuing Letters of Credit pursuant to Section 2. To the extent
any Letter of Credit is denominated in a currency other than Dollars, any
Bank described above may cause a local affiliate of such Bank to issue the
respective Letter of Credit, and such local affiliate shall be deemed to be
the Issuing Bank of such Letter of Credit for purposes of this Agreement.
"L/C Supportable Indebtedness" shall mean (i) obligations of the
Company and its Subsidiaries (other than Tudor and its Subsidiaries) incurred
in the ordinary course of business with respect to insurance obligations and
workers' compensation, surety bonds and other similar statutory obligations
and (ii) such other obligations of the Company and its Subsidiaries (other
than Tudor and its Subsidiaries) as are reasonably acceptable to the
respective Issuing Bank and otherwise permitted to exist pursuant to the
terms of this agreement.
"Leaseholds" of any Person means all the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Letter of Credit" shall mean each Exide Letter of Credit, each
Banesto Letter of Credit, the Treasury Stock Letter of Credit, the Tudor
Convertible Bond Letter of Credit, the Initial Tender Offer Credit Support,
the Secondary Tender Offer Credit
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Support and each Additional Tudor Letter of Credit issued under this
Agreement. Notwithstanding the fact that the Initial Tender Offer Credit
Support and the Secondary Tender Offer Credit Support shall be issued in the
form of a bank guarantee by the respective Issuing Bank, such bank guarantee
shall be treated for all purposes of this Agreement as a Letter of Credit
issued hereunder.
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Limit" at any time shall mean an amount equal to
(x) $35 million plus (y) the aggregate Stated Amounts of all Letters of
Credit outstanding at such time pursuant to any of clauses (iii) through
(vi), inclusive, of Section 2.01(a).
"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii)
the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC
or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term
Loan, each Tranche C Term Loan, each Revolving Loan and each Swingline Loan.
"Majority Banks" of any Tranche shall mean those Non-Defaulting
Banks which would constitute the Required Banks under, and as defined in,
this Agreement if all outstanding Obligations of the other Tranches under
this Agreement were repaid in full and all Commitments with respect thereto
were terminated.
"Management Agreements" shall have the meaning provided in Section
5.05.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(e).
"Margin Reduction Period" shall mean each period which shall
commence on a date on which the financial statements are delivered pursuant
to Section 9.01(b) or (c) and which shall end on the earlier of (i) the date
of actual delivery of the next financial statements pursuant to Section
9.01(b) or (c) and (ii) the latest date on which the next financial
statements are required to be delivered pursuant to Section 9.01(b) or (c).
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"Margin Stock" shall have the meaning provided in Regulation U.
"Maturity Date" shall mean, with respect to any Tranche of Loans,
the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date,
the Tranche C Term Loan Maturity Date or the Revolving Loan Maturity Date, as
the case may be.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Unutilized Revolving Loan Commitment" shall mean
$50,000,000.
"Mortgage" shall have the meaning provided in Section 5.14 and,
after the execution and delivery thereof, shall include each Additional
Mortgage.
"Mortgage Amendment" shall have the meaning provided in Section
6A.12(b).
"Mortgage Policies" shall have the meaning provided in Section
5.14.
"Mortgaged Property" shall have the meaning provided in Section
5.14 and, after the execution and delivery of any Additional Mortgage, shall
include the respective Additional Mortgaged Property.
"Net Cash Proceeds" shall mean for any event requiring a repayment
pursuant to Section 4.02 or for the Subject Shares Issuance, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to
a promissory note, receivable or otherwise, but only as and when received)
received from such event, net of reasonable transaction costs (including, as
applicable, any underwriting, brokerage or other customary commissions and
reasonable legal, advisory and other fees and expenses associated therewith)
received from any such event.
"Net Sale Proceeds" shall mean for any sale of assets, the gross
cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from any sale of assets, net of reasonable transaction
costs (including, without limitation, any underwriting, brokerage or other
customary selling commissions and reasonable legal, advisory and other fees
and expenses, including title and recording expenses, associated therewith)
and payments of unassumed liabilities relating to the assets sold at the time
of, or within 30 days after, the date of such sale, the amount of such gross
cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Banks pursuant to this Agreement, other than the Senior
Subordinated Notes and the Senior Notes and other than any Indebtedness of
Tudor and its Subsidiaries entitled to the benefits of a Letter of Credit
issued hereunder) which is secured by the respective assets which were sold,
and the
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estimated marginal increase in income taxes which will be payable by the
Company's consolidated group with respect to the fiscal year in which the
sale occurs as a result of such sale; but excluding any portion of any such
gross cash proceeds which the Company determines in good faith should be
reserved for post-closing adjustments (to the extent the Company delivers to
the Banks a certificate signed by its chief financial officer, controller or
chief accounting officer as to such determination), it being understood and
agreed that on the day that all such post-closing adjustments have been
determined, (which shall not be later than six months following the date of
the respective asset sale), the amount (if any) by which the reserved amount
in respect of such sale or disposition exceeds the actual post-closing
adjustments payable by the Company or any of its Subsidiaries shall
constitute Net Sale Proceeds on such date received by the Company and/or any
of its Subsidiaries from such sale, lease, transfer or other disposition.
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Note" shall mean each Tranche A Term Note, each Tranche B Term
Note, each Tranche C Term Note, each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 130 Liberty Street, New York, New York 10006, Attention: Mary Kay
Coyle, or such other office as the Agent may hereafter designate in writing
as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Agents, the
Administrative Agent, the Collateral Agent or any Bank pursuant to the terms
of Agreement or any other Credit Document.
"Offer to Purchase" shall mean the Initial Offer to Purchase and
the Secondary Offer to Purchase.
"Option Shares" shall mean the 1,378,125 Tudor Shares defined as
Option Shares pursuant to the Purchase Agreement.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Agent located at One
Bankers Trust Plaza, New York, New York 10006, or such other office as the
Agent may hereafter designate in writing as such to the other parties hereto.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean the RL Percentage and the TL Percentage, as
the case may be.
"Permitted Acquisition" shall mean the acquisition by the Company
of all or substantially all of the assets of any Person (or all or
substantially all of the assets of a product line or division of any Person)
not already a Subsidiary of the Company or 100% of the capital stock of any
such Person (which capital stock may be purchased by the Company, or acquired
by way of a merger of the acquired Person with or into a newly created
Wholly-Owned Subsidiary of the Company created to effect the respective
Permitted Acquisition), provided, that any such acquisition shall only be a
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Permitted Acquisition so long as (A) the consideration therefor consists
solely of cash and/or common stock of the Company (issued at fair market
value determined as of the date of such Permitted Acquisition) and (B) 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 10.04. Neither the assets acquired by way
of any Permitted Acquisition, nor any Person created or acquired as a result
of a Permitted Acquisition, shall be permitted to have any Indebtedness
outstanding at the time of, or immediately after giving effect to, the
respective Permitted Acquisition, except that any Subsidiary acquired
pursuant to, or established to effect, a Permitted Acquisition, may assume or
continue Acquired Indebtedness as a result of a Permitted Acquisition
effected after March 31, 1996 in accordance with the requirements of Section
9.15, so long as (x) the aggregate principal amount of all Acquired
Indebtedness so incurred or assumed does not exceed $15,000,000 and (y) the
principal amount of Acquired Indebtedness incurred or assumed in connection
with any Permitted Acquisition shall be treated as a utilization of, and
shall reduce, the Company Retained Excess Cash Flow Amount. Notwithstanding
anything to the contrary contained in the immediately preceding sentence, an
acquisition shall be a Permitted Acquisition only if all requirements of
Section 9.15 with respect to Permitted Acquisitions are met with respect
thereto.
"Permitted Acquisition Notice" shall have the meaning provided in
Section 9.15.
"Permitted Encumbrance" shall mean, with respect to any Mortgaged
Property, such exceptions to title as are set forth in the title insurance
policy or title commitment delivered with respect thereto, all of which
exceptions must be acceptable to the Agents in their reasonable discretion.
"Permitted Liens" shall have the meaning provided in Section 10.01.
"Permitted Sales Branch Acquisitions" shall have the meaning
provided in Section 10.02.
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"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government
or political subdivision or any agency, department or instrumentality
thereof.
"Pesetas" shall mean the freely transferable lawful money of the
Kingdom of Spain.
"Plan" shall mean any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), the Company or a
Subsidiary of the Company or an ERISA Affiliate, and each such plan for the
five year period immediately following the latest date on which the Company,
a Subsidiary of the Company or an ERISA Affiliate maintained, contributed to
or had an obligation to contribute to such plan.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in each of the Pledge Agreements.
"Pledge Agreements" shall mean the Initial Pledge Agreement and,
after the execution and delivery thereof, the Tudor Shares Pledge Agreement
and any other pledge agreement executed and delivered pursuant to the
requirements of this Agreement.
"Pledged Securities" shall mean "Pledged Securities" as defined in
each of the Pledge Agreements.
"Pledged Stock" shall mean "Pledged Stock" as defined in the Pledge
Agreement.
"Preliminary Offering Memorandum" shall mean the Preliminary
Offering Memorandum, dated as of April 10, 1995, providing for the issuance
by the Company of an aggregate principal amount of $225,000,000 of the 2005
Senior Unsecured Notes, as in effect on the Fifth Amendment Effective Date
and with any amendments, modifications or supplements thereto as are
reasonably satisfactory to the Agents and Required Banks.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo may make commercial loans or other
loans at rates of interest at, above or below the Prime Lending Rate.
"Projections" shall have the meaning provided in Section 5.15.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
July 22, 1994, between the Company and the Seller as in effect on the
Effective Date and as
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amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December, occurring after the Initial Borrowing
Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
the same may be amended from time to time, 42 U.S.C. (S) 6901 et seq.
-- ----
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Receivables Facility" shall mean (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 Effective Date, but giving effect to (x)
extensions of the termination date thereunder, (y) increases in the committed
amount thereof after the Effective Date, but only if the respective increases
are approved in writing by the Required Banks, and (z) other changes thereto
approved by the Required Banks 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 Banks.
"Receivables Facility Attributed Indebtedness" at any time shall
mean the aggregate amount theretofore paid to the Company and/or its
Subsidiaries in respect of the receivables sold by it pursuant to the
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
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 Receivables Facility if same were
structured as a secured lending agreement rather than a purchase agreement).
"Receivables Facility Commitment" shall mean the aggregate
commitments to purchase receivables pursuant to the Receivables Facility as
in effect from time to time.
"Receivables Financier" shall mean Three Rivers Funding Corporation
or any other purchaser pursuant to the Receivables Facility as then in
effect.
"Receivables Maximum Commitment Amount" shall initially mean
$40,000,000; provided that such amount may be increased from time to time
after the Initial Borrowing Date as the Receivables Facility Commitment
pursuant to the Receivables Facility (or the various facilities comprising
the Receivables Facility) is increased; provided further that (i) the
Receivables Maximum Commitment Amount shall at no time exceed $90,000,000 and
(ii) on each date upon which the Receivables Commitment is increased
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to an amount in excess of $40,000,000 (or in excess of the highest amount to
which the Receivables Maximum Commitment Amount has theretofore been raised
after the Initial Borrowing Date and before such increase), there shall be a
reduction to the Total Revolving Loan Commitment in the amount of such
increase pursuant to Section 3.03(k).
"Recovery Event" shall mean the receipt by the Company or any of
its Subsidiaries of any cash insurance proceeds or condemnation award payable
by reason of theft, loss, physical destruction, damage, condemnation or any
other similar event with respect to any property or assets of the Company or
any of its Subsidiaries. The term "Recovery Event" shall not include the
receipt of proceeds of any Environmental Insurance Claim.
"Refinancing" shall mean by the Company of all amounts outstanding
and the termination of all commitments under the refinancing of the Existing
Chemical Credit Agreement and the release of any guaranties of security in
connection therewith.
"Register" shall have the meaning provided in Section 14.15.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Remaining Tudor Convertible Bonds" shall mean the Tudor
Convertible Bonds which were not tendered in the Initial Tender Offer (other
than such Tudor
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Convertible Bonds held by the Seller which the Seller has agreed not to
tender in accordance with the Purchase Agreement).
"Remaining Tudor Shares" shall mean the Tudor Shares which were not
tendered in the Initial Tender Offer (other than the Option Shares).
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(b)
of ERISA with respect to a Plan other than those events as to which the 30-
day notice period is waived under subsection .13, .14, .16, .18, .19 or .20
of PBGC Regulation Section 2615.
"Required Appraisals" shall have the meaning provided in Section
9.11(f).
"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
outstanding Tranche A Term Loans and TL Percentages of Tranche A Letter of
Credit Outstandings, Tranche B Term Loans, Tranche C Term Loans (or, if prior
to the Tranche C Term Loan Borrowing Date, Tranche C Term Loan Commitments)
and Revolving Loan Commitments (or after the termination thereof, outstanding
Revolving Loans and Adjusted RL Percentages of Swingline Loans and Revolving
Letter of Credit Outstandings) represent an amount greater than 50% of the
sum of all outstanding Tranche A Term Loans and Tranche A Letter of Credit
Outstandings of Non-Defaulting Banks, all outstanding Tranche B Term Loans of
Non-Defaulting Banks, all outstanding Tranche C Term Loans (or, if prior to
the Tranche C Term Loan Borrowing Date, Tranche C Term Loan Commitments) of
Non-Defaulting Banks and the Adjusted Total Revolving Loan Commitment (or
after the termination thereof, the sum of the then total outstanding
Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted RL
Percentages of all Non-Defaulting Banks of the total outstanding Swingline
Loans and Revolving Letter of Credit Outstandings at such time).
"Required Tranche C Banks" shall mean Non-Defaulting Banks, the sum
of whose outstanding Tranche C Term Loans (or, if prior to the Tranche C Term
Loan Borrowing Date, Tranche C Term Loan Commitments) represents an amount
greater than 50% of the sum of all outstanding Tranche C Term Loans (or, if
prior to the Tranche C Term Loan Borrowing Date, Tranche C Term Loan
Commitments) of Non-Defaulting Banks.
"Restricted Collateral" shall mean any Principal Property, or any
shares of capital stock or indebtedness of any Restricted Subsidiary, with
all of the preceding terms defined by reference to the Senior Note Indenture
as in effect on the Effective Date; provided that, notwithstanding anything
to the contrary contained above, in no event shall
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(i) the capital stock of CEAc US Holdco or its Subsidiaries constitute
Restricted Collateral, (ii) any CEAc Acquisition Intercompany Indebtedness or
CEAc Acquisition Intercompany Notes constitute Restricted Collateral or (iii)
any other capital stock or Indebtedness which is permitted to secure all
amounts outstanding under this Agreement as a result of the provisions of
Section 4.8(v) of the Senior Note Indenture (as added pursuant to the First
Supplemental Indenture thereto) constitute Restricted Collateral.
"Restricted Collateral Amount" shall mean the sum of (i) $162
million plus (ii) the Consolidated Net Tangible Asset Amount at such time
(which Consolidated Net Tangible Asset Amount shall at all times be at least
$43 million, and shall at all times be at least equal to the highest amount
which the Consolidated Net Tangible Amount has therefore been) minus (iii)
the aggregate cash proceeds realized after the Effective Date from the
enforcement of remedies pursuant to the Security Documents, but only to the
extent representing proceeds of Restricted Collateral actually applied to
repay principal of Loans.
"Restricted Collateral Secured Portion" shall have the meaning
provided in Section 14.17(b).
"Retained Excess Cash Flow Percentage" shall mean a percentage
which shall be equal to 25%; provided that if on the relevant Excess Cash
Payment Date the Excess Cash Flow Percentage is 50%, then the Retained Excess
Cash Flow Percentage shall also be 50%.
"Returns" shall have the meaning provided in Section 8.09.
"Revolver Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Revolving Allocated Portion" of the Initial Tender Offer Credit
Support shall mean the Stated Amount thereof less the Tranche A Allocated
Portion thereof at such time.
"Revolving Credit Participant" shall have the meaning provided in
Section 2.04(a).
"Revolving Letter of Credit Outstandings" shall mean at any time,
the sum of (i) the Revolving Allocated Portion of the Stated Amount of the
Initial Tender Offer Credit Support, (ii) the aggregate Stated Amount of all
other outstanding Letters of Credit (i.e., all Letters of Credit other than
the Initial Tender Offer Credit Support), (iii) the amount of all Unpaid
Drawings under the Initial Tender Offer Credit Support to the extent same are
participated in by the Revolving Credit Participants pursuant to Section 2.04
and (iv) the amount of all Unpaid Drawings under all other Letters of Credit
(i.e., all Letters of Credit other than the Initial Tender Offer Credit
Support).
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"Revolving Loan" shall have the meaning provided in Section
1.01(c).
"Revolving Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I hereto directly below the
column entitled "Revolving Loan Commitment," as same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 11 or (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant to
Section 1.13 or 14.04(b).
"Revolving Loan Maturity Date" shall mean September 30, 1999.
"Revolving Note" shall have the meaning provided in Section
1.05(a).
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the
Total Revolving Loan Commitment at such time, provided that if the RL
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Percentage of any Bank is to be determined after the Total Revolving Loan
Commitment has been terminated, then the RL Percentages of the Banks shall be
determined immediately prior (and without giving effect) to such termination.
"Scheduled Commitment Reduction" shall have the meaning provided in
Section 3.03(d).
"Scheduled Commitment Reduction Date" shall have the meaning
provided in Section 3.03(d).
"Scheduled Repayments" shall mean the Tranche A Scheduled
Repayments, the Tranche B Scheduled Repayments and the Tranche C Scheduled
Repayments.
"SEC" shall have the meaning provided in Section 9.01(h).
"Secondary Approval" shall mean the approval of CNMV of the
Secondary Tender Offer.
"Secondary Offer to Purchase" shall mean the Offer to Purchase to
be issued by the Company in connection Secondary Tender Offer in form and
substance satisfactory to the Agents and the Required Banks.
"Secondary Tender Offer" shall mean a tender offer commenced by the
Company pursuant to the Secondary Offer to Purchase.
"Secondary Tender Offer Blocked Commitment" shall mean an amount
equal to the remainder of (x) $239 million minus (y) the aggregate purchase
price paid (or, if greater, required to be paid) by the Company for the
purchase of Tudor Shares and Tudor
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Convertible Bonds actually tendered pursuant to the Initial Tender Offer,
calculated by taking the Dollar Equivalent thereof at the time the respective
payments are made (or, to the extent not yet made, the Dollar Equivalent
thereof at the time of determination); provided that the Secondary Tender
Offer Blocked Commitment shall be (x) reduced from time to time to the extent
that reductions are made to the Total Revolving Loan Commitment after the
Initial Tender Offer Date pursuant to Section 3.02(a) which specifically are
allocated to reduce the Secondary Tender Offer Blocked Commitment as provided
in said Section 3.02(a) and (y) reduced to $0 immediately after such time, if
any, as the Total Revolving Loan Commitment is reduced pursuant to Section
3.03(f).
"Secondary Tender Offer Credit Support" shall have the meaning
provided in Section 2.01(a)(vi).
"Secondary Tender Offer Date" shall mean the date of the
consummation of the Secondary Tender Offer.
"Secondary Tender Offer Documents" shall mean the Secondary Offer
to Purchase and related documents filed with the CNMV and/or distributed to
the Tudor Shareholders in connection therewith.
"Secondary Tender Offer Filing Date" shall mean the date upon which
the Company makes a filing with CNMV in connection with seeking the Secondary
Approval.
"Secondary Tender Offer Maximum Offered Consideration" shall mean
the maximum amount which will be required to be paid by the Company in
connection with the consummation of the purchase of the Remaining Tudor
Shares and the Remaining Tudor Convertible Bonds pursuant to the Secondary
Tender Offer if all such shares and bonds are tendered in accordance with the
terms thereof.
"Secondary Tender Offer Payment" shall mean the amount, if any,
paid (or, if greater, required to be paid) by the Company in connection with
the consummation of the purchase of the Remaining Tudor Shares and the
Remaining Tudor Convertible Bonds pursuant to the Secondary Tender Offer.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided
in Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term in
the Security Documents.
"Secured Interest Rate Protection or Other Hedging Agreement" shall
mean any Interest Rate Protection or Other Hedging Agreement which is secured
pursuant to the Security Documents in accordance with the terms thereof, but
shall in any event exclude
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any such agreement which constitutes Existing Indebtedness prior to the
Effective Date and remains outstanding thereafter.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Security Agreement" shall have the meaning provided in Section
5.13.
"Security Agreement Collateral" shall mean all "Collateral" as
defined in each Security Agreement.
"Security Document" shall mean each Pledge Agreement, the Security
Agreement, each Mortgage and, after the execution and delivery thereof, each
Additional Mortgage, each Tudor Security Document and each Additional
Security Document.
"Seller" shall mean Corporacion Industrial y Financiera de Banesto.
"Seller Convertible Bonds" means the 299,827 Tudor Convertible
Bonds owned by the Seller as described in the Purchase Agreement.
"Seller Tender Date" shall mean the date upon which the Seller
delivers certificates representing 14,412,929 Tudor Shares pursuant to the
terms of the Initial Tender Offer and the Purchase Agreement.
"Senior Note Indenture" shall mean the Indenture, dated as of
December 17, 1992, between the Company and Bank of Montreal Trust Company, as
trustee, pursuant to which the Senior Notes were issued.
"Senior Notes" shall mean the Company's 10-3/4% Senior Notes due
2002 issued pursuant to the Senior Note Indenture.
"Senior Subordinated Note Indenture" shall mean the Indenture,
dated as of December 17, 1992, between the Company and The Bank of New York,
as trustee, pursuant to which the Senior Subordinated Notes were issued.
"Senior Subordinated Notes" shall mean the Company's 12-1/4% Senior
Subordinated Deferred Coupon Debentures due 2004, issued pursuant to the
Senior Subordinated Note Indenture.
"Seventh Amendment" shall mean the Seventh Amendment to this
Agreement, dated as of April 24, 1995.
"Seventh Amendment Effective Date" shall have the meaning provided
in the Seventh Amendment.
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"Shareholders' Agreements" shall have the meaning provided in
Section 5.05.
"Sixth Amendment" shall mean the Sixth Amendment to this Agreement,
dated as of April 21, 1995.
"Sixth Amendment Effective Date" shall have the meaning provided in
the Sixth Amendment.
"SLCV" shall have the meaning provided in Section 2.01.
"Sonnenschein" shall mean Accumulatorenfabrik Sonnenschein GmbH, a
German corporation registered in Budingen, Germany.
"Spanish GAAP" shall mean generally accepted accounting principles
in the Kingdom of Spain consistently applied throughout the periods involved
(except to the extent a change is mandated pursuant to said generally
accepted accounted principles, is concurred in by the Tudor's independent
public accountants and is disclosed in writing with the respective financial
statements where the change is first made).
"Specified Competition Counsel" shall mean, collectively, (i) with
respect to France, Gide Loyrette Nouel, (ii) with respect to Spain, J&H
Garrigues, (iii) with respect to the United Kingdom, Lovell White Durrant,
and (iv) with respect to Belgium, De Bandt, Van Hecke & Lagae.
"Specified Competition Counsel Opinions" shall mean, collectively,
(i) the Memorandum, dated February 16, 1995, from Gide Loyrette Nouel
addressed to Carter Emerson of Kirkland & Ellis; (ii) the Memorandum, dated
February 20, 1995, from Lovell White Durrant addressed to Carter Emerson of
Kirkland Ellis; (iii) the Memorandum, dated February 17, 1995, from J&H
Garrigues addressed to Carter Emerson of Kirkland & Ellis; and (iv) the
Memorandum, dated February 16, 1995, from De Bandt, Van Hecke & Lagae
addressed to Carter Emerson of Kirkland & Ellis.
"Specified Jurisdiction" shall mean each of France, Spain, the
United Kingdom and Belgium.
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a)(i).
"Start Date" shall have the meaning provided in the definition of
Applicable Commitment Commission Percentage.
"Stated Amount" of each Letter of Credit shall, at any time, mean
the maximum amount available to be drawn thereunder (in each case determined
without regard
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to whether any conditions to drawing could then be met); provided, that the
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"Stated Amount" of each Letter of Credit denominated in a currency other than
Dollars shall be, on any date of calculation, the Dollar Equivalent of the
maximum amount available to be drawn in the respective currency thereunder
(determined without regard to whether any conditions to drawing could then be
met). Notwithstanding anything to the contrary contained above, for purposes
of making calculations pursuant to this Agreement, the Stated Amount of (x)
the Initial Tender Offer Credit Support at any time after the occurrence of
the Initial Tender Offer Date shall be calculated from time to time by the
Administrative Agent in good faith based upon what it believes is the maximum
amount which could be drawn thereunder (based upon the aggregate purchase
price required to be paid for the Tudor Shares and Tudor Convertible Bonds
actually tendered pursuant to the Initial Tender Offer), provided that such
calculation shall not alter the liabilities of the Banks to participate in
the Initial Tender Offer Credit Support as provided in Section 2 and (y) the
Secondary Tender Offer Credit Support at any time after the occurrence of the
Secondary Tender Offer Date shall be calculated from time to time by the
Administrative Agent in good faith based upon what it believes is the maximum
amount which could be drawn thereunder (based upon the aggregate purchase
price required to be paid for the Remaining Tudor Shares and Remaining Tudor
Convertible Bonds actually tendered pursuant to the Secondary Tender Offer),
provided that such calculation shall not alter the liabilities of the Banks
to participate in the Secondary Tender Offer Credit Support as provided in
Section 2.
"Subject Shares" shall mean 5,175,000 shares of common stock of the
Company issued pursuant to the Subject Shares Issuance.
"Subject Shares Issuance" shall mean the public issuance of the
Subject Shares pursuant to a form S-1 Registration Statement, dated November
23, 1994, with the Subject Shares Issuance to include the related exercise of
the underwriters' over-allotment option.
"Subrogation Rights Agreement" shall have the meaning provided in
Section 5.21.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
and/or one or more Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Subsidiaries of such Person has more than a 50% equity interest at the
time. Notwithstanding anything to the contrary contained above, for purposes
of Section 8 of this Agreement, Tudor and its Subsidiaries shall at all times
be included as Subsidiaries of the Company, regardless of whether the Initial
Tender Offer shall have been consummated, until such time, if any, as the
Initial Tender Offer is withdrawn, cancelled or declared void without the
purchase of
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Tudor Shares thereunder and the reduction to the Total Revolving Loan
Commitment contemplated by Section 3.03(i) is effected.
"Subsidiary Guarantor" shall mean each Subsidiary of the Company
which is, or becomes, party to a Guaranty.
"Supermajority Banks" of any Tranche shall mean those Non-
Defaulting Banks which would constitute the Required Banks under, and as
defined in, this Agreement if (x) all outstanding Obligations of the other
Tranches under this Agreement were repaid in full and all Commitments with
respect thereto were terminated and (y) the percentage "50%" contained
therein were changed to "66-2/3%."
"Swingline Bank" shall mean BTCo.
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Loans" shall have the meaning provide in Section
1.01(d).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndication Termination Date" shall mean the earlier of (x) the
90th day after the Initial Borrowing Date or (y) that date upon which the
Agents determine in their sole discretion (and notify the Company) that the
primary syndication (and resultant addition of institutions as Banks pursuant
to Section 14.04) has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tax Sharing Agreements" shall have the meaning provided in Section
5.05.
"Tender Offer" shall mean the Initial Tender Offer and the
Secondary Tender Offer.
"Tender Offer Documents" shall mean collectively, the Initial
Tender Offer Documents and, after the entering into or dissemination thereof,
the Secondary Tender Offer Documents.
"Term Loan" shall mean any Tranche A Term Loan, Tranche B Term Loan
or Tranche C Term Loan.
"Term Loan Commitment" shall mean each Tranche A Term Loan
Commitment, Tranche B Term Loan Commitment, and Tranche C Term Loan
Commitment, with the Term Loan Commitment of any Bank at any time to equal
the sum
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of its Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and
Tranche C Term Loan Commitment as then in effect.
"Test Date" shall have a meaning provided in the definition of
Applicable Commitment Commission Percentage.
"Test Period" shall mean the period of four consecutive fiscal
quarters (taken as one accounting period) ended on the respective Test Date.
"Third Amendment Effective Date" shall have the meaning provided in
the Third Amendment to this Agreement, dated as of February 3, 1995.
"TL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Tranche A Term Loan
Commitment of such Bank at such time and the denominator of which is the
Total Tranche A Term Loan Commitment at such time, provided that if the TL
--------
Percentage of any Bank is to be determined after the Total Tranche A Term
Loan Commitment has been terminated, then the TL Percentages of the Banks
shall be determined immediately prior (without giving effect) to such
termination.
"Total Available Revolving Loan Commitment" shall mean at any time,
the Total Revolving Loan Commitment less the Blocked Commitment, if any, at
such time.
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Banks.
"Total Term Loan Commitment" shall mean at any time the sum of the
Total Tranche A Term Loan Commitment, the Total Tranche B Term Loan
Commitment, and the Total Tranche C Term Loan Commitment.
"Total Tranche A Term Loan Commitment" shall mean, at any time, the
sum of the Tranche A Term Loan Commitments of each of the Banks.
"Total Tranche B Term Loan Commitment" shall mean, at any time, the
sum of the Tranche B Term Loan Commitments of each of the Banks.
"Total Tranche C Term Loan Commitment" shall mean, at any time, the
sum of the Tranche C Term Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less
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(y) the sum of the aggregate principal amount of Revolving Loans and
Swingline Loans outstanding plus the then aggregate amount of the Revolving
Letter of Credit Outstandings.
"Trade Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being five separate Tranches,
i.e., Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans,
----
Revolving Loans and Swingline Loans.
"Tranche A Allocated Amount" at any time shall mean (i) an amount
equal to the Total Tranche A Term Loan Commitment on the Initial Borrowing
Date after giving effect to the incurrence of any Tranche A Term Loans on
such date (and the resultant reductions to the Total Tranche A Term Loan
Commitment pursuant to Section 3.02(b) on or prior to such date), less (ii)
the aggregate amount of Drawings (taking the Dollar Equivalent thereof on the
dates of the respective Drawings are made) funded by the Tranche A
Participants with respect to the Initial Tender Offer Credit Support after
the Initial Borrowing Date and, without duplication (i.e., excluding Tranche
----
A Loans the proceeds of which are used to fund Drawings described above in
this clause (ii)), the aggregate principal amount of any Tranche A Term Loans
made by the Tranche A Participants after the Initial Borrowing Date.
"Tranche A Allocated Portion" of the Initial Tender Offer Credit
Support at any time shall mean the lesser of (i) the Stated Amount of such
Letter of Credit or (ii) the Tranche A Allocated Amount as then in effect.
"Tranche A Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Tranche A Letter of Credit Outstandings" shall mean, at any time,
the sum of (i) the Tranche A Allocated Portion of the Stated Amount of the
Initial Tender Offer Credit Support and (ii) the amount of all Unpaid
Drawings under the Initial Tender Offer Credit Support which are participated
in by the Tranche Participants pursuant to Section 2.04.
"Tranche A Participant" shall have the meaning provided in Section
2.04(a).
"Tranche A Scheduled Repayment" shall have the meaning provided in
Section 4.02(b).
"Tranche A Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(b).
"Tranche A Term Loan" shall have the meaning provided in Section
1.01(a).
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"Tranche A Term Loan Borrowing Date" shall have the meaning
provided in Section 1.01(a).
"Tranche A Term Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche A Term Loan Commitment", as the same may
be (x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or 11 or
(y) adjusted from time to time as a result of assignments to or from such
Bank pursuant to Sections 1.13 and/or 14.04.
"Tranche A Term Loan Maturity Date" shall mean September 30, 1999.
"Tranche A Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche B Scheduled Repayment" shall have the meaning provided in
Section 4.02(c).
"Tranche B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(c).
"Tranche B Term Loan" shall have the meaning provided in Section
1.01(b).
"Tranche B Term Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche B Term Loan Commitment", as the same may
be (x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or 11 or
(y) adjusted from time to time as a result of assignments to or from such
Bank pursuant to Sections 1.13 and/or 14.04(b).
"Tranche B Term Loan Maturity Date" shall mean September 30, 2001.
"Tranche B Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche C Bank" shall mean each Bank with a Tranche C Term Loan
Commitment or an outstanding Tranche C Term Loan.
"Tranche C Commitment Commission" shall have the meaning provided
in Section 3.01(f).
"Tranche C Expiration Date" shall mean September 30, 1995.
"Tranche C Scheduled Repayment" shall have the meaning provided in
Section 4.02(n).
"Tranche C Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(n).
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"Tranche C Syndication Termination Date" shall mean the earlier of
(x) the 90th day after the Tranche C Term Loan Borrowing Date or (y) that
date upon which the Agents determine in their sole discretion (and notify the
Company) that the primary syndication (and resultant addition of institutions
as Banks pursuant to Section 14.04) relating to Tranche C Term Loan
Commitments has been completed.
"Tranche C Term Loan" shall have the meaning provided in Section
1.01(f).
"Tranche C Term Loan Borrowing Date" shall mean the date on which
the Borrowing of Tranche C Term Loans occurs.
"Tranche C Term Loan Commitment" shall mean, for each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Tranche C Term Loan Commitment", as the same may
be (x) reduced from time to time pursuant to Sections 3.03, 4.02 and/or 11 or
(y) adjusted from time to time as a result of assignments to or from such
Bank pursuant to Sections 1.13 and/or 14.04.
"Tranche C Term Loan Maturity Date" shall mean June 30, 2002.
"Tranche C Term Note" shall have the meaning provided in Section
1.05(a).
"Transaction" shall mean, collectively, the consummation of the
Initial Acquisition, the Initial Tender Offer, the Treasury Stock Repurchase,
the Refinancing, the providing of the Letters of Credit, and the payment of
all fees and expenses in connection therewith.
"Treasury Stock Letter of Credit" shall have the meaning provide in
Section 2.01(a)(iii).
"Treasury Stock Repurchase" shall mean the purchase by Tudor of the
Option Shares from the Seller in accordance with Clause Three of the Purchase
Agreement at a price equal to 1,145 Pesetas per Tudor Share plus, in the case
of any such Tudor Shares to be purchased pursuant to the Seller's put option
as described in said Clause Three, accrued interest thereon at the rate of 9%
per annum from the date of the consummation of the Initial Tender Offer to
the date such Option Shares are sold or purchased in accordance with the
terms of the Purchase Agreement.
"Tudor" shall mean Sociedad Espanola Del Acumulador Tudor, S.A., a
Company incorporated under the laws of the Kingdom of Spain.
"Tudor Adjusted Consolidated Net Income" for any period shall mean
Tudor Consolidated Net Income for such period plus, without duplication, the
sum of the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense and non-cash interest
expense, but excluding any net non-cash charges
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reflected in Tudor Adjusted Consolidated Working Capital) and net non-cash
losses which were included in arriving at Tudor Consolidated Net Income for
such period less the sum of the amount of all net non-cash gains (exclusive
of items reflected in Tudor Adjusted Consolidated Working Capital) included
in arriving at Tudor Consolidated Net Income for such period.
"Tudor Adjusted Consolidated Working Capital" at any time shall
mean Tudor Consolidated Current Assets (but excluding therefrom all cash and
Cash Equivalents) less Tudor Consolidated Current Liabilities.
"Tudor Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of Tudor and its consolidated Subsidiaries.
"Tudor Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of Tudor and its consolidated
Subsidiaries at such time, but excluding (i) the current portion of any long-
term Indebtedness which would otherwise be included therein and (ii) the
current portion of Indebtedness constituting Capitalized Lease Obligations.
"Tudor Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of Tudor and its Subsidiaries determined on
a consolidated basis in accordance with Spanish GAAP; provided that (x) to
the extent that Tudor or any of its Subsidiaries pays any dividends, or makes
payments with respect to Indebtedness owing, to the Company or any of its
Domestic Wholly-Owned Subsidiaries (other than Tudor and its Subsidiaries) or
any payments of management fees or other amounts are paid to the Company or
such Subsidiaries of the Company during the respective period (but excluding
all repatriations to the extent required pursuant to Section 4.02(i)), such
amounts shall be deducted (without duplication of amounts already deducted in
determining Tudor Consolidated Net Income) in determining Tudor Consolidated
Net Income (taking the Dollar Equivalent of the amount of any such payment
made in currencies other than Dollars at the time the respective payment is
made), regardless of the treatment of such amounts under Spanish GAAP and (y)
except as provided in preceding clause (x), Tudor Consolidated Net Income
shall not be reduced by any interest or any other expenses associated with
promissory notes payable by Tudor and/or its Subsidiaries to, or loans or
advances incurred by Tudor and its Subsidiaries from, the Company and its
Subsidiaries.
"Tudor Convertible Bondholders" shall mean each Person that legally
and beneficially owns Tudor Convertible Bonds from time to time.
"Tudor Convertible Bond Letter of Credit" shall have the meaning
provided in Section 2.01(a)(iv).
"Tudor Convertible Bonds" shall mean the convertible bonds of Tudor
as described in the Purchase Agreement.
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"Tudor Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Tudor Adjusted Consolidated Net Income for such period,
(ii) the decrease, if any, in Tudor Adjusted Consolidated Working Capital
from the first day to the last day of such period and (iii) the aggregate Net
Sale Proceeds from sales of assets (excluding sales of inventory in the
ordinary course of business) by Tudor and its Subsidiaries during such period
to the extent the proceeds thereof were not required to be applied pursuant
to Section 4.02 and to the extent such proceeds are not already reflected in
Tudor Adjusted Consolidated Net Income for such period, minus (b) the sum of
(i) the amount of Capital Expenditures made by Tudor and its Subsidiaries on
a consolidated basis during such period pursuant to and in accordance with
Section 10.08, except to the extent financed with the proceeds of
Indebtedness or pursuant to Capitalized Lease Obligations, (ii) the aggregate
amount of permanent principal payments of Indebtedness for borrowed money of
Tudor and its Subsidiaries and the permanent principal payments of
Indebtedness for borrowed money of Tudor and its Subsidiaries and the
permanent repayment of the principal component of Capitalized Lease
Obligations of Tudor and its Subsidiaries (excluding (1) payments with
proceeds of asset sales, (2) payments pursuant to any Letter of Credit or
with the proceeds of other Indebtedness or equity and (3) payments to the
Company or any of its Subsidiaries) during such period and (iii) the
increase, if any, in Tudor Adjusted Consolidated Working Capital from the
first day to the last day of such period. The foregoing calculation (and all
components as used therein) shall be made in Pesetas; provided that the
amount of Tudor Excess Cash Flow for any Excess Cash Payment Period shall be
the Dollar Equivalent of the amount so determined, with the calculation of
the Dollar Equivalent of such amount to be made on the respective Excess Cash
Payment Date.
"Tudor Guaranty" shall have the meaning provided in Section 9.21
"Tudor Security Documents" shall have the meaning provided in
Section 9.11(b).
"Tudor Shareholders" shall mean each Person that legally and
beneficially owns Tudor Shares as such Persons are identified on Tudor's
share registry from time to time.
"Tudor Shares" shall man the shares of capital stock, 500 Pesetas
par value per share, of Tudor.
"Tudor Shares Pledge Agreement" shall have the meaning provided in
Section 10.17.
"Tudor Percentage" shall mean, at any time, that percentage as is
equal to the aggregate percentage of outstanding common stock of Tudor owned
by the Company and its Subsidiaries (excluding Tudor and its Subsidiaries).
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"2005 Escrow Account" shall have the meaning provided in Section
10.05(xvi).
"2005 Escrow Agreement" shall have the meaning provided in Section
10.05(xvi).
"2005 Senior Unsecured Exchange Notes" shall mean the notes of the
Company which notes shall not contain any provision for the increase in the
rate of interest as otherwise provided for in the 2005 Senior Unsecured Notes
and shall not limit the transferability of such notes, but shall otherwise be
substantially identical to the 2005 Senior Unsecured Notes theretofore
issued, and which notes shall be issued pursuant to the 2005 Senior Unsecured
Note Indenture.
"2005 Senior Unsecured Note Documents" shall mean all documents or
agreements related to the consummation of the 2005 Senior Unsecured Notes
Issuance, including, without limitation, the 2005 Senior Unsecured Note
Indenture, the Preliminary Offering Memorandum, the 2005 Escrow Agreement and
all other documents and agreements entered into in connection therewith.
"2005 Senior Unsecured Note Exchange" shall mean the exchange of
the 2005 Senior Unsecured Exchange Notes for the 2005 Senior Unsecured Notes.
"2005 Senior Unsecured Note Exchange Documents" shall mean all
documents or agreements relating to the consummation of the 2005 Senior
Unsecured Note Exchange and all other documents and agreements entered into
in connection therewith, each of which 2005 Senior Unsecured Note Exchange
Documents shall be in form and substance satisfactory to the Agents and the
Required Banks.
"2005 Senior Unsecured Note Indenture" shall mean the Indenture to
be entered into by the Company, pursuant to which the 2005 Senior Unsecured
Notes (including any 2005 Senior Unsecured Exchange Notes) are to be issued,
in form and substance satisfactory to the Agents and the Required Banks.
"2005 Senior Unsecured Notes" shall mean the Company's Senior
Unsecured Notes due 2005 issued pursuant to the 2005 Senior Unsecured Note
Indenture and, from and after the consummation of the 2005 Senior Unsecured
Note Exchange, all references to the 2005 Senior Unsecured Notes shall be
deemed to include any 2005 Senior Unsecured Exchange Notes issued in exchange
for 2005 Senior Unsecured Notes then outstanding.
"2005 Senior Unsecured Notes Issuance" shall mean the issuance of
the 2005 Senior Unsecured Notes pursuant to the terms contained in
Preliminary Offering Memorandum, dated April 10, 1995.
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"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
----
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time
in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any,
by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.04(a).
"Unrestricted Collateral" shall mean all Collateral which is not
Restricted Collateral.
"Unrestricted Collateral Secured Portion" shall have the meaning
provided in Section 14.17(b).
"Unutilized Revolving Loan Commitment" with respect to any Bank, at
any time, shall mean such Bank's Revolving Loan Commitment at such time less
the sum of (i) the aggregate outstanding principal amount of Revolving Loans
made by such Bank and (ii) such Bank's Adjusted RL Percentage of the
Revolving Letter of Credit Outstandings at such time.
"US GAAP" shall mean generally accepted accounting principles in
the United States consistently applied throughout the periods involved
(except to the extent a change is mandated pursuant to said generally
accepted accounted principles, is concurred in by the Company's independent
public accountants and is disclosed in writing with the respective financial
statements where the change is first made).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
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SECTION 13. The Agents.
----------
13.01 Appointment. The Banks hereby designate each of BTCo, BA
-----------
and BMO as Agents (for purposes of this Section 13, the term "Agent" shall
include BTCo in its capacity as Administrative Agent under this Agreement and
as Collateral Agent pursuant to the Security Documents) to act as specified
herein and in the other Credit Documents. Each Bank hereby irrevocably
authorizes, and each holder of any Note by the acceptance of such Note shall
be deemed irrevocably to authorize, the Agents to take such action on its
behalf under the provisions of this Agreement, the other Credit Documents and
any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Agents by the terms hereof
and thereof and such other powers as are reasonably incidental thereto. The
Agents may perform any of their duties hereunder by or through their
respective officers, directors, agents, employees or affiliates.
13.02 Nature of Duties. The Agents shall not have any duties or
----------------
responsibilities except those expressly set forth in this Agreement and the
Security Documents. Neither the Agents nor any of their respective officers,
directors, agents, employees or affiliates shall be liable for any action
taken or omitted by it or them hereunder or under any other Credit Document
or in connection herewith or therewith, unless caused by its or their gross
negligence or willful misconduct. The duties of the Agents shall be
mechanical and administrative in nature; the Agents shall not have by reason
of this Agreement or any other Credit Document a fiduciary relationship in
respect of any Bank or the holder of any Note; and nothing in this Agreement
or any other Credit Document, expressed or implied, is intended to or shall
be so construed as to impose upon the Agents any obligations in respect of
this Agreement or any other Credit Document except as expressly set forth
herein or therein.
13.03 Lack of Reliance on the Agent. Independently and without
-----------------------------
reliance upon the Agents, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make (i) their
own independent investigation of the financial condition and affairs of the
Company and its Subsidiaries in connection with the making and the
continuance of the Loans and the issuance and assumptions of Letters of
Credit and the taking or not taking of any action in connection herewith and
(ii) their own appraisal of the creditworthiness of the Company and its
Subsidiaries and, except as expressly provided in this Agreement, the Agents
shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or the issuance and assumption of
the Letters of Credit or at any time or times thereafter. The Agents shall
not be responsible to any Bank or the holder of any Note for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of
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the Company and its Subsidiaries or be required to make any inquiry
concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or
the financial condition of the Company and its Subsidiaries or the existence
or possible existence of any Default or Event of Default.
13.04 Certain Rights of the Agents. If the Agents shall request
----------------------------
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other
Credit Document, the Agents shall be entitled to refrain from such act or
taking such action unless and until the Agents shall have received
instructions from the Required Banks; and the Agents shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank or the holder of any Note shall have any right of action
whatsoever against the Agents as a result of the Agents acting or refraining
from acting hereunder or under any other Credit Document in accordance with
the instructions of the Required Banks.
13.05 Reliance. Each Agent shall be entitled to rely, and shall
--------
be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made
by any Person that such Agent believed to be the proper Person, and, with
respect to all legal matters pertaining to this Agreement and any other
Credit Document and its duties hereunder and thereunder, upon advice of
counsel selected by the Agents.
13.06 Indemnification. To the extent the Agents are not
---------------
reimbursed and indemnified by the Company, the Banks will reimburse and
indemnify each Agent, in proportion to their respective "percentages" as used
in determining the Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed
on, asserted against or incurred by such Agent in performing their respective
duties hereunder or under any other Credit Document, in any way relating to
or arising out of this Agreement or any other Credit Document; provided that
--------
no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agents' gross negligence or willful
misconduct.
13.07 The Agents in their Individual Capacities. With respect to
-----------------------------------------
their obligations to make Loans under this Agreement and to issue, assume or
participate in Letters of Credit, each of the Agents shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though they were not performing the duties specified herein; and
the term "Banks," "Required Banks," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the Agents in
their individual capacities. The Agents may accept deposits from, lend money
to, and generally engage in any kind of banking, trust or other business with
any Credit Party or any Affiliate of any Credit Party as if they were not
performing the duties specified herein,
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and may accept fees and other consideration from the Company or any other
Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Banks.
13.08 Holders. Each Agent may deem and treat the payee of any
-------
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may
be, shall have been filed with such Agent. Any request, authority or consent
of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange
therefor.
13.09 Resignation by the Agents. (a) Each of the Agents may
-------------------------
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 15 Business Days'
prior written notice to the Company and the Banks. Each such resignation
shall take effect upon the expiration of such 15-day period, provided that
--------
the resignation of the Administrative Agent shall take effect upon the
appointment of a successor Administrative Agent pursuant to clauses (b) and
(c) below or as otherwise provided below.
(b) Upon any such notice of the Administrative Agent, the Banks
shall appoint a successor Administrative Agent hereunder or thereunder who
shall be a commercial bank or trust company reasonably acceptable to the
Company (it being understood and agreed that any Bank is deemed to be
acceptable to the Company); provided that if there is one or more other
Agents at the time of the Administrative Agent's resignation, then if any
such Agent consents to act as Administrative Agent, such Agent shall become
the Administrative Agent (although, if there is more than one such other
Agent at the time of the Administrative Agent's resignation, such Agents must
agree upon the successor Administrative Agent or, in the absence of such
Agreement, the Banks shall appoint the successor Administrative Agent as
otherwise provided herein).
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with
the consent of the Company, shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Administrative Agent as
provided above.
(d) It is understood and agreed that no Person shall be required
to serve as a successor Administrative Agent without the consent of such
Person.
(e) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 20th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Banks shall
thereafter perform all the duties of the Administrative Agent
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hereunder and/or under any other Credit Document until such time, if any, as
the Banks appoint a successor Administrative Agent as provided above.
SECTION 14. Miscellaneous.
-------------
14.01 Payment of Expenses, etc. The Company shall: (i) whether
-------------------------
or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses including, without limitation,
any notarial and registration fees, of the Agents (including, without
limitation, the reasonable fees and disbursements of White & Case, Uria &
Menendez, and of local and foreign counsel to the Agents, and allocated costs
of in-house counsel for BA) in connection with the preparation, execution,
delivery, registration and, in the case of any Security Document filed with a
private and/or public authority in the Kingdom of Spain, filing and
performance of this Agreement and the other Credit Documents and the
documents, instruments and transactions referred to herein and therein and
any translation, amendment, supplement, extension, waiver or consent relating
hereto or thereto, of the Agents in connection with their syndication efforts
with respect to this Agreement and of the Agents and, following and during
the continuation of an Event of Default, each of the Banks in connection with
the enforcement of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein (including, without
limitation, the reasonable fees and disbursements of counsel for the Agents
and, following and during the continuation of an Event of Default, for each
of the Banks); (ii) pay and hold each of the Banks harmless from and against
any and all present and future stamp, excise, transfer and other similar
taxes with respect to the foregoing matters and hold each of the Banks
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable
to such Bank) to pay such taxes; and (iii) indemnify the Agents and each
Bank, and each of their respective officers, directors, employees,
representatives and agents from and hold each of them harmless against any
and all liabilities, obligations (including removal or remedial actions),
losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants'
fees and disbursements) incurred by, imposed on or assessed against any of
them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or
not any Agent or any Bank is a party thereto) related to the entering into
and/or performance of this Agreement or any other Credit Document or the use
of any Letter of Credit or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein or in any other Credit
Document or the exercise of any of their rights or remedies provided herein
or in the other Credit Documents, or (b) the actual or alleged presence of
Hazardous Materials in the air, surface water or groundwater or on the
surface or subsurface of any Real Property owned or at any time operated by
the Company or any of its Subsidiaries or Tudor or any of its Subsidiaries,
the generation, storage, transportation, handling or disposal of Hazardous
Materials at any location, whether or not owned or operated by the Company or
any of its Subsidiaries, the non-compliance of any Real Property with
foreign, federal, state and local laws, regulations, and ordinances
(including applicable permits thereunder) applicable to any Real Property,
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or any Environmental Claim asserted against the Company, any of its
Subsidiaries, Tudor, any of its Subsidiaries, or any Real Property owned or
at any time operated by the Company or any of its Subsidiaries or Tudor or
any of its Subsidiaries, including, in each case, without limitation, the
reasonable fees and disbursements of counsel and other consultants incurred
in connection with any such investigation, litigation or other proceeding
(but excluding any losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified). To the extent that the undertaking to
indemnify, pay or hold harmless the Agents or any Bank set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Company shall make the maximum contribution to the payment
and satisfaction of each of the indemnified liabilities which is permissible
under applicable law.
14.02 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law or otherwise, and not by way of limitation of
any such rights, upon the occurrence and during the continuance of an Event
of Default, each Bank is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to the
Company or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by such Bank
(including, without limitation, by branches and agencies of such Bank
wherever located) to or for the credit or the account of the Company or any
Guarantor against and on account of the Obligations and liabilities of the
Company or such Guarantor to such Bank under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Bank pursuant to Section 14.06(b), and all
other claims of any nature or description arising out of or connected with
this Agreement or any other Credit Document, irrespective of whether or not
such Bank shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
14.03 Notices. Except as otherwise expressly provided herein, all
-------
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: at the Company's
address specified opposite its signature below; if to any Bank, at its
address specified opposite its name on Schedule II below; and if to an Agent,
at its Notice Office; or, if to any Credit Party or an Agent, at such other
address as shall be designated by such party in a written notice to the other
parties hereto and, as to each Bank, at such other address as shall be
designated by such Bank in a written notice to the Company and the Agents.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when
deposited in the mails, delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Agents and the Company shall not be
effective until received by such Agent or the Company, as the case may be.
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14.04 Benefit of Agreement. (a) This Agreement shall be binding
--------------------
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit
-------- -------
Party may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document without the prior written
consent of the Banks (or the Required Banks if the respective assignor
remains fully obligated for the repayment of any obligations or interests so
assigned, whether pursuant to the original documentation or an unconditional
guaranty in form and substance satisfactory to the Required Banks) and,
provided further, that, although any Bank may transfer, assign or grant
----------------
participations in its rights hereunder, such Bank shall remain a "Bank" for
all purposes hereunder (and may not transfer or assign all or any portion of
its Commitments hereunder except as provided in Section 14.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute
a "Bank" hereunder and, provided further, that no Bank shall transfer or
----------------
grant any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
final scheduled maturity of any Loan, Note or Letter of Credit (unless such
Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in
which such participant is participating, or reduce the rate or extend the
time of payment of interest or Fees thereon (except in connection with a
waiver of applicability of any post-default increase in interest rates) or
reduce the principal amount thereof, or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment shall not constitute a change in the terms
of such participation, and that an increase in any Commitment or Loan shall
be permitted without the consent of any participant if the participant's
participation is not increased as a result thereof), (ii) consent to the
assignment or transfer by the Company of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the
Collateral under all of the Security Documents (except as expressly provided
in the Credit Documents) supporting the Loans and/or Letters of Credit in
which such participant is participating. In the case of any such
participation, the participant shall not have any rights under this Agreement
or any of the other Credit Documents (the participant's rights against such
Bank in respect of such participation to be those set forth in the agreement
executed by such Bank in favor of the participant relating thereto) and all
amounts payable by the Company hereunder shall be determined as if such Bank
had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its
Commitments (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans to its parent company and/or any affiliate of such
Bank which is at least 50% owned by such Bank or its parent company or to one
or more Banks or (y) assign all, or if less than all, a portion equal to at
least $5,000,000 in the aggregate for the assigning Bank or assigning Banks,
of such Commitments (and related Obligations) and/or its outstanding Term
Loans hereunder to one or more Eligible Transferees, each of which assignees
shall become a party to this Agreement as a Bank by execution of an
Assignment and Assumption Agreement in the form of
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Exhibit P hereto, provided that, (i) at such time Schedule I shall be deemed
--------
modified to reflect the Commitments (and/or outstanding Term Loans, as the
case may be) of such new Bank and of the existing Banks, (ii) upon surrender
of the old Notes, new Notes will be issued, at the Company's expense, to such
new Bank and to the assigning Bank upon the request of such new Bank or
assigning Bank, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (and/or outstanding Term Loans, as the case may be),
(iii) the consent, which will not be unreasonably withheld, of BTCo and each
Issuing Bank (unless the respective assignment will not involve a change in
the participations in Letters of Credit issued by such Issuing Bank) shall be
required in connection with any such assignment and (iv) the Administrative
Agent shall receive at the time of each such assignment, from the assigning
or assignee Bank, the payment of a non-refundable assignment fee of (I) in
the case of an assignment pursuant to sub-clause (x) of this clause (b),
$1,500 and (II) in the case of an assignment pursuant to sub-clause (y) of
this clause (b), $3,500 and, provided further, that such transfer or
----------------
assignment will not be effective until recorded by the Administrative Agent
on the Register pursuant to Section 14.15 hereof. To the extent of any
assignment pursuant to this Section 14.04(b), the assigning Bank shall be
relieved of its obligations hereunder with respect to its assigned
Commitments. At the time of each assignment pursuant to this Section
14.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Company and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Bank's Commitments and related outstanding Obligations pursuant
to Section 1.13 or this Section 14.04(b) would, at the time of such
assignment, result in increased costs under Section 1.10 or 1.11 from those
being charged by the respective assigning Bank prior to such assignment, then
the Company shall not be obligated to pay such increased costs (although the
Company shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Bank
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank.
14.05 No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of an Agent or any Bank or any holder of any Note in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Company or any other Credit Party and the
Agents or any Bank or the holder of any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not
exclusive of any rights, powers or remedies
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which the Agents or any Bank or the holder of any Note would otherwise have.
No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents or any Bank
or the holder of any Note to any other or further action in any circumstances
without notice or demand.
14.06 Payments Pro Rata. (a) Except as otherwise provided in
-----------------
this Agreement, the Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of the Company in respect of any
Obligations hereunder, it shall distribute such payment to the Banks (other
than any Bank that has consented in writing to waive its pro rata share of
--- ----
any such payment) pro rata based upon their respective shares, if any, of the
--- ----
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or
interest on, the Loans, Unpaid Drawings, Commitment Commission or Letter of
Credit Fees, of a sum which with respect to the related sum or sums received
by other Banks is in a greater proportion than the total of such Obligation
then owed and due to such Bank bears to the total of such Obligation then
owed and due to all of the Banks immediately prior to such receipt, then such
Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations of the
respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all the Banks in such amount; provided that if
--------
all or any portion of such excess amount is thereafter recovered from such
Bank, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 14.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
14.07 Calculations; Computations. (a) The financial statements
--------------------------
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
(or the equivalent thereof in any country in which a Foreign Subsidiary is
doing business, as applicable) consistently applied throughout the periods
involved (except as set forth in the notes thereto or as otherwise disclosed
in writing by the Company to the Banks); provided that, except as otherwise
--------
specifically provided herein, (w) all computations of Company Excess Cash
Flow and all computations determining compliance with Sections 10.08(a),
10.09, 10.10(a), and 10.11(a) inclusive, shall use accounting principles and
policies in conformity with those used to prepare the historical financial
statements of the Company delivered to the Banks
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pursuant to Section 8.05(a)(i), (x) all computations of Tudor Excess Cash
Flow and all computations determining compliance with Section 10.08(b) shall
utilize accounting principles and policies in conformity with those used to
prepare the historical financial statements of Tudor delivered to the Banks
pursuant to Section 8.05(a)(ii), (y) all computations of CEAc Excess Cash
Flow and all computations determining compliance with Section 10.08(c) shall
utilize accounting principals and policies in conformity with those used to
prepare the historical financial statements of CEAc delivered to the Banks
pursuant to Section 8.05(e)(i) and (z) all computations determining
compliance with Sections 10.10(b) and 10.11(b) shall utilize accounting
principles and policies in conformity with those used to prepare the pro
---
forma historical financial statements delivered to the Banks pursuant to
-----
Section 8.05(e)(ii). For purposes of determining compliance with Sections
10.10(b) and 10.11(b), (x) Tudor shall be treated as a Wholly-Owned
Subsidiary of the Company so long as the Company owns at least 89% of the
fully diluted equity interests therein, regardless of whether or not 100% of
the shares thereof are acquired pursuant to the Initial Tender Offer and (y)
CEAc shall be treated as a Wholly-Owned Subsidiary of the Company, so long as
the Company directly or indirectly owns at least 99.7% of the fully diluted
equity interests therein.
(b) All computations of interest, Commitment Commission and Fees
hereunder shall be made on the basis of a year of 360 days (or, in the case
of interest on Base Rate Loans, 365-days) for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest, Commitment Commission or Fees are payable.
14.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
-----------------------------------------------------------
JURY TRIAL. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
----------
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT
AS OTHERWISE PROVIDED IN CERTAIN OF THE SECURITY DOCUMENTS, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE COMPANY HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE COMPANY HEREBY IRREVOCABLY
DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM, WITH OFFICES ON THE
DATE HEREOF AT 1633 BROADWAY, NEW YORK, NEW YORK 10019 AS ITS DESIGNEE,
APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF,
AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, EACH CREDIT PARTY AGREES TO DESIGNATE A NEW
DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT UNDER THIS AGREEMENT.
THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY
CREDIT PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH
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SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE AGENT UNDER THIS AGREEMENT, ANY BANK OR THE HOLDER OF
ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(B) THE COMPANY HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A)
ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM
IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
14.09 Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Company and the Agents.
14.10 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which the Company and each of the Banks shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered the same to the Administrative Agent at its Notice
Office or, in the case of the Banks, shall have given to the Administrative
Agent telephonic (confirmed in writing), written or telex notice (actually
received) at such office that the same has been signed and mailed to it. The
Administrative Agent will give the Company and each Bank prompt written
notice of the occurrence of the Effective Date.
14.11 Headings Descriptive. The headings of the several sections
--------------------
and subsections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
14.12 Amendment or Waiver; etc. (a) Neither this Agreement nor
-------------------------
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party
thereto and the Required Banks, provided that no such change, waiver,
--------
discharge or termination shall, without the consent of each Bank (other than
a Defaulting Bank) (with Obligations being directly modified), (i) extend the
final scheduled maturity of any Loan or Note or extend the stated maturity of
any Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the
rate or extend the time of payment of interest or Fees thereon, or reduce the
principal amount thereof (except to
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the extent repaid in cash), (ii) release all or substantially all of the
Collateral (except as expressly provided in the Credit Documents) under all
the Security Documents, (iii) amend, modify or waive any provision of this
Section 14.12, (iv) reduce the percentage specified in the definition of
Required Banks (it being understood that, with the consent of the Required
Banks, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Banks on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Effective Date) or (v) consent to the assignment or transfer
by the Company of any of its rights and obligations under this Agreement
(except to the extent any such rights and obligations are assigned to a
Subsidiary of the Company if, in each such case, the Company remains
unconditionally obligated for the repayment of all amounts so assigned
pursuant to a guaranty or other documentation acceptable in form and
substance to the Required Banks); provided further, that no such change,
----------------
waiver, discharge or termination shall (t) increase the Commitments of any
Bank over the amount thereof then in effect without the consent of such Bank
(it being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Commitment shall not constitute an increase of the Commitment of any
Bank, and that an increase in the available portion of any Commitment of any
Bank shall not constitute an increase in the Commitment of such Bank), (u)
without the consent of each Issuing Bank, amend, modify or waive any
provision of Section 2 or alter its rights or obligations with respect to
Letters of Credit, (v) without the consent of the Swingline Bank, amend,
modify or waive any provision relating to the rights or obligations of the
Swingline Bank or with respect to Swingline Loans, (w) without the consent of
the Agents, amend, modify or waive any provision of Section 13 as same
applies to such Agent or any other provision as same relates to the rights or
obligations of such Agent, (x) without the consent of the Collateral Agent,
amend, modify or waive any provision relating to the rights or obligations of
the Collateral Agent, (y) without the consent of the Majority Banks of each
Tranche which is being allocated a lesser prepayment, repayment or commitment
reduction as a result of the actions described below (or without the consent
of the Majority Banks of each Tranche in the case of an amendment to the
definition of Majority Banks), amend the definition of Majority Banks or
alter the required application of any prepayments or repayments (or
commitment reductions), as between the various Tranches, pursuant to Section
4.01 or 4.02 (excluding Sections 4.02(b) and (c)) (although the Required
Banks may waive, in whole or in part, any such prepayment, repayment or
commitment reduction, so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered) or (z) without the consent of the
Supermajority Banks of the respective Tranche, amend, modify or waive any
Scheduled Commitment Reduction, any Tranche A Scheduled Repayment or Tranche
B Scheduled Repayment.
(b) If, in connection with any proposed change, waiver, discharge
or termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 14.12(a),
the consent of the Required Banks is obtained but the consent of one or more
of such other Banks whose consent is
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required is not obtained, then the Company shall have the right, so long as
each Letter of Credit Issuer affected by the actions described in this clause
(b) (i.e., which has issued Letters of Credit which are participated in by
one or more Banks being replaced) consents thereto and so long as all non-
consenting Banks whose individual consent is required are treated as
described in either clauses (A) or (B) below, to either (A) replace each such
non-consenting Bank or Banks (or, at the option of the Company if the
respective Bank's consent is required with respect to less than all Tranches
of Loans (or related Commitments), to replace only the respective Tranche or
Tranches of Commitments and/or Loans of the respective non-consenting Bank
which gave rise to the need to obtain such Bank's individual consent) with
one or more Replacement Banks pursuant to Section 1.13 so long as at the time
of such replacement, each such Replacement Bank consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting
Bank's Commitments (if such Bank's consent is required as a result of its
Commitments) and/or repay each Tranche of outstanding Term Loans of such Bank
which gave rise to the need to obtain such Bank's consent, in accordance with
Sections 3.02(b) and/or 4.01(v), provided that, unless the Commitments are
--------
terminated, and Loans repaid, pursuant to preceding clause (B) are
immediately replaced in full at such time through the addition of new Banks
or the increase of the Commitments and/or outstanding Loans of existing Banks
(who in each case must specifically consent thereto), then in the case of any
action pursuant to preceding clause (B) the Required Banks (determined before
giving effect to the proposed action) shall specifically consent thereto,
provided further, that in any event the Company shall not have the right to
----------------
replace a Bank, terminate its Revolving Loan Commitment or repay its Loans
solely as a result of the exercise of such Bank's rights (and the withholding
of any required consent by such Bank) pursuant to the second proviso to
Section 14.12(a).
14.13 Survival. All indemnities set forth herein including,
---------------
without limitation, in Sections 1.10, 1.11, 2.06, 4.04, 14.01 and 14.06
shall, subject to Section 14.15 (to the extent applicable), survive the
execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Loans.
14.14 Domicile of Loans. Each Bank may transfer and carry its
-----------------
Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Bank. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 14.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11,
2.06 or 4.04 from those being charged by the respective Bank prior to such
transfer, then the Company shall not be obligated to pay such increased costs
(although the Company shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the
respective transfer).
14.15 Register. The Company hereby designates the Administrative
--------
Agent to serve as the Company's agent, solely for purposes of this Section
14.15, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Loans made by each of
the Banks and each repayment in respect of the principal amount of the Loans
of each Bank. Failure to make any such recordation, or any
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error in such recordation shall not affect the Company's obligations in
respect of such Loans. With respect to any Bank, the transfer of the
Commitments of such Bank and the rights to the principal of, and interest on,
any Loan made pursuant to such Commitments shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent
with respect to ownership of such Commitments and Loans and prior to such
recordation all amounts owing to the transferor with respect to such
Commitments and Loans shall remain owing to the transferor. The registration
of assignment or transfer of all or part of the Commitments and the Loans
shall be recorded by the Administrative Agent on the Register only upon the
acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 14.04(b). Coincident
with the delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or
transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Bank shall surrender the Note evidencing such Loan,
and thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Bank and/or the new Bank. The
Company agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 14.15.
14.16 Confidentiality. (a) Subject to the provisions of clause
---------------
(b) of this Section 14.16, each Bank agrees that it will use its best efforts
not to disclose without the prior consent of the Company (other than to its
employees, auditors, advisors or counsel or to another Bank if the Bank or
such Bank's holding or parent company in its sole discretion determines that
any such party should have access to such information, provided such Persons
shall be subject to the provisions of this Section 14.16 to the same extent
as such Bank) any information with respect to the Company or any of its
Subsidiaries or Tudor or any of its Subsidiaries which is now or in the
future furnished pursuant to this Agreement or any other Credit Document and
which is designated by the Company to the Banks in writing as confidential,
provided that any Bank may disclose any such information (a) as has become
--------
generally available to the public, (b) as may be required or appropriate in
any report, statement or testimony submitted to any municipal, state or
Federal regulatory body having or claiming to have jurisdiction over such
Bank or to the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or
elsewhere) or their successors, (c) as may be required or appropriate in
respect to any summons or subpoena or in connection with any litigation, (d)
in order to comply with any law, order, regulation or ruling applicable to
such Bank, (e) to any Agent, the Administrative Agent or the Collateral Agent
and (f) to any prospective or actual transferee or participant in connection
with any contemplated transfer or participation of any of the Notes or
Commitments or any interest therein by such Bank, provided, that such
--------
prospective transferee or participant agrees with such Bank to be bound by
the provisions of this Section 14.16.
-202-
<PAGE>
(b) The Company hereby acknowledges and agrees that each Bank may
share with any of its affiliates any information related to the Company or
any of its Subsidiaries or Tudor or any of its Subsidiaries (including,
without limitation, any nonpublic customer information regarding the
creditworthiness of the Company and its Subsidiaries or Tudor and its
Subsidiaries, provided such Persons shall be subject to the provisions of
this Section 14.16 to the same extent as such Bank).
14.17 Entitlement of Obligations to Restricted and Unrestricted
---------------------------------------------------------
Collateral. (a) The parties hereto hereby agree that all Obligations
----------
hereunder (and as defined in the respective Security Documents), including,
without limitation, the Restricted Collateral Secured Portion of Loans as
described below, are secured by all Unrestricted Collateral in accordance
with the terms of the respective Security Documents.
(b) The parties hereto hereby agree that, for purposes of this
Agreement and the Security Documents, the principal amount of Loans hereunder
at any time secured by Restricted Collateral shall be limited in aggregate
amount to the Restricted Collateral Amount as from time to time in effect,
provided that such limitations shall cease to apply at such time, if any, as
no Senior Notes remain outstanding. The principal portion of Loans from time
to time secured by the Restricted Collateral is herein called the "Restricted
Collateral Secured Portion" thereof, which Restricted Collateral Secured
Portion shall be allocated ratably amongst the Revolving Loans and the Term
Loans from time to time outstanding based upon the relative aggregate
outstanding principal amounts thereof. The parties hereto hereby agree that
all repayments of Loans shall first be allocated to the portion of
outstanding Loans in excess of the Restricted Collateral Secured Portion
(such excess in any time outstanding being herein called the "Unrestricted
Collateral Secured Portion") and that only upon the application of proceeds
of Restricted Collateral realized pursuant to the Security Documents shall
the Restricted Collateral Secured Portion of the Loans be reduced (based upon
the receipt of payments by the respective Banks and the resultant reduction
to the Restricted Collateral Amount in accordance with the definition thereof
contained herein). It is further understood and agreed by the parties hereto
that all interest from time to time outstanding and relating to the
Restricted Collateral Secured Portion of the Loans shall also be secured by
the Restricted Collateral.
(c) All Letter of Credit Outstandings from time to time (excluding
Letter of Credit Outstandings relating to the Initial Tender Offer Credit
Support and the Secondary Tender Offer Credit Support), and any guarantees
thereof, shall also be entitled to the benefits of the security interests
created pursuant to the Security Documents in both the Restricted Collateral
and the Unrestricted Collateral.
(d) Each Bank understands that the aggregate principal amount of
its Loans secured from time to time by the Restricted Collateral shall be
limited in principal amount to its pro rata portion (based upon the relative
--- ----
outstanding principal amount of Loans) of the Restricted Collateral Amount as
from time to time in effect, and each Bank agrees to treat its Loans from
time to time outstanding as two separate extensions of credit, (i) one
-203-
<PAGE>
secured by all Collateral (including Restricted Collateral) in an amount
equal to its pro rata share of the Restricted Collateral Amount from time to
--- ----
time in effect and (ii) the remainder being secured solely by Unrestricted
Collateral.
14.18 Obligation to Make Payments in Dollars. The obligation of
--------------------------------------
the Company to make payment in Dollars of the principal of and interest on
the Notes and any Unpaid Drawings, and any other amounts due hereunder or
under any other Credit Document to the Payment Office of the Agent as
provided in this Agreement shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment, which is expressed in or
converted into any currency other than Dollars, except to the extent such
tender or recovery shall result in the actual receipt by the Agent at its
Payment Office on behalf of the Banks or holders of the Notes of the full
amount of Dollars expressed to be payable in respect of the principal of and
interest on the Notes and any Unpaid Drawings, and all other amounts due
hereunder or under any other Credit Document. The obligation of the Company
to make payments in Dollars as aforesaid shall be enforceable as an
alternative or additional cause of action for the purpose of recovery in
Dollars of the amount, if any, by which such actual receipt shall fall short
of the full amount of Dollars expressed to be payable in respect of the
principal of and interest on the Notes and any Unpaid Drawings, and any other
amounts due under any other Credit Document, and shall not be affected by
judgment being obtained for any other sums due under this Agreement or under
any other Credit Document.
14.19 Post-Closing Actions. Notwithstanding anything to the
--------------------
contrary contained in this Agreement or the other Credit Documents, the
parties hereto acknowledge and agree that:
(a) Title Insurance and Surveys. The Company will as promptly as
---------------------------
practicable (and in any event no later than thirty (30) days after the
Effective Date) deliver or cause to be delivered to the Collateral Agent:
(i) Mortgage Policies on the Mortgaged Properties as required by
Section 5.14(ii); and
(ii) a survey of each Mortgaged Property as required by Section
5.14(iii).
(b) Landlord-Mortgagee Agreements. With respect to the leasehold
-----------------------------
properties listed and designated as such on Schedule III, the Company shall,
within 20 days after the Effective Date, submit to each landlord under the
relevant lease, a landlord-mortgagee agreement in form and substance
reasonably satisfactory to the Agents and the Collateral Agent, which
agreement shall grant to the Collateral Agent certain rights, including, but
not limited to, the right to enter upon the premises demised under the
relevant lease at any time to inspect or remove personal property in which
the Collateral Agent has been granted a security interest. The Company
agrees to use reasonable efforts to obtain such agreements from said
landlords.
-204-
<PAGE>
(c) Salina, Kansas Property. At the time the fee title to the
-----------------------
leased property referred to on Schedule III attached hereto as Salina, Kansas
has been reconveyed to the Company or a Subsidiary of the Company, the
Company shall, or shall cause the respective Subsidiary to, take the actions
required pursuant to Section 5.14 with respect to such Property.
(d) Delivery of Leases; Leasehold Mortgages. Within seven (7) days
---------------------------------------
after the Effective Date, the Company shall deliver to the Collateral Agent
copies of leases for the properties listed on Schedule III and designated as
post-closing leases (the "Additional Leasehold Properties"). Upon the
completion of the review of the leases for the Additional Leasehold
Properties, the Collateral Agent may, to the extent permitted by such leases,
require the lessee thereunder to take the actions required pursuant to
Section 5.14 with respect to such Additional Leasehold Properties.
(e) Initial Tender Offer Filing Date. At the request of the
--------------------------------
Company, the Initial Tender Offer Filing Date may occur one Business Day
after the Initial Borrowing Date.
(f) English Language Schedules. Within thirty (30) days after the
--------------------------
Effective Date, the Company shall deliver to each Bank a true and correct
English translation, certified as a true and correct translation by an
appropriate officer of the Company, of the Schedules hereto that appear in
Spanish.
(g) Security Document Filings. UCC financing statements and
-------------------------
termination statements, assignments of security interests in intellectual
property and Mortgages delivered by the relevant Credit Party on the Initial
Borrowing Date shall be filed in the appropriate governmental office within 3
Business Days after the Initial Borrowing Date.
All conditions precedent and representations contained in this
Agreement and the other Credit Documents shall be deemed modified to the
extent necessary to effect the foregoing; provided, that all representations
--------
and warranties relating to the Security Documents shall be required to be
true immediately after the relevant Security Document is delivered pursuant
to this Section 14.19. The acceptance of the benefits of each Credit Event
shall constitute a representation, warranty and covenant by the Company to
each of the Banks that the actions required pursuant to this Section 14.19
will be taken within the relevant time periods referred to in this Section
14.19 and that, at such time, all representations and warranties contained in
this Agreement and the other Credit Documents shall then be true and correct
without any modification pursuant to this Section 14.19.
14.20 Agreement by Signatories to Fourth Amendment for Benefit of
-----------------------------------------------------------
Tranche C Banks. Each Bank which executes and delivers a copy of the Fourth
---------------
Amendment, by its execution and delivery thereof, agrees (which agreement
shall be binding only on such Bank and its successors), for the benefit of
each Tranche C Bank, that
-205-
<PAGE>
it will not agree to any change, waiver, modification or amendment of Section
4.02(n) (as added pursuant to the Fourth Amendment) unless the respective
change, waiver, modification or amendment receives the consent of those
Tranche C Banks which would constitute the Required Tranche C Banks if the
percentage "50%" appearing in the definition thereof instead read "66-2/3%".
* * *
-206-
<PAGE>
EXECUTION FORM -
CONFORMED COPY
DATED 28TH FEBRUARY, 1995
EXIDE CORPORATION
AS THE PARENT
BANKERS TRUST COMPANY
AS ARRANGER
BANKERS TRUST COMPANY
BANK OF AMERICA N.T. & S.A.
BANK OF MONTREAL
DRESDNER BANK LUXEMBOURG S.A.
AS LEAD MANAGERS
BANKERS TRUST COMPANY
AS AGENT
AND
THE LENDERS DESCRIBED HEREIN
______________________________________
FACILITIES AGREEMENT
FF 415,000,000
MULTICURRENCY TERM LOAN FACILITY
FF 415,000,000
MULTICURRENCY REVOLVING CREDIT FACILITY
______________________________________
O'MELVENY & MYERS ASHURST MORRIS CRISP
10 Finsbury Square 8 rue Clement Marot
London EC2A 1LA 75008 Paris
Tel: +44 171 256 8451 Tel: +33 1 47 20 00 88
Fax: +44 171 638 8205 Fax: +33 1 47 20 00 93
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
<S> <C> <C>
1. INTERPRETATION.................................. 1
--------------
2. THE FACILITIES.................................. 31
--------------
3. PARTICIPATION OF LENDERS........................ 33
------------------------
4. CONDITIONS PRECEDENT............................ 38
--------------------
5. DRAWDOWN PROCEDURES AND SELECTION AND AMOUNT
--------------------------------------------
OF CURRENCIES, ETC. ............................ 48
------------------
6. REPAYMENT....................................... 58
---------
7. PREPAYMENT AND CANCELLATION..................... 59
---------------------------
8. INTEREST........................................ 63
--------
9. PAYMENTS........................................ 67
--------
10. CHANGE IN CIRCUMSTANCES......................... 71
-----------------------
11. FEES, EXPENSES AND STAMP DUTIES................. 74
-------------------------------
12. REPRESENTATIONS AND WARRANTIES.................. 76
------------------------------
13. UNDERTAKINGS.................................... 84
------------
14. EVENTS OF DEFAULT...............................103
-----------------
15. GUARANTEE.......................................109
---------
16. THE AGENT AND THE OTHER FINANCE PARTIES.........112
---------------------------------------
17. EVIDENCE OF INDEBTEDNESS........................119
------------------------
18. APPLICATION OF MONEYS...........................120
---------------------
19. PRO RATA PAYMENTS...............................120
-----------------
20. SET-OFF.........................................121
-------
21. NOTICES.........................................122
-------
22. NO IMPLIED WAIVERS..............................122
-----------------
23. INVALIDITY OF ANY PROVISION.....................123
---------------------------
24. CONFIDENTIALITY.................................123
---------------
25. CHANGES TO PARTIES..............................123
------------------
26. LENDER DECISIONS................................126
----------------
27. INDEMNITIES.....................................127
-----------
28. CERTIFICATES CONCLUSIVE.........................128
-----------------------
</TABLE>
(i)
<PAGE>
<TABLE>
<S> <C> <C>
29. GOVERNING LAW...................................128
-------------
30. JURISDICTION....................................128
------------
31. COUNTERPARTS....................................130
------------
32. LIMITATION OF LIABILITY OF THE PARENT AND
-----------------------------------------
EXIDE HOLDINGS...................................130
--------------
</TABLE>
SCHEDULES
- ---------
Schedule 1 Commitments and Lending Offices
Schedule 2 Repayment Schedule
Schedule 3 Form of Drawdown Request
Schedule 4 Structure of Borrowing Group
Schedule 5 Specified Existing Indebtedness
Schedule 6 Mandatory Liquid Asset Costs
Schedule 7 Form of Deed of Accession
Schedule 8 Form of Transfer Certificate
Schedule 9 Existing Indebtedness
Disclosure Schedules:
Schedule 12.2
Schedule 12.3
Schedule 12.8.1
Schedule 12.8.2
Schedule 12.10.1
Schedule 12.15
Schedule 12.16
Schedule 14.1.17
(ii)
<PAGE>
THIS AGREEMENT ("AGREEMENT") is made on 28th February, 1995
BETWEEN:-
(1) EXIDE CORPORATION, a corporation organised under the laws of Delaware with
its chief executive offices at 1400 North Woodward Avenue, Bloomfield
Hills, Michigan 48304, United States of America (the "PARENT");
(2) BANKERS TRUST COMPANY, as Arranger;
(3) BANKERS TRUST COMPANY, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, DRESDNER BANK LUXEMBOURG S.A. AND BANK OF MONTREAL, as Lead
Managers;
(4) BANKERS TRUST COMPANY, as Agent; and
(5) THE LENDERS DESCRIBED HEREIN.
IT IS AGREED AS FOLLOWS:-
1. INTERPRETATION
--------------
1.1 Definitions
-----------
In this Agreement, unless the context requires otherwise, the following
expressions shall have the following meanings:-
"ACCOUNTING QUARTER" means, subject to Clause 13.3.6, each successive
period consisting of three consecutive months commencing 1st January, 1995,
and each successive period consisting of three consecutive months
thereafter;
"ACCOUNTANTS REPORT" means the report in the agreed terms written by Arthur
Andersen referring to the Business, and various related matters;
"ACCOUNTING REFERENCE PERIOD" means in respect of the Borrowing Group, each
successive financial year ending on or about 31st December, as such ending
date may be altered in accordance with Clause 13.3.6;
"ACQUISITION" means the acquisition from FIAT and SICIND of the Shares;
"ACQUISITION AGREEMENTS" means the Stock Purchase Agreement, the Warranty
Agreement, the Supply Agreements, the side letter among the Parent, FIAT
and SICIND relating to satisfaction of the condition precedent set forth
in Clause 4.1.1(o), and such other side letters among any of such parties
as are satisfactory to the Agent acting on the instructions of the
Majority Lenders;
1
<PAGE>
"ADDITIONAL BORROWER" means any person which becomes an additional
Borrower in respect of the relevant Facility or Facilities by virtue of
Clause 2.2.3;
"ADVANCE" means the principal amount of each borrowing made or to be made
by a Borrower under the Term Loan Facility or the Revolving Credit
Facility (and includes a Deemed Advance and a WCP Advance) or, as the
context requires, the principal amount thereof for the time being
outstanding, and "TERM ADVANCE", "REVOLVING CREDIT ADVANCE" and "ADVANCES"
shall be construed accordingly;
"AGENT" means Bankers Trust Company acting in its capacity as agent for the
Lenders or such other agent for the Lenders as shall be appointed
pursuant to Clause 16.9;
"APPROVED ACCOUNTING PRINCIPLES" means such accounting principles,
standards and practices as are generally accepted in the accounting
profession in France from time to time;
"AUDITORS" means such firm of accountants as the Borrowers may appoint in
compliance with the provisions of Clause 13.3.3;
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending on:-
(a) in the case of the Term Loan Facility, the earlier of (i) 30th
September, 1995 and (ii) the Completion Date; and
(b) in the case of the Revolving Credit Facility, the earlier of (i) 31st
March, 2000, (ii) the date on which the Revolving Credit Commitments
are terminated in full, and (iii) if Drawdown does not occur on or
before 30th September, 1995, 30th September, 1995;
"AVAILABLE CURRENCY" means BF, DEM, ESP, FF, GBP, ITL and USD and, subject
to the provisions of Clause 5.1.7, any other currency freely available to
all the Lenders in which dealings regularly occur in the London interbank
market, provided that the Agent has, prior to selection of such currency,
confirmed such availability to the Borrowers' Agent;
"BF" means the lawful currency from time to time of the Kingdom of Belgium;
"BORROWERS" means CEAC, Accumulateurs Tudor S.A., a company organised
under the laws of the Kingdom of Belgium, Societa Industriale
Accumulatori Srl, Compagnia Generale Accumulatori SpA and Fabbrica
Accumulatori York SpA, each of which is a company
2
<PAGE>
organised under the laws of the Republic of Italy, Sonnenschein and
Sonnenschein Lithium GmbH, a company organised under the laws of Germany
and registered in Budingen, Germany, and any Additional Borrower from time
to time, and
"BORROWER" means any one of them;
"BORROWERS' AGENT" means (i) before Drawdown, the Parent, and
(ii) following Drawdown, CEAC;
"BORROWING GROUP" means the Borrowers and their respective subsidiaries;
"BORROWING LIMIT" means, for each of the Borrowers, the respective limits
set forth for each of the Facilities in Clause 5.1.2(a);
"BUSINESS" means the business identified under the caption "Business of
CEAC" on pp. 49-51 of the Parent's Prospectus dated December 15, 1994
relating to the offering of 4,500,000 shares of common stock of the Parent;
"BUSINESS DAY" means, in respect of each Available Currency, a day (other
than a Saturday, Sunday or public holiday) which is a day on which banks
are open for dealings in such Available Currency in the London interbank
market and on which banks are open for business (and are not permitted by
law to remain closed) in the place where the main domestic market for
such Available Currency is situated;
"CASH ADVANCE" means an Advance under the Term Loan Facility or Revolving
Credit Facility ( including any WCP Facility) in which cash is advanced
to a Borrower;
"CEAC" means Compagnie Europeenne d'Accumulateurs S.A., a societe anonyme
organised under the laws of France with its registered office at 5-7 allee
des Pierres Mavettes, 92636 Gennevilliers, France;
"CHANGE OF CONTROL" means the Parent or any of its subsidiaries ceasing
to own, directly or indirectly, in the aggregate, at least 51% of (i) the
issued and outstanding voting shares of CEAC (or ceasing to control the
voting rights attributable to any of such shares, whether by proxy, voting
agreement or otherwise) or (ii) the issued and outstanding voting shares
of Tudor (or ceasing to control the voting rights attributable to any such
shares, whether by proxy, voting agreement or otherwise);
"COMMITMENT" means in relation to the participation of any Lender in (i)
the Term Loan Facility, its Term Loan Commitment, and (ii) the Revolving
Credit Facility, its Revolving Credit Commitment (including any WCP
Commitment) (the
3
<PAGE>
Lenders' Commitments collectively, the "TOTAL COMMITMENTS");
"COMPLETION" means the completion of the Acquisition in accordance with the
terms of the Acquisition Agreements;
"COMPLETION DATE" means the date Completion takes place;
"DANGEROUS SUBSTANCE" means any natural or artificial substance (whether in
a solid or liquid form or in the form of a gas or vapour and whether alone
or in combination with any other substance) (i) capable of causing harm to
man or any other living organism or of damaging the Environment or causing
danger to public health or welfare, including without limitation any
hazardous, toxic or dangerous waste, which is subject to regulation by any
Governmental Authority under any applicable Environmental Law, or (ii)
because of its quantity, concentration or physical or chemical
characteristics, exposure to which is limited by any applicable
Governmental Authority;
"DEED OF ACCESSION" means one or more deeds to be executed by each
Borrower, Exide Holdings and each Guarantor substantially in the form of
Schedule 7, subject to variation in accordance with the laws of the
jurisdiction of incorporation or organisation of the relevant Obligor which
relate to the giving of guarantees and similar undertakings;
"DEEMED ADVANCE" means a deemed Advance as a result of the operation of
Clause 5.4.3 or a utilisation of a WCP Facility by the issue of a letter of
credit, revolving credit guarantee or some other extension of credit other
than a Cash Advance;
"DEFAULT RATE" has the meaning given to it in Clause 8.4.1;
"DEM" means the lawful currency from time to time of Germany;
"DIRECTORS QUALIFYING SHARES" means equity shares in a company, transferred
to a director or proposed director of such company for the sole purpose of
satisfying a legal requirement that such director be a shareholder of such
company; provided such director is required by law or pursuant to
--------
contract to transfer such shares to or at the direction of the person who
transferred the relevant share or shares to such director forthwith (or,
if not forthwith, then on demand) upon such director's ceasing to be a
director of such company;
4
<PAGE>
"DRAWDOWN" means the making of the first Cash Advance hereunder;
"DRAWDOWN DATE" means:-
(i) in relation to a Cash Advance, the date for the making of such
Advance as specified by the Borrowers' Agent in the relevant
Drawdown Request; or
(ii) in relation to a Deemed Advance, the date specified in the Drawdown
Request as being the date for issue of the relevant Revolving Credit
Guarantee or Letter of Credit (as the case may be);
"DRAWDOWN REQUEST" means:
(i) in relation to a Cash Advance, a notice requesting an Advance in the
form set out in Schedule 4 Part A; or
(ii) in relation to a Deemed Advance, a notice in the relevant form set
out in Schedule 4 Parts B and C;
"DUE DILIGENCE REPORT" means the reports in the agreed terms compiled by
Messrs. Gide Loyrette Nouel and counsel to the Parent in each jurisdiction
other than France under the laws of which any Borrower or Guarantor is
organised or incorporated;
"EBIT" means, in respect of the relevant testing period, EBITDA less
depreciation on all fixed assets and amortisation of goodwill, acquisition
costs and other intangible assets;
"EBITDA" means, in respect of the relevant testing period, Net Income for
that period, determined in accordance with Approved Accounting Principles
before any deduction (to the extent that such deduction is made in the
calculation of earnings) for or on account of:-
(a) Total Interest;
(b) Tax charged or credited during the relevant testing period;
(c) depreciation on fixed assets;
(d) amortisation of goodwill, acquisition costs and other intangible
assets;
(e) write-downs, write-offs, minority interests and other non-cash
charges in determining earnings of the Borrowing Group for that
period; and
5
<PAGE>
(f) subject to Clause 13.2.16 (Restrictions on Payment of Dividends,
Etc.), dividends and distributions paid in respect of equity during
the relevant period;
and excluding items which would be regarded as extraordinary or
exceptional items;
"ENVIRONMENT" consists of all, or any, of the following media: the air,
water as ground water, surface water, drinking water supplied, vapour and
ice, and land (both surface and subsurface); and the medium of the air
includes the air within buildings and air within other natural or manmade
structures, above or below ground;
"ENVIRONMENTAL CLAIM" means (i) any threatened or instituted claim,
demand, accusation, allegation or notice of violation, in each case made
in writing, against any Borrower or any Guarantor or any of their
respective subsidiaries (not being a purely vexatious, frivolous or
specious claim) by any person (x) in respect of any loss or liability
suffered or incurred by that person as a result or in connection with any
violation of Environmental Law or (y) giving rise to any remedy or penalty
that may be enforced or assessed by private or public legal action in
connection with Environmental Contamination or (ii) any remedial action or
action to comply that any Borrower or any Guarantor or any of their
respective subsidiaries is obliged to undertake pursuant to Environmental
Law in connection with Environmental Contamination, or (iii) any
application for any interim or final judicial or administrative decree,
injunction, cease and desist order, abatement order, compliance order,
consent order, clean-up order or enforcement notice, stop notice,
improvement notice, prohibition notice or revocation order against any
Borrower or any Guarantor or any of their respective subsidiaries in
respect of Environmental Contamination;
"ENVIRONMENTAL CONTAMINATION" means the following and the consequences
resulting therefrom: any condition connected with any emission, release,
leakage, spillage, or presence, use, leaching or migration (in any case
whenever occurring), of Dangerous Substances at or from any site (or the
migration of a Dangerous Substance from surrounding property or
groundwater in, into or onto any site) owned or operated by any Borrower,
any Guarantor or any of their respective subsidiaries, and any residual
Dangerous Substance on or under any site owned or operated by the
Borrower, any Guarantor or any of their respective subsidiaries including
(without limitation) the storage, keeping, handling, labelling, transfer
or disposal of Dangerous Substances, to the extent any of the foregoing
results in a breach of any Environmental Law or has given or may
reasonably
6
<PAGE>
be expected to give rise to an Environmental Claim;
"ENVIRONMENTAL EVENT" means any event (whenever occurring) which
constitutes a breach of any Environmental Law or which has given or may
reasonably be expected to give rise to an Environmental Claim;
"ENVIRONMENTAL LAW" means all present and future laws, regulations,
ordinances, permits or other requirements having legal effect in any
jurisdiction in which any member of the Borrowing Group is organised or
incorporated or carries on business or owns assets concerning the
protection of the Environment, human health and safety or the control of
Dangerous Substances;
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, plan,
consent order or consent decree of or from any Governmental Authority;
"ENVIRONMENTAL REPORT" means the following reports in the agreed terms
addressed to and for the benefit of, inter alia, the Finance Parties:
----------
(a) France
------
(i) Environmental Audit at the CEAC Auxerre Site prepared by Dames &
Moore dated January 12, 1995;
(ii) Environmental Audit at the CEAC Clichy Site prepared by Dames &
Moore dated January 11, 1995;
(iii) Environmental Audit at the CEAC Lille Site prepared by Dames &
Moore dated January 11, 1995;
(iv) Environmental Audit at the CEAC Nanterre Site prepared by Dames &
Moore dated January 12, 1995;
(v) Environmental Audit at the CEAC Nimes Site prepared by Dames &
Moore dated January 12, 1995;
(vi) Environmental Audit at the CEAC Peronne Site prepared by Dames &
Moore dated January 11, 1995;
(vii) Environmental Audit at the CEAC Group GAST Site,
Pont-Sainte-Maxence, prepared by Dames & Moore dated January 12,
1995;
(viii) Environmental Audit at the CEAC Vierzon Site prepared by Dames &
Moore dated January 10, 1995;
7
<PAGE>
(ix) Legal Assessment of Environmental Situation at CEAC Facilities in
France prepared by Gide Loyrette Nouel dated January 16, 1995;
(b) Belgium
-------
(i) Environmental Due Diligence Report: Accumulateurs Tudor (Belgium)
prepared by ERM Belgium dated January 1995;
(ii) (Draft) Environmental Due Diligence Report: CMP Batterijen
(Mortsel) prepared by ERM Belgium dated January 18, 1995;
(iii) Environmental Due Diligence Report: prepared by De Bandt, Van
Hecke & Lague dated January 9, 1995 and supplemented January 17,
1995;
(c) Germany
-------
(i) Phase I Environmental Site Assessment AS GmbH Werk Weiden prepared
by Fugro-Ecolyse B.V. dated January 1995;
(ii) Phase I Environmental Site Assessment Sonnenschein Lithium GmbH
(Budingen) prepared by Fugro-Ecolyse B.V. dated January 1995;
(iii) Phase I Environmental Site Assessment AS GmbH Hauptverwaltung und
Werk Budingen (Thiergarten) prepared by Fugro-Ecolyse B.V. dated
January 1995;
(iv) Phase I Environmental Site Assessment A.S. GmbH Werk Berlin
prepared by Fugro-Ecolyse B.V. dated January 1995;
(v) Environmental Audit Report prepared by Bruckhaus Westrick
Stegemann dated January 13, 1995;
(d) Italy
-----
(i) Environmental Due Diligence Report: CGA - Casalnuovo Plant, Italy
prepared by ERM Italia s.r.l. dated January 1995;
(ii) Environmental Due Diligence Report: SINAC, Romano di Lombardia
Plant, Italy prepared by ERM Italia s.r.l. dated November 1994;
(iii) Environmental Due Diligence Report: F.A.Y. - Fumane Plant, Italy
prepared by ERM Italia s.r.l. dated November 1994;
8
<PAGE>
(iv) Environmental Legal Audit prepared by Gianni, Origoni & Partners
dated January 13, 1995;
(e) Netherlands
-----------
(i) Draft Report Phase I Environmental Site Assessment CMP Batterijen
B.V. (Vlaardingen) prepared by Fugro-Ecolyse B.V. dated January
1995;
(ii) Due Diligence Report prepared by Loeff Claeys Verbeke dated
January 13, 1995;
(f) Poland
------
(i) Phase I Environmental, Health & Safety Audit: Centra S.A.,
Poznan, Poland, prepared by ERM Polska dated January 1995;
(ii) Phase I Environmental, Health & Safety Audit: Centra S.A.
Czarnkow, Poland, prepared by ERM Polska dated January 1995;
(iii) Environmental Due Diligence Report prepared by Gide Loyrette Nouel
Polska dated January 1995;
(g) Spain
-----
(i) Environmental Report for Fulmen Iberica S.A. prepared by J&A
Garrigues dated January 1995;
(h) United Kingdom
--------------
(i) Environmental Health & Safety Audit of CMP Limited prepared by
Environmental Resources Management dated January 1995; and
(ii) Environmental Due Diligence Report prepared by Lovell White
Durrant dated January 9, 1995;
"EQUITY SALE" means the sale or other transfer by any member of the
Borrowing Group of equity securities in another member of the Borrowing
Group, which sale or transfer dilutes the aggregate percentage equity
ownership of that member in the issuer of such equity securities; provided
--------
that no such sale or transfer shall be an Equity Sale if (i) such sale or
transfer is required to comply with any consent, authorisation or approval
referred to in Clause 4.1.1(b)(i) or (ii) (which consent, authorisation or
approval (as applicable) is in form satisfactory to the Agent and Majority
Lenders to the extent required by such clause), and the proceeds of such
sale or transfer are applied in accordance with Clause 7.3.1; (ii) the
equity securities sold or
9
<PAGE>
transferred (as the case may be) are Directors Qualifying Shares
immediately following such sale or transfer; or (iii) such sale or
transfer is (a) between Tier I Obligors, (b) between Tier II
Obligors, (c) between members of the Borrowing Group which are neither
Tier I Obligors nor Tier II Obligors, or (d) from a Tier II Obligor to a
Tier I Obligor or from a member of the Borrowing Group which is neither a
Tier I Obligor nor a Tier II Obligor, to a Tier I Obligor or a Tier II
Obligor.
"EQUIVALENT AMOUNT" means the amount of a currency other than FF that can
be purchased with FF calculated on the basis of the Agent's spot rate of
exchange for the purchase of such other currency with FF on the date such
calculation is to be made (such calculation to be made, for the purpose of
determining (a) the amount in currencies other than FF available to be
drawn under the Revolving Credit Facility, on the Rate Fixing Day
applicable to the relevant Drawdown Date, and (b) all matters relating to
amounts in currencies other than FF under the Term Loan Facility, at 9.30
a.m. on the Rate Fixing Day applicable to the Drawdown);
"ESP" means the lawful currency from time to time of the Kingdom of Spain;
"EVENT OF DEFAULT" means one of the events specified in Clause 14.1;
"EXIDE HOLDINGS" means Exide Holdings France S.A., a societe anonyme
organised under the laws of France with its registered office at 8 Rue
Jean Goujon, Paris 75008, France;
"EXISTING INDEBTEDNESS" means financial indebtedness of the Borrowers
and/or their respective subsidiaries identified on Schedule 9, and in each
case all interest and other amounts accrued thereon during or for the
interest period current at any date of determination, each such item of
financial indebtedness being evidenced by its related agreement, deed or
other instrument in the form in existence on the date of this Agreement,
subject to such changes therein as do not affect the rights or remedies of
the Finance Parties under or in connection with the Finance Documents;
"FACILITIES" means the Term Loan Facility and the Revolving Credit
Facility (including any WCP Facilities) and "FACILITY" means either of
them;
"FACILITY AMOUNT" means (i) FF 415,000,000, or the Equivalent Amount in
other Available Currencies, in the case of the Term Loan Facility, and
(ii) FF 415,000,000, or the Equivalent Amount in other Available
Currencies, in the case of the Revolving
10
<PAGE>
Credit Facility, as in each case the same may be reduced pursuant to the
provisions of this Agreement;
"FEES LETTER" means, the letter from the Agent to the Parent in the
agreed terms setting out details of the fees payable pursuant to Clause
11.1.1(c);
"FF" means the lawful currency from time to time of the Republic of
France;
"FIAT" means FIAT SpA, an Italian corporation with offices at Corso G.
Marconi, 10, 10125 Torino, Italy;
"FINAL REPAYMENT DATE" means 30th April, 2000;
"FINANCE DOCUMENTS" means this Agreement, the Fees Letter, each Deed of
Accession, each WCP Agreement, each Transfer Certificate, each Revolving
Credit Guarantee and each Letter of Credit, and any other document
expressed to be made supplemental to and/or modifying any of the foregoing
or entered into pursuant hereto or thereto, and "FINANCE DOCUMENT" means
any of them;
"FINANCE PARTIES" means the Arranger, Agent, Lead Managers, Lenders, WCP
Providers and Issuing Lenders, and "FINANCE PARTY" means any of them;
"FINANCIAL INDEBTEDNESS" means, without duplication, any indebtedness in
respect of or arising under or in connection with:-
(i) moneys borrowed;
(ii) any debenture, bond, note or loan stock or other similar
instrument;
(iii) any acceptance or documentary credit (except, in the case of
documentary credits, those issued in support only of liabilities to
trade creditors incurred in the ordinary course of business and
having a term of not more than 90 days);
(iv) receivables sold or discounted (otherwise than on a non-recourse
basis);
(v) the acquisition cost of any asset to the extent payable after the
time of acquisition or possession by the person liable as principal
obligor for the payment thereof where the deferred payment is
arranged primarily as a method of raising finance or financing or
refinancing the acquisition of the asset acquired (which, for the
avoidance of doubt, shall not include liabilities to trade
creditors incurred in the ordinary
11
<PAGE>
course of business and having a term of not more than 90 days);
(vi) the sale price of any asset to the extent paid before the time of
sale or delivery by the person liable to effect such sale or
delivery where the advance payment is arranged primarily as a
method of raising finance or financing or refinancing the
manufacture, assembly, acquisition or holding of the asset to be
sold;
(vii) finance leases, credit sale or conditional sale agreements (whether
in respect of land, buildings, plant, machinery, equipment or
otherwise) entered into primarily as a method of raising finance or
financing or refinancing the acquisition of the relevant asset (but
not including liabilities under operating leases);
(viii) the amount payable under any put option or other arrangement
whereby any member of the Borrowing Group is liable to purchase
share capital or other securities issued;
(ix) any guarantee, indemnity or similar assurance against financial
loss of any person in respect of obligations of the type described
in the preceding paragraphs (i) to (viii);
(x) any guarantee, endorsement or other undertaking of responsibility
for any obligations of any other person, whether (a) directly or
indirectly by agreement to purchase the Financial Indebtedness of
any other person, or (b) through the purchase of goods or other
assets, supplies or services, or maintenance of working capital or
other balance sheet covenants or conditions, or by way of stock
purchase, capital contribution, advance or loan which, in any case
in this subclause (b), is entered into for the purpose of paying or
discharging any Financial Indebtedness of such other person or
assuring the holder of such Financial Indebtedness or obligation
against loss in respect thereof;
(xi) amounts raised under any other transaction having as a primary, and
not an incidental effect, the commercial effect of a borrowing;
(xii) debts incurred in the ordinary course of business which remain
unpaid for more than 60 days after their due date for payment,
including for this purpose debts which
12
<PAGE>
upon their incurrence are within the exceptions set forth in
paragraph (iii) above (other than debts which are being diligently
contested in good faith unless the Agent reasonably believes that
there is no reasonable prospect of success); or
(xiii) net amounts payable under any interest rate or currency swap,
collar or other similar agreement or any other hedging or
derivative instrument, the amount of Financial Indebtedness being
attributable thereto being 20% of the face or notional amount of
the relevant agreement, or in each case such lower percentage as
shall be reasonably approved by the Agent;
"GBP" means the lawful currency from time to time of the United Kingdom;
"GOVERNMENTAL AUTHORITY" means any domestic or foreign court or
governmental body, department, agency, commission, authority or
instrumentality;
"GUARANTEES" means the guarantees by the Guarantors pursuant to Clause 15;
"GUARANTOR" means each member of the Borrowing Group other than
Non-Material Subsidiaries; provided that any Non-Material Subsidiary
--------
which has entered into a Deed of Accession shall be a Guarantor for all
purposes hereof;
"INDEMNITY" means any of the indemnities given pursuant to Clauses 5.7.1,
5.8 and 5.9;
"INDEMNITY LENDER" has the meaning given it in Clause 5.8;
"INDEMNIFIED OBLIGATION" means the obligation in respect of which an
Indemnity is given by an Indemnifying Party pursuant to Clauses 5.7, 5.8
and 5.9, as the case may be;
"INDEMNIFIED PARTY" means:-
(i) in the case of the indemnities given by the Requesting Borrower in
Clauses 5.7 and 5.9, the relevant Issuing Lender and the Indemnity
Lenders respectively; and
(ii) in the case of the indemnity given by the Indemnity Lenders in Clause
5.8, the relevant Issuing Lender;
"INDEMNIFYING PARTY" means:-
(i) the Requesting Borrower in the case of the indemnities in Clauses 5.7
and 5.9; and
13
<PAGE>
(ii) any Indemnity Lender in the case of the indemnity in Clause 5.8;
"INFORMATION MEMORANDUM" means the document containing information
relating to the Business to be prepared in connection with this Agreement
by the Agent and the Borrowers' Agent and to be distributed by the Agent
to the Lenders and potential Lenders;
"INSURANCES" means the insurance effected by each Borrower in relation to
its respective assets and business in accordance with Clause 13.2.6;
"INTELLECTUAL PROPERTY" means all patents and patent applications, trade
and/or service marks and trade and/or service mark applications (and all
goodwill associated with such applications), all brand and trade names,
all copyrights and rights in the nature of copyright, all design rights,
all registered designs and applications for registered designs, all trade
secrets, know-how and all other intellectual property rights now or in the
future owned by the members of the Borrowing Group throughout the world or
the interests of any member of the Borrowing Group in any of the foregoing
now or in the future, together with the benefit of all present and future
agreements entered into or the benefit of which is enjoyed by any member
of the Borrowing Group relating to the use or exploitation of any of the
aforementioned rights;
"INTEREST PAYMENT DATE" means, in relation to a Cash Advance, the date
determined pursuant to Clause 8.2;
"INTEREST PERIOD" means a period by reference to which interest is
calculated and payable on a Cash Advance or an overdue sum;
"ISSUING LENDER" means any Lender which issues a Revolving Credit
Guarantee or a Letter of Credit pursuant to the terms hereof, in its
capacity as issuer;
"ITL" means the lawful currency from time to time of the Republic of
Italy;
"LENDER" means any Original Term Loan Lender and any Original Revolving
Credit Lender or, as the case may be, an assignee or Transferee therefrom
to whom rights and/or obligations are assigned or transferred in
accordance with Clause 25.2 or 25.3, and includes a successor of any such
person;
"LENDING OFFICE" means in relation to a Lender, the office or offices
through which it is acting for the purpose of this Agreement;
14
<PAGE>
"LETTER OF CREDIT" means each letter of credit issued by a Lender under
the Revolving Credit Facility in accordance with Clause 5.3;
"LETTER OF CREDIT OUTSTANDING" means, at any time, the maximum aggregate
liability of the Issuing Lenders under all Letters of Credit in issue,
each such liability being calculated by the relevant Issuing Lender on the
basis of its discharge in due course of its liabilities under the relevant
Letters of Credit;
"LIBOR" means, in relation to any Cash Advance or any overdue sum:-
(a) the rate determined by the Agent to be the arithmetic mean (rounded
upwards, if necessary, to the nearest five decimal places)of the
offered quotations for deposits in the relevant Available Currency
for a period equal to the Interest Period relating to that Advance
(or overdue sum) which appear on the Telerate Display Screen page
number 3750 (or such other page(s) as may replace such page from time
to time on that system) at or about 11.00 a.m. (London time) on the
relevant Rate Fixing Day; or
(b) if no such offered quotations appear on the relevant page as
aforesaid the arithmetic mean (rounded upwards, if necessary, to
the nearest five decimal places) of the respective rates, as
supplied to the Agent at its request, quoted by the Reference
Lenders to prime lenders in the London Interbank Market at or about
11.00 a.m. (London time) on the relevant Rate Fixing Day for the
offering of deposits in the relevant Available Currency and in an
amount comparable to the amount of, and for a period equal to the
Interest Period relating to, that Advance (or overdue sum) for
delivery on the first day of that Interest Period;
"LOAN" means the aggregate principal amount of all Advances for the time
being outstanding under this Agreement and "TERM LOAN" and "REVOLVING
CREDIT LOAN" shall be construed accordingly;
"MAJORITY LENDERS" means one or more Lenders, the sum of whose Relevant
Amounts equals or exceeds sixty six and two thirds per cent. (66-2/3%) of
the aggregate of the Relevant Amounts of all the Lenders;
"MANDATORY LIQUID ASSET COSTS" means, in relation to each Lender, the
additional cost to such Lender of complying with (i) the relative reserve
asset ratio required by the Bank of England from time to
15
<PAGE>
time (if any), expressed as a percentage per annum and calculated as set
forth in Schedule 6, or (ii) any analogous requirement of any central
banking or financial regulatory authority imposed at the date of this
Agreement in respect of the funding or maintenance of commitments or loans
of the type contemplated hereby and applicable to a specific currency;
"MARGIN" means 1%;
"MARGIN STOCK" means margin stock within the meaning of Regulations G, T,
U and X of the Board of Governors of the Federal Reserve System of the
U.S.;
"MATERIAL ADVERSE EFFECT" has the meaning given thereto in Clause 1.2.5;
"MATERIAL SUBSIDIARY" means (i) any Borrower, (ii) any Guarantor and (iii)
any subsidiary of any thereof whose gross turnover exceeds 1% of the gross
turnover of the Borrowing Group or whose Net Assets exceeds 1% of the Net
Assets of the Borrowing Group; provided that the aggregate gross turnover
--------
of the Non-Material Subsidiaries shall not exceed 3% of the aggregate
gross turnover of the Borrowing Group and the aggregate Net Assets of the
Non-Material Subsidiaries shall not exceed 3% of the Net Assets of the
Borrowing Group. For this purpose:-
(a) in the case of a person which itself has subsidiaries, the
calculation shall be made by using the consolidated gross turnover
or Net Assets of it and its subsidiaries; and
(b) the calculation of consolidated gross turnover or Net Assets shall be
made by reference to:-
(i) the accounts of the relevant subsidiary (or, as the case may be,
a consolidation of the accounts of it and its subsidiaries) used
for the purpose of the then latest unaudited quarterly or
audited annual consolidated accounts of the Borrowing Group
delivered to the Agent under Clause 13.3 or, in the case of a
newly-acquired or formed subsidiary for which no such accounts
have as yet been required to be so delivered pursuant to Clause
13.3, the most recent quarterly or annual accounts of the
relevant subsidiary (or, as the case may be, a consolidation of
the accounts of it and its subsidiaries), provided such
16
<PAGE>
accounts report a period ending no earlier than six months from
the date of such calculation; and
(ii) the unaudited quarterly or audited annual consolidated accounts
(as the case may be) of the Borrowing Group on a pro forma basis
together with any newly-acquired subsidiary described in sub-
clause (b)(i) of this definition;
"NET ASSETS" means assets (actif) less amortisation and depreciation
-----
(amortissements) and provisions (provisions);
--------------- ----------
"NET CASH PROCEEDS" means the remainder (which may be negative) of cash
proceeds arising from disposal of any fixed asset or any part of the
business of the Borrowing Group or any member thereof, or from any Equity
Sale or incurrence of Financial Indebtedness of the type described in
paragraph (xiii) of the definition of "Permitted Indebtedness", after
deducting (i) in the case of such a disposal, required repayment of
Financial Indebtedness secured by such asset and/or Financial Indebtedness
incurred to purchase such asset or business (or any refinancings thereof),
(ii) reasonable costs related to such Equity Sale, incurrence of Financial
Indebtedness or disposal, and (iii) reasonable provision for Taxes
attributable to such Equity Sale or disposal;
"NET INCOME" means, in respect of any period, the remainder of (i)
the resultat consolide, less (ii) the part des tiers dans le resultat, of
-------- --------- ---- -------------------------------
the Borrowing Group determined on a consolidated basis for such period;
"NET REVOLVING CREDIT COMMITMENT" means, in relation to any Lender, its
Revolving Credit Commitment less, to the extent it is a WCP Provider, the
amount of its WCP Commitments pursuant to Clause 3.6.1 from time to time;
"NET WORTH" means, at any time, the net worth (capitaux propres) of CEAC
----------------
as derived from the then latest audited consolidated accounts of CEAC but
after deducting, or excluding, as the case may be, any capital accounts or
reserves derived from any writing up of the book value of any assets above
historic cost less accumulated depreciation at any time after 31st
December, 1993;
"NON-MATERIAL SUBSIDIARY" means a member of the Borrowing Group which is
not a Material Subsidiary;
"OBLIGOR" means the Parent, Exide Holdings, each Borrower, each Guarantor
and any other member of the Borrowing Group which is a party to a Finance
17
<PAGE>
Document; provided that any liability of the Parent arising from its
--------
status as an Obligor is limited as set forth in Clause 32 of this
Agreement;
"OPERATING BUDGET" means a budget for CEAC and its subsidiaries in form
and scope reasonably satisfactory to the Agent (including budgeted
statement of income, and sources and uses of cash and balance sheets);
"ORIGINAL REVOLVING CREDIT LENDERS" means the Lead Managers, in their
capacity as the initial Revolving Credit Facility Lenders;
"ORIGINAL TERM LOAN LENDERS" means the Lead Mangers, in their capacity as
the initial Term Loan Facility Lenders;
"PARTICIPATION" means, in relation to a Lender and a Facility, its right,
title, interest and obligations in relation to such Facility, namely:-
(a) its right to receive its Participation Proportion of principal and
interest in respect of outstanding Advances under that Facility
(including, in the case of the Revolving Credit Facility, its right
to be indemnified under Clause 5.9 in respect of its Participation
Proportion of the Revolving Credit Guarantees and the Letters of
Credit and its right to any consequential payments pursuant to Clause
3.7.1); and
(b) its obligation to participate in its Participation Proportion in
future Advances up to the limit of that Facility;
"PARTICIPATION PROPORTION" means, generally, in relation to a Lender and a
Facility, the proportion in which that Lender has agreed to participate in
that Facility pursuant to Clause 3.1 (Basis of Participation) and subject
to Clause 3.6 (The WCP Facilities);
"PERMITTED INDEBTEDNESS" means, in relation to any person or persons in
the Borrowing Group:-
(i) Financial Indebtedness outstanding under any of the Facilities;
(ii) the Existing Indebtedness (and refinancings thereof), provided that
the principal amount thereof shall not be increased after the date
of this Agreement;
(iii) finance leases, hire purchase and conditional sale agreements in
relation to which the maximum aggregate liability on
18
<PAGE>
termination of such leases or agreements of such person or persons
and the other members of the Borrowing Group would not exceed in
aggregate FF 30,000,000 or the Equivalent Amount;
(iv) guarantees, indemnities or bonds given in the ordinary course of
its trading activities;
(v) Financial Indebtedness of the Borrowing Group arising from a loan
or credit permitted by Clause 13.2.12;
(vi) Financial Indebtedness of any person which, by way of acquisition,
becomes a member of the Borrowing Group after the Completion Date
where that Financial Indebtedness was subsisting in each case prior
to the date of the person's acquisition by a member of the
Borrowing Group and that Financial Indebtedness was not incurred in
contemplation of or in connection with the acquisition, and
refinancings of such Financial Indebtedness, provided that the
principal amount of such Financial Indebtedness shall not be
increased after the date of such acquisition above the amount
outstanding on such date or, if greater, the maximum amount
available to be drawn under the documentation governing such
Financial Indebtedness as in effect on such date;
(vii) Financial Indebtedness of members of the Borrowing Group in
connection with the provision of customs bonds required in the
ordinary course of trading of the Borrowing Group;
(viii) further Financial Indebtedness of any Borrower to the Parent or any
subsidiary of the Parent that is not a member of the Borrowing
Group, provided that such Financial Indebtedness is subordinated
upon terms in all respects satisfactory to the Agent, acting on the
instructions of the Majority Lenders;
(ix) guarantees, indemnities or similar assurances given (a) by a Tier I
Obligor in respect of obligations of another Tier I Obligor, (b) by
a Tier II Obligor in respect of another Tier II Obligor or of a
Tier I Obligor, or (c) by a person which is neither a Tier I
Obligor nor a Tier II Obligor in respect of obligations of a Tier I
Obligor or of a Tier II Obligor or of another person who is neither
a Tier 1 Obligor nor a Tier II Obligor, the
19
<PAGE>
guaranteed obligations in each case in this paragraph (ix) being
themselves permitted under this Agreement;
(x) Financial Indebtedness not falling within any other paragraph of
this definition in a principal amount which, for the Borrowing
Group in the aggregate, does not exceed FF 25,000,000 (or the
Equivalent Amount);
(xi) any other Financial Indebtedness of the Borrowing Group incurred
with the consent of the Agent (acting on the instructions of the
Majority Lenders);
(xii) overdraft and working capital facilities backstopped by and in an
aggregate principal amount not exceeding the aggregate amount of
the relevant Revolving Credit Guarantees and Letters of Credit; and
(xiii) Financial Indebtedness of CEAC arising from the sale, discounting
or other financing of receivables of CEAC, the proceeds of which
are utilised in accordance with Clause 7.3.1, and renewals or
refinancings of the transaction or transactions giving rise to such
Financial Indebtedness; provided that the face amount of
--------
receivables sold (and therefore not constituting Financial
Indebtedness) pursuant to Clause 13.2.8(g), shall not exceed 33
1/3% of the aggregate face amount of receivables of CEAC and its
subsidiaries on a consolidated basis as of the date of (and
immediately prior to) incurrence, renewal or refinancing of such
Financial Indebtedness;
"PERMITTED INVESTMENT" means, in relation to any person in the Borrowing
Group:-
(i) cash;
(ii) commercial paper maturing not more than nine months from the date
of issue and rated at least A-1 by Standard & Poor's Corporation
or P-1 by Moody's Investors Service, Inc.;
(iii) any deposit of not more than one year's maturity with, or acceptance
maturing not more than one year after issue accepted by, a bank or
credit institution which has a combined capital and surplus and
undistributable profits of not less than USD 200,000,000 (or the
Equivalent Amount)
20
<PAGE>
and whose short term unsecured, unsubordinated debt rating is at
least A-1 by Standard & Poor's Corporation or P-1 by Moody's
Investors Service, Inc.;
(iv) securities issued or directly and fully guaranteed or insured by
the governments of Germany, Switzerland, France, Great Britain or
the United States of America or any agency or instrumentality
thereof having maturities of not more than one year from the date
of acquisition;
(v) repurchase obligations with a term of not more than seven days
fully collateralised by underlying securities of the types
described in paragraphs (ii) and (iii) above entered into with any
bank meeting the qualifications specified in paragraph (iii) above;
(vi) debt securities having not more than one year until final maturity
and listed on a recognised stock exchange and rated at least Aa by
Moody's Investors Service, Inc. or AA by Standard and Poor's
Corporation;
(vii) loans permitted pursuant to Clause 13.2.12;
(viii) investments in the ordinary course of the trading business of the
relevant person;
(ix) equity investments (a) by a Tier I Obligor in another Tier I
Obligor, (b) by a Tier II Obligor in another Tier II Obligor, or
(c) by a person which is neither a Tier I Obligor nor a Tier II
Obligor in another person which is neither a Tier I Obligor nor a
Tier II Obligor;
(x) investments in subsidiaries in the respective amounts in effect at
Completion and, to the extent permitted hereunder, additional
investments in those or other subsidiaries;
(xi) investments of USD 3,000,000 made within nine months of 1st
October, 1994 and an additional USD 3,000,000 made within 18 months
of 1st October, 1994, in each case pursuant to and in accordance
with the Sale Agreement dated 1st October, 1994 between the State
Treasury of the Republic of Poland and CEAC; an d
(xii) investments comprising the purchase consideration for the
acquisition of equity shares of Sonnenschein outstanding on the
date hereof and not beneficially
21
<PAGE>
owned by members of the Borrowing Group, provided that such
purchase consideration does not exceed an aggregate of DM
10,000,000 or its Equivalent Amount;
"PERMITTED SECURITY INTEREST" means, in relation to any person in the
Borrowing Group:-
(i) Security Interests granted with the consent of the Agent (acting
on the instructions of the Majority Lenders);
(ii) liens arising and subsisting by operation of law and in the
ordinary course business activities;
(iii) rights of set-off existing in the ordinary course of trading
activities between any person in the Borrowing Group and its
respective suppliers or customers, and rights of set-off arising by
operation of law by virtue of the provision to such person of bank
clearing facilities or overdraft facilities permitted hereunder;
(iv) any retention of title to goods supplied to any person in the
Borrowing Group where such retention is permitted by the relevant
person in the ordinary course of its trading activities and on
customary terms;
(v) Security Interests securing Financial Indebtedness referred to in
paragraph (vi) of the definition of "Permitted Indebtedness" where
that Security Interest was subsisting in each case prior to the date
of the person's acquisition by a member of the Borrowing Group and
that Security Interest was not granted in contemplation of or in
connection with the acquisition, provided that the principal
Financial Indebtedness secured by any such Security Interest shall
not be increased after the date of such acquisition;
(vi) Security Interests securing the Existing Indebtedness on the date
hereof, provided that the principal Financial Indebtedness secured
by any such Security Interest shall not be increased after the date
of this Agreement;
(vii) Security Interests covering assets the subject of equipment and
finance leases, hire purchase, conditional sale or similar
arrangements entered into by a member of the Borrowing Group which
are permitted by this Agreement;
22
<PAGE>
(viii) Security Interests arising in respect of any escrow arrangements
put into place for the purpose of a disposal or acquisition by a
member of the Borrowing Group permitted by this Agreement; and
(ix) Security Interests on receivables of CEAC securing obligations of
CEAC arising from the sale, discounting or other financing of such
receivables permitted by this Agreement.
"PIBOR" means, in relation to any Cash Advance or any overdue sum
denominated in FF where such Advance is made by, or overdue sum owed to, a
PIBOR-Eligible Lender:-
(a) the rate determined by the Agent to be the arithmetic mean (rounded
upwards, if necessary, to the nearest five decimal places) of the
offered quotations for deposits in FF for a period equal to the
Interest Period relating to that Advance (or overdue sum) which
appear on the Telerate Display Screen page number 20041 (or such
other page(s) as may replace such page from time to time on that
system) at or about 11.00 a.m. (Paris time) on the relevant Rate
Fixing Day; or
(b) if no such offered quotations appear on the relevant page as
aforesaid the arithmetic mean (rounded upwards, if necessary, to the
nearest five decimal places) of the respective rates, as supplied to
the Agent at its request, quoted by the Reference Lenders to prime
lenders in the Paris Interbank Market at or about 11.00 a.m. (London
time) on the relevant Rate Fixing Day for the offering of deposits in
FF and in an amount comparable to the amount of, and for a period
equal to the Interest Period relating to, that Advance (or overdue
sum) for delivery on the first day of that Interest Period;
"PIBOR-ELIGIBLE LENDER" means a Lender which has notified the Agent in
writing of the ability of such Lender to fund FF-denominated Cash Advances
in the Paris interbank market;
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of
notice or the lapse of time or the making of any determination or the
fulfilment of any condition, will constitute an Event of Default, provided
that such notice, lapse of time, determination or condition is in any case
specified or referred to in the relevant Event of Default as set forth in
Clause 14.1;
23
<PAGE>
"RATE FIXING DAY" means, in relation to a Cash Advance, the Business Day
being two Business Days prior to its Drawdown Date and, in relation to any
Interest Period, the Business Day being two Business Days prior to the
first day of that Interest Period; provided that, in relation to a Cash
Advance denominated in GBP the Rate Fixing Day shall be the Drawdown Date
or, as the case may be, the first day of the relevant Interest Period;
"RECOVERY" has the meaning given to it in Clause 19.1;
"REFERENCE LENDERS" means, subject to Clause 25.5.2, Bankers Trust Company
and Bank of America National Trust and Savings Association and, at such
time as there are at least three Lenders party hereto, two other banks
appointed from time to time by the Agent (after consultation with the
Borrowers' Agent) to act as Reference Lenders;
"RELEVANT AMOUNTS" means, in relation to a Lender, the aggregate from time
to time of (a)(i) its Commitments or (ii) after the making of the Term
Advances, its Revolving Credit Commitment and all Term Advances made by it
or (b) if the Commitments have been terminated, all Advances made by it
then outstanding;
"RELEVANT INTELLECTUAL PROPERTY" means Intellectual Property which is
material to the business, operations or assets of any member of the
Borrowing Group;
"REPAYMENT DATES" means the dates commencing on 31st December, 1995 and
detailed in Schedule 2;
"REPAYMENT SCHEDULE" means the repayment schedule for the Term Loan
Facility which is set out in Schedule 2;
"REQUESTING BORROWER" has the meaning specified in Clause 5.7.1;
"RESERVATIONS" means limitations on enforceability of legal documents of
the relevant category dictated by local law and used as qualifications in
legal opinions delivered to and accepted by the Agent in connection with
the Drawdown;
"REVOLVING CREDIT COMMITMENT" means, in relation to the participation of
any Lender in the Revolving Credit Facility, the amount or Equivalent
Amount of such amount stated opposite its name in Schedule 1 (or, in the
case of a Transferee, the amount or Equivalent Amount of such amount
stated in the Schedule to the relevant Transfer Certificate as being
transferred to that Transferee) in relation to that Facility, in each case
as the same may be transferred (in whole or
24
<PAGE>
in part), cancelled, reduced, varied or terminated in accordance with the
terms of this Agreement;
"REVOLVING CREDIT FACILITY" means the multicurrency revolving credit
facility not in excess of the Revolving Credit Commitment granted to the
Borrower hereunder (as the same may be reduced in accordance with the
terms of this Agreement), which may be utilised by way of Revolving Credit
Advances, Revolving Credit Guarantees, Letters of Credit and the WCP
Facilities;
"REVOLVING CREDIT GUARANTEE" means a guarantee denominated in an Available
Currency undertaken and issued by an Issuing Lender at the request of the
Borrowers' Agent made on behalf of a Requesting Borrower;
"REVOLVING CREDIT GUARANTEE OUTSTANDINGS" means the maximum aggregate
liability of the Issuing Lenders under all Revolving Credit Guarantees
then in issue, each such liability being calculated by the relevant
Issuing Lender on the basis of its discharge in due course of its
liabilities under the relevant Revolving Credit Guarantee;
"REVOLVING CREDIT LENDER" means, initially, the Original Revolving Credit
Lender and shall include any other Lender participating in the Revolving
Credit Facility;
"SAME DAY FUNDS" means funds settled for value on the same day throughout
a clearing system relevant for the currency concerned and such other funds
as the Agent shall specify as being customary at the time for such
settlement;
"SECURITY INTEREST" means any mortgage, charge (fixed or floating),
pledge, lien, right of set-off hypothecation, trust, assignment by way of
security, reservation of title, or any other security interest whatsoever,
howsoever created or arising or any other agreement or arrangement
(including, without limitation, a sale and repurchase arrangement) having
the practical effect of conferring security, and any agreement to enter
into, create or establish any of the foregoing;
"SHARES" means 20,989,247 shares in the capital of CEAC, comprising
approximately 99.7% of the 21,051,836 outstanding shares in CEAC's capital
on the Completion Date;
"SICIND" means SICIND SpA, an Italian corporation that is a wholly owned
subsidiary of FIAT, with offices at Corso G. Marconi, 20, 10125 Torino,
Italy;
25
<PAGE>
"SONNENSCHEIN" means Accumulatorenfabrik Sonnenschein GmbH, a German
corporation registered in Budingen, Germany;
"SPECIFIED EXISTING INDEBTEDNESS" means indebtedness of the Borrowers and
their respective subsidiaries owed to the persons, and in the currencies
and amounts outstanding on 31st January, 1995, identified on Schedule 5,
and refinancings of such indebtedness between such date and the Completion
Date provided that the amount of any undrawn commitment in respect thereof
shall not be increased after the date hereof;
"STOCK PURCHASE AGREEMENT" means the Stock Purchase Agreement between the
Parent, FIAT and SICIND relating to the acquisition (direct or indirect)
by the Parent of the Shares;
"SUPPLY AGREEMENTS" means the long term supply agreements in the form of
Schedule 6.1.8 to the Stock Purchase Agreement;
"SYNDICATION" has the meaning set forth in Clause 3.5;
"TAXES" means and includes all present and future income and other taxes,
levies, assessments, imposts, deductions, charges, duties, compulsory
loans and withholdings whatsoever and wheresoever imposed and any charges
in the nature of taxation together with interest thereon and penalties and
fines with respect thereto, if any, and any payments made on or in respect
thereof; and "TAX" and "TAXATION" shall be construed accordingly;
"TERM LOAN COMMITMENT" means, in relation to the participation of any
Lender in the Term Loan Facility, the amount or Equivalent Amount of such
amount stated opposite its name in Schedule 1 (or, in the case of a
Transferee, the amount or Equivalent Amount of such amount stated in the
Schedule to the relevant Transfer Certificate as being transferred to that
Transferee) in relation to that Facility, in each case as the same may be
transferred (in whole or in part), cancelled, reduced, varied or
terminated in accordance with the terms of this Agreement;
"TERM LOAN FACILITY" means the multicurrency term loan facility not in
excess of the Term Loan Commitment granted to the Borrower hereunder (as
the same may be reduced in accordance with the terms of this Agreement);
"TIER I OBLIGOR" means a Borrower or a Guarantor (a) which, pursuant to
the laws of its jurisdiction of organisation or incorporation, is
permitted validly to agree to make payment of all or substantially all
amounts payable under the
26
<PAGE>
Finance Documents and all or substantially all of the assets of which are
available for the satisfaction of such obligation, as reasonably
determined by the Agent, and (b) which has entered into a Guarantee in
respect of all or substantially all amounts payable under the Finance
Documents;
"TIER II OBLIGOR" means a Borrower or Guarantor which is not a Tier I
Obligor but (a) which, pursuant to the laws of its jurisdiction of
organisation or incorporation, is permitted validly to agree to make
payment of amounts payable under the Finance Documents (i) in its capacity
as a Borrower, up to the amount of Advances made to it, interest thereon
and fees in respect thereof, and (ii) in its capacity as a Guarantor, up
to an amount equal to the greater of the benefits received by such
Guarantor under the
Finance Documents or its stockholders' equity, and to
satisfy such obligation with assets equal in value to the amount thereof,
and (b) which has entered into a Guarantee in respect of an amount not
less than that referred to in Clause (a)(ii) of this definition;
"TOTAL BORROWINGS" means, at any time, the aggregate outstanding amount of
all Financial Indebtedness of the Borrowing Group, calculated on a
consolidated basis; provided that Financial Indebtedness of one member of
the Borrowing Group to another member shall not be taken into account;
"TOTAL INTEREST" means, in respect of the relevant testing period, the
aggregate of all interest (including amounts in the nature of interest in
connection with any interest rate and/or currency swap, cap, floor, collar
or other similar arrangement), guarantee fees, commitment fees and other
costs and fees of a similar nature (not including, to the extent otherwise
included, costs of issuance of debt, equity or warrants or amortisation of
debt discount) due in respect of Total Borrowings and payable by the
Borrowing Group during such period (including interest, the interest
finance charge element of hire-purchase, credit sale and conditional sale
agreements and of lease rentals under finance leases), less the sum of all
----
interest (including amounts in the nature of interest in connection with
any interest rate and/or currency swap, cap, floor, collar or other
similar arrangement), guarantee fees, commitment fees and other costs and
fees of a similar nature payable to the Borrowing Group during such
period;
"TRANSFER" has the meaning given to it in Clause 25.2;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 8;
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<PAGE>
"TRANSFEREE" means a bank, financial institution or other person to which
a Lender seeks to transfer or has transferred all or part of its rights
and obligations hereunder;
"TUDOR" means Sociedad Espanola Del Acumulador S.A., a company organised
under the laws of the Kingdom of Spain;
"UNITED KINGDOM" or "UK" means the United Kingdom of Great Britain and
Northern Ireland;
"USD" means the lawful currency from time to time of the United States of
America;
"VAT" means value added tax imposed in any relevant jurisdiction or any
other tax of a substantially similar nature substituted therefor from time
to time;
"WARRANTY AGREEMENT" means the Warranty Agreement between the Parent and
FIAT referred to in the Stock Purchase Agreement;
"WCP ADVANCE" means an Advance under a WCP Facility;
"WCP AGREEMENT" means an agreement between a WCP Provider and a WCP
Borrower relating to a WCP Facility;
"WCP BORROWER" means any Borrower in the event it has been provided with a
WCP Facility by a WCP Provider, and "WCP BORROWERS" means each of them;
"WCP COMMITMENT" means, in respect of any WCP Provider for a WCP Facility,
the amount designated by the WCP Provider pursuant to Clause 3.6.1, as
such WCP Commitment may be reduced pursuant to the terms of this
Agreement;
"WCP FACILITY" means a revolving credit facility made available by a WCP
Provider to a WCP Borrower pursuant to Clause 3.6 and "WCP FACILITIES"
means all such facilities;
"WCP PROVIDER" means any Lender acting through a branch or affiliate in
respect of a WCP Commitment of that Lender; and
"WORKING CAPITAL" means trade and other debtors in respect of operating
items plus prepayments and inventory less trade and other creditors in
respect of operating items and less accrued expenses and accrued costs.
1.2 Construction of Other Terms
---------------------------
In this Agreement, unless the context otherwise requires, a reference to:-
28
<PAGE>
1.2.1 "affiliate" means in relation to any person (a) any person (other than
---------
a subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with such person, or (b) any
person who is a director or officer (i) of such person, (ii) of any
subsidiary of such person or (iii) of any person described in
paragraph (a) above. For purposes of this definition, "control" of a
person shall mean the power, direct or indirect, (i) to vote 25% or
more of the securities having ordinary voting power for the election
of directors of such person, whether by way of ownership of
securities, contract, proxy or otherwise, or (ii) to direct or cause
the direction of the management and policies of such person, whether
by ownership of securities, contract, proxy or otherwise;
1.2.2 "assets" includes property and rights of every kind, present, future
------
and contingent (including uncalled share capital), and every kind of
interest in an asset, except that the word "contingent" shall not be
deemed included in this definition where the definition is used in
provisions relating to financial accounting ;
1.2.3 "indebtedness" includes any obligation (whether incurred as principal
------------
or as surety) for the payment or repayment of money, whether present
or future, actual or contingent, except that the word "contingent"
shall not be deemed included in this definition where the definition
is used in provisions relating to financial accounting;
1.2.4 a document or other writing being "in the agreed terms" means that the
-------------------
relevant document or writing is in form and substance satisfactory to
the Agent and has been initialled by or on behalf of the Agent and the
Parent on or before the date hereof;
1.2.5 an event or matter having a "Material Adverse Effect" is to be
-----------------------
construed as a reference to an event or matter (a) which has or is
reasonably likely to have, in the reasonable opinion of the Majority
Lenders, a material adverse effect on:-
(i) the financial condition, business, assets or revenues of the
Borrowing Group taken as a whole; or
(ii) except for those matters covered by sub-clause (b) of this Clause
1.2.5, the ability of (x) the Parent, (y) Exide Holdings, or (z)
the Borrowers or the Guarantors (in either case taken as a whole)
to perform in a timely and diligent manner all or any of its or
their (as applicable) material obligations (including, without
limitation, payment obligations) under each of the Finance
Documents;
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<PAGE>
or (b) resulting in any material term of the Finance Documents
not being legal, valid and binding on and enforceable against any
Obligor party thereto, subject only to the Reservations;
1.2.6 a "month" means (save where used in the expression "calendar month") a
----- --------------
period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month (or in a
subsequent calendar month in the case of the plural "months"),
provided that if:-
(a) any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the same
calendar month, or if none, on the preceding Business Day; and
(b) a period starts on the last Business Day in a calendar month or if
there is no numerically corresponding day in the month in which
that period ends, that period shall end on the last Business Day
in that later month;
(and references to "months" shall be construed accordingly);
------
1.2.7 a "person" includes any person, firm, company, corporation,
------
government, state or agency of a state or any undertaking (within the
meaning of Section 259(1) of the Companies Act 1985) or other entity
or association (whether or not having separate legal personality), or
any two or more of the foregoing;
1.2.8 "repayment" includes "prepayment" and its grammatical variations and
--------- ----------
cognate expressions shall be construed accordingly;
1.2.9 "subsidiary" means, with respect to any person, any corporation or
----------
other person fifty percent (50%) or more of whose securities or other
ownership interests having ordinary voting power for the election of
directors or similar representatives (other than securities having
such power only by reason of the happening of a contingency) are, as
of the date of determination thereof, directly or indirectly owned by
such person or one or more of such person's subsidiaries; and
1.2.10 "winding-up" of any person includes its dissolution and/or termination
----------
and/or any equivalent or analogous proceedings under the law of any
jurisdiction in which the person concerned is incorporated,
registered, established or carries on business or to which that person
is subject.
30
<PAGE>
1.3 Other Provisions
----------------
Except where a contrary intention appears, in this Agreement:-
1.3.1 a reference to an Obligor or a Finance Party is, where relevant,
deemed to be a reference to or to include, as appropriate, their
respective successors or assigns;
1.3.2 references to Clauses and Schedules are references to, respectively,
clauses of and schedules to this Agreement;
1.3.3 a reference to any agreement, deed or other instrument (including the
Finance Documents) is to be construed as a reference to that
agreement, deed or other instrument as it may have been or hereafter
be, from time to time, amended, varied, supplemented, restated or
novated but excluding for this purpose any amendment, variation,
supplement or modification which is contrary to any provision of any
of the Finance Documents;
1.3.4 a reference to a statute, law, rule, regulation or statutory
instrument is to be construed as a reference to that statute as the
same may have been, or may from time to time hereafter be, amended or
re-enacted;
1.3.5 a time of day is a reference to London time;
1.3.6 the index to and the headings in this Agreement are inserted for
convenience only and are to be ignored in construing this Agreement;
1.3.7 references to the singular shall include the plural and vice versa,
---- -----
and reference by way of masculine pronoun or adjective shall include
references by way of the feminine, and vice versa; and
---- -----
1.3.8 accounting terms are to be construed in accordance with the Approved
Accounting Principles.
2. THE FACILITIES
--------------
2.1 Term Loan and Revolving Credit Facilities
-----------------------------------------
2.1.1 The Lenders grant to the Borrowers, upon the terms and subject to the
conditions of this Agreement, the Term Loan Facility.
2.1.2 The Lenders grant to the Borrowers, upon the terms and subject to the
conditions of this Agreement, the Revolving Credit Facility.
2.2 Purpose
-------
2.2.1 Term Loan Facility: The proceeds of any Advance under the Term Loan
------------------
Facility shall be used by the
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<PAGE>
relevant Borrower to refinance its Specified Existing Indebtedness
and, to the extent permitted herein, Specified Existing Indebtedness
of other members of the Borrowing Group in an amount not to exceed the
amount so refinanced (plus premiums, accrued interest, fees and
expenses on such Specified Existing Indebtedness and any refinancings
thereof).
2.2.2 Revolving Credit Facility: The proceeds of any Advance (including WCP
-------------------------
Advances, except as otherwise restricted by Clause 3.6) under the
Revolving Credit Facility made on the Completion Date shall be used by
the relevant Borrower (i) to refinance its Specified Existing
Indebtedness and, to the extent permitted herein, Specified Existing
Indebtedness of other members of the Borrowing Group in an amount not
to exceed the amount so refinanced (plus premiums, accrued interest,
fees and expenses on such Specified Existing Indebtedness and any
refinancings thereof), or (ii) for the issue of Revolving Credit
Guarantees and the issue of Letters of Credit to backstop overdraft
and working capital facilities the proceeds of which are used to
refinance its Specified Existing Indebtedness and, to the extent
permitted herein, Specified Existing Indebtedness of other members of
the Borrowing Group in an amount not to exceed the amount so
refinanced (plus premiums, accrued interest, fees and expenses on such
Specified Existing Indebtedness and any refinancings thereof). Subject
to Clause 5.1.5, the proceeds of any other Advance under the Revolving
Credit Facility shall be used for general corporate purposes of the
Borrowing Group.
2.2.3 Additional Borrowers: The Borrowers' Agent may, with the prior
--------------------
written consent of the Agent (acting on the instructions of the
Majority Lenders), which consent shall not be unreasonably withheld if
the Agent reasonably determines that designation of the subsidiary
referred to below as an Additional Borrower would not prejudice any of
the Finance Parties' creditors' rights under the Finance Documents or
against the Borrowers and Guarantors or any of them, at any time
during the term of this Agreement, designate by notice to the Agent
one of CEAC's subsidiaries as an Additional Borrower (specifying the
Facility(ies) in respect of which it is to be an Additional Borrower).
Such notice shall be in writing and signed on behalf of the Borrowers'
Agent and on behalf of the subsidiary concerned and shall take effect
in accordance with its terms provided that:
(a) the Additional Borrower enters into a Deed of Accession with the
Agent on behalf of the Finance Parties in the relevant form
contained in Schedule 7 together with such amendments as the
Agent, acting in accordance with the directions of the
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<PAGE>
Majority Lenders, may reasonably require; and
(b) the Additional Borrower, before entering into such a Deed of
Accession, has fulfilled to the satisfaction of the Agent all
reasonable conditions precedent notified to the Borrowers' Agent
in the written consent of the Agent.
2.2.4 Financial Assistance: No amount drawn down hereunder shall be applied
--------------------
in a manner which may be prohibited by any financial assistance or
other similar laws in any relevant jurisdiction and, to the extent any
Borrower lends any amount drawn hereunder to another person, such
Borrower shall ensure that the proceeds of such loan are not applied
in a manner which may be so prohibited.
2.2.5 Borrowers' Agent: Each Borrower by its execution of this Agreement
----------------
(including by execution of a Deed of Accession) irrevocably authorises
the Borrowers' Agent to give and receive all notices and instructions
and make such agreements expressed to be capable of being given or
made by the Borrowers' Agent in this Agreement notwithstanding that
they may affect such Borrower without further reference to or the
consent of such Borrower and such Borrower shall, as regards each
Finance Party, be bound thereby as though such Borrower itself had
agreed such change or given such notice or made such agreement.
Without prejudice to the foregoing, the Borrowers' Agent shall at all
times keep the Borrowers fully informed and consult with them and
obtain their instructions whenever necessary or desirable.
3. PARTICIPATION OF LENDERS
------------------------
3.1 Basis of Participation
----------------------
Subject to the provisions of this Agreement, each Lender will
participate in each Cash Advance and will be deemed to participate in
a Deemed Advance (other than WCP Advances) in the proportion which (i)
in the case of an Advance under the Term Loan Facility, its Commitment
in relation to such Facility as at the Drawdown Date bears to the
undrawn portion of the Total Commitments of the Lenders in relation to
such Facility as at such date, and (ii) in the case of an Advance
under the Revolving Credit Facility, its Commitment in relation to
such Facility as at the Drawdown Date bears to the undrawn portion of
the Total Commitments of the Lenders in relation to such Facility as
at such date.
None of the Lenders is obliged to participate in a Cash Advance or a
Deemed Advance to the extent that to do so would result in the amount
33
<PAGE>
outstanding to it under the relevant Facility exceeding its Commitment
in respect of that Facility.
3.2 Lending Office
--------------
3.2.1 Each Lender will participate in each Advance as aforesaid through its
Lending Office.
3.2.2 If any Lender changes any Lending Office, that Lender agrees to notify
the Agent and the Borrowers' Agent promptly of such change and, until
it does so, the Agent and the Borrowers shall be entitled to assume
that no such change has taken place.
3.3 Rights and Obligations of Finance Parties
-----------------------------------------
3.3.1 The rights and obligations of each of the Finance Parties under the
Finance Documents are several. Failure of any Finance Party to observe
and perform its obligations under any Finance Document shall neither:-
(a) result in any other Finance Party incurring any liability
whatsoever; nor
(b) relieve the Borrowers or any other Finance Party from their
respective obligations under the Finance Documents.
3.3.2 Notwithstanding any other provision of any Finance Document, the
interests of each Finance Party are several and the total amounts
outstanding at any time under the Finance Documents and due to each
Finance Party constitute separate and independent debts.
3.4 Enforcement of Rights
---------------------
Each Finance Party has the right to protect and enforce its rights
arising out of the Finance Documents and it will not be necessary for
any other Finance Party to be joined as an additional party in any
proceedings brought for the purpose of protecting or enforcing such
rights.
3.5 Syndication
-----------
The Borrowers acknowledge that, without limitation of the provisions
of Clause 25, the Original Term Loan Lenders and the Original
Revolving Credit Lenders may assign or transfer their respective
rights under this Agreement ("Syndication") and the Borrowers
-----------
undertake to assist and co-operate with the Agent, the Original Term
Loan Lenders and the Original Revolving Credit Lenders in Syndication
in such manner and to such extent as the Agent, the Original Term Loan
Lenders and the Original Revolving Credit Lenders may from time to
34
<PAGE>
time each reasonably request including, without limitation, by:-
3.5.1 providing and causing the Parent's and Borrowers' advisers to provide
the Agent, Lenders and potential Lenders with all reasonable
information deemed necessary by the Agent to complete Syndication,
including but not limited to information and evaluations prepared by
the Borrowers and the Parent and their respective advisers;
3.5.2 assisting in the preparation of an Information Memorandum;
3.5.3 making available officers of the Borrowers and the Parent from time to
time and, as may reasonably be requested, causing such officers to
attend and make presentations regarding the business and prospects of
the Borrower and the Parent, as appropriate, at a meeting or meetings
of Lenders or prospective Lenders;
3.5.4 arranging and conducting appropriate Borrowing Group site visits for
Lenders and potential Lenders; and
3.5.5 selecting Interest Periods having a duration of not more than one
month in respect of all Cash Advances made for the first three months
following the Completion Date.
3.6 The WCP Facilities
------------------
3.6.1 (a) If a WCP Provider so agrees, at the request of the Borrowers'
Agent made on behalf of a Borrower, a WCP Provider may designate
all or part of its Revolving Credit Commitment as being utilised
by its provision of a WCP Commitment in the amount designated in
respect of a WCP Facility for such Borrower up to a maximum
amount of FF 10,000,000 or its Equivalent Amount; provided that
--------
the maximum aggregate amount of the WCP Commitments of all WCP
Providers hereunder shall not exceed FF 50,000,000 or its
Equivalent Amount.
(b) Under no circumstance shall the aggregate of any WCP Provider's
WCP Commitments exceed such WCP Provider's Revolving Credit
Commitment.
(c) Subject to the terms of this Agreement,
(i) while and to the extent a WCP Facility is made available for
drawing by the relevant WCP Borrower, the Revolving Credit
Commitment of the WCP Provider for
35
<PAGE>
that WCP Facility shall be reduced by the amount of its WCP
Commitment in respect of that WCP Facility, as set forth in
the definition of Net Revolving Credit Commitment; and
(ii) the Borrower under a WCP Facility may cancel any undrawn
element of that WCP Facility at any time, and in any such
event or upon the expiration of the WCP Commitment for that
WCP Facility, the Net Revolving Credit Commitment of the WCP
Provider for that WCP Facility shall automatically be
increased by the amount so cancelled or expired; provided
--------
that such WCP Provider's Net Revolving Credit Commitment
shall not be increased in excess of its Revolving Credit
Commitment.
3.6.2 Each WCP Facility shall be made available to the relevant WCP Borrower
upon the terms of this Agreement, as follows:-
(a) WCP Advances may be in the form of Cash Advances, letters of
credit or revolving credit guarantees as agreed between the
relevant WCP Provider in the applicable WCP Agreement.
(b) WCP Advances under a WCP Facility shall, except as otherwise
provided, be made available to the relevant WCP Borrower on the
same terms and conditions (including without limitation the terms
and conditions relating to interest, payments, change in
circumstances, defaults, etc.) under which Revolving Credit
Advances are made available to the Borrowers under this
Agreement, provided that for purposes of Clauses 2, 3 and 5 to 11
(inclusive):-
(i) the Lending Office or Offices of a WCP Provider for purposes
of its WCP Facility may be different from the Lending
Offices it designates for other purposes under this
Agreement;
(ii) except as set forth in Clause 3.6.1, all notices to be given
by or to the Borrowers' Agent in respect of a Revolving
Credit Advance shall, in respect of a WCP Advance, be given
by or to (as applicable) the WCP Borrower under the relevant
WCP Facility (and references to the Borrowers' Agent and its
address in the relevant provisions of such clauses shall be
36
<PAGE>
deemed references to the relevant WCP Borrower and its
address for this purpose);
(iii) except as set forth in Clause 3.6.1, all notices to be given
by or to the Agent in respect of a Revolving Credit Advance
shall, in respect of a WCP Advance, be given by or to (as
applicable) the WCP Provider for the relevant WCP Facility
(and references to the Agent and its address in the relevant
provisions of such clauses shall be deemed references to the
relevant WCP Provider and its address for this purpose);
(iv) all determinations to be made by the Agent in respect of a
Revolving Credit Advance shall, in respect of a WCP Advance,
be made by the relevant WCP Provider (and references to the
Agent in the relevant provisions of such clauses shall be
deemed references to the relevant WCP Provider for this
purpose); and
(v) all payments which, in respect of a Revolving Credit
Advance, are required to be made to the Agent hereunder
shall, in respect of a WCP Advance to a WCP Borrower, be
made to the WCP Provider in respect of those WCP Advances
(and references to the Agent and its address in the relevant
provisions of such clauses shall be deemed references to the
relevant WCP Provider and its address for this purpose);
(vi) each WCP Advance shall be in such minimum amount and
integral multiples as is agreed between the relevant WCP
Provider and WCP Borrower in the applicable WCP Agreement.
(c) The foregoing notwithstanding, the WCP Provider and WCP Borrower
in relation to a WCP Facility may agree in a WCP Agreement
between them to vary the interest rate applicable to WCP Advances
under the WCP Facility, the number of WCP Advances that may be
outstanding at any one time, or the form of or requirement for
any Drawdown Request or the notice required to make a drawing of
a WCP Advance under that WCP Facility, and payment and amount of
fees;
37
<PAGE>
provided that such WCP Agreement may not amend, supplement
--------
or vary this Agreement in any other respect without the consent
of the Agent acting at the direction of the Majority Lenders, or,
to the extent required by the other provisions of this Agreement,
the Lenders.
(d) In addition to the foregoing, Clauses 5.5, 5.8 and 8.3.4 shall
not apply in respect of any WCP Advance and matters relating
thereto.
3.7 Certain Adjustments Relating to WCP Facilities
----------------------------------------------
3.7.1 Following the occurrence and during the continuance of an Event of
Default:-
(a) each WCP Provider shall promptly notify the Agent of any Recovery
made by it from the relevant Borrower and/or any loss or expense
suffered by it in connection with the failure to repay in full,
in each case by reference to the WCP Facility or WCP Facilities
to which it is a party; and
(b) the Agent shall calculate the necessary adjustments between that
WCP Provider and the other Lenders to achieve, as closely as is
practicable, that in the event of a shortfall as regards any or
all of the Obligors under the Finance Documents each Lender
shares any loss suffered by all the Lenders (including the WCP
Provider) in the proportion which that Lender's Total Commitments
under the Facilities bears to all the Lenders' Total Commitments
under the Facilities.
The Lenders (including each WCP Provider) agree to accept as
conclusive (in the absence of manifest error) the calculations of the
Agent under paragraph (b) above and to make such consequential
payments as between themselves as may be necessary to achieve the
proportionate loss sharing contemplated by that paragraph (b) and to
give effect to Clause 19.
3.7.2 Any consequential payment made by a Lender under Clause 3.7.1 above is
without prejudice to the obligations under this Agreement of the
Borrowers to pay all amounts due and payable under this Agreement.
4. CONDITIONS PRECEDENT
--------------------
4.1 Initial conditions precedent
----------------------------
4.1.1 The obligations of the Lenders to make any Advance available to the
Borrowers under this Agreement are conditioned upon the Agent and its
legal
38
<PAGE>
advisers having received the following documents and evidence in
all respects (except where otherwise specified) in form and substance
satisfactory to the Agent and its legal advisers by (I) except as
specified in sub-clause (II) of this Clause 4.1.1, 12 noon on the
second Business Day prior to the initial Drawdown Date, and (II) in
the case of the items specified in sub-clause (c)(ii), (d)(ii) and (g)
below, by 9 a.m. on the initial Drawdown Date:-
(a) a copy, certified as of the Drawdown Date as true and complete by
a duly authorised representative of the relevant Obligor, of:
(i) the constitutional documents of each Obligor, including
evidence of due incorporation, together with satisfactory
search results of any public corporate registers of that
Obligor;
(ii) board (or other appropriate governing body) resolutions of
each Obligor (A) approving the transactions and the matters
contemplated by each of the Finance Documents, and (B)
authorising a specified person or persons to (x) execute on
its behalf each of the Finance Documents to which it is a
party, and (y) give all notices, requests, instructions,
certificates and other documents for that Obligor in
connection with each of the Finance Documents to which it is
a party;
(iii) all other corporate, trust or other applicable
authorisations and actions of it required (including without
limitation any resolutions of shareholders or approvals of
beneficiaries) to enable it to enter into, execute and
perform those of the Finance Documents and, in the case of
the Parent, the Acquisition Agreements to which it is, or is
to be, a party;
(iv) specimen signatures of the signatories authorised by each
Obligor in the board (or other appropriate governing body)
resolutions described in Clause 4.1.1(a)(ii) to sign
Financing Documents to which it is or is to be a party; and
39
<PAGE>
(v) all other resolutions, powers, declarations, approvals,
consents and licenses (corporate, official or otherwise)
necessary or appropriate for the entry into and performance
by each Obligor of the Finance Documents to which it is or
is to be a party, and for the enforceability and validity
thereof;
(b) one or more certificates of duly authorised officers of the
Parent addressed to the Agent on behalf of the Finance Parties
confirming that the Acquisition Agreements have been, or subject
to the first drawdown under the Facilities, will be completed in
accordance with their respective terms, that the conditions
precedent thereto have been or will, simultaneously with such
drawdown, be satisfied, and that the Parent has not waived any
right arising or condition to one or more of its obligations
under the Acquisition Agreements without the prior written
consent of the Agent; and one or more certificates of duly
authorised officers of CEAC addressed to the Agent on behalf of
the Finance Parties certifying as of the Drawdown Date:-
(i) copies of all notifications of the Acquisition to and
consents, authorisations and approvals to the Acquisition of
any governmental or regulatory bodies (including without
limitation those relating to antitrust or the regulation of
competition) made or obtained (which notifications,
consents, authorisations and approvals, if containing any
limitations or conditions which materially affect the
condition, business, assets, revenues or prospects of the
Borrowing Group taken as a whole, shall be in form and
substance satisfactory to the Agent and Majority Lenders),
that no other such notifications, consents, authorisations
or approvals are required and that all applicable waiting
periods (including any extensions thereof) to the
Acquisition have lapsed or terminated without objection
being made to the Acquisition, that the consents,
authorisations and approvals obtained are in full force and
effect and that all laws
40
<PAGE>
of any relevant jurisdiction applicable to the Parent or any
of the Borrowing Group in connection with the Acquisition or
to the Acquisition shall have been complied with in all
material respects;
(ii) without limiting the generality of subclause (i) above,
evidence that the Treasury Department of the French Ministry
of the Economy and Finance (Direction du Tresor du Ministere
de l'Economie et des Finances) shall have authorised (which
authorisation shall be in form and substance satisfactory to
the Agent and Majority Lenders) the transfer of the Shares
pursuant to the Acquisition Agreements; and
(iii) copies of any consents required under the agreements listed
on Schedule 6.1.5 to the Stock Purchase Agreement to avoid
the termination or modification of such agreements as a
result of the transfer of the Shares or a change in control
of CEAC, which consents shall be in form and substance
satisfactory to the Agent acting on the instructions of the
Majority Lenders;
provided that the conditions set forth in Clause 4.1.1(b)(i),
--------
insofar as they relate to the consent, authorisation or approval of
any Governmental Authority in any nation or jurisdiction other than
France, Germany, Ireland, Austria or Portugal which has not been
affirmatively withheld, or given containing limitations or conditions
which materially affect the condition, business, assets, revenues or
prospects of the Borrowing Group taken as a whole, before March 31,
1995 shall be deemed satisfied from and after March 31, 1995, provided
--------
further that such conditions, insofar as they relate to the consent,
-------
authorisation or approval of any Governmental Authority in France
which has not been affirmatively withheld, or given containing
limitations or conditions which materially affect such condition,
business, assets, revenues or prospects, before April 28, 1995 shall
be deemed satisfied from and after April 28, 1995. For the avoidance
of doubt, and the foregoing notwithstanding, the withholding of a
consent, authorisation or approval, or the grant thereof subject to
41
<PAGE>
limitations or conditions which materially affect the condition,
business, assets, revenues or prospect of the Borrowing Group taken as
a whole, may constitute a Material Adverse Effect for purposes of this
Agreement;
(c) copies of the following documents, in each case in form and
substance satisfactory to the Agent, certified as of Drawdown by
a duly authorised officer of the Parent and CEAC on behalf of the
Borrowers:-
(i) the Acquisition Agreements; and
(ii) the Supply Agreements substantially in the form of Schedule
6.1.8 to the Stock Purchase Agreement;
all as duly and unconditionally executed and in effect;
(d) duly and unconditionally executed counterparts of:-
(i) this Agreement; and
(ii) the Deeds of Accession;
(e) legal opinions properly addressed to the Agent and Lenders from:-
(i) Kirkland & Ellis, U.S. legal advisers to the Parent;
(ii) Lovell, White & Durrant, English legal advisers to the
Parent, and Gide Loyrette Nouel, French legal advisers to
the Parent;
(iii) reputable counsel in each jurisdiction other than France or
England in which any Borrower or Guarantor is organised or
incorporated, who may be counsel to the Parent; and
(iv) Ashurst Morris Crisp, English legal advisers to the Agent;
(f) evidence that the Credit Agreement dated as of August 30, 1994
among the Parent, various financial institutions, Bankers Trust
Company, Bank of America National Trust and Savings Association
and Bank of Montreal, as agents, and Bankers Trust Company, as
administrative agent, has been amended pursuant to an amendment
in form and substance satisfactory to the Agent and Majority
Lenders;
42
<PAGE>
(g) evidence that Exide Holdings has received no less than USD
200,000,000 in net equity proceeds and USD 200,000,000 in net
debt proceeds, in each case for use in connection with the
Acquisition;
(h) Environmental Report, a certificate of an officer of the Parent
in the agreed terms as to certain estimated environmental
remediation and other costs and a plan in form and substance
reasonably satisfactory to the Agent certified by an officer of
the Parent setting forth in a reasonably detailed fashion
Parent's proposed strategy for procuring compliance by CEAC and
its subsidiaries with the Environmental Laws applicable to them,
to the extent they are not currently in compliance therewith;
(i) Due Diligence Report;
(j) Accountants Report, together with a letter from Arthur Andersen &
Co. as to the ability of subsidiaries of CEAC to pay dividends
(directly or indirectly) and make loans to and repay loans from
CEAC (which letter shall be in form and substance satisfactory to
the Agent);
(k) reliance letters addressed to the Agent, the Lead Managers and
each of the Lenders in form and substance satisfactory to the
Agent with respect to each of (x) the Accountants Report and the
letter referred to in sub-clause (j) of this Clause 4.1.1, (y)
the reports comprising the Due Diligence Report and (z) the
reports comprising the Environmental Report;
(l) analyses and evidence of insurance complying with Clause 13.2.6
(Insurances) in scope, form and substance reasonably satisfactory
to Agent and Majority Lenders;
(m) if Drawdown is before May 1, 1995, audited consolidated financial
statements for CEAC for the period ended December 31, 1993, and
if Drawdown is on or after May 1, 1995, audited consolidated
financial statements for CEAC for the period ended December 31,
1994;
(n) evidence that the agent for service of process named in Clause
30.2 has accepted its appointment for the purposes of this
Agreement and the other Finance Documents;
(o) evidence that each of the Specified Existing Indebtednesses
imposes covenants
43
<PAGE>
on the respective members of the Borrowing Group substantially
identical to Clauses 13.2.12, 13.2.14, 13.2.16, 13.2.17, 13.2.22,
13.2.23, 13.2.24 and 13.4.1(b) below;
(p) a list of all land, improvements of land and fixtures to land or
such improvements in which members of the Borrowing Group have
any right, title or interest, including any right, title or
interest as lessee or licensee in, to and under leases or
licenses of land, such improvements and/or such fixtures;
(q) evidence that, on the initial Drawdown Date, CEAC and its
subsidiaries will have (a) Disponibilites (as defined below) and
(b) an excess of (A) the aggregate undrawn commitments from
persons (which are not members of the Borrowing Group) in respect
of Specified Existing Indebtedness, over (B) the amount of such
----
undrawn commitments on 31st January 1995, and (c) reductions in
the aggregate amount of Specified Existing Indebtedness which are
accompanied by a corresponding reduction in commitment from the
relevant lender in respect thereof, or in respect of which there
is no further commitment to lend once the relevant Financial
Indebtedness has been repaid, which Disponibilites, excess and
reductions in aggregate equal or exceed (i) FF 130,000,000 or its
Equivalent Amount, less (ii) the remainder of FF 25,000,000 (or
----
its Equivalent Amount) minus the amount of Financial Indebtedness
-----
of CEAC and its subsidiaries included within paragraph (x) of the
definition of "Permitted Indebtedness" which is outstanding on
the initial Drawdown Date (after giving effect to the Drawdown),
and for this purpose "Disponibilites" means the following
accounting items of CEAC and its subsidiaries taken on a
consolidated basis, along with interest accrued thereon: (i) cash
on hand, (ii) marketable securities, (iii) cheques, (iv) current
account positive balances, (v) bank deposits, (vi) intercompany
deposits with companies other than CEAC and its subsidiaries and
(vii) receivables for bills given to banks for collection (with a
maximum maturity of 15 days) (effets remis a l'encaissement),
provided that nothing in this definition shall alter or
--------
otherwise affect the definition of "Permitted Investment" herein;
44
<PAGE>
(r) each of the financial statements and other materials required
pursuant to Clause 13.3.4 (Financial Statements and Operating
Budget);
(s) each of the monthly financial reports prepared by CEAC and
furnished to the Parent or Exide Holdings prior to the Drawdown
Date pursuant to Clause 7.2 of the Stock Purchase Agreement; and
(t) copies of each of the agreements, deeds or other instruments, in
each case containing covenants, events of default and matters
relating to requirements for repayment in advance of scheduled
maturity in form and substance reasonably satisfactory to the
Agent, evidencing the Existing Indebtedness, certified as of
Drawdown on behalf of the Borrowers by a duly authorised officer
of CEAC.
In addition, since the date of this Agreement there shall have been no
material adverse change to the syndication market for credit
facilities of a similar nature and duration as this Agreement and
there shall not have occurred and be continuing a material disruption
of or material adverse change in the financial, banking or capital
markets that would have a material adverse effect on such syndication
market, in each case as determined by the Agent in its sole discretion
exercised in good faith; provided that the Agent and the Lead
--------
Managers shall, following the occurrence of such a change or
disruption, negotiate with the Borrowers' Agent in good faith (without
being required to violate any internal policy of the Agent or any Lead
Manager) with a view to making any amendments to any of the Finance
Documents which would, in the judgement of the Agent and the Lead
Managers, eliminate the effect of such change or disruption.
4.1.2 When the Agent is satisfied that such conditions have been fulfilled,
the Agent will give notice to that effect to the Borrowers' Agent and
each of the Lenders. The Drawdown must fall on a date on or before the
expiry of the Availability Period for the Term Facility.
4.2 Additional Conditions Precedent Applicable if Drawdown Occurs After
-------------------------------------------------------------------
30th April, 1995
----------------
In the event Drawdown does not take place on or before 30th April,
1995, the obligations of the Lenders to make any Advance available to
the Borrowers under this Agreement are further conditioned upon:-
45
<PAGE>
4.2.1 the Agent and its legal advisers having received the following
documents and evidence in all respects in form and substance
satisfactory to the Agent and its legal advisers by 12 noon on the
second Business Day prior to the initial Drawdown Date:-
(a) an update from Arthur Andersen & Co. of the Accountants Report,
covering (i) the period through 31st December, 1994 if the
initial Drawdown Date is on or after 1st May, 1995, (ii) the
period through 31st March, 1994, if the initial Drawdown Date is
on or after 1st June, 1995, and (iii) the period through 30th
June, 1995, if the initial Drawdown Date is on or after 1st
September, 1995;
(b) an update, dated no earlier than 30 days before the initial
Drawdown Date, of each of the reports comprising the Due
Diligence Report, from the respective counsel who prepared such
reports, regarding any documents submitted after the dates of
their respective reports to or reviewed by such counsel relating
to (i) the Acquisition and/or any member of the Borrowing Group
since the date of the relevant Due Diligence Report, (ii) any
material changes in respect of any matter covered by such counsel
in the Due Diligence Report which has come to such counsel's
attention and (iii) any other material matter relating hereto or
thereto which have come to such counsel's attention; and
(c) reliance letters addressed to the Agent, the Lead Managers and
each of the Lenders in form and substance satisfactory to the
Agent (which letters may be included in those referred to in
Clause 4.1.1(k)) with respect to the documents referred to in
sub-clauses (b) and (c) of this Clause 4.2.1;
4.2.2 the Parent holding a meeting at a time and place in Paris selected by
the Parent and reasonably acceptable to the Agent, such meeting to be
no earlier than 45 nor later than 30 days before the Drawdown Date, at
which meeting (i) all of the Lenders are invited to be present and
given a reasonable opportunity to attend, and (ii) shall be reviewed
the financial results, condition, business, assets and revenues of
CEAC and its
46
<PAGE>
subsidiaries over the period between execution of the Stock Purchase
Agreement and the Drawdown Date, by officers of the Parent (i) with
responsibility within the Parent for CEAC and its subsidiaries for
such period, and (iii) reasonably acceptable to the Agent, and at
which meeting the Lenders shall be given a reasonable opportunity to
ask reasonable questions of such officers relating to such matters,
and to have such questions answered to the Majority Lenders'
reasonable satisfaction.
4.3 Additional Conditions Precedent for All Advances
------------------------------------------------
The obligations of the Lenders to make any Advance to the Borrowers
are subject to the following further conditions precedent that on both
the date of the relevant Drawdown Request and the relevant Drawdown
Date, unless waived by the Agent acting in accordance with Clause 26:-
(a) no Event of Default or Potential Event of Default has occurred
and continues unremedied or will occur as a result of the making
of the Advance; and
(b) the representations and warranties required to be made in
accordance with Clause 13 are true and accurate in all material
respects in each case by reference to the facts and circumstances
then subsisting and will remain true and accurate immediately
after the Advance is made.
4.4 Condition Precedent to Drawdown of Revolving Credit Guarantee or
----------------------------------------------------------------
Letter of Credit
----------------
Prior to the delivery of a Drawdown Request in respect of a Revolving
Credit Guarantee or Letter of Credit, the Borrowers' Agent shall
obtain the written approval of the Agent and the relevant Issuing
Lender of the terms of the relevant Revolving Credit Guarantee or
Letter of Credit.
4.5 Accession by Exide Holdings, the Borrowers and the Guarantors
-------------------------------------------------------------
4.5.1 The Parent shall procure that prior to Drawdown Exide Holdings, each
Borrower and each Guarantor executes and delivers to the Agent the
Deed of Accession in order that each such person may accede as Exide
Holdings, a Borrower or Guarantor (as the case may be) to this
Agreement and be under all of the liabilities and obligations
expressed to be assumed by it under the Deed of Accession and this
Agreement on the Completion Date.
47
<PAGE>
4.5.2 Each of the parties hereto other than the Parent authorises the Agent
to execute on its behalf the Deed of Accession which has been duly
completed in accordance with this Clause 4.5 and executed on behalf of
Exide Holdings, the Borrowers and the Guarantors (as the case may be).
4.5.3 On the date on which the Agent executes the Deed of Accession each of
the Agent, Arranger, Lead Managers, Parent and Lenders shall assume
the same obligations towards each Borrower and acquire the same rights
against Exide Holdings, each Borrower and each Guarantor as they would
have acquired and assumed had Exide Holdings, each such Borrower and
each such Guarantor been an original party hereto.
4.5.4 Notwithstanding the references to Exide Holdings, any Borrower or any
Guarantor herein, prior to the date on which the Agent executes the
Deed of Accession, Exide Holdings, such Borrower and such Guarantor
shall have no obligations to or rights against any of the parties
hereto pursuant to the terms of this Agreement and the Parent shall
not, until such date, be bound by any references to Exide Holdings,
the Borrowers or the Guarantors in any representation, warranty or
undertaking herein; provided that in the event a
--------
Drawdown Request is delivered prior to the initial Drawdown but
Drawdown does not take place other than by reason of a default by a
Finance Party, the Parent shall be liable to the Finance Parties under
Clause 27 (Indemnities) and in the event Drawdown does not take place
other than by reason of a default by a Finance Party (whether or not a
Drawdown Request is delivered) the Parent shall be liable to the
Finance Parties under Clause 11.1.1(a) (commitment fee), in either
case as if each reference to one or more Borrower therein were a
reference to the Parent (mutatis mutandis).
------- --------
5. DRAWDOWN PROCEDURES AND SELECTION AND AMOUNT OF CURRENCIES, ETC.
----------------------------------------------------------------
5.1 Drawdown of Cash Advances
-------------------------
5.1.1 Whenever a Borrower wishes to borrow a Cash Advance, the Borrowers'
Agent must deliver to the Agent a duly completed Drawdown Request not
later than 10.00 a.m. three Business Days prior to the proposed
Drawdown Date.
5.1.2 A Drawdown Request delivered to the Agent must be in the form set out
in Schedule 3 Part A and must specify each of the following:-
(a) the Borrower, provided that (i) the aggregate amount which (after
giving effect to the Advance) is outstanding under the Term Loan
Facility to Borrowers other than CEAC shall not exceed 30% of
such aggregate amount outstanding to all
48
<PAGE>
Borrowers, and (ii) the aggregate amount (after giving effect to
the Advance) which is outstanding under the Revolving Credit
Facility to Borrowers other than CEAC shall not exceed 50% of
such aggregate amount outstanding to all Borrowers;
(b) the proposed Drawdown Date for the Cash Advance (which must be a
Business Day falling within the Availability Period);
(c) the amount of the Cash Advance and the Facility under which it is
to be drawn, which amount must (i) be a minimum of the Equivalent
Amount of FF 25,000,000 and an integral multiple of the
Equivalent Amount of FF 1,000,000; and (ii) comply with Clause
5.1.3;
(d) the duration of the first Interest Period applicable to the Cash
Advance, which must comply with Clause 8.3;
(e) the account to which the proceeds of the Cash Advance are to be
paid; and
(f) the purpose for which the Cash Advance is requested.
5.1.3 In no event may the amount specified in a Drawdown Request be such
that the Loan would thereby exceed the then Total Commitments or any
relevant sub-limit specified in Clause 5.1.2(a) with respect to a
particular Borrower.
5.1.4 A Drawdown Request once given may not be withdrawn or revoked.
5.1.5 Advances under the Term Loan Facility may only be requested for the
Completion Date. Under no circumstance may the aggregate principal
amount of the outstanding Advances under the Revolving Credit Facility
exceed the aggregate principal amount thereof drawn at Drawdown, and
the Lenders' Revolving Credit Commitments shall automatically be
reduced immediately following Drawdown to equal the aggregate
principal amount of the Revolving Credit Advances made at Drawdown.
5.1.6 Not more than six separate Revolving Credit Advances (excluding Deemed
Advances) may be outstanding at any time.
5.1.7 (a) The Borrowers' Agent may not request the drawdown of a Cash
Advance in a currency other than BF, DEM, ESP, FF, GBP, ITL or
USD, unless the Agent has confirmed in writing to the Borrowers'
Agent that such other currency is freely available to all the
Lenders and is one in which dealings
49
<PAGE>
regularly occur in the London interbank market.
(b) Notwithstanding Clause 5.1.7(a), if before 9.00 a.m. (London
time) on the proposed Drawdown Date for a utilisation to be
denominated in a currency other than BF, DEM, ESP, FF, GBP, ITL
or USD:-
(i) the Agent receives notice from a Lender that it is
impracticable for the Lender to fund its participation for
the relevant Interest Period in such currency in the
ordinary course of its business in the London interbank
market; or
(ii) the drawing of the proposed Advance in such currency could,
in the opinion of the Agent, be reasonably likely to
contravene any applicable law or regulation;
then:-
(A) the Agent shall promptly and in any event before 10.00 a.m.
on that Drawdown Date notify the Borrowers' Agent;
(B) if the Agent receives notice from the Borrowers' Agent by
11.00 a.m. on the relevant Drawdown Date the drawdown shall
not be made;
(C) if the Agent does not receive any notice under sub-paragraph
(B) above, the drawdown will be denominated instead in the
domestic currency of the particular Borrower and there shall
be substituted in the definitions of "LIBOR" and "PIBOR" (as
applicable for the purposes of an affected Advance) in
Clause 1.1 the time "1.00 p.m." for the time "11.00 a.m.";
and
(D) the relevant Borrower shall forthwith on demand indemnify
each Lender against any liability which that Lender incurs
as a consequence of the operation of this Clause 5.1.7(b).
5.2 Drawdown of Revolving Credit Guarantees
---------------------------------------
5.2.1 Whenever a Borrower wishes an Issuing Lender to issue a Revolving
Credit Guarantee, the Borrowers' Agent must deliver to the Agent a
duly completed Drawdown Request in the form of Schedule 3 Part B
50
<PAGE>
not later than 10.00 a.m. three Business Days prior to the proposed
Drawdown Date specifying:-
(i) the Borrower, subject to the limits set forth in Clause 5.1.2(a)
and Clause 5.1.7;
(ii) the proposed Drawdown Date for issue of the Revolving Credit
Guarantee (which shall be a Business Day during the Availability
Period);
(iii) the currency of the Revolving Credit Guarantee and the maximum
aggregate liability of the Issuing Lender under the Revolving
Credit Guarantee, subject to the limits set forth in Clause
5.1.2(c);
(iv) the person to whom the Revolving Credit Guarantee is to be issued
(which must be a person providing, or which has agreed to
provide, working capital facilities to the requesting Borrower)
together, if required, with details of such person's address for
delivery of the Revolving Credit Guarantee;
(v) the expiry date of the Revolving Credit Guarantee, which date
shall not be later than the Final Repayment Date; and
(vi) the name of the proposed Issuing Lender, which may be any Lender,
but if no other Lender has agreed in advance of delivery of the
relevant Drawdown Request to issue the Revolving Credit
Guarantee, the Issuing Lender shall be the Agent.
5.2.2 The Borrowers' Agent shall deliver to the Agent, with each Drawdown
Request pursuant to Clause 5.2.1, the form of the Revolving Credit
Guarantee which is the subject of the Drawdown Request.
5.2.3 Provided it has received the notice referred to in Clause 5.5 and
subject to Clause 5.1.7(b), the Issuing Lender shall deliver the
relevant Revolving Credit Guarantee, duly executed, to the Borrowers'
Agent (or, if so directed by the Borrowers' Agent, to the beneficiary
specified in the relevant Drawdown Notice) on the Drawdown Date.
5.3 Drawdown of Letters of Credit
-----------------------------
5.3.1 When a Borrower wishes an Issuing Lender to issue a Letter of Credit,
the Borrowers' Agent must deliver to the Agent a duly completed
Drawdown Request in the form of Schedule 3 Part C not later than 10.00
a.m. 5 Business Days before the proposed Drawdown Date, specifying:-
(i) the Borrower, subject to the limits set forth in Clause 5.1.2(a)
and Clause 5.1.7;
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<PAGE>
(ii) the proposed Drawdown Date for issue of the Letter of Credit
(which shall be a Business Day during the Availability Period);
(iii) the currency of the Letter of Credit and the maximum aggregate
liability of the Issuing Lender under the Letter of Credit,
subject to the limits set forth in Clause 5.1.2(c);
(iv) the person to whom the Letter of Credit is to be issued (which
must be a person providing, or which has agreed to provide,
working capital facilities to the requesting Borrower) together,
if required, with details of such person's address for delivery
of the Letter of Credit;
(v) the expiry date of the Letter of Credit concerned, which date
shall be not later than five Business Days before the Final
Repayment Date and not more than 365 days following the relevant
Drawdown Date; and
(vi) the name of the proposed Issuing Lender, which may be any Lender,
but if no other Lender has agreed in advance of delivery of the
relevant Drawdown Request to issue the Letter of Credit, the
Issuing Lender shall be the Agent.
5.3.2 The Borrowers' Agent shall deliver to the Agent with each Drawdown
Request pursuant to Clause 5.3.1, the form of Letter of Credit which
is the subject of the Drawdown Request.
5.3.3 Provided it has received the notice referred to in Clause 5.5 and
subject to Clause 5.1.7(b), the Issuing Lender shall issue the Letter
of Credit and deliver the same to the Borrowers' Agent (or, if so
directed by the Borrowers' Agent, to the beneficiary specified in the
relevant Drawdown Notice) on the Drawdown Date.
5.4 Lenders' Participations
-----------------------
5.4.1 Subject to the provisions of this Agreement, each Lender will make
available to the Agent its Participation Proportion of the relevant
Cash Advance on the relevant Drawdown Date in accordance with Clause
9.1.1 (Payments).
5.4.2 If prior to an Advance being made a Lender's Commitment has or will be
wholly cancelled or terminated pursuant to this Agreement, that Lender
will not participate in the Advance concerned.
5.4.3 The issue of a Revolving Credit Guarantee or a Letter of Credit will
constitute a utilisation of the Revolving Credit Facility and
accordingly the Revolving Credit Facility will be deemed to have been
drawn down (and an Advance made) on the
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relevant Drawdown Date in an amount equal to the maximum aggregate
liability of the relevant Issuing Lender under the Revolving Credit
Guarantee or the Letter of Credit and on the basis that each Lender
has participated in such drawing in an amount equal to its
Participation Proportion.
5.5 Notice to the Lenders of a Proposed Drawdown
--------------------------------------------
Whenever the Agent receives a Drawdown Request which complies with the
requirements of Clause 5.1, 5.2 or 5.3, the Agent will promptly give
notice to each of the Lenders (and the Issuing Lender in the case of
Clauses 5.2 and 5.3) of (a) the details of the requested Cash Advance,
Revolving Credit Guarantee or Letter of Credit and (b) in the case of
an Advance the amount of such Lender's participation (or deemed
participation) in the relevant Advance.
5.6 Payment of Fees
---------------
The Borrowers authorise the Agent to discharge the fees due upon
Drawdown under Clauses 11.1.1(b) and (c) from the proceeds of the
Advances made upon Drawdown under the Term Loan Facility and the
Revolving Credit Facility. The Borrowers shall be obliged to make such
a drawing in an amount sufficient to discharge such fees on the
Completion Date.
5.7 Indemnity from the Requesting Borrower
--------------------------------------
5.7.1 The Borrower on whose behalf a Revolving Credit Guarantee or a Letter
of Credit is requested (the "Requesting Borrower") agrees to pay to
-------------------
each Issuing Lender from time to time on demand an amount equal to
each amount paid out by such Issuing Lender under any Revolving Credit
Guarantees or Letters of Credit issued by it and undertakes to
indemnify and hold harmless the Issuing Lender from and against all
losses, liabilities, damages, costs and expenses which the Issuing
Lender incurs or sustains (other than as a result of the wilful
misconduct or negligence of the Issuing Lender) in connection with or
by reference to the issue of each Revolving Credit Guarantee and/or
each Letter of Credit or its performance of its obligations thereunder
or otherwise in respect of the issue of any Revolving Credit Guarantee
and/or Letter of Credit.
5.7.2 The Requesting Borrower hereby irrevocably authorises each Issuing
Lender to pay without investigation or confirmation by it any demand
which appears on its face to be made under or pursuant to any
Revolving Credit Guarantee or Letter of Credit issued by such Issuing
Lender and agrees that, as between itself, such Issuing Lender and the
Lenders, such demand, in the absence of manifest error (or wilful
misconduct or negligence of the Issuing Lender), shall be conclusive
evidence that the demand is properly made.
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5.7.3 Each Issuing Lender shall, upon receipt by it of a demand made under a
Revolving Credit Guarantee or Letter of Credit issued by it, promptly
notify the Borrowers' Agent and, if such Issuing Lender is not also
the Agent, the Agent (who shall notify the Lenders) of such demand.
5.7.4 The Requesting Borrower shall not by virtue of any payment made by it
under this Clause 5.7 be subrogated to any rights, security or moneys
held or received by any Issuing Lender or be entitled at any time to
exercise, claim or have the benefit of any right of subrogation
against such Issuing Lender or any other Finance Party until all
amounts which may be or become payable by the Borrowers under the
Finance Documents have been irrevocably paid in full and all
Commitments hereunder shall have terminated. All rights of
contribution against any Finance Party are hereby waived by the
Requesting Borrower.
5.7.5 The obligations of the Requesting Borrower under this Clause 5.7 shall
be in addition to and shall not be in any way prejudiced by:-
(a) any collateral or other security hereafter held by any Issuing
Lender as security or any lien to which such Issuing Lender may
be entitled (including, without limitation, under or by reason of
any of the Finance Documents); or
(b) any rights of enforcement which any Issuing Lender may have
against the Requesting Borrower or any of its assets or against
any other person or any of its assets,
and nothing herein contained shall require any Issuing Lender to
enforce any such collateral or other security or lien or to exercise
any such rights of enforcement as a pre-condition to enforcing the
obligations of the Requesting Borrower to such Issuing Lender under
this Clause 5.7.
5.8 Indemnities in favour of Issuing Lenders
----------------------------------------
Each of the Revolving Credit Lenders other than the relevant Issuing
Lender (each being an "Indemnity Lender") hereby irrevocably and
----------------
unconditionally undertakes to indemnify each relevant Issuing Lender
(in the proportion which such indemnifying Lender's Net Revolving
Credit Commitment bears to the Net Revolving Credit Commitments of all
of the Lenders) on its first demand against all amounts due and
payable from time to time from the Requesting Borrower to such Issuing
Lender and which are unpaid as a result of the Requesting Borrower's
failure to discharge its obligations and liabilities to such Issuing
Lender under Clause 5.7.
54
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5.9 Counter Indemnity by the Requesting Borrower
--------------------------------------------
In consideration of each of the Indemnity Lenders agreeing to
indemnify the Issuing Lenders in accordance with the terms of Clause
5.8, the Requesting Borrower hereby irrevocably and unconditionally
agrees to indemnify each of the Indemnity Lenders promptly after its
first written demand against all actions, claims, liabilities, losses,
damages, costs and expenses which may result or which any of the
Indemnity Lenders may suffer or incur as a result of the Requesting
Borrower's failure to discharge its obligations and liabilities in
full to the Issuing Lenders in connection with the Revolving Credit
Guarantees or Letters of Credit.
5.10. Revolving Credit Indemnities Generally
--------------------------------------
5.10.1 Each Indemnity shall continue in full force and effect until the
relevant Indemnified Party shall cease to have any liability in
respect of the Indemnified Obligations (which shall include, in the
case of an Issuing Lender, any liability to issue a Revolving Credit
Guarantee or Letter of Credit).
5.10.2 Each Indemnifying Party undertakes in favour of the relevant
Indemnified Party that its liabilities and obligations under the
relevant Indemnity shall not be discharged, lessened or impaired by:-
(a) any time or indulgence being given or by any thing being done or
other circumstances whatsoever which, but for this provision,
would or might operate to exonerate or discharge it; or
(b) by the failure of any relevant Indemnified Party fully or
effectively to take, perfect or enforce any security or other
rights against it or any third party, or by its bankruptcy,
insolvency or reorganisation.
5.10.3 Each Indemnifying Party undertakes in favour of the relevant
Indemnified Party that the relevant Indemnity shall constitute and be
a continuing security to the relevant Indemnified Party and is in
addition to and not in substitution for, and shall not be prejudiced
or affected by, any other security, guarantee or indemnity now or
hereafter held by the relevant Indemnified Party for the payment of
such moneys or by any such party's or any other person's failure to
take, perfect or enforce any other security or claim which is the
subject of the relevant Indemnity.
5.10.4 In the case of the Requesting Borrower only, it will on demand by the
relevant Indemnified Party pay interest on each amount payable to such
Indemnified Party from the date on which demand is made until such
amount is paid in full at the Default Rate.
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5.10.5 The obligations of each Lender under an Indemnity shall be several.
Failure of a Lender to carry out its obligations under an Indemnity
shall not relieve any other Lender of its obligations thereunder.
Neither the Agent nor any Lender shall be responsible for the
obligations of any other Lender under an Indemnity.
5.10.6 No Indemnity by a Lender shall be affected in any way by any time or
indulgence granted to the Requesting Borrower or a beneficiary under a
Revolving Credit Guarantee or a Letter of Credit or by any variation,
compromise or release of any of the Requesting Borrower's obligations
to the Issuing Lender.
5.10.7 No Indemnity by the Requesting Borrower shall be affected in any way
by any time or indulgence granted to a beneficiary under a Revolving
Credit Guarantee or a Letter of Credit or to any other party or by any
variation, compromise or release of any of the Indemnified
Obligations.
5.10.8 No Indemnifying Party's obligations under an Indemnity shall be
affected by any act, omission, matter or thing which, but for this
provision, might operate to release or to otherwise exonerate it from
its obligations under the relevant Indemnity.
5.10.9 Each Indemnity shall be of a continuing nature and shall not be
considered as wholly or partially satisfied by the payment at any time
or times hereafter of any sum or sums of money for the time being due
but shall extend to cover and be a security for all future sums of
money at any time owing to the relevant Indemnified Party in respect
of the Indemnified Obligations notwithstanding any such payment.
5.10.10 As a separate and independent stipulation each Indemnifying Party
agrees that any sum or sums of money intended to be the subject of an
Indemnity shall be recoverable from it as sole principal debtor even
if they would not be recoverable from the primary obligor whether by
reason of any legal limitation, disability or incapacity or
liquidation of that obligor or any other fact or circumstance (whether
known to the Indemnified Party or not) but which would have been
recoverable from the Indemnifying Party if it were the sole or
principal debtor in respect of such liability.
5.10.11 Any transaction which may be avoided under any enactment relating to
any administration, winding up or liquidation shall not in any way
affect any Indemnified Party's right to recover from the relevant
Indemnifying Party to the full extent of the relevant Indemnity in all
respects as if any release, settlement, discharge or arrangement made
or given on the faith of such transaction had never been made or
given.
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5.10.12 Each Indemnifying Party hereby represents and warrants in respect of
itself that the Indemnities given by it constitutes its legal, valid
and binding obligation and that all corporate, governmental, exchange
control and other consents or requirements necessary in relation to
such Indemnity have been obtained and are in force.
5.10.13 No invalidity or unenforceability of all or any part of this Clause
5.10 (or Clause 5.7, 5.8 or 5.9) shall affect any rights of indemnity
or otherwise which any Indemnified Party would or may have in the
absence of or in addition to such Clauses.
5.10.14. Any statement of account of any of the Issuing Lenders and any
Indemnity Lender certified as correct by an officer of the relevant
Issuing Lender or, as the case may be, any Indemnity Lender showing
the amount owing by the Requesting Borrower to such Indemnity Lender
or the relevant Issuing Lender under or in connection with this
counter-indemnity shall, in the absence of manifest error, be binding
on and against the Requesting Borrower.
5.11 Repayment
---------
5.11.1 Forthwith upon the Agent issuing a notice under Clause 14.2 the
Requesting Borrower will forthwith pay to each of the Issuing Lenders
and the Lenders (as the case may be), an amount equal to the Letter of
Credit Outstandings and Revolving Credit Guarantee Outstandings,
together with all fees, commissions and other amounts payable under or
in respect of the Revolving Credit Guarantees and Letters of Credit
issued by each such Issuing Lender.
5.11.2 The obligations of the Requesting Borrower under this Clause 5.11
shall constitute a liquidated and accrued debt due and payable for the
benefit of the relevant Issuing Lender or the Lenders (as the case may
be) to be dealt with on the terms of the said account or accounts as
determined by the relevant Issuing Lender or the Lenders (as the case
may be).
5.11.3 If the Agent has issued a notice under Clause 14.2, then, at any time
thereafter if any such event shall then be continuing, each Issuing
Lender may enter into any arrangements with all or any of the
beneficiaries of the Revolving Credit Guarantee or Letters of Credit
issued by it (or any of them), including but not limited to
negotiating any compromise, release, reduction, retirement or closing
out of the relevant Revolving Credit Guarantees or Letters of Credit
on such terms as may be agreed (and/or paying the amount of any cash
cover to such beneficiaries (or any of them) in satisfaction of such
Issuing Lender's liabilities), and any payment made pursuant to or in
connection with any Revolving Credit Guarantee or Letters of Credit
issued by it shall be treated as a payment
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pursuant to or in connection with the relevant Revolving Credit
Guarantees or Letters of Credit for the purposes of Clause 5.7.
5.11.4 To the extent any contingent liability of an Issuing Lender, in
respect of a Letter of Credit or Revolving Credit Guarantee to a third
party, included in the calculation of Letter of Credit Outstandings or
Revolving Credit Guarantee Outstandings for purposes of a payment made
by a Requesting Borrower pursuant to Clause 5.11.1, 7.2(c) or 14.2(c),
irrevocably ceases to exist as either a contingent or actual liability
of the Issuing Lender without being paid by the relevant Issuing
Lender (whether because of expiration of the relevant Letter of Credit
or Revolving Credit Guarantee prior to a drawing thereon or any other
reason), such Issuing Lender shall promptly pay to the relevant
Borrower an amount equal to such contingent liability.
6. REPAYMENT
---------
6.1 Repayment of Term Loan
----------------------
6.1.1 On each Repayment Date, the Borrowers shall repay or cause the
repayment (as applicable) of the aggregate amount of the Term Loan set
forth opposite such date in Schedule 2 and/or the Equivalent Amount
(calculated by reference to the exchange rates utilised two Business
Days prior to Drawdown) in any other currency or currencies in which
the Term Loan made to the Borrowers are outstanding.
6.1.2 If any Repayment Date is not a Business Day it will be adjusted to
fall on the next succeeding Business Day unless the result of such
adjustment would be to carry that Repayment Date into another calendar
month, in which event such Repayment Date shall be the next preceding
Business Day.
6.1.3 Any amount of the Term Loan repaid under this Agreement may not be
redrawn and the Term Commitment shall be reduced by an amount equal to
the amount of the Term Loan so repaid.
6.2 Repayment of Revolving Credit Advances
--------------------------------------
6.2.1 Each Cash Advance under the Revolving Credit Facility shall be
borrowed for a period equal to the Interest Period selected in
relation to such Cash Advance. The relevant Borrower shall accordingly
repay each such Cash Advance on the last day of such Interest Period
in the currency in which such Cash Advance was made to that Borrower.
6.2.2 The Borrowers shall ensure that (i) the aggregate principal amount of
all Revolving Credit Advances from time to time outstanding does not
exceed the aggregate amount of the Revolving Credit Facility
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from time to time (including Equivalent Amounts in respect of Advances
not denominated in FF), and (ii) the aggregate principal amount of
Revolving Credit Advances to a particular Borrower does not exceed
such Borrower's Borrowing Limit. Any amounts outstanding under the
Revolving Credit Facility in breach of this Clause 6.2.2 shall become
immediately repayable by the relevant Borrower to the Lenders.
6.2.3 Subject to the provisions of this Agreement, Revolving Credit Advances
repaid in accordance with Clause 6.2.1 above shall be capable of being
redrawn by the Borrowers.
6.2.4 Subject to the terms of this Agreement, if any Revolving Credit
Advance (the "New Advance") is to be made on the day on which another
Revolving Credit Advance denominated in the same currency (the
"Maturing Advance") is due to be repaid (the "Maturity Date") then
(subject to there being no Event or Default or Potential Event of
Default), as between each Lender and the relevant Borrower the amount
to be repaid by such Borrower by way of Maturing Advance shall be set
off against the amount of the New Advance to be advanced by each
Lender (in respect of its participation) and the party to whom the
smaller amount is to be paid shall advance or repay (as appropriate)
to the party to whom the larger amount is to be paid the difference
between the two amounts on the Maturity Date.
7. PREPAYMENT AND CANCELLATION
---------------------------
7.1 Voluntary Prepayments
---------------------
7.1.1 The Borrowers may voluntarily prepay the whole or part of any Term
Advance or Revolving Credit Advance on the last day of an Interest
Period (or on any other Business Day subject to payment of any
breakage costs thereby incurred by any Lender in accordance with
Clause 27.1) relating thereto provided that the Agent has received
from the Borrowers' Agent not less than three Business Days' notice of
the proposed date and the amount of the prepayment.
7.1.2 If one or more Term Loans or Revolving Credit Loans are to be prepaid
voluntarily in part, the aggregate amount of the partial prepayment
must be a minimum of the Equivalent Amount of FF 25,000,000 and an
integral multiple of the Equivalent Amount of FF 1,000,000.
7.1.3 A prepayment made in accordance with the terms of this Clause 7 may be
made without penalty.
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7.2 Prepayment on Change of Control
-------------------------------
Immediately upon a Change of Control:
(a) the Borrowers will prepay all Cash Advances, accrued interest
thereon and all other sums payable under this Agreement and the
other Finance Documents;
(b) the unborrowed amount of all Facilities will be cancelled and the
Commitment of each Lender in respect of each Facility shall be
reduced to zero; and
(c) the Borrowers will immediately procure that each Revolving Credit
Guarantee and each Letter of Credit is cancelled with immediate
effect, or pay to the relevant Issuing Lender an amount equal to
the Letter of Credit Outstandings or Revolving Credit Guarantee
Outstandings (as applicable) allocable thereto.
7.3 Mandatory Prepayments
---------------------
7.3.1 Assets Disposals and Receivables Financings
-------------------------------------------
If any member of the Borrowing Group carries out an Equity Sale or
otherwise disposes of an asset (other than (x) a disposal permitted by
Clauses 13.2.8(a), (b) and (c), or (y) disposals permitted by Clauses
13.2.8(d) and (e) (inclusive) up to an aggregate amount for all such
disposals described in this sub-clause (y) of FF 50,000,000 or its
Equivalent Amount), or if CEAC incurs Financial Indebtedness of the
type described in paragraph (xiii) of the definition of "Permitted
Indebtedness", the Net Cash Proceeds of such Equity Sale, disposal or
Financial Indebtedness, as the case may be (but not the renewal or
refinancing of such Financial Indebtedness described in such paragraph
(xiii) except to the extent that the aggregate Net Cash Proceeds
attributable to such Financial Indebtedness which have not been repaid
or reimbursed by CEAC to the provider or providers of such Financial
Indebtedness exceed, as a result of such renewal or refinancing, the
maximum aggregate amount of such Net Cash Proceeds previously
outstanding and not repaid or reimbursed by CEAC at any time), shall
be applied in prepayment of the outstandings under this Agreement in
accordance with Clause 7.4.1(a) below.
7.3.2 Pension Plan Reversions/Warranty Claims
---------------------------------------
The Borrowers will make a prepayment of the outstandings under this
Agreement (a) in accordance with Clause 7.4.1(b) below in an amount
equal to any pension plan reversion to any member of the Borrowing
Group, and (b) in accordance with Clause 7.4.1(c) below in an amount
equal to 43% of any
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monies recovered by the Parent in a claim for breach of contract or
warranty in connection with the Acquisition, including without
limitation any amount contributed by the Parent or Exide Holdings
pursuant to Clause 13.5.4, net of (i) any liabilities of the Borrowing
Group which have given rise to such recovery and (ii) reasonable out-
of-pocket costs of the Parent and/or Exide Holdings in connection with
the recovery of such monies, and except for amounts received in
respect of, and to be applied reasonably promptly towards, assets of
the Borrowing Group required in the conduct of the Business.
7.4 Prepayments; Order of Application
---------------------------------
7.4.1 Partial prepayments made:-
(a) pursuant to Clause 7.3.1 will be applied by the Borrowers first
-----
to the permanent prepayment of the Term Loans (to be applied
against the scheduled repayments thereof in inverse order of
maturity); and second to the permanent prepayment of Revolving
------
Credit Loans;
(b) by operation of sub-clause (i) of Clause 7.3.2 will be applied by
the Borrowers one-half to the permanent prepayment of the Term
Loans (to be applied against the scheduled repayments thereof in
inverse order of maturity) and one-half to the permanent
prepayment of the Revolving Credit Loans;
(c) by operation of sub-clause (ii) of Clause 7.3.2 will be applied
by the Borrowers first to the permanent prepayment of the Term
-----
Loans (to be applied against the scheduled repayments thereof
in inverse order of maturity); and second to the permanent
------
prepayment of Revolving Credit Loans; provided that, to the
--------
extent such prepayment includes an amount (the "Relevant Amount")
of moneys which the Agent reasonably determines represents
satisfaction in full or in part for a claim for breach of
contract or warranty (in connection with the Acquisition) for an
excess of current liabilities and/or a shortfall in current
assets in the Borrowing Group, the Relevant Amount shall be
applied first in permanent prepayment of Revolving Credit
-----
Advances and second in permanent prepayment of the Term
------
Loans (to be applied against the scheduled repayments thereof in
inverse order of maturity); and
(d) pursuant to Clause 7.1 will be applied by the Borrowers first
-----
to the permanent prepayment of the Term Loans (to be applied pro
rata against the scheduled repayments
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thereof); and second in permanent prepayment of Revolving
------
Credit Loans.
7.4.2 Amounts applied in permanent repayment of the Revolving Credit Loans
may not be redrawn and, upon any such prepayment, each Lender's
Revolving Credit Commitment shall be reduced proportionately.
7.5 Prepayments during Interest Periods
-----------------------------------
7.5.1 Prepayments pursuant to Clauses 7.1, 7.2 and 7.3 applied to the
obligations of the Obligors hereunder shall be subject to payment of
any breakage costs incurred by any Finance Party, calculated in
accordance with Clause 27.1.
7.6 Cancellation
------------
7.6.1 The Borrowers' Agent may cancel the whole or any part (but if in part,
in a minimum amount of the Equivalent Amount of FF 25,000,000 and
integral multiples of the Equivalent Amount of FF 1,000,000) of the
Revolving Credit Facility undrawn when the notice of cancellation
takes effect if it gives 3 Business Days' written notice of
cancellation to the Agent. Cancellation made in accordance with the
terms of this Clause 7 may be made without penalty.
7.6.2 No cancellation may be made if it would result in the Revolving Credit
Advances outstanding at the time of the proposed cancellation
exceeding the total Revolving Credit Commitments. Upon any such
cancellation taking effect the maximum amount of the Revolving Credit
Facility shall be accordingly reduced and the amount of each Lender's
Revolving Credit Commitment (if any) shall be reduced proportionately.
7.7 General
-------
7.7.1 No prepayment or cancellation may be made except at the times and in
the manner expressly provided by this Agreement.
7.7.2 No amount prepaid in respect of the Term Loan Facility may be
subsequently re-drawn.
7.7.3 All prepayments shall be made together with interest accrued thereon
up to the date of prepayment and any other amounts then due and
payable under any Finance Document.
7.7.4 The Agent shall notify the Lenders promptly upon receipt by it of a
notice of prepayment or cancellation.
7.7.5 All notices of prepayment and all notices of cancellation given by the
Borrowers' Agent shall be irrevocable.
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7.7.6 Clause 7.3 shall not require any member of the Borrowing Group to
perform any act prohibited by law or regulation, but the members of
the Borrowing Group undertake to use their best endeavours to comply
with, or procure compliance with, that Clause, including by way of
dividends, transfer, inter-company loans or otherwise, except to the
extent that the Agent reasonably determines (upon consultation with
the Borrowers' Agent) that such compliance or procurement would
result in an expense which is unjustifiable relative to the benefits
obtainable by the Finance Parties therefrom.
8. INTEREST
--------
8.1 Interest Rate
-------------
8.1.1 Each Cash Advance will bear interest during each Interest Period
applicable to that Advance at the rate per annum determined by the
Agent to be the sum of (a) the applicable Margin, (b) for any Advance
not denominated in FF, LIBOR for such Interest Period, (c) for any
Advance denominated in FF, PIBOR for such Interest Period in the case
of a PIBOR-Eligible Lender or LIBOR for such Interest Period in the
case of each other Lender, and (d) in the case of Cash Advances
denominated in GBP or another currency subject to Mandatory Liquid
Asset Costs, Mandatory Liquid Asset Costs.
8.1.2 Interest will be calculated on the basis of actual days elapsed and a
360-day year (other than interest in respect of Cash Advances
denominated in GBP, which will be calculated on the basis of a year
of 365 days), and will accrue from day to day from, and including,
the first day of each Interest Period.
8.1.3 If requested to do so, each Reference Lender shall use its reasonable
endeavours to supply a quotation to the Agent for the purposes of
determining LIBOR or PIBOR (as the case may be) for a particular
Interest Period. If any Reference Lender does not do so, the
relevant arithmetic mean shall be determined on the basis of the
quotations supplied by the remaining Reference Lenders. At such time
as there are four Reference Lenders, if no, or only one, Reference
Lender supplies a quotation, Clause 8.5 shall apply.
8.2 Payment of Interest
-------------------
The relevant Borrower will pay interest accrued on each Cash Advance
to the Agent for the account of the Lenders in arrears on the last
day of each Interest Period applicable to that Advance, provided that
where such Interest Period is of a duration of longer than three
months, accrued interest in respect of the relevant Advance shall be
paid every three months during such Interest Period and on the last
day of such Interest Period.
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8.3 Selection of Interest Periods
-----------------------------
8.3.1 Subject to Clause 3.5.5, the duration of each Interest Period will be
a period of one, three or six months (or such other period as may be
agreed between the Borrowers' Agent, acting on behalf of the relevant
Borrower, and all of the Lenders) as notified by the Borrowers' Agent
to the Agent not later than 10.00 a.m. three Business Days prior to
the commencement of such Interest Period, provided that:-
(a) the first Interest Period in relation to a Term Advance will
commence on the Drawdown Date relating thereto and each
subsequent Interest Period relating to such Term Advance (or
part thereof) will commence on the expiry of the preceding
Interest Period relating thereto;
(b) if the Borrower's Agent fails to select an Interest Period, then,
subject as provided in this Clause 8.3, the Borrower's Agent
will be deemed to have selected an Interest Period of three
months;
(c) if all or part of a Term Advance is required to be repaid on a
Repayment Date to ensure that the Borrower complies with its
obligations under Clause 6.1.1 and if an Interest Period
relative to that Advance would, but for the operation of this
sub-clause (c), extend beyond such Repayment Date, then if
necessary such Advance shall be split into two separate Advances
(such additional Advance not to be counted for the purposes of
sub-clause (d) below), one of which shall be in an amount equal
to the amount required to be repaid and having an Interest
Period commencing upon the expiry of the immediately preceding
Interest Period and expiring on the relevant Repayment Date, the
other Advance being for the balance of the amount of the
original Advance; and
(d) the Borrowers' Agent will not be entitled to select more than two
concurrent Interest Period in relation to Term Advances.
8.3.2 If any Interest Period would, but for this Clause 8.3.2, end on a day
which is not a Business Day, that 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
last preceding Business Day.
8.3.3 No Interest Period for any Advance shall expire after the Final
Repayment Date.
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8.3.4 The Agent will notify:-
(a) the Lenders of each Interest Period applicable to each Advance
promptly upon the same being determined; and
(b) the Lenders and the Borrowers' Agent of the rate of interest
applicable to such Interest Period as soon as it is determined
under this Agreement.
8.4 Interest on Unpaid Sums
-----------------------
8.4.1 If an Obligor fails to pay any sum under this Agreement or any other
Finance Document on its due date (an "unpaid sum"), that Obligor will
----------
pay default interest on such unpaid sum from its due date to the
date of actual payment (after as well as before judgement) at a rate
the "Default Rate") determined by the Agent to be 2 per cent per
------------
annum above:-
(a) if the unpaid sum is principal which has fallen due prior to the
expiry of the relevant Interest Period, the rate applicable to
such principal immediately prior to the date it so fell due (but
only for the period from such due date to the end of the
relevant Interest Period); or
(b) in any other case (including principal falling within (a) above
once the relevant Interest Period has expired), the rate which
would be payable if the unpaid sum was an Advance made for a
period equal to the period of non-payment divided into
successive Interest Periods of such duration as shall be
selected by the Agent (a "Default Interest Period").
-----------------------
8.4.2 Default interest will be payable on demand by the Agent and will be
compounded at the end of each Default Interest Period.
8.4.3 The Agent will promptly notify the Borrowers' Agent and the Lenders of
each determination of the Default Rate and each selection of a
Default Interest Period.
8.5 Market Disruption
-----------------
8.5.1 If prior to the commencement of an Interest Period (an "Affected
--------
Interest Period"):-
---------------
(a) the Agent, after consultation with the Lenders, determines that,
by reason of circumstances affecting the London or Paris
interbank market (as the case may be) or the financial markets
generally, adequate and fair means do not or will not exist for
ascertaining the interest rate applicable to the Affected
Interest Period; or
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(b) Lenders whose Relevant Amounts exceed 51% of Relevant Amounts of
all Lenders notify the Agent that LIBOR (in the case of any
Advance not denominated in FF) or PIBOR (in the case of any
Advance denominated in FF) would not accurately reflect the cost
to such Lenders of making or maintaining their respective
participations in the relevant Advance during the Affected
Interest Period; or
(c) the appropriate page of the Telerate Display Screen does not list
any appropriate quotations and at such time as there are four
Reference Lenders none or only one of the Reference Lenders has
notified a rate to the Agent for the purposes of determining
LIBOR or PIBOR (as the case may be) for the Affected Interest
Period;
the Agent shall give notice of such event to the Borrowers' Agent and
the Lenders (a "Suspension Notice"). If such Suspension Notice shall
-----------------
be given prior to the receipt by the Agent of a Drawdown Request, the
Borrowers' right to borrow and issue a Drawdown Request in respect of
Advances hereunder shall be suspended during the continuance of such
circumstances.
8.5.2 If at the time of the Suspension Notice a Drawdown Request has been
given pursuant to Clause 5.1.1, such Drawdown Request shall, unless
the Borrowers' Agent and the Agent (after consultation with the
Lenders) otherwise agree, be deemed to have been cancelled and the
Advance concerned shall not be made.
8.5.3 Subject to Clause 8.5.4, during the 21 days following the giving of
the Suspension Notice, the Agent, the Borrowers' Agent and the
Lenders shall negotiate in good faith in order to arrive at a
mutually acceptable substitute basis for calculating the alternative
interest rate or (as the case may be) an alternative basis for the
relevant Lender to fund or continue to fund the affected Advance
during the Affected Interest Period on the basis that the net return
to the Lenders or the relevant Lender shall be no less than had the
event described in Clause 8.5.1 not occurred. If within such 21 day
period such parties shall agree in writing upon a substitute basis,
such substitute basis shall apply in accordance with its terms. If
such parties fail to agree on a substitute basis within such 21 day
period, the Agent (after consultation with the Lenders or, as the
case may be, the Relevant Lender) shall certify to the Borrowers'
Agent (such certificate to be conclusive in the absence of manifest
error and binding on all concerned) the basis upon which interest in
relation to the Affected Interest Period is to be fixed or (as the
case may be) the basis upon which the relevant Lender will fund or
continue to fund its participation in the Advance during the Affected
Interest Period. Such basis (in relation to the
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said rate of interest) may include the substitution of the cost of
funds to such Lenders from other sources and for different funding
periods, plus the Margin (plus, in the case of Advances denominated
in GBP or another currency subject to Mandatory Liquid Asset Costs,
Mandatory Liquid Asset Costs), and may be retroactive to the
beginning of the Affected Interest Period. Such interest shall be
calculated at the rate specified in the Agent's certificate.
8.5.4 Notwithstanding the foregoing, the Borrowers' Agent may, at any time
after the Agent shall have set a substitute funding procedure or
interest rate or rates pursuant to Clause 8.5.3 and for so long as
such funding procedure or interest rate or rates continue(s) to be
applicable, give to the Agent not less than 5 Business Days' notice
(which shall be irrevocable) of its intention to prepay the whole
(but not part only) of the Advance affected, in which event the
Borrowers shall pay:-
(a) on the date specified in such notice to the Agent for the account
of the Lenders the principal amount of the Advance affected
together with interest accrued thereon at the applicable rate to
the date of actual prepayment; and
(b) to each Lender on demand such amount (if any) as such Lender may
certify should be paid to it pursuant to Clause 27.1 (General
Indemnity and Breakage Costs).
9. PAYMENTS
--------
9.1 Place and Time
--------------
9.1.1 All payments to be made by any member of the Borrowing Group or by a
Lender under the Finance Documents are to be made to the Agent in the
relevant currency for value not later than 11.00 a.m. on the due date
therefor to such account as the Agent specifies by written notice for
this purpose, in immediately available and freely transferable funds
for value on the due date.
9.1.2 Subject to Clause 9.1.3, each payment received by the Agent pursuant
to Clause 9.1.1 for the account of another person will be made
available by the Agent to that person for value on the same day by
transfer to such bank account as that person has previously notified
to the Agent by not less than 3 Business Days' prior notice.
9.1.3 Where a sum is to be paid under the Finance Documents for the account
of another person, the Agent will not be obliged to make any such sum
available to that person until it has been able to establish to its
satisfaction that it has actually received such sum, but shall be
free to do so and if it does so and it proves to be the case that it
has not actually received the sum it paid out, then such
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person will on request ensure that the amount so made available is
refunded to the Agent and such person shall be liable (1) to pay to
the Agent interest on the amount in question at the rate determined
by the Agent to be equal to the cost to the Agent of funding such
amount for the period from payment out by the Agent until refund to
the Agent thereof and (2) to indemnify the Agent against any
additional cost or loss it may have suffered or incurred by reason of
it having paid out such sum prior to it having received the same.
9.2 No Deductions
-------------
All payments made by the Borrowing Group under the Finance Documents
(whether of principal, interest, acceptance commission, fees or
otherwise) shall be paid in full without set-off or counterclaim and
not subject to any condition.
9.3 Taxes
-----
9.3.1 All payments by any member of the Borrowing Group under the Finance
Documents are to be made in full without any deduction or withholding
for or on account of any Taxes unless the deduction or withholding is
required by law in which event the relevant Borrower will:-
(a) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(b) pay to the relevant Taxation or other authorities within the
period for payment permitted by the applicable law such amount
as is required to be paid in consequence of the deduction
(including, but without prejudice to the generality of the
foregoing, the full amount of any deduction from any additional
amount paid pursuant to Clause 9.3.2); and
(c) indemnify each of the Finance Parties against any losses or costs
incurred by it by reason of (i) any failure on the part of the
Borrowers to make any deduction or withholding or (ii) any such
additional amount not being paid on the due date for payment
thereof.
9.3.2 If any deduction or withholding for or on account of Taxes or any
other deduction from any payments made or to be made by the relevant
Borrower, or by the Agent or Administrative Agent to any other
Finance Party, under any of the Finance Documents is required by law,
then the relevant Borrower shall pay to the Finance Party concerned
an additional amount being the amount required to procure that the
aggregate net amount received by that Finance Party will equal the
full amount which would have been received by it had no such
deduction or withholding or other deduction been made.
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9.3.3 No additional amount will be payable to a Lender under Clause 9.3.2 in
respect of Taxes to the extent that such additional amount becomes
payable as a result only of a change in the Lending Office of the
relevant Lender, unless (i) such change is requested by the
Borrowers' Agent, or (ii) under the relevant Tax laws, regulations,
treaties or rules in effect at the time of the change in Lending
Office, such additional amount would not have been payable.
9.3.4 If a Borrower is obliged to pay an amount under Clause 9.3.1, the
relevant Borrower may prepay in whole (but not in part) and without
penalty (subject to Clause 27) all Advances made available to it by
the affected Lender, on the Borrowers' Agent giving not less than
three Business Days' prior written notice to the Agent and the
affected Lender, provided that such notice is given within 30 days of
the relevant Borrower becoming aware that it would be obliged to pay
such amount. The liability of such Lender to make any further
Advances or other extensions of credit available to the Borrowers
shall automatically be cancelled on the giving of such notice.
9.3.5 (a) If any of the Lenders determines, in its absolute discretion,
that it has received, realised, utilised and retained a Tax
benefit by reason of any deduction or withholding in respect of
which a member of the Borrowing Group has made an increased
payment or paid any indemnifying amount or compensating sum
under this Clause 9.3, such Lender shall, provided that the
Agent and each Lender has received all amounts which are then
due and payable by the members of the Borrowing Group under any
of the Finance Documents, promptly pay to the Borrowers' Agent
on behalf of the relevant member of the Borrowing Group (to the
extent that such Lender can do so without prejudicing the amount
of such benefit or repayment and the right of such Lender to
obtain any other benefit, relief or allowance which may be
available to it) such amount, if any, as such Lender, in its
absolute discretion shall determine will leave such Lender in no
worse position than it would have been in if the deduction or
withholding had not been required, provided that:-
(i) each Lender shall have an absolute discretion as to the
time at which and the order and manner in which it realises
or utilises any Tax benefit and shall not be obliged to
arrange its business or its Tax affairs in any particular
way in order to be eligible for any credit or refund or
similar benefit;
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(ii) no Lender shall be obliged to disclose any information
regarding its business, Tax affairs or Tax computations;
and
(iii) if a Lender has made a payment to the Borrowers' Agent
pursuant to this Clause 9.3.5 on account of any Tax
benefit and it subsequently transpires that such Lender
did not receive that Tax benefit, or received a lesser Tax
benefit, the relevant member of the Borrowing Group shall,
on demand, pay to such Lender such sum as the relevant
Lender may determine as being necessary to restore its
after-Tax position to that which it would have been had no
adjustment under this Clause 9.3.5(a) been necessary.
(b) No Lender shall be obliged to make any payment under this Clause
9.3.5 if, by doing so, it would contravene the terms of any
applicable law or any notice, direction or requirement of any
governmental or regulatory authority (whether or not having the
force of law).
9.4 Payments on Business Days
-------------------------
Subject to Clauses 6.1.2 and 8.3.2, if any sum would otherwise become
due for payment pursuant to any of the Finance Documents on a day
which is not a Business Day, such sum shall become due on the next
succeeding Business Day unless that day falls in the next calendar
month, in which case the sum shall become due on the preceding
Business Day and all sums payable under any of the Finance Documents
calculated by reference to any period of time shall be recalculated
on the basis of such extension in time (or reduction thereof).
9.5 Accounts
--------
9.5.1 Each Lender shall maintain an account or accounts recording the
amounts from time to time lent by, owing to and paid to such Lender
pursuant to the Finance Documents, which shall, as between such
Lender and the member of the Borrowing Group, be prima facie evidence
----- -----
of such amounts.
9.5.2 The Agent will maintain a memorandum account showing the principal
amount of all Advances for the time being outstanding hereunder and
all payments with respect thereto made by the Borrowers from time to
time pursuant to this Agreement.
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9.6 Currency
--------
(a) A repayment or prepayment of an Advance or any part of an
Advance is payable in the currency in which the Advance is
denominated on its due date.
(b) Interest and fees in respect of a Cash Advance, or in respect of
a Letter of Credit or Revolving Credit Guarantee, are payable in
the currency in which the relevant amount of the relevant Cash
Advance, Letter of Credit or Revolving Credit Guarantee in
respect of which it is payable is denominated. Fees in respect
of Commitments hereunder shall be payable in FF.
(c) Amounts payable in respect of costs, expenses and Taxes and the
like are payable in the currency in which they are incurred.
(d) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in FF.
10. CHANGE IN CIRCUMSTANCES
-----------------------
10.1 Increased Costs
---------------
10.1.1 If the effect of any implementation of, change in or introduction or
making after the date of this Agreement of, any law, regulation,
treaty or official directive or official request or guidance
applicable to any Lender (an "Affected Lender") (whether or not
---------------
having the force of law) or any change in the interpretation or
application thereof or compliance by that Lender with the same
(including without limitation those relating to Taxation, reserve
asset, special deposit, cash ratio, liquidity or capital adequacy
requirements or any other form of banking or monetary controls) is
to:-
(a) impose an additional cost on the Affected Lender as a result of
it having entered into any of the Finance Documents or making or
maintaining its participation in any Advance or of it performing
its obligations under the Finance Documents; or
(b) reduce any amount received or receivable by the Affected Lender
under the Finance Documents or reduce the effective return on
its capital or any class thereof; or
(c) result in the Affected Lender making any payment or foregoing any
interest or other return on or calculated by reference to any
amount received or receivable by the Affected Lender from any
other party under any of the Finance Documents,
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(each such increased cost, reduction, payment, foregone interest or
other return being hereafter referred to in this Clause 10.1 as an
"increased cost"), then:-
--------------
(1) the Affected Lender will notify the Borrowers' Agent and the
Agent of such event promptly upon its becoming aware of the
same; and
(2) upon demand from time to time by the Affected Lender, the
relevant Borrowers will pay to the Affected Lender such amount
as the Affected Lender shall determine to be necessary to
compensate the Affected Lender on an after-tax basis for such
increased cost (or the portion of such increased cost as is in
the reasonable opinion of the Affected Lender attributable to
its entering into the Finance Documents or of making or
maintaining its participation in any Advance or of maintaining
its Commitment).
10.1.2 The certificate of an Affected Lender specifying the amount of
compensation payable under Clause 10.1.1 and containing reasonable
detail as to how such amount was calculated will, in the absence of
manifest error, be conclusive.
10.1.3 The Borrowers will not be obliged to compensate any Affected Lender
pursuant to Clause 10.1.1 in respect of any increased cost:-
(a) attributable to a change in the rate of Tax on the overall net
income of the Affected Lender; or
(b) compensated for by the operation of Clause 9.3 (Taxes); or
(c) incurred in consequence of the implementation in whole or in part
of the International Convergence of Capital Measurements and
Capital Standards dated July 1988 published by the Basle
Committee on Banking Regulations and Supervisory Practices (the
"Guidance"), except to the extent that a higher level of capital
--------
adequacy is imposed than that stipulated in the Guidance as at
the date of this Agreement;
(d) included within the definition of Mandatory Liquid Asset Costs;
or
(e) until the calculation of such cost set forth in the certificate
referred to in Clause 10.1.2 has been received by the Borrowers'
Agent.
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10.2 Illegality
----------
If the effect of any implementation of, change in or introduction or
making after the date of this Agreement of any law, regulation,
treaty or official directive or official request or guidance
applicable to any Lender (a "Restricted Lender") (whether or not
------------------
having the force of law) in any jurisdiction applicable to that
Restricted Lender is to prohibit such Lender or make it illegal for
such Lender to make available or to maintain its participation in any
Advance or maintain its Commitment, then the Restricted Lender will
give written notice to that effect to the Agent and the Borrowers'
Agent, specifying in reasonable detail the obligations the
performance of which is prohibited and the relevant law, regulation,
treaty, directive, request or guideline, whereupon:-
(a) to the extent of such prohibition or illegality, the relevant
Borrowers shall forthwith prepay the Restricted Lender's
participation in all Cash Advances then outstanding together
with all interest accrued thereon and all other amounts due to
the Restricted Lender under this Agreement (including pursuant
to Clause 26 (Indemnities)); and/or
(b) to the extent of such prohibition or illegality, the Restricted
Lender's undrawn Commitment (if any) shall be cancelled
forthwith.
10.3 Mitigation
----------
If circumstances arise in relation to a particular Lender which
would, or may, result in:-
(a) an obligation to pay an additional amount under Clause 9.3.2
(gross-up); or
(b) a demand for compensation pursuant to Clause 10.1 (Increased
Costs); or
(c) an obligation to repay or the cancellation of an undrawn
Commitment under Clause 10.2 (Illegality);
then, without in any way limiting, reducing or otherwise qualifying
the obligations of the Borrowers under any of the Clauses referred to
above, such Lender will promptly after becoming aware thereof notify
the Agent and the Borrowers' Agent thereof and, except as set out in
the proviso in paragraph (z) below, in consultation with the Agent
and the Borrowers' Agent, take such steps as may be reasonably open
to it to mitigate the effects of such circumstances including (but
without limitation):-
(i) changing its Lending Office for the purposes of this Agreement;
or
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(ii) transferring its rights and obligations hereunder pursuant to
Clause 25.2 or 25.3 to a bank or financial institution acceptable
to the Borrowers' Agent and the Agent which is willing to
participate in the Facilities in its place;
provided that (y) the Lender concerned will not be obliged to take any
action under sub-paragraph (i) above if to do so would or might (in
its opinion) have an adverse effect upon its business, operations or
financial condition or cause it to incur liabilities (including any
material costs and expenses) or obligations (including Taxation) which
(in its opinion) are material or would reduce its return in relation
to its participation in the Facilities and (z) such Lender will not be
obliged to take the action referred to in sub-paragraph (ii) above
unless the Borrowers indemnify it by means of an indemnity in form and
content satisfactory to such Lender against any liabilities or
obligations reasonably incurred as a result of taking such action.
11. FEES, EXPENSES AND STAMP DUTIES
-------------------------------
11.1 Fees
----
11.1.1 The Borrowers will pay to the Agent the following fees:-
(a) for the account of each Lender a commitment fee during the
Availability Period for each respective Facility which will:-
(i) be computed at the rate of 0.5% per annum and on the daily
aggregate undrawn, uncancelled amount of the Total
Commitments;
(ii) accrue from day to day and be calculated on the basis of a
360 day year and the actual number of days elapsed; and
(iii) be payable quarterly in arrear on the last day of each
successive calendar quarter; and
(b) for the account of each Lender a fee during the term of each
Letter of Credit or Revolving Credit Guarantee which will:-
(i) be computed at an annual rate equal to the Margin in
effect from time to time and be charged by reference to
the amount of the relevant Deemed Advance;
(ii) accrue from day to day and be calculated on the basis of a
360 day
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year and the actual number of days elapsed; and
(iii) be payable quarterly in arrear on the last day of each
successive calendar quarter;
and, for the account of the Issuing Lender, an additional fee
equal to 1/8 of 1% per annum on the amount of the relevant
Deemed Advance, computed and payable in the same manner as the
other fees described in this sub-clause 11.1.1(b);
(c) for its own account or as otherwise specified in the Fees
Letter, such arrangement, agency and other fees at the times and
otherwise in accordance with the terms of the Fees Letter.
11.1.2 All fees payable under the Finance Documents are exclusive of any VAT
or other similar tax chargeable upon or in connection with such fees.
If any VAT or other similar Tax is or becomes so chargeable, such Tax
will be paid by the Borrowers at the same time as the relevant fee
itself is paid.
11.2 Expenses
--------
11.2.1 The Borrowers will on demand pay and reimburse to the Agent and
Administrative Agent, on the basis of a full indemnity, all
reasonable costs and expenses (including legal fees and other
out-of-pocket expenses and any VAT or other similar Tax thereon)
incurred by the Agent or Administrative Agent in connection with the
negotiation, preparation, execution and completion of each of the
Finance Documents, and all documents, matters and things referred to
in the Finance Documents or incidental to any of the Finance
Documents.
11.2.2 The Borrowers will on demand pay and reimburse to the Agent and the
Administrative Agent, on the basis of a full indemnity, all
reasonable costs and expenses (including reasonable legal fees and
other out-of-pocket expenses and any VAT or other similar Tax
thereon) incurred by the Agent or the Administrative Agent,
respectively, in connection with:-
(a) any variation, amendment, restatement, waiver, consent or
suspension of rights (or any proposal for any of the same)
relating to any of the Finance Documents (and documents, matters
or things referred to therein); and
(b) the investigation of any Event of Default or Potential Event of
Default, provided that the relevant Finance Party had reasonable
grounds to believe that such Event of Default or Potential Event
of Default had occurred.
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11.2.3 The Borrowers will on demand pay and reimburse to each Finance Party,
on the basis of a full indemnity, all costs and expenses (including
reasonable legal fees and other out-of-pocket expenses and any VAT or
other similar Tax thereon) incurred by such Finance Party in
connection with the preservation, enforcement or the attempted
preservation or enforcement of any of such Finance Party's rights
under any of the Finance Documents (and documents referred to
therein).
11.3 Stamp Duties, etc
-----------------
The Borrowers will:-
11.3.1 pay, and on demand indemnify each Finance Party from and against any
liability for, any stamp duty, documentary, registration and other
duties and Taxes (if any) which are or may hereafter become payable
in connection with the entry into, performance, execution or
enforcement of any of the Finance Documents or to which any of the
Finance Documents may otherwise be or become subject or give rise;
and
11.3.2 on demand indemnify each of the Finance Parties from and against any
losses or liabilities which they may incur as a result of any delay
or omission by the Borrowers to pay any such duties or Taxes.
12. REPRESENTATIONS AND WARRANTIES
------------------------------
12.1 Reliance and Effective Time
---------------------------
12.1.1 Each Obligor acknowledges that each Finance Party has or will have
entered into this Agreement and the other Finance Documents to which
it is a party and participated in the Advances in full reliance on
representations in the terms set out in the following provisions of
this Clause 12. Subject to Clause 12.1.2, each Borrower and
Guarantor represents and warrants to each Finance Party in the terms
set forth in Clauses 12.2 to 12.17 inclusive and 12.20 to 12.21
inclusive with reference to itself and each of its respective
subsidiaries, and each of the Parent (on a non-recourse basis as
provided in Clause 32 hereof) and Exide Holdings represents and
warrants to each Finance Party in the terms set forth in Clauses 12.2
to 12.6, inclusive, 12.12, 12.18, 12.19 and 12.22 for itself only,
and without giving effect to any references to subsidiaries set forth
therein.
12.1.2 The representations and warranties in this Clause 12 will be deemed
initially made on the first Drawdown Date and repeated on the date of
delivery of each Drawdown Request and on each Drawdown Date and
Interest Payment Date thereafter by reference to the facts and
circumstances existing on each such day, except that:-
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(i) each reference to financial statements in Clause 12 shall be
construed as a reference to the then latest available financial
statements of the Borrowing Group;
(ii) those representations and warranties which are expressly stated
to relate to an earlier date or time shall be deemed repeated
only by reference to the facts and circumstances existing at
that earlier date or time;
(iii) the representations and warranties set forth in Clauses 12.13
to 12.18 inclusive and 12.22 will not be deemed repeated after
the first Drawdown Date;
(iv) the representations and warranties of the Parent hereunder set
forth in Clauses 12.2 to 12.7 (inclusive) shall also be deemed
made on the date hereof; and
(v) the representations and warranties hereunder made on the first
Drawdown Date shall be deemed made immediately following the
repayment of any Specified Existing Indebtedness on such date
and consummation on such date of the transactions which the
Stock Purchase Agreement contemplates shall occur on such date.
12.2 Incorporation
-------------
Except as specifically set forth in Schedule 12.2, it, unless it is a
Non- Material Subsidiary, is duly incorporated or organised and
validly existing with limited liability under the laws of the country
or other jurisdiction of its incorporation, and has the power to own
its assets and carry on its business as it is being conducted or is
proposed to be conducted.
12.3 Power and Authority
-------------------
Except as specifically set forth in Schedule 12.3, its organisational
documents incorporate provisions which respectively ensure, and all
necessary corporate or other action has been taken to ensure, that:-
12.3.1 it is authorised to sign or execute (if appropriate, under seal or as
a deed) and deliver each of the Finance Documents and Acquisition
Agreements to which it is a party and perform the transactions
contemplated thereby;
12.3.2 its obligations under each of the Finance Documents rank and will at
all times rank in accordance with Clause 12.7; and
12.3.3 each of the Finance Documents to which it is a party is admissible in
evidence in the courts of France and each other jurisdiction in which
it is organised or in which any of its assets are located (subject
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only to payment of any stamp duty or similar requirement identified
in a relevant legal opinion delivered to or for the benefit of the
Finance Parties in connection with that Finance Document).
12.4 Enforceability
--------------
Its obligations under each of the Finance Documents to which it is a
party constitute its legal, valid and binding obligations enforceable
in accordance with their respective terms and are in full force and
effect, except as limited by the Reservations.
12.5 Authorisations and Consents
---------------------------
All consents, licences, approvals, authorisations and notifications
(whether corporate, official or otherwise) required to be obtained or
made by it in connection with the entry into, performance, validity
and enforceability of each of the Finance Documents to which it is a
party have been unconditionally obtained and are in full force and
effect.
12.6 No Contravention
----------------
Neither the signing (or other mode of execution) and delivery of any
of the Finance Documents nor the performance of any of the
transactions contemplated therein or of any of its obligations
thereunder do now or will:-
12.6.1 conflict with its organisational documents; or
12.6.2 contravene or constitute a default under or otherwise result in a
conflict with any material provision contained in any agreement,
instrument, law, regulation, judgment, order, licence, permit or
consent in effect on the Completion Date by which it or any of its
assets is bound or affected; or
12.6.3 cause a breach of any limitation on it or the powers of its directors
or other officers, whether imposed by or contained in its
organisational documents or in any law, order or judgment in effect
on the Completion Date to which it is subject or any agreement or
instrument by which it or any of its assets is bound or affected.
12.7 Ranking
-------
Its Financial Indebtedness evidenced by the Finance Documents to
which it is a party, to the extent not secured by any Security
Interest, ranks and will continue to rank at all times at least
pari passu with all of its unsecured unsubordinated liabilities,
---- -----
subject only to such liabilities as are given priority by mandatory
application of law.
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12.8 No Defaults and Tax Liabilities
-------------------------------
12.8.1 Unless notified to the Agent under Clause 13.3.1, no Event of Default
or Potential Event of Default has occurred and is continuing except
as specifically set forth in Schedule 12.8.1, and no event has
occurred (which has not been remedied or waived) which constitutes a
default under or in respect of any agreement, instrument, deed or
document to which it is a party or by which it or any of its assets
may be bound or affected being a default which will or can be
reasonably expected to have a Material Adverse Effect, and no event
has occurred (which has not been remedied or waived) which, with the
giving of notice which may validly be given and/or the lapse of any
grace period and/or giving of any certificate or statement which may
validly be given and/or making of any determination which may validly
be made and/or fulfilment of any other condition (which notice, grace
period, certificate, statement, determination or condition is in any
case specified or referred to in the relevant agreement, instrument,
deed or document), will constitute any such default which will or can
be reasonably expected to have a Material Adverse Effect.
12.8.2 Except as specifically set forth in Schedule 12.8.2, no claims are
being or are reasonably likely to be asserted against it or any of
its subsidiaries with respect to Taxes which would be reasonably
likely to have a Material Adverse Effect.
12.9 Indebtedness and Security Interests
-----------------------------------
It has no Financial Indebtedness other than Permitted Indebtedness,
and no Security Interest (or agreement to create the same) exists on
or over its assets other than Permitted Security Interests.
12.10 Ownership of Assets, Licences and Agreements for Business Operations;
---------------------------------------------------------------------
Intellectual Property
---------------------
12.10.1 Except as specifically set forth in Schedule 12.10.1, it has good
title to or valid leasehold or other valid right to use all its
material assets (other than Intellectual Property) to the extent
required to conduct the Business or the part thereof which it
conducts.
12.10.2 Except with respect to Environmental Licences (which are addressed by
Section 12.17 hereof), all licences, consents and authorisations have
been obtained which are necessary for the carrying on of its Business
or the part thereof which it conducts and all such licences, consents
and authorisations are in full force and effect, and there are no
circumstances known to it which indicate that any of such licences,
consents and authorisations is reasonably likely to be revoked or
varied or amended in whole or in part, except to the extent that the
absence, non-effectiveness, revocation, variation or amendment of any
such license, consent or authorisation would not have, and would not
be
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reasonably likely to have, a Material Adverse Effect.
12.10.3 Except in any case in this Clause 12.10.3 where the facts or
circumstances causing the inaccuracy of a particular representation
have not had and would not be reasonably likely to have a Material
Adverse Effect, the Intellectual Property:-
(i) is beneficially owned by a member of the Borrowing Group, is
free from any licences to third parties and Security Interests
and will not be adversely affected by the transactions
contemplated by this Agreement;
(ii) has not lapsed or been cancelled and all steps have been taken
to protect and maintain the Relevant Intellectual Property
including paying renewal fees where appropriate;
(iii) does not infringe any intellectual property rights of any
nature of any third party; and
(iv) the Borrowing Group owns or has licensed to it all Intellectual
Property rights required to conduct the Business.
12.11 Accounts
--------
12.11.1 The consolidated financial statements of the Borrowing Group most
recently delivered to the Agent pursuant to Clause 4.1.1 or 13.3.4,
as the case may be:-
(i) have been prepared in accordance with Approved Accounting
Principles consistently applied, except to the extent specified
therein;
(ii) are reguliers et sinceres and give une image fidele of the
consolidated financial condition of the Borrowing Group as at
the date to which they were drawn up and set forth all material
actual or contingent liabilities then existing required to be
set forth therein in accordance with Approved Accounting
Principles consistently applied;
subject in the case of any unaudited interim financial statements, to
changes resulting from audit and normal year-end adjustments.
12.12 Bankruptcy and Related Matters
------------------------------
12.12.1 It has not taken any action nor (so far as it is aware having made all
due enquiry) have any steps been taken or legal proceedings been
started against it for winding-up, dissolution or re-organisation,
the enforcement of any Security Interest over its assets or for the
appointment of a receiver, administrative receiver, or administrator,
trustee or similar officer of it or of any or all of its
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assets or any other procedure under which it obtains protection from
any of its creditors, or any analogous proceedings in any relevant
jurisdiction.
12.12.2 As at the Completion Date and immediately prior to the Drawdown, it
(unless it is a Non-Material Subsidiary) will be solvent within the
definition of any law applicable to it which requires as a condition
to the validity (and/or non-voidability) of financial obligations
undertaken, or Security Interest granted, by it that it be solvent.
12.13 Accountants' Report
-------------------
In relation to the Accountants' Report:-
(i) all factual information contained in the Accountants' Report
was, at the date of the report, true and accurate in all material
respects; and
(ii) all assumptions and presumptions contained in the Accountants'
Report (on the consolidated basis contemplated in the
Accountants' Report) attributable to any member of the Borrowing
Group were reasonable at the time they were made and in relation
to the period in respect of which they were made.
12.14 Environmental Report
--------------------
In relation to the Environmental Report, to the best knowledge of the
Parent and CEAC after due inquiry all factual information contained
in the Environmental Report was, at the date of such report, true and
accurate in all material respects and nothing has occurred since the
date of such report which renders any factual statement therein
misleading in any material respect.
12.15 No Material Adverse Effect
--------------------------
Except as specifically set forth in Schedule 12.15, no event or
matter having or likely to have a Material Adverse Effect has
occurred since 31st December 1993 to and including the Completion
Date.
12.16 Litigation
----------
Except as specifically set forth in Schedule 12.16, no litigation,
arbitration or administrative proceeding to which it is party is
current or pending or, so far as it is aware, threatened against it
nor is there subsisting any unsatisfied judgement or award given
against it by any court, board of arbitration or other body, which is
reasonably likely to result in liability to any member of the
Borrowing Group which has a Material Adverse Effect.
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12.17 Environmental Warranties
------------------------
12.17.1 No Environmental Event has occurred at any time in relation to any
site now or previously owned or occupied by any Borrower, Guarantor
or any of their respective subsidiaries which is reasonably likely to
have a Material Adverse Effect.
12.17.2 It has obtained and is, and has at all times been, in substantial
compliance with all Environmental Licences necessary in connection
with the ownership and operation of its facilities and business as
currently owned and operated or if there is or has been any failure
to so obtain or any non- compliance with such Environmental Licences
such failure or non-compliance is not reasonably likely to have a
Material Adverse Effect.
12.17.3 No circumstances exist which may reasonably be expected to prevent or
interfere with any Borrower, Guarantor or any of their respective
subsidiaries obtaining or being in substantial compliance with any
Environmental Licences in the future so as to give rise to a Material
Adverse Effect.
12.17.4 On the basis of its ongoing reviews which identify and evaluate
liabilities and costs relating to Environmental Law, it has
reasonably concluded that the application of any Environmental Law to
it or any of its subsidiaries is not reasonably likely to have any
Material Adverse Effect.
12.17.5 Its operations, and the operations of its subsidiaries, are, and at
all times have been, in full compliance with all Environmental Law or
if there is any non-compliance with Environmental Laws, such
non-compliance is not reasonably likely to have a Material Adverse
Effect. No circumstances exist which currently are known or ought
reasonably to be known by it which may reasonably be expected to
prevent or interfere with any Borrower, Guarantor or any of their
respective subsidiaries being in full compliance with any
Environmental Laws in the future so as to give rise to a Material
Adverse Effect.
12.18 Group Structure
---------------
The structure of the Borrowing Group upon Completion is as set out in
Schedule 4, and on the Completion Date the Borrowers will have no
other subsidiaries except as set forth therein. Schedule 4 includes
details of all companies, partnerships, joint ventures and other
entities in which any member of the Borrowing Group has an interest
in excess of ten per cent (10%) of the aggregate of all voting shares
or equivalent interests then in issue, and the percentage of such
shares or equivalent interests held by the members of the Borrowing
Group. The identity of each Non-Material Subsidiary on the date of
this Agreement is separately listed on Schedule 4.
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12.19 Acquisition Agreements
----------------------
The Acquisition Agreements are as of the date of this Agreement, and
will be as of the Completion Date, the only agreements, documents or
instruments to which any Obligor is a party which govern any material
term of the Acquisition, other than terms relating to the elimination
of intercompany receivables which will take place as part of the
procedures for the funding of the Acquisition.
12.20 Margin Stock
------------
Neither it, nor any of its subsidiaries, is engaged principally, or
as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
12.21 Employee Benefit Plans
----------------------
It has instituted all employee benefit plans legally necessary for
the carrying on of the Business, those plans in place are in full
force and effect and each such plan is fully funded to meet its
expected obligations as they come due except for such failure to
fund, the liability as to which is not reasonably likely to have a
Material Adverse Effect.
12.22 Parent and Exide Holdings Warranties
------------------------------------
12.22.1 Each of the representations and warranties made by FIAT in the
Acquisition Agreements are or were true and accurate at the date or
dates required by the Acquisition Agreement, except to the extent
the failure of any such representation or warranty to be true and
accurate is not and is not reasonably likely to have a Material
Adverse Effect (assuming for purposes of determining Material Adverse
Effect that such representation or warranty was true immediately
prior to its being made).
12.22.2 At the Completion, (i) Exide Holdings will be the legal and beneficial
owner of all the Shares other than any thereof which are Directors
Qualifying Shares, (ii) the Parent will be the legal and beneficial
owner of all of the outstanding equity capital of Exide Holdings
other than any thereof which are Directors Qualifying Shares, and
(iii) the Parent will be the legal and beneficial owner (directly or
indirectly through subsidiaries) of not less than 89% of the
outstanding equity capital of Tudor.
12.22.3 Upon concluding the procedures for funding the Acquisition, which will
be concluded simultaneously with the funding of the initial Advance
hereunder, Exide Holdings will have no material assets and no
material business other than the ownership of (a) the Shares and (b)
substantially all of the outstanding equity capital of Exide France
S.A., a societe anonyme organised under the laws of France with its
registered office at 8 Rue Jean Goujon,
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Paris 75008, France, and will have no Financial Indebtedness or other
material liabilities, other than such as have arisen in connection
with the Acquisition.
13. UNDERTAKINGS
------------
13.1 Duration of Undertakings
------------------------
Each Borrower undertakes to each of the Finance Parties in the terms
of the provisions of Clauses 13.2 to 13.4 inclusive (except to the
extent that any of such undertakings is stated to be made only by one
or more specific members of the Borrowing Group, in which case such
undertaking shall be construed as being made only by such member or
members), and each of the Parent and Exide Holdings undertakes to
each of the Finance Parties in the terms of the provisions of Clause
13.5, all such undertakings to continue until the liabilities and
obligations under each of the Finance Documents have been finally
discharged and no Finance Party has any obligation to lend hereunder,
unless in any case the Agent (acting on the instructions of the
Majority Lenders) agrees otherwise.
13.2 General Undertakings
--------------------
13.2.1 Use of Proceeds
---------------
It will use the proceeds of Advances only for the purposes specified
in Clause 2.2 and, in the case of such proceeds advanced by it to any
other person, will procure that such proceeds are used for such
purposes.
13.2.2 Authorisations and Consents
---------------------------
It will, and will procure that each of its subsidiaries will, obtain
and promptly renew from time to time and maintain in full force and
effect all such authorisations, approvals, consents, licences and
exemptions, and promptly make and renew from time to time all such
filings and registrations, as may be required under any applicable
law or regulation (i) to enable it to perform its material
obligations under each of the Finance Documents and (ii) for the
validity and enforceability thereof, subject to the Reservations.
13.2.3 Change of Business
------------------
It will not, and will procure that each of its subsidiaries will not,
engage in any material business other than the Business or any
business reasonably incidental thereto.
13.2.4 Maintenance of Status and Authorisations, Title to Assets
---------------------------------------------------------
It will, and will procure that each of its subsidiaries will:-
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(a) do all such things as are necessary to maintain their respective
legal existences, except that (i) two or more Tier I Obligors
may consolidate or merge with one another, (ii) two or more Tier
II Obligors may consolidate or merge with one another and (iii)
two or more persons which are neither Tier I Obligors nor Tier
II Obligors may consolidate or merge with one another, in each
case in accordance with Clause 13.2.9;
(b) ensure that it and each of them has the right and is duly
qualified to conduct their respective business as conducted in
all applicable jurisdictions, and obtain and maintain all
licences, consents, authorisations, franchises, intellectual
property and other rights necessary for the preservation and
operation of such businesses in all material respects, except to
the extent that the absence of any such right or qualification,
or the non-existence or non-maintenance of such licences,
consents, authorisations, franchises, property or rights, would
not have, and would not be reasonably likely to have, a Material
Adverse Effect; and
(c) comply in all material respects with all laws, regulations,
judgements, orders, licenses, permits or consents binding upon
it, except where non-compliance would not have, and would not
be reasonably likely to have, a Material Adverse Effect.
13.2.5 Arm's Length Transactions
-------------------------
It will not enter into, and will procure that each of its
subsidiaries does not enter into, any arrangement or transaction
other than on an arm's length basis.
13.2.6 Insurances
----------
It will:-
(a) maintain and will procure that each of its subsidiaries maintains
in full force and effect adequate insurance (including, without
limitation, employer's and public liability insurance and
business interruption/loss of profits insurance) in relation to
its and their respective assets and businesses against all such
risks as are normally insured against by other companies (whose
practice is not to self-insure except in connection with
reasonable excesses) owning or possessing similar assets or
carrying on similar businesses in an amount, to the extent
reasonably possible, equal to the full replacement cost of such
assets (after allowing for any decrease in value of such assets
as a result of normal wear and
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tear in the case of plant and machinery and related assets), in
respect of its or their respective businesses, except where its
failure to do so will not have a Material Adverse Effect; and
(b) supply copies of all such policies if so requested by the Agent.
13.2.7 Taxes
-----
It will pay within any permitted period, and will procure that each of
its subsidiaries pays within any permitted period, all material Taxes
imposed upon it or any of them or any of its or their assets, income
or profits or any transactions undertaken or entered into by it or any
of them (other than such Taxes as are being contested in good faith by
appropriate proceedings, pending determination of which payment may
lawfully be withheld, in respect of which Taxes there shall be set
aside adequate reserves in accordance with Approved Accounting
Principles).
13.2.8 Disposals
---------
It will not, and will procure that its subsidiaries will not (whether
by a single transaction or a number of related or unrelated
transactions and whether at the same time or over a period of time)
sell, transfer or otherwise dispose of any of its assets (including
shares of the capital stock of any other person, or if such person is
not an incorporated entity, other ownership interests therein, and the
coverage of this undertaking is to be deemed to include any
transaction the effect of which would be to reduce the percentage of
any class of shares or interests in any person held directly or
indirectly by CEAC) or all or any part of its undertakings, assets or
revenues or any interest therein, other than:-
(a) disposals of assets in the ordinary course of trading;
(b) payment of cash in respect of a transaction not otherwise
prohibited by this Agreement, and exchange of cash equivalents
for cash;
(c) the exchange or prompt replacement of assets for or with other
assets required for its trading activities of similar or greater
value than the assets disposed of or replaced, on arm's length
commercial terms;
(d) disposals of assets which are no longer required for the purposes
of its business at a price not significantly less than the market
value of those assets less, if the assets would otherwise be
liquidated, the costs of the liquidation;
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(e) disposals, other than disposals of shares of or ownership
interests in an Obligor, not falling within any other paragraph
of this Clause 13.2.8 whose consideration does not exceed FF
25,000,000 in any one case and FF 135,000,000 when aggregated
with all other such disposals made by the Borrowing Group
following the Completion Date;
(f) disposals required by any condition or limitation referred to in
Clause 4.1.1(b), approved by the Agent (acting on the
instructions of the Majority Lenders) to the extent required by
Clause 4.1.1(b); and
(g) sales by CEAC of receivables, the proceeds of which are utilised
in accordance with Clause 7.3.1, provided that the face amount of
--------
receivables so sold, when combined with the face amount of
receivables financed pursuant to paragraph (xiii) of the
definition of "Permitted Indebtedness", shall not exceed 33 1/3%
of the aggregate face amount of receivables of CEAC and its
subsidiaries as of the date of (and immediately prior to) the
relevant sale.
Except as permitted by sub-clause (c) above, no disposal permitted
hereunder will be made other than for a cash consideration payable on
or before completion on terms that the purchaser thereof does not
obtain title or possession to any asset the subject of such disposal
prior to completion of such disposal and payment of the whole
consideration therefor; provided that such consideration may take
--------
the form of promissory notes in an aggregate principal amount
outstanding to the Borrowing Group at any one time of not more than FF
25,000,000.
13.2.9 Merger, Consolidation, Etc.
---------------------------
It will not, and will procure that its subsidiaries do not, merge or
consolidate with any other person (whether by winding-up, dissolution
or other means) except that (i) two or more Tier I Obligors may
consolidate or merge with one another, (ii) two or more Tier II
Obligors may consolidate or merge with one another and (iii) two or
more persons which are neither Tier I Obligors nor Tier II Obligors
may consolidate or merge with one another, in each case provided the
Agent shall have received legal opinions in respect of the relevant
merger or consolidation in form and substance reasonably satisfactory
to it, which legal opinions shall, in any event, confirm that none of
the rights of any Finance Party or the material obligations and
liabilities to any Finance Party of any of the companies in the
Borrowing Group will, after such merger or consolidation, cease to be
in full force and effect.
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13.2.10 Negative Pledge
---------------
It will not, and will procure that its subsidiaries will not, create
or have outstanding any Security Interest on or over its respective
assets, except for Permitted Security Interests.
13.2.11 Indebtedness
------------
It will not, and will procure that its subsidiaries will not, incur
any Financial Indebtedness other than Permitted Indebtedness.
13.2.12 Loans, Etc.
-----------
It will not, and will procure that its subsidiaries will not, make any
loans or grant any credit to any person or make any other similar
arrangement other than (i) loans to directors or employees which,
together with all such loans made by other members of the Borrowing
Group, do not exceed a maximum aggregate amount of FF 5,000,000 or the
Equivalent Amount outstanding at any time for the entire Borrowing
Group, (ii) trade credit granted in the ordinary course of its trading
business, (iii) loans of proceeds of Cash Advances to the extent
permitted by Clause 2.2, (iv) loans to all material terms of which the
Agent (acting upon the instructions of the Majority Lenders) has
consented, (v) loans to governmental agencies and instrumentalities
required by the operation of applicable law, (vi) loans or credits
granted by a Tier I Obligor to another Tier I Obligor, or by a Tier II
Obligor to another Tier II Obligor, or by a person which is neither a
Tier I Obligor nor a Tier II Obligor to a Tier I Obligor or to a Tier
II Obligor or to a person which is neither a Tier I Obligor nor a Tier
II Obligor, where in each case the terms of the loan or credit to the
recipient thereof are no less favourable than those that would be
agreed on an arm's length basis, and (vii) provided that no Event of
Default or Potential Event of Default then exists or would result
therefrom, loans (net of any repayments thereof) by CEAC to the Parent
or any of its subsidiaries (other than CEAC and its subsidiaries)
which, when aggregated with dividends paid in accordance with Clause
13.2.16, do not exceed 75% of the Net Income of CEAC for all
Accounting Reference Periods ending after the Completion Date.
13.2.13 Acquisitions of Subsidiaries or Businesses
------------------------------------------
It will not, and will procure that its subsidiaries will not, acquire
any subsidiaries which are not its subsidiaries immediately after
Completion or acquire any business after Completion or enter into any
agreement under which it may be or become bound to acquire any
subsidiary or business other than acquisition of any subsidiaries or
businesses, the aggregate consideration (paid and payable by the
persons in the Borrowing Group) for which in any calendar year may not
exceed FF 25,000,000 or the Equivalent Amount in any one calendar year
or FF
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50,000,000 or the Equivalent Amount for all such acquisitions
following the Completion Date.
13.2.14 Payments to its Members and Affiliates
--------------------------------------
It will not, and will procure that its subsidiaries will not, make any
payment to the Parent or any of the Parent's subsidiaries (other than
members of the Borrowing Group) by way of management fee, royalty fee
or otherwise except in respect of services actually provided on bona
fide arm's length commercial terms and such fee may only be paid if no
Event of Default has occurred and is continuing.
13.2.15 Acquisition and Supply Agreements
---------------------------------
13.2.15.1 It will, and will procure that each of its subsidiaries
will, at their own cost and expense take all reasonable
steps to preserve and enforce available rights and remedies
in respect of the Acquisition Agreements or any breach
thereof, maintain in full force and effect and during their
term comply with the terms of the respective Acquisition
Agreements to which they are parties, in all material
respects, and not agree to any waiver of any material term
of or to any material amendment or variation of the terms
of the Acquisition Agreements.
13.2.15.2 It will, and will procure that each of its subsidiaries
will, at their own cost and expense take all reasonable
steps to preserve and enforce available rights and remedies
in respect of the Supply Agreements or any breach thereof,
maintain in full force and effect (subject to rights of
termination exercisable by the other party or parties
thereto not arising from the relevant Obligor's (or its
subsidiaries') actions or omissions) and during their term
comply with the terms of the Supply Agreements to which
they are parties, in all material respects, and not agree
to any waiver of any material term of or to any material
amendment or variation of the terms of the Supply
Agreements except to the extent that the failure to perform
or observe any of the undertakings set forth in this Clause
13.2.15.2 is not reasonably likely to have a Material
Adverse Effect.
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13.2.16 Restriction on Payment of Dividends, Etc.
-----------------------------------------
CEAC will not, and Exide Holdings will not permit the shareholders of
CEAC to, declare or pay, directly or indirectly, any dividends or make
any other distribution, or other amounts whether in cash or otherwise,
on any ordinary shares of CEAC, or any other shares of CEAC or
directly or indirectly redeem, purchase, retire or otherwise acquire
any thereof; provided that so long as no Event of Default or
--------
Potential Event of Default then exists or would exist after giving
effect thereto, CEAC may, and Exide Holdings may permit the
shareholders of CEAC to, declare and pay dividends to CEAC's
shareholders in an amount which, when aggregated with loans and
credits outstanding pursuant to Clause 13.2.12(vii), do not exceed 75%
of the Net Income of CEAC and its subsidiaries for all Accounting
Reference Periods ending after the Completion Date.
13.2.17 Restriction on Redemption and Acquisition of Own Shares
-------------------------------------------------------
It will not, and will procure that the other Borrowers will not,
directly or indirectly redeem, purchase, retire or otherwise acquire
for consideration any shares, warrants or other equity or equity
related securities issued by it or set apart any sum for any such
purpose or otherwise reduce its capital without the consent of the
Agent (acting on the instructions of the Majority Lenders).
13.2.18 Environmental Obligations
-------------------------
It will:-
(a) and will procure that each of its subsidiaries will, comply in
all material respects with (i) the terms and conditions of all
Environmental Licences applicable to it or any of its
subsidiaries, and (ii) all other applicable Environmental Law,
and for these purposes will implement and procure that each
subsidiary implements procedures to achieve compliance with any
Environmental Law, in any such case except where any failure to
comply, implement or procure does not and is not reasonably
likely to have a Material Adverse Effect;
(b) and will procure that each of its subsidiaries will, promptly
upon receipt or discovery of the same, notify the Agent of any
(i) Environmental Claim; and (ii) claim, notice or other
communication served on it in respect of (x) any suspension,
revocation or material modification of any Environmental Licence
applicable to it or any of its subsidiaries which is material to
the conduct by it or its subsidiaries (as
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appropriate) of its business (save where such suspension or
revocation arises by reason of and is immediately followed by the
issue of an Environmental Licence in substantially the same
terms), or (y) any breach of any Environmental Law where any
matter set forth in sub-clause (i) or (ii) of this Clause
13.2.18(b) has or is reasonably likely to have a Material Adverse
Effect;
(c) provide the Agent with such official certificates and other
information as the Agent shall reasonably require from time to
time to evidence its compliance and the compliance of each of its
subsidiaries with Environmental Law except where, in the case of
such other information, disclosure to the Agent would, in the
reasonable written opinion of the Borrower's counsel or legal
adviser delivered to the Agent (which counsel or legal adviser,
to the extent it has not previously delivered an opinion referred
to in Clause 4.1.1(e), shall be reasonably acceptable to the
Agent), result in the loss of privilege from discovery of the
required information by a member of the Borrowing Group or one of
their respective subsidiaries in connection with litigation or
other enforcement activity between such member and a third party
relating to such compliance;
(d) promptly upon becoming aware thereof, inform the Agent of any
Environmental Contamination which has or is reasonably likely to
have a Material Adverse Effect, and promptly upon receiving
written notice of the entry of any property owned or occupied by
it or any of its subsidiaries (or any property with respect to
which it or any of its subsidiaries has liability or potential
liability) on any register maintained by any government or like
authority for those properties deemed contaminated with Dangerous
Substances including, without limitation, a "black spots" list,
inform the Agent of the entry where the entry has or is
reasonably likely to have a Material Adverse Effect;
(e) notify the Agent promptly upon publication or other written
notice of any change to or addition to any applicable
Environmental Law the effect of which change or addition is
reasonably likely to have a Material Adverse Effect; and
(f) procure that each of its subsidiaries will undertake a suitable
site assessment of the Environmental status of any material real
property (or any material interest therein) or any company in
which it intends or they
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intend to acquire a majority interest (which assessments shall
include, but not be limited to, a written environmental site
assessment prepared by a reputable environmental consultant for
real property or interests therein acquired or held by any
company to be acquired), provided it is so permitted by the then
owner of such real property, and will notify the Agent of the
results of such assessment.
13.2.19 Intellectual Property
---------------------
It will, and will procure that each of its subsidiaries will, to the
extent reasonably practicable in carrying on their respective
businesses:-
(a) observe and comply with all material obligations and laws to
which it in its capacity as registered proprietor, beneficial
owner, user, licensor or licensee of the Relevant Intellectual
Property or any part thereof is subject, except to the extent
that the failure to observe and comply with such obligations and
laws does not and is not reasonably likely to have a Material
Adverse Effect;
(b) do all acts as are reasonably practicable to maintain, protect
and safeguard the Relevant Intellectual Property and not
discontinue the use of any of the Relevant Intellectual Property
nor allow it to be used in such a way that it is put at risk by
becoming generic or by being identified as disreputable in any
material way, except to the extent that the failure to do such
acts does not and is not reasonably likely have a Material
Adverse Effect;
(c) duly register in such register(s) or with such authorities as may
be available for the purpose and in such name(s) as may be
required by the law and practice of the place of registration
such of the Relevant Intellectual Property and all assignments,
licences and mortgages thereof as may be capable of registration
in such place(s), except to the extent that the failure to so
register any thereof does not and is not reasonably likely to
have a Material Adverse Effect;
(d) pay all fees necessary to maintain, protect and safeguard the
Relevant Intellectual Property and the registrations required to
be made under Clause 13.2.19(c) before the latest time provided
for payment thereof, except to the extent that the failure to
make any such payments does not and is not reasonably likely to
have a Material Adverse Effect;
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(e) take all such reasonable steps, including the commencement of
legal proceedings, as may be necessary to safeguard and maintain
the validity, reputation, integrity, registration or subsistence
of the Relevant Intellectual Property, except to the extent that
the failure to take such steps does not and is not reasonably
likely to have a Material Adverse Effect;
(f) not change the specification referred to in any registration of
any Relevant Intellectual Property or permit any disclaimer,
condition, restriction, memorandum or other thing to be entered
on the registration of any of the trade marks comprised within
the Relevant Intellectual Property the effect of which will be to
materially adversely affect the value of such trade marks, except
to the extent that such changes and entries do not and are not
reasonably likely to have a Material Adverse Effect;
(g) not assign, sever, dispose of or otherwise part with control of
the Relevant Intellectual Property, create or permit to subsist
any Security Interest therein or grant any licence to any person
to use the same in any manner which will be to adversely affect
the value of such Relevant Intellectual Property, except to such
extent as does not and is not reasonably likely to have a
Material Adverse Effect;
(h) maintain a comprehensive, detailed and up-to-date centralised
record of all Relevant Intellectual Property (including details
of agents engaged in relation to registrations thereof); and
(i) as and when reasonably requested by the Agent, promptly provide
the Agent with a copy of the record described in Clause
13.2.19(h) and/or a written summary of all Relevant Intellectual
Property created or acquired since the date of this Agreement or
the date of the last notification, as the Agent may request.
13.2.20 Investments
-----------
It will not, and will procure that its subsidiaries will not, own any
interest in any share, equity related investment or investment
security other than Permitted Investments.
13.2.21 Constitutional Documents
------------------------
It will not, and will procure that its subsidiaries will not, make any
material amendments to its respective organisational documents.
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13.2.22 Blockage of Payments, Etc.
--------------------------
It is not, and will procure that none of its subsidiaries is, a party
to any contractual or similar arrangement pursuant to which any such
subsidiary is prohibited from making any loan, payment of dividends,
distributions of income or other amounts, or transferring any
properties or assets, to the relevant Borrower, or any condition or
requirement is imposed on any such payment or transfer except, in the
case of prohibitions on transfers of properties or assets, customary
provisions restricting subletting or assignment of any lease governing
a leasehold interest of it or one of its subsidiaries.
13.2.23 No Subordination
----------------
It will not, and will procure that its subsidiaries will not, permit
any Financial Indebtedness or other obligation owed by it to another
member of the Borrowing Group, or to it by another member of the
Borrowing Group, to be contractually subordinated to any other
obligations.
13.2.24 Absence of Negative Pledges
---------------------------
It will not, and will procure that its subsidiaries will not, covenant
for the benefit of any person other than the Lenders pursuant to the
Finance Documents, to refrain from granting for the purpose of
securing Financial Indebtedness, Security Interests on all or any
portion of its or their assets or properties, except in respect of
assets subject to Permitted Security Interests in favour solely of the
holder of the relevant Security Interest.
13.2.25 Additional Guarantors
---------------------
It will procure that each of its subsidiaries which either after the
Completion Date becomes a Material Subsidiary (an "Existing Material
-----------------
Subsidiary") or is a person to be acquired pursuant to Clause 13.2.13
-----------
which would be a Material Subsidiary after giving effect to such
acquisition (an "Acquired Material Subsidiary") executes and
----------------------------
delivers, in the case of an Existing Material Subsidiary, within 90
days of availability to the Borrower's Agent of information
demonstrating that such subsidiary has become a Material Subsidiary
and, in the case of an Acquired Material Subsidiary, substantially
contemporaneously with the consummation of its acquisition, to the
Agent a Deed of Accession and the documents described in Clauses
4.1.1(a) and (e) relevant to it.
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13.3 Information and Accounting Undertakings
---------------------------------------
13.3.1 Events of Default
-----------------
The Borrowers' Agent will notify the Agent of the occurrence of any
Event of Default or Potential Event of Default immediately upon
becoming aware of it and will from time to time on request deliver to
the Agent a certificate confirming that no Event of Default or
Potential Event of Default has occurred or setting out details of any
Event of Default or Potential Event of Default and the action taken or
proposed to be taken to remedy it.
13.3.2 Books of Account
----------------
It will, and will procure that each of its respective subsidiaries
will, keep proper books of account and will prepare management
accounts in the usual form and will permit the Agent or any authorised
representative of the Agent upon reasonable notice to visit them and
inspect the same at the place where they are maintained and to
interview such officers and employees of the Borrowing Group as the
Agent may reasonably require, provided that such visits and interviews
may not occur more frequently than once a year unless an Event of
Default has occurred.
13.3.3 Appointment of Auditors
-----------------------
It will not and will procure that its subsidiaries will not, at any
time appoint or continue to employ any auditors other than the
Auditors or other auditors of international repute approved by the
Agent.
13.3.4 Financial Statements and Operating Budget
-----------------------------------------
The Borrowers' Agent will deliver to the Agent in form and substance
acceptable to the Agent for distribution to the Lenders sufficient
copies for each of the Lenders of the following:-
(a) as soon as available and in any event within 120 days after the
end of each Accounting Reference Period, the consolidated
financial statements of the Borrowing Group audited by the
Auditors as at the end of and for that financial year;
(b) as soon as available and in any event within 60 days after the
end of each Accounting Quarter (commencing on or after the
Completion Date), the unaudited consolidated financial statements
of the Borrowing Group and consolidating financial statements of
CEAC, setting out separately the accounts of each Borrower (and
any other member of the Borrowing Group as reasonably requested
by the Agent) and the relevant consolidating adjustments as at
the end of, and for, the relevant Accounting Quarter;
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(c) as soon as available and in any event within 30 days after the
end of each fiscal month of CEAC, the consolidated financial
statements of CEAC and its subsidiaries as at the end of such
month; and
(d) not less than 30 days before the beginning of each successive
Accounting Reference Period, the Operating Budget applicable to
such Accounting Reference Period;
the financial statements provided pursuant to Sub-clauses 13.3.4(a),
(b) and (c) to include, without limitation, in respect of each
Accounting Quarter or Accounting Reference Period, as the case may be,
a statement of consolidated profit and loss, a consolidated balance
sheet, a consolidated cash flow statement, together with a comparison
of all such information with the information, if any such consolidated
information is available, for the corresponding period in the
preceding financial year of the Borrowing Group (or part thereof
following the date hereof), and the financial statements provided
pursuant to Sub-Clauses 13.3.4 (a), (b) and (c) to include a
comparison with the relevant projections, estimates or forecasts in
the relevant Operating Budget.
13.3.5 Financial Covenant and Other Compliance Certificates
----------------------------------------------------
Each of the financial statements delivered under Sub-clauses 13.3.4(a)
and (b) shall be accompanied by a certificate signed by the chief
executive officer with responsibility for finance of CEAC and (in the
case of financial statements delivered pursuant to Sub-clause
13.3.4(a)) approved by a corporate meeting of the Board of Directors
of CEAC certifying whether or not the Borrowing Group is in compliance
with each of the covenants contained in Clause 13.4.1 (such
certificate to contain detailed calculations reasonably acceptable to
the Agent demonstrating such determination), confirming that at the
date of such financial statement no Event of Default or Potential
Event of Default had occurred, or if one has occurred, a description
thereof and the action taken or proposed to be taken to remedy it and,
in the case of the annual financial statements, (i) listing each
Material Subsidiary as at the date of such annual financial
statements, and (ii) accompanied by a certificate from the Auditors
(in such form and with such content as the Agent may reasonably
require) demonstrating whether or not the Borrowers are in compliance
with the covenants contained in Clause 13.4.1.
13.3.6 Accounting Reference Period/Accounting Quarter
----------------------------------------------
No alteration may be made to its Accounting Reference Period or
Accounting Quarters without the prior written consent of the Agent
(which consent shall not be unreasonably withheld), other than a once-
only change required to conform such Accounting Reference Period and
Accounting Quarter to the
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financial year of the Parent. The Agent may require such changes in
the financial covenants contained in this Agreement as will fairly
reflect any such change.
13.3.7 Auditors' Investigations
------------------------
The Borrowers' Agent will, if so required by the Agent acting on the
instructions of the Majority Lenders (who believe reasonably and in
good faith that either (i) any financial statements or calculations
provided by the Borrowers' Agent are inaccurate or incomplete in any
material respect or (ii) the financial performance of the Borrowing
Group is reasonably likely to give rise (or has given rise) to a
breach of one or more of the financial covenants in Clause 13.4), at
the reasonable expense of the Borrowers, instruct the Auditors or
other firm of accountants selected by the Agent to discuss the
financial position of the Borrowing Group with the Borrowers and/or to
carry out an investigation into the affairs of the Borrowing Group
and/or the financial performance of the Group and/or the accounting
and other reporting procedures and standards of the Borrowing Group.
Such investigation may include an independent valuation of stock and
receivables. The Auditors or other accountants shall be instructed to
disclose to the Agent and the Lenders (and provide it and the Lenders
with copies of) such information as the Agent may reasonably request
regarding the financial condition and operations of the Borrowers and
any other member of the Borrowing Group. The Borrowers shall not be
obliged to pay for any such exercise more than once in any Accounting
Reference Period unless a previous exercise demonstrated that the
financial information provided by the Borrowers' Agent pursuant to
this Agreement was materially incorrect, in which case the Borrowers
shall be liable for the costs of a subsequent exercise such as are
necessary to ensure that appropriate action has been taken to rectify
the problems identified.
13.3.8 Other Information
-----------------
CEAC will promptly deliver to the Agent for distribution to the
Lenders:-
(a) details of any litigation, arbitration or administrative
proceedings which, if resolved against a member of the Borrowing
Group, could reasonably be expected to give rise to a Material
Adverse Effect;
(b) at the same time as sent to its public shareholders or its
financial creditors, any other document or information sent to
such shareholders or creditors;
(c) such other information relating to its financial condition or
operations (including sales and details in relation to its
debtors), or those of any other member of
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the Borrowing Group, as the Agent (or any other Lender through
the Agent) may from time to time reasonably request; and
(d) details of any occurrence or circumstance which will affect the
ability of any member of the Borrowing Group to perform any of
its payment obligations under any of the Finance Documents.
13.3.9 Other Investigations
--------------------
It will, and will procure that its subsidiaries will, permit the Agent
and such person or persons as the Agent shall nominate at all
reasonable times during normal business hours and on not less than 24
hours' written notice to enter into and upon the principal premises
from which the relevant Borrower's or subsidiary's business is being
conducted to view the state and condition of such premises.
13.3.10 Approved Accounting Principles
------------------------------
All audited financial statements or accounts of the Borrowing Group
delivered or to be delivered to the Agent under this Agreement shall
be prepared in accordance with Approved Accounting Principles. If as a
result of a change in law or other change in generally accepted
accounting principles such statements or accounts are required to be
prepared on a different basis, or if any change in Approved Accounting
Principles would result in any material change in the manner in which
any item relevant to the covenants in Clause 13.4 (Financial
Covenants) is accounted for or reported by the Borrowing Group:-
(a) the Borrowers' Agent shall promptly so advise the Agent;
(b) on request of the Agent, the Borrowers' Agent and the Agent (on
behalf of the Lenders) shall negotiate in good faith with a view
to agreeing such amendments to Clause 13.4 and/or the definitions
of any or all of the terms used therein as are necessary as a
result of such change in law or in generally accepted accounting
principles (or other change) to give the Lenders comparable
protection to that contemplated at the date of this Agreement;
(c) if amendments satisfactory to the Lenders are agreed by the
Borrowers and the Agent in writing within 30 days of such
notifications to the Agent, those amendments shall take effect in
accordance with the terms of that agreement; and
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(d) if such amendments are not so agreed within 30 days, within 15
days after the end of that 30 day period, the Borrowers' Agent
shall either:_
(i) deliver to the Agent, in reasonable detail and in a form
satisfactory to the Agent, details of all such adjustments
as need to be made to the relevant financial statements in
order to bring them into line with Approved Accounting
Principles or, as the case may be, to eliminate the effect
of the relevant change; or
(ii) ensure that the relevant financial statements are prepared
in accordance with the Approved Accounting Principles
subject, as the case may be, to eliminating the effect of
the relevant change.
13.3.11 Annual Meeting with Banks
-------------------------
At the request of the Agent, CEAC shall within 120 days after the
close of each of its fiscal years hold a meeting at a time and place
selected by CEAC and reasonably acceptable to the Agent, with all of
the Lenders at which meeting shall be reviewed the financial results
of the previous fiscal year, the financial condition of CEAC and its
subsidiaries and the Operating Budget for the then current fiscal year
of CEAC.
13.3.12 Environmental Report Updates
----------------------------
CEAC shall within 60 days after the end of each Accounting Reference
Period furnish the Agent and each Lender with an environmental audit
report, satisfactory in form and scope to the Agent, from the
environmental consultants who prepared the Environmental Report or
other environmental consulting firms acceptable to the Agent, which
updates, as of the end of each Accounting Reference Period, the
Environmental Report.
13.4 Financial Covenants
-------------------
13.4.1 It undertakes that:-
(a) Interest Cover
--------------
In respect of each period specified below the ratio of EBIT to Total
Interest of the Borrowing Group (tested quarterly and calculated as
set forth in Clause 13.4.2) shall not be less than the ratio specified
below for that period:-
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<TABLE>
<CAPTION>
PERIOD MINIMUM
RATIO
- -------------------------------------------------
<S> <C>
Completion Date to 31st December 1995 2.5
- -------------------------------------------------
1st January 1996 to 31st December 1996 3.0
- -------------------------------------------------
1st January 1997 and thereafter 4.0
- -------------------------------------------------
</TABLE>
(b) Net Worth
---------
As at the end of each successive Accounting Quarter, the
remainder of the Net Worth of the Borrowing Group, less loans and
----
credits outstanding pursuant to Clause 13.2.12 (vii) and interest
accrued and unpaid thereon (tested and calculated as set forth in
Clause 13.4.2) shall not be less than the sum of (i) FF 1,600
million and (ii) 25% of the Net Income of CEAC and its
subsidiaries for all Accounting Reference Periods beginning after
the Completion Date, not taking into account any period during
which such Net Income is negative.
(c) Gearing
-------
In respect of each period specified below, the ratio of (i) the
remainder of Total Borrowings less cash and Permitted Investments
----
described in Clauses (ii) to (vi) (inclusive) of the definition
of "Permitted Investments", to (ii) Net Worth of the Borrowing
Group (tested quarterly and calculated as set forth in Clause
13.4.2) shall not be greater than the ratio specified below for
that period:-
<TABLE>
<CAPTION>
PERIOD MAXIMUM
RATIO
- -------------------------------------------------
<S> <C>
Completion Date to 31st December 1996 .50
- -------------------------------------------------
1st January 1997 to 31st December 1998 .30
- -------------------------------------------------
1st January 1999 and thereafter .25
- -------------------------------------------------
</TABLE>
13.4.2 Calculation
-----------
(a)
(i) On the last day of each Accounting Quarter ending on or
after 31st March 1995 which falls prior to the last day of
the first full Accounting Reference Period following
Completion, the covenants contained in Clauses 13.4.1(a) and
(c) will be tested on the basis of the aggregate of the
preceding
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complete Accounting Quarters, up to four such quarters.
(ii) On the last day of the first full Accounting Reference
Period following Completion and on the last day of each
subsequent Accounting Quarter, the covenants contained in
Clauses 13.4.1(a) and (c) will be tested on a rolling
aggregate basis for the immediately preceding four quarterly
periods ending on the last day of the relevant Accounting
Quarter.
(b) The covenants contained in Clauses 13.4.1(a), (b) and (c) will be
required to be tested and satisfied by reference to the quarterly
management accounts in respect of the first three Accounting
Quarters of each Accounting Reference Period, delivered to the
Agent pursuant to Clauses 13.3.4(b), for the relevant period, and
by reference to the audited accounts required to be delivered to
the Agent pursuant to Clause 13.3.4(a) in respect of the fourth
Accounting Quarter of each Accounting Reference Period; provided
--------
that if when the audited accounts become available they either
demonstrate that the figures in any relevant quarterly management
accounts utilised for any such calculation cannot have been
substantially accurate or indicate a material discrepancy which
is prejudicial to the Finance Parties between the aggregate
figures for the management accounts for the four relevant
Accounting Quarters and the aggregate audited figures, then the
Agent shall require such adjustment to the calculations made or
to be made as it reasonably considers appropriate to rectify such
inaccuracy or discrepancy, and compliance with the covenants in
Clause 13.4.1 will be determined by reference to such adjusted
figures.
(c) The components of each definition will be calculated in
accordance with the Approved Accounting Principles. In the case
of any component calculated by reference to management accounts
such Approved Accounting Principles will be applied within the
reasonable parameters which may be expected of management
accounts not the subject of audit procedures.
13.5 Undertakings of the Parent and Exide Holdings
---------------------------------------------
13.5.1 Each of the Parent and Exide Holdings undertakes in the terms of the
provisions of Clauses 13.2.2 (Authorisations and Consents), for itself
only, and without giving effect to any references to
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subsidiaries set forth therein. Exide Holdings further undertakes in
the terms of Clauses 13.2.16 (Restriction on payment of Dividends,
Etc.) and Clause 13.2.4(a) (Maintenance of Status and Authorisations),
in the case of Clause 13.2.4(a) for itself only, and without giving
effect to any references to subsidiaries set forth therein.
13.5.2 (a) Each of the Parent and Exide Holdings undertakes that, subject to
Clause 13.5.2(c), it will after the date of Completion continue
to be the legal and beneficial direct (in the case of Exide
Holdings) or indirect (in the case of the Parent) owner of at
least 99.7% of the issued and outstanding shares of each class or
series of the capital stock of CEAC.
(b) The Parent undertakes that, subject to Clause 13.5.2(c), it will
after the date of Completion continue to be the legal and
beneficial owner (directly or indirectly through subsidiaries) of
at least:-
(i) 100% of the issued and outstanding shares of each class or
series of the capital stock of Exide Holdings and
(ii) 89% of the issued and outstanding shares of each class or
series of the capital stock of Tudor.
(c) Each of the undertakings in sub-clauses (a) and (b) of this
Clause 13.5.2 shall be deemed complied with to the extent that
any non-compliance therewith is a result solely of (i) any shares
becoming Directors Qualifying Shares, (ii) any exercise of Tudor
Convertible Bonds (not legally or beneficially owned on the date
hereof by the Parent or any of its subsidiaries) in accordance
with their terms, or (iii) the pledging to any one or more
financial institutions of the shares of the capital stock of
Exide Holdings, CEAC or Tudor, or any direct or indirect parent
thereof which is a subsidiary of the Parent, and/or the exercise
by such institution or institutions of any rights or remedies in
connection therewith.
13.5.3 Each of the Parent and Exide Holdings undertakes that it will promptly
deliver to the Agent for distribution to the Lenders details of any
event relating to the actual or potential bankruptcy or similar
occurrence with respect of the Parent.
13.5.4 Each of the Parent and Exide Holdings undertakes that it will promptly
contribute to CEAC as an additional capital contribution 43% of any
moneys
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recovered by it from time to time in a claim for breach of contract or
warranty in connection with the Acquisition, for application in
accordance with Clauses 7.3.2 and 7.4.1, and such moneys shall not be
deemed to be received in respect of assets required in the conduct of
the Business for the purpose of Clause 7.3.2.
13.5.5 The Parent undertakes that it will not sell, transfer or otherwise
dispose directly or indirectly of any of its shares in Exide Holdings
except for shares that, immediately after such sale, transfer or other
disposition, are Directors Qualifying Shares, and Exide Holdings
undertakes that it will not sell, transfer or otherwise dispose
directly or indirectly of any shares in CEAC except for shares that,
immediately after such sale, transfer or other disposition, are
Directors Qualifying Shares; provided that each of the undertakings in
this Clause 13.5.5 shall be deemed complied with to the extent non-
compliance therewith is a result solely of the pledging to one or more
financial institutions of the shares of capital stock of Exide
Holdings or CEAC, or any direct or indirect parent thereof which is a
subsidiary of the Parent, and/or the exercise of any rights or
remedies in connection therewith.
14. EVENTS OF DEFAULT
-----------------
14.1 List of Events
--------------
Each of the events set out in this Clause 14.1 constitutes an Event of
Default whether or not the occurrence of the event concerned is
outside the control of the Borrowers or any other person.
14.1.1 Payment Default
---------------
Any Obligor fails to pay on the due date any amount payable by it
under any of the Finance Documents at the place at and in the currency
in which it is expressed to be payable but, without prejudice to
Clause 27.1, such non-payment shall not constitute an Event of Default
if it is a non-payment in respect of interest or fees and the relevant
payment is received by the Agent within three Business Days of the due
date for payment thereof.
14.1.2 Breach of Other Obligations
---------------------------
(a) Any Borrower fails to comply with any of its obligations in
Clause 13.4 (Financial Covenants);
(b) any Borrower fails to comply with any of its obligations in
Clause 13 (other than Clause 13.4) or the Parent or Exide
Holdings fails to comply with any covenant contained in Clause
13.5 and, in any such case, if such
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failure is, in the reasonable opinion of the Agent, capable of
remedy, it is not remedied within ten Business Days after the
first of any Borrower becomes aware of such failure; or
(c) any Obligor fails to comply with or perform any of its other
obligations or undertakings under any of the Finance Documents
and, if such failure is, in the reasonable opinion of the Agent,
capable of remedy, it is not remedied within ten Business Days
after the first of any Obligor becomes aware of such failure.
14.1.3 Misrepresentation
-----------------
Any representation, warranty or statement which is made by any Obligor
in any of the Finance Documents or is contained in any certificate,
statement or notice provided under or pursuant to any of the Finance
Documents proves to be incorrect in any material respect when made (or
deemed to be repeated) unless the circumstances giving rise to that
default are, in the reasonable opinion of the Agent, remediable, and
are remedied within ten Business Days of the first of any Obligor
becoming aware of the same.
14.1.4 Invalidity, Unlawfulness, Etc.
-----------------------------
(a) Any material provision of any Finance Document is, or becomes,
invalid or unenforceable for any reason (except by reason of the
unavailability of specific performance or other equitable remedy)
or shall be repudiated or the validity or enforceability of any
provision of any Finance Document shall at any time be contested
by any Obligor party thereto, or any Obligor shall deny the
existence of any liability or obligation on its part thereunder.
(b) At any time it is or becomes unlawful under the laws of any
applicable jurisdiction for any Obligor to perform any of its
material obligations under any Finance Document.
(c) At any time any act, condition or thing required to be done,
fulfilled or performed in order (i) to enable any Obligor
lawfully to enter into, exercise its rights under and perform the
material obligations expressed to be assumed by it in any of the
Finance Documents, (ii) to ensure that the material obligations
expressed to be assumed by any Obligor in any Finance Document
are legal, valid and binding or (iii) to make each Finance
Document admissible in evidence in France (other than the payment
of any stamp
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tax described in the opinion delivered by Messrs. Gide Loyrette
Nouel and accepted by the Agent pursuant to Clause 4.1.1(e)) and
the jurisdiction or jurisdictions in which any Obligor is
organised or incorporated (in each case, only to the extent the
relevant Obligor is a party thereto), is not done, fulfilled or
performed, and if the relevant matter is, in the reasonable
opinion of the Agent, capable of remedy, it is not remedied
within fourteen Business Days after the first of any Obligor
becomes aware of such matter.
14.1.5 Insolvency
----------
Any member of the Borrowing Group other than a Non-Material Subsidiary
is declared insolvent or is unable, or admits in writing its
inability, to pay its debts as they fall due or stops or threatens to
stop payment of its debts generally or becomes insolvent within the
terms of any applicable law.
14.1.6 Receivership and Administration
-------------------------------
(a) An application is made for the appointment of an administrator
(as such term is used in the Insolvency Act 1986) or similar
official in relation to any member of the Borrowing Group other
than a Non-Material Subsidiary or a resolution is passed by the
directors or shareholders of the Parent or any such member for
such an application to be made.
(b) A liquidator, trustee, administrative or other receiver, manager
(being a person acting on behalf of all or any creditors) or
similar officer is appointed in respect of (or takes possession
of) any member of the Borrowing Group other than a Non-Material
Subsidiary or in respect of (or takes possession of) all or any
part of its assets.
(c) Any distress, execution, attachment (other than an attachment or
arrestment to found jurisdiction) or other process affects any
asset of any member of the Borrowing Group (other than a Non-
Material Subsidiary), except where such member is, in good faith,
reasonably contesting such distress, execution, attachment or
other process by proceedings diligently pursued and such
distress, execution, attachment or other process is discharged or
stayed within 14 days.
14.1.7 Compositions and Arrangements
-----------------------------
A moratorium in respect of all or any classes of debts of any member
of the Borrowing Group other
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than a Non-Material Subsidiary or a composition or an arrangement with
creditors generally of any such member or any other arrangement
whereby its affairs are submitted to the control of its creditors is
applied for, ordered or declared.
14.1.8 Winding-up or Similar
---------------------
Any order is made or resolution passed or any legal proceedings are
consented to by any member of the Borrowing Group other than a Non-
Material Subsidiary or otherwise commenced for the suspension of
payments generally or dissolution, termination of existence,
liquidation, winding-up or bankruptcy of such member.
14.1.9 Protection from Creditors
-------------------------
Any order is made or resolution is passed or other action is taken by
or with respect to any member of the Borrowing Group other than a Non-
Material Subsidiary for protection from creditors of such member.
14.1.10 Similar Events Elsewhere
------------------------
There occurs in relation to any member of the Borrowing Group (other
than a Non-Material Subsidiary) or any of their respective assets, in
any country or territory in which that member is organised or carries
on business or to the jurisdiction of whose courts it or any of its
assets are subject, any event which corresponds in that country or
territory with any of those mentioned in Clauses 14.1.5 to 14.1.9
(inclusive) (including, without limitation, the filing of any petition
or the commencement of any proceedings under any United States federal
or state bankruptcy, insolvency, reorganisation or other similar law),
or such member or its assets otherwise become subject, in any such
country or territory, to any law relating to insolvency, bankruptcy or
liquidation.
14.1.11 Cessation of Business
---------------------
Any member of the Borrowing Group other than a Non-Material Subsidiary
ceases, or threatens to cease, to carry on all or a substantial part
of its business.
14.1.12 Compulsory Acquisition
----------------------
All or any part of the property or assets of any member of the
Borrowing Group other than a Non-Material Subsidiary is compulsorily
acquired by, or by the order of, any central or local governmental
authority and such acquisition results in a Material Adverse Effect.
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14.1.13 Security Interests
------------------
Any Security Interest securing obligations or liabilities in excess of
FF 10,000,000 or the Equivalent Amount affecting the business,
undertaking or any of the assets of any member of the Borrowing Group
and securing indebtedness becomes enforceable (other than by the
exercise of a lien arising solely by operation of law in the ordinary
course of trading where the indebtedness in respect of which that lien
is being exercised (i) has been due for less than seven days or (ii)
is being contested in good faith by appropriate means) whether or not
steps are taken to enforce the same.
14.1.14 Cross Default
-------------
14.1.14.1 Any other Financial Indebtedness in excess of FF 20,000,000
or the Equivalent Amount of any member of the Borrowing
Group:-
(a) is not paid when due or within any applicable grace period
in any agreement relating to that Financial Indebtedness;
or
(b) becomes due and payable (or presently capable of being
declared due and payable) before its normal maturity or is
placed upon demand (or any commitment for any such
indebtedness is cancelled or suspended) by reason of a
default or event of default, however described, or by
reason of any other contractual provision requiring
prepayment.
14.1.14.2 Any amount due under a WCP Facility becomes due and payable
(or presently capable of being declared due and payable)
before its normal maturity or is placed on demand (or any
WCP Commitment for any WCP Facility is cancelled or
suspended) by reason of a default, however described,
relating thereto.
14.1.15 Auditors' Qualification
-----------------------
The Auditors qualify their report on the audited consolidated
financial statements of CEAC in any way whatsoever.
14.1.16 Material Adverse Effect
-----------------------
An event or circumstance occurs which has, or is reasonably likely to
have, a Material Adverse Effect.
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14.1.17 Litigation
----------
Except as specifically set forth in Schedule 14.1.7, any litigation,
arbitration or administrative proceedings are current or pending at
the date of this Agreement or are commenced after that date against
any member of the Borrowing Group which has, or is reasonably likely
to have, a Material Adverse Effect.
14.1.18 Environmental Defaults
----------------------
(a) Any member of the Borrowing Group does not comply with any
Environmental Law or Environmental Licences or becomes subject to
any liability or potential liability in respect of Dangerous
Substances and that non-compliance or liability or potential
liability is reasonably likely to have a Material Adverse Effect;
(b) If any entry on any register maintained by any government or like
authority for those properties deemed contaminated with Dangerous
Substances, including, without limitation, a "black spots" list,
is made in respect of any property owned by any member of the
Borrowing Group (or with respect to which property any member of
the Borrowing Group has any liability or potential liability) and
as a result of such registration there is a fall in the value of
the property in question which is reasonably likely to have a
Material Adverse Effect;
(c) any change in applicable Environmental Law results in the
imposition of any liability on any Finance Party in relation to
any Environmental Event which liability is reasonably likely to
have a Material Adverse Effect; or
(d) any change in applicable law causes the rights of any person in
relation to any Environmental Claim against any member of the
Borrowing Group to rank ahead of the rights of any Finance Party
against it in a manner which has a Material Adverse Effect.
14.2 Cancellation and Repayment
--------------------------
At any time after the occurrence and during the continuance of an
Event of Default the Agent may and, if so instructed by the Majority
Lenders, will by notice to the Borrowers' Agent:-
(a) cancel any unborrowed amount of the Facilities (whereupon the
commitment of each Lender in respect to each Facility shall be
reduced to zero);
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(b) declare all Advances, accrued interest thereon and any other sum
accrued under this Agreement and any of the other Finance
Documents to be immediately due and payable, whereupon they shall
become so due and payable; and/or
(c) require the relevant Borrower immediately to procure that each
Revolving Credit Guarantee and each Letter of Credit is cancelled
with immediate effect, or pay to the relevant Issuing Lender an
amount equal to the Letter of Credit Outstandings or Revolving
Credit Guarantee Outstandings (as applicable) allocable thereto.
15. GUARANTEE
---------
15.1 Guarantee
- ---- ---------
Each Guarantor irrevocably and unconditionally:-
(a) as principal obligor, guarantees to each Finance Party prompt
performance by each Borrower (any reference in this Guarantee to
one or more Borrowers shall not be construed to include a
reference by a Guarantor to itself in its capacity as a
Borrower), of all their respective obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower does
not pay any amount when due under or in connection with any
Finance Document, such Guarantor shall forthwith on demand by the
Agent pay that amount as if such Guarantor instead of the
relevant Borrower were expressed to be the principal obligor; and
(c) indemnifies each Finance Party on demand against any loss or
liability suffered by it under the Finance Documents as a result
of any obligation guaranteed by such Guarantor being or becoming
unenforceable, invalid or illegal.
15.2 Continuing Guarantee
--------------------
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers under the
Finance Documents, regardless of any intermediate payment or discharge
in whole or in part.
15.3 Reinstatement
-------------
(a) Where any discharge (whether in respect of the obligations of any
Borrower or any security for those obligations or otherwise)
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is made in whole or in part or any arrangement is made on the
faith of any payment, security or other disposition which is
avoided or must be restored on insolvency, liquidation or
otherwise without limitation, the liability of each Guarantor
under this Clause 15 shall continue as if the discharge or
arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
15.4 Waiver of Defences
------------------
The obligations of each Guarantor under this Clause 15 will not be
affected by, and each Guarantor waives its rights (to the fullest
extent permitted by law) in connection with, any act, omission, matter
or thing which, but for this provision, would reduce, release or
prejudice any of its obligations under this Clause 15 or prejudice or
diminish those obligations in whole or in part, including (whether or
not known to it or any Finance Party):-
(a) any time or waiver granted to, or composition with, any Borrower
or any other person;
(b) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets (including any balance of
any deposit or account or credit on the books of any Finance
Party or other person in favour of any Borrower or any other
person) of, any Borrower or other person or any non-presentation
or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
(c) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of any
Borrower or any other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to
that Finance Document in this Clause 15 shall include each
variation or replacement;
(e) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security, to the intent that
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such Guarantor's obligations under this Clause 15 shall remain in
full force and its guarantee be construed accordingly, as if
there were no unenforceability, illegality or invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Borrower
under a Finance Document resulting from any insolvency,
liquidation or dissolution proceedings or from any law,
regulation or order so that each such obligation shall for the
purposes of each Guarantor's obligations under this Clause 15 be
construed as if there were no such circumstance.
15.5 Immediate recourse
------------------
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from
any person before claiming from such Guarantor under this Clause 15.
15.6 Appropriations
--------------
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent
on its behalf) may:-
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in a market rate interest-bearing suspense account any
moneys received from each Guarantor or on account of such
Guarantor's liability under this Clause 15, without liability to
pay interest on those moneys.
15.7 Non-competition
---------------
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, each Guarantor shall not, after a claim has
been made or by virtue of any payment or performance by it under this
Clause 15:-
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(a) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity
in respect of any payment made or moneys received on account of
such Guarantor's liability under this Clause 15;
(b) claim, rank, prove or vote as a creditor of any Borrower or its
estate in competition with any Finance Party (or any trustee or
agent on its behalf); or
(c) receive, claim or have the benefit of any payment, distribution
or security from or on account of any Borrower, or exercise any
right of set-off as against any Borrower.
Each Guarantor shall hold in trust for and forthwith pay or transfer
to the Agent for the Finance Parties any payment or distribution or
benefit of security received by it contrary to this Clause 15.7.
15.8 Additional Security, Relation to Other Obligations of Guarantors;
-----------------------------------------------------------------
This guarantee is in addition to and shall not in any way be
prejudiced by any other security now or hereafter held by any Finance
Party.
16. THE AGENT AND THE OTHER FINANCE PARTIES
---------------------------------------
16.1 Appointment and duties of the Agent, Arranger and Lead Managers
---------------------------------------------------------------
16.1.1 Each Lender hereby appoints (i) Bankers Trust Company as Agent,
Arranger and a Lead Manager, to act as its agent, arranger and lead
manager, respectively, and (ii) Bank of America National Trust and
Savings Association, Bank of Montreal and Dresdner Bank Luxembourg
S.A. to act with Bankers Trust Company as lead manager, under and in
connection with the Finance Documents for the purpose of the Finance
Documents and irrevocably authorises Bankers Trust Company for and on
its behalf to exercise such rights, powers and discretions as are
specifically delegated to it by the terms of the Finance Documents,
together with all such rights, powers and discretions as are
incidental thereto, and to give a good discharge for any moneys
payable under the Finance Documents.
16.1.2 The Agent will act solely as agent for the Lenders in carrying out its
functions as agent under the Finance Documents and will exercise the
same care as it would in dealing with a credit for its own account.
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16.1.3 The relationship between the Lenders and the Agent is that of
principal and agent only. The Agent shall not have, nor be deemed to
have, assumed any obligations to, or trust or fiduciary relationship
with, the other Finance Parties or the Parent, Exide Holdings or any
member of the Borrowing Group other than those for which specific
provision is made by the Finance Documents.
16.1.4 References in this Clause 16 to "Agent" shall be deemed also to be
references to the Agent in its capacities as Arranger and Lead Manager
and (save where specific reference is made to the contrary).
16.2 Agent's Duties
--------------
The Agent shall:-
16.2.1 promptly send to each Lender details of each communication received by
it from the Parent, the Borrowers' Agent or the members of the
Borrowing Group under the Finance Documents, except that details of
any communication relating to a particular Lender shall be sent to
that Lender only;
16.2.2 promptly send to each Lender a copy of any legal opinion delivered
under this Agreement or any of the other Finance Documents and of any
document or information received by it pursuant to Clause 13.3
(Information and Accounting Undertakings) or (if requested) pursuant
to Clause 4.1;
16.2.3 subject to those provisions of this Agreement which require the
consent of all the Lenders, act in accordance with any instructions
from the Majority Lenders or, if so instructed by the Majority
Lenders, refrain from exercising a right, power or discretion vested
in it under this Agreement or any of the Finance Documents;
16.2.4 have only those duties, obligations and responsibilities expressly
specified in the Finance Documents; and
16.2.5 without prejudice to any other clause hereof (including without
limitation Clauses 16.3.5, 16.4(c) and 16.6.3), promptly notify each
Lender of the occurrence of any Event of Default or Potential Event of
Default.
16.3 Agent's Rights
--------------
The Agent may:-
16.3.1 perform any of its duties, obligations and responsibilities under the
Finance Documents by or through its personnel, delegates or agents (on
the basis that the Agent may extend the benefit of any indemnity
received by it hereunder to its personnel, delegates or agents);
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16.3.2 refrain from exercising any right, power or discretion vested in it
under the Finance Documents until it has received instructions from
the Majority Lenders, or where relevant, all the Lenders;
16.3.3 unless it has received notice in writing to the contrary treat (a) the
Lender which makes available any portion of an Advance as the person
entitled to repayment of that portion and (b) the office set under a
Lender's name in Schedule 1 (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as Transferee)
as its Lending Office;
16.3.4 refrain from doing anything which would or might in its opinion be
contrary to any law, regulation, directive or judgement of any court
of any jurisdiction or otherwise render it liable to any person and
may do anything which is in its opinion necessary to comply with any
such law, regulation, judgement or directive;
16.3.5 assume that no Event of Default or Potential Event of Default has
occurred unless an officer of the Agent while active on the account of
the Borrowers acquires actual knowledge to the contrary;
16.3.6 refrain from taking any step (or further step) to protect or
enforce the rights of any Lender under this Agreement or any of the
other Finance Documents until it has been indemnified and/or secured
to its satisfaction against any and all costs, losses, expenses or
liabilities (including legal fees) which it would or might sustain or
incur as a result;
16.3.7 rely on any communication or document believed by it to be genuine and
correct and to have been communicated or signed by the person to whom
it purports to be communicated and signed;
16.3.8 rely as to any matter of fact which might reasonably be expected to be
within the knowledge of the Borrowers on a statement by or on behalf
of the Borrowers; and
16.3.9 obtain and pay for such legal or other expert advice or services as
may seem necessary to it or desirable and rely on any such advice.
16.4 Exoneration of Agent, Arranger and Lead Managers
------------------------------------------------
Neither the Agent nor the Arranger nor the Lead Managers nor any of
their respective personnel or agents:-
(a) shall be responsible for the adequacy, accuracy or completeness
of any representation, warranty, statement or information in the
Information Memorandum, any of the Finance Documents or any notice
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or other document delivered under the Finance Documents;
(b) shall be responsible for the execution, delivery, validity,
legality, adequacy, enforceability or admissibility in evidence of
any of the Finance Docu ments;
(c) shall be obliged to enquire as to the occurrence or continuation
of an Event of Default or a Potential Event of Default;
(d) shall be responsible for any failure of the Parent or any member
of the Borrowing Group or any of the Lenders duly and punctually
to observe and perform their respective obligations under the
Finance Documents;
(e) shall be responsible for the consequences of relying on the
advice of any professional advisers selected by any of them in
connection with the Finance Documents;
(f) shall be liable for acting (or refraining from acting) in what
it believes to be in the best interests of the Lenders in
circumstances where it has been unable, or it is not practicable,
to obtain the instructions of the Lenders or the Majority Lenders
(as the case may be); or
(g) shall be liable for anything done or not done by it under or in
connection with the Finance Documents save in the case of its own
negligence or wilful misconduct.
16.5 The Agent, the Arranger and the Lead Managers individually
----------------------------------------------------------
16.5.1 If it is a Lender, each of the Agent, the Arranger and the Lead
Managers shall have the same rights and powers under the Finance
Documents as any other Lender and may exercise those rights and powers
as if it were not also acting as Agent, Arranger or Lead Managers.
16.5.2 Each of the Agent, the Arranger and the Lead Managers may:-
(a) retain for its own benefit (and without liability to account)
any fee or other sum receivable by it for its own account; and
(b) accept deposits from, lend money to, provide any advisory, trust
or other services to or engage in any kind of banking or other
business with any party to this Agreement, or any subsidiary or
affiliate of any party (and, in each case, may do so without
liability to account).
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16.6 Communications and Information
------------------------------
16.6.1 All communications to the Parent, the Borrowers' Agent and/or any
member of the Borrowing Group are to be made by or through the Agent.
Each Finance Party will notify the Agent of, and provide the Agent
with a copy of, any communication between such Finance Party, the
Parent, the Borrowers' Agent, any member of the Borrowing Group or any
other of the Finance Parties on any matter concerning the Facilities
or the Finance Documents.
16.6.2 The Agent will not be obliged to transmit to the other Finance Parties
any information in any way relating to any of the parties to the
Finance Documents which the Agent may have acquired otherwise than in
connection with the Facilities or the Finance Documents.
16.6.3 In acting as Agent for the Lenders, the Agent's banking division shall
be treated as a separate entity from any other of its divisions (or
similar unit of the Agent in any subsequent re-organisation),
subsidiaries or affiliates (the "Other Divisions") and, in the event
---------------
that the Agent should act for the Parent, any of the
Parent's subsidiaries, the Borrowers' Agent, any Borrower or any other
members of the Borrowing Group in a corporate finance or other
advisory capacity ("Advisory Capacity"), any information given by any
-----------------
of them to one of the Other Divisions is to be treated
as confidential and will not be available to the Finance Parties
without the consent of the person for whom the Agent is acting in an
Advisory Capacity, provided that:-
(a) the consent of that person shall not be required in relation to
any information which the Agent in its discretion determines
relates to an Event of Default or a Potential Event of Default or
in respect of which the Lenders have given a confidentiality
undertaking in a form satisfactory to the Agent and the Borrowers'
Agent or that person; and
(b) if representatives or employees of the Agent receive information
in relation to an Event of Default or a Potential Event of Default
while acting in an Advisory Capacity they will not be obliged to
disclose such information to representatives or employees of the
Agent in their capacity as agent bank, arranger, lead manager or
administrative agent hereunder or to any of the Lenders if to do
so would breach any rule or regulation or fiduciary duty imposed
upon such persons.
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16.7 Non-Reliance on Agent, Arranger or Lead Managers
-----------------------------------------------
Each Lender confirms in favour of the Agent, Arranger and Lead
Managers that it is (and will at all times continue to be) solely
responsible for making its own independent investigation and appraisal
of the business, operations, financial condition, creditworthiness,
status and affairs of the Parent and the Borrowing Group and has not
relied, and will not at any time rely on the Agent or the Arranger or
the Lead Managers:-
16.7.1 to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and affairs
of the Parent or the Borrowing Group, whether coming into its
possession before or after the making of any Advance, except as
otherwise specifically provided herein; or
16.7.2 to check or enquire into the adequacy, accuracy or completeness of any
information provided by the Parent or Borrowing Group under or in
connection with this Agreement or any other Finance Document (whether
or not such information has been or is at any time circulated to it by
the Agent), including, without limitation, that contained in the
Information Memorandum; or
16.7.3 to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of any member of the
Borrowing Group.
16.8 Indemnity to Agent, Arranger and Lead Managers
---------------------------------------------
16.8.1 Each Lender shall on demand fully indemnify the Agent, the Arranger
and the Lead Managers and their respective officers, employees and
affiliates (collectively the "Agency Indemnitees") in the proportion
------------------
which its Relevant Amount bears to the Relevant
Amounts of all the Lenders at the relevant time against any cost,
expense or liability sustained or incurred by any of the Agency
Indemnitees in their respective capacities as Agent, Arranger and Lead
Managers as a consequence of or in connection with complying with any
instructions from the Lenders or the Majority Lenders (as the case may
be) or otherwise sustained or incurred in their respective capacities
as Agent, Arranger and Lead Managers in connection with the Finance
Documents or its respective duties, obligations and responsibilities
under the Finance Documents, except to the extent that they are
sustained or incurred principally as a result of the negligence or
wilful misconduct of such Agency Indemnitee as finally determined by a
court having jurisdiction (the determination not being subject to
appeal) .
16.8.2 The provisions of Clause 16.8.1 are without prejudice to the
obligations of the Borrowers to
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indemnify the Agency Indemnitees pursuant to Clause 27 and the
Borrowers will reimburse each Lender on demand for any payment made by
that Lender pursuant to Clause 16.8.1.
16.9 Termination and Resignation of Agency: Appointment of Successor
---------------------------------------------------------------
16.9.1 The Agent may resign its appointment at any time by giving notice to
the Lenders and the Borrowers' Agent.
16.9.2 A successor Agent shall be selected:-
(a) by the retiring Agent (following consultation with the
Borrowers' Agent) nominating one of its Affiliates (as defined
below) as successor Agent in its notice of resignation; or
(b) if the retiring Agent makes no such nomination, by the Majority
Lenders nominating one of the Lenders as successor Agent
(following consultation with the Borrowers); or
(c) if the Majority Lenders have failed to nominate a successor
Agent within 30 days of the date of the retiring Agent's notice
of resignation, by the retiring Agent nominating a financial
institution of good standing to be the successor Agent.
For this purpose "Affiliate" in relation to the Agent means one of its
affiliates or holding companies (both as defined in the Companies Act
1985) or another affiliate of any of such holding companies.
16.9.3 The resignation of the retiring Agent and the appointment of the
successor Agent will only become effective upon the successor Agent
accepting its appointment as Agent in writing at which time:-
(a) the successor Agent will become bound by all the obligations of
the Agent and become entitled to all the rights, privileges,
powers, authorities and discretions of the Agent hereunder;
(b) the agency of the retiring Agent will terminate but without
prejudice to any liabilities which the retiring Agent may have
incurred or the indemnities to which the retiring Agent may be
entitled prior to the termination of its agency; and
(c) the retiring Agent will be discharged from any further
liability or obligation under or in connection with the Finance
Documents (save that the outgoing Agent shall pay to
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the successor a pro rata proportion of the agency fee paid under
Clause 11.1.1(c)).
16.9.4 The retiring Agent will co-operate with the successor Agent in order
to ensure that its functions are transferred to the successor Agent
without disruption to the service provided to the Borrowing Group and
the Lenders and will promptly make available to the successor Agent
such documents and records as have been maintained in connection with
this Agreement in order that the successor Agent is able to discharge
its functions.
16.9.5 The provisions of this Agreement will continue in effect for the
benefit of any retiring Agent in respect of any actions taken or
omitted to be taken by it or any event occurring before the
termination of its agency.
16.10 Payments to Finance Parties
---------------------------
16.10.1 The Agent will account to the other Finance Parties for their due
proportion of all sums received by the Agent or the Security Agent (as
the case may be) for such Finance Parties, whether by way of repayment
of principal or payment of interest, commitment commission, fees or
otherwise.
16.10.2 Save as otherwise specifically agreed between the Agent and the other
Finance Parties in the case of any arrangement fee, the Agent may
retain for its own use and benefit, and shall not be liable to account
to the other Finance Parties for all or any part of, any sums received
by it by way of agency fee or any other fee or by way of reimbursement
of expenses incurred by it.
16.11 Change of Office of Agent, Arranger or Lead Managers
---------------------------------------------------
The Agent, the Arranger or the Lead Managers may at any time and from
time to time in their respective sole discretion by written notice to
the Borrowers' Agent and each of the other Finance Parties designate a
different office from which their respective duties as Agent, Arranger
or Lead Managers will thereafter be performed.
17. EVIDENCE OF INDEBTEDNESS
------------------------
In any proceedings relating to this Agreement, a statement as to any
amount due to any Finance Party under this Agreement which is
certified as being correct by an officer of the Agent and a statement
as to any amount due to a Finance Party under this Agreement which is
certified as being correct by an officer of that Finance Party shall
in the absence of manifest error, unless otherwise provided in this
Agreement, be prima facie evidence of the amount so due and that such
amount is in fact due and payable.
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18. APPLICATION OF MONEYS
---------------------
If any sum paid or recovered in respect of the liabilities of the
members of the Borrowing Group under any of the Finance Documents is
less than the amount then due, the Agent shall apply that sum in the
following order:-
(a) first to any unpaid fees and reimbursement of unpaid expenses
of the Agent and the Security Agent;
(b) secondly to any unpaid fees and reimbursement of unpaid
expenses of the Lenders;
(c) thirdly to unpaid interest;
(d) fourthly to unpaid principal; and
(e) fifthly to other amounts due under the Finance Documents;
in each case (other than (a), (b) and, to the extent of differences in
amounts of interest owing to PIBOR-Eligible Lenders and other Lenders,
(c)) pro rata to the outstanding amounts owing to the Finance Parties
--- ----
under the Finance Documents taking into account any applications under
this Clause 18.
19. PRO RATA PAYMENTS
-----------------
19.1 If any amount owing by any member of the Borrowing Group under any
Finance Document to a Lender (the "Recovering Lender") is discharged
-----------------
by payment, set-off, use of cash collateral or any other manner other
than through the Agent in accordance with Clause 9.1.1 (such amount
being referred to in this Clause 19.1 as the "Recovery"), then:-
--------
(a) within two Business Days of receipt of the Recovery, the
Recovering Lender shall pay to the Agent an amount equal (or
equivalent) to such Recovery;
(b) the Agent shall treat such payment as if it were part of the
payment to be made by the Borrowers to the Lenders rateably in
accordance with their respective Commitments; and
(c) save for any receipt by the Recovering Lender as a result of
the operation of paragraph (b) above, as between the members of
the Borrowing Group and the Recovering Lender the Recovery shall
be treated and deemed as not having been paid.
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19.2 Each Lender shall notify the Agent promptly of any such Recovery by
that Lender other than by payment through the Agent. If any Recovery
subsequently has to be wholly or partly refunded by the Recovering
Lender which paid an amount equal thereto to the Agent under Clause
19.1(a), each Lender to which any part of that amount was distributed
shall, on request from the Recovering Lender, repay to the Recovering
Lender such Lender's pro rata share of the amount which has to be
refunded by the Recovering Lender.
19.3 Each Lender shall on request supply to the Agent such information as
the Agent may from time to time request for the purpose of this Clause
19. Notwithstanding the foregoing provisions of this Clause 19, no
Recovering Lender shall be obliged to share with another person any
Recovery which it receives pursuant to legal proceedings taken by it
to recover any sums owing to it under the Finance Documents where such
other person has a legal right to, but does not, either join in such
proceedings or commence and diligently pursue separate proceedings to
enforce its rights in the same or another court (unless the
proceedings instituted by the Recovering Lender are instituted by it
without prior notice having been given to such other person through
the Agent).
19.4 Failure by any Recovering Lender to comply with any of the provisions
of this Clause 19 shall not release any other Recovering Lender from
any of its obligations or liabilities under this Clause 19.
19.5 Each party to this Agreement agrees to take all steps required of it
pursuant to Clause 19.1, and to use its reasonable endeavours to
obtain any consents or authorisations which may at any relevant time
be required, for any payment by it pursuant to this Clause 19.
19.6 The provisions of this Clause 19 shall not, and shall not be construed
so as to, constitute a charge by a Lender over all or any part of a
sum received or recovered by it in the circumstances mentioned in this
Clause 19.
20. SET-OFF
-------
Any Finance Party may without notice to any member of the Borrowing
Group following the giving of notice by the Agent pursuant to Clause
14.2, combine, consolidate or merge all or any of the accounts of the
members of the Borrowing Group with, and liabilities to, that Finance
Party and may set off or transfer any sum standing to the credit of
any such accounts in or towards the satisfaction of any of the
liabilities of the members of the Borrowing Group to that Finance
Party under the Finance Documents (whether or not such liabilities are
then due for payment), and may do so
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<PAGE>
notwithstanding that the balances on such accounts and the liabilities
may not be expressed in the same currency and each Finance Party is
hereby authorised to effect any necessary conversions at the Finance
Party's own rate of exchange then prevailing.
21. NOTICES
-------
21.1 Save as specifically otherwise provided in this Agreement or agreed
with the Agent any notice, demand or other communication to be served
under this Agreement may be served upon any party hereto only by
posting by first class (or air mail) post or by delivering the same in
person or by courier or sending the same by facsimile transmission to
the party to be served at its address or facsimile number given in the
relevant Finance Document or at such other address or number as it may
from time to time notify in writing to the other parties hereto. As
regards the initial parties to this Agreement, their respective
addresses and numbers are set out under their respective names in
Schedule 1 or in the signature pages of this Agreement.
21.2 A notice or demand served by first class (or air mail) post shall be
deemed duly served upon receipt, a notice or demand served in person
or by courier shall be deemed duly served when delivered and a notice
or demand sent by facsimile transmission shall be deemed to have been
served at the time of transmission unless served on a non-Business Day
or after 5.00 p.m. at the place in which the recipient is located in
which case it will be deemed served at 9.00 a.m. at the place in which
the recipient is located on the following Business Day.
21.3 In proving service of any notice or demand it will be sufficient to
prove, in the case of a letter, that such letter was properly stamped
or franked first class (or with appropriate air mail postage),
addressed and placed in the post, in the case of a notice or demand
served by courier that it was delivered by the courier company and, in
the case of a facsimile transmission, that such facsimile was duly
transmitted to a current facsimile number of the addressee at the
address referred to above and the transmission report indicates that
it was correctly sent and received.
22. NO IMPLIED WAIVERS
------------------
22.1 No failure or delay by the Agent, the Arranger or any of the Lead
Managers or any other Finance Party in exercising any right, power or
privilege under any of the Finance Documents shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power
or privilege preclude any further exercise thereof or the exercise of
any other right, power or privilege.
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<PAGE>
22.2 The rights and remedies provided in the Finance Documents are
cumulative and not exclusive of any rights and remedies provided by
law and all such rights and remedies howsoever arising will, save
where expressly provided to the contrary therein, be available to the
Finance Parties severally and any Finance Party shall be entitled to
commence proceedings in connection therewith in its own name.
23. INVALIDITY OF ANY PROVISION
---------------------------
If any of the provisions of this Agreement become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
24. CONFIDENTIALITY
---------------
24.1 Each of the Finance Parties agrees with the Borrowers to hold
confidential all information which they acquire under or in connection
with the Finance Documents save to the extent they are required by law
or regulation, or are requested by any regulator with jurisdiction
over, or over any business of, the relevant Finance Party or any of
its subsidiaries or affiliates, or where necessary in connection with
litigation, to disclose the same or the same comes into the public
domain (otherwise than as a result of a breach of this Clause 24).
24.2 Nothing in Clause 24.1 shall restrict any Finance Party from
disclosing information in accordance with Clause 25.4 (Disclosure of
Information).
24.3 Except to the extent required by law, all public announcements in
relation to this Agreement shall be made through the Agent. The Agent
will not make any written public announcement in relation to this
Agreement without first having the text of the announcement approved
by the Parent (such approval not to be unreasonably withheld or
delayed).
25. CHANGES TO PARTIES
------------------
25.1 Assignment by the Borrowers, Etc.
---------------------------------
None of the Parent, Exide Holdings or the members of the Borrowing
Group may assign or transfer all or part of their rights or
obligations under this Agreement or any of the other Finance
Documents.
25.2 Lenders
-------
25.2.1 A Lender (a "Transferor") may at any time assign or otherwise transfer
----------
(together, "Transfer") all or any part of its rights or obligations
--------
under the Finance Documents to any person (a "Transferee"), subject to
----------
the other terms of this Clause 25, provided that
--------
123
<PAGE>
unless the Borrowers' Agent and the Agent otherwise agree, any
Transfer by a Transferor (i) in relation to all Facilities other than
a WCP Facility, must, to the extent it has rights and/or obligations
in respect of one or more Facility, be in relation to both Facilities
and any Transfer shall be for the same proportion of the Transferor's
rights and obligations in each Facility, and (ii) in relation to a WCP
Facility must be in respect of that entire WCP Facility and that
Transferor's entire WCP Commitment thereunder .
25.2.2 A Transfer of obligation shall only be effective if made in accordance
with Clause 25.3 (Substitution Provisions) or if the Transferee has,
prior to the Transfer taking effect, confirmed in writing to the Agent
(acting on behalf of all the other Lenders) and to the Borrowers that
it undertakes to be bound by the terms of each of the Finance
Documents binding upon it as a Lender in form and substance
satisfactory to the Agent. On any such Transfer being made, the
Transferor shall be relieved of its obligations to the extent that
they are transferred to the Transferee.
25.3 Substitution Provisions
-----------------------
25.3.1 A Transferor may transfer all or any of its rights and obligations
under the Finance Documents to a Transferee by means of a novation
effected by the Agent executing a Transfer Certificate duly completed
and signed on behalf of both the Transferee and the Transferor.
25.3.2 On the later of (i) the date specified in the Transfer Certificate as
being the date on or as from which the substitution under this Clause
25.3 is to take effect and (ii) the date on which the Agent executes
the Transfer Certificate, the following shall occur:-
(a) to the extent that in the Transfer Certificate the Transferor
seeks to transfer its rights and obligations under the Finance
Documents, the Parent, Exide Holdings and the members of the
Borrowing Group and the Transferor shall each be released from
further obligations to each other under the Finance Documents
(and the appropriate reduction shall be made to the Commitment of
the Transferor) and their respective rights against each other
shall be cancelled (such rights and obligations beings referred
to in this Clause 25.3.2 as "Discharged Rights and Obligations");
---------------------------------
(b) the Parent, Exide Holdings and the members of the Borrowing
Group and the Transferee shall each assume obligations towards
each other and acquire rights against each other which differ
from the Discharged Rights and
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<PAGE>
Obligations only insofar as the Parent and the members of the
Borrowing Group and such Transferee have assumed and acquired the
same in place of the Parent and the members of the Borrowing
Group and the Transferor;
(c) the Agent, the Arranger, the Lead Manager, the Managers, the
Transferee and the other Lenders shall acquire the same rights
and assume the same obligations between themselves as they would
have acquired and assumed had the Transferee been an original
party hereto as a Lender with the rights and obligations acquired
or assumed by it as a result of the novation; and
(d) on the date upon which such transfer takes effect, the
Transferee shall pay to the Agent for its own account a transfer
fee of GBP 500, except that no fee shall be payable in respect of
a transfer in respect of which the Original Term Loan Lender or
the Original Revolving Credit Lender is the Transferor and which
occurs not later than six months after the Completion Date. For
the avoidance of doubt, no member of the Borrowing Group shall be
liable for the costs of preparation of any Transfer Certificate
or for the fee referred to in this Clause 25.3.2(d).
25.3.3 Nothing in this Agreement or any other Finance Document shall oblige a
Transferor or cause a Transferor to be liable:-
(a) to accept a re-assignment or re-transfer from a Transferee of
any of the rights or obligations assigned, transferred or novated
pursuant to this Clause 25; or
(b) to support any losses incurred by a Transferee by reason of the
non-performance by the Parent or any member of the Borrowing
Group of their obligations under any of the Finance Documents.
25.3.4 Each of the parties hereto (other than the Transferor and the
Transferee) authorises the Agent to execute on its behalf any Transfer
Certificate which has been duly completed in accordance with this
Clause 25.3 and executed on behalf of each of the Transferor and the
Transferee.
25.3.5 The Agent shall promptly notify the other parties hereto of the
receipt and execution by it on their behalf of any Transfer
Certificate and shall supply a copy of the Transfer Certificate to
each of the Borrowers.
25.4 Disclosure of Information
-------------------------
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<PAGE>
Each Lender may disclose to a proposed assignee or transferee or any
sub-participant, risk participant or other participant proposing to
enter or having entered into a contract with such Lender whose
identity has been approved by the Borrowers' Agent (such approval not
to be unreasonably withheld or delayed) regarding the Finance
Documents any information in the possession of such Lender relating to
the Borrowing Group (and any member of it) as it sees fit subject to
such person agreeing in writing to be bound by the confidentiality
provisions set out in Clause 24.
25.5 The Agent and the Reference Lenders
-----------------------------------
25.5.1 Changes to the Agent and the office through which the Agent acts may
be effected pursuant to Clauses 16.9 and 16.11 respectively.
25.5.2 If a Reference Lender ceases to be one of the Lenders or, if a
Reference Lender is not itself a Lender but an affiliate of a Lender
or that Reference Lender was, but ceases to be, one of the Lenders,
then:-
(a) the Lender or, as the case may be, affiliate of the Lender
concerned shall cease to be a Reference Lender; and
(b) the Agent shall in consultation with the Borrowers' Agent
appoint another Lender or an affiliate of another Lender to be a
Reference Lender.
26. LENDER DECISIONS
----------------
26.1 Subject to Clauses 26.2 and 26.3, any provision of this Agreement or
any of the other Finance Documents may be amended, waived, varied or
modified with the agreement of the Majority Lenders.
26.2 The following matters shall require the unanimous agreement of all of
the Lenders:-
26.2.1 any increase in any Commitment of any Lender;
26.2.2 any extension of any scheduled date for payment of any sum due, owing
or payable to any Lender;
26.2.3 any reduction in the amount of any payment of principal, interest,
fees or commissions or other amounts payable hereunder by any party;
26.2.4 any amendment, variation or modification of this Clause 26, Clause 19
(Pro Rata Payments), Clause 20 (Set-off), Clause 25.1 (Assignment by
the Borrowers, Etc.) or to the definition of Majority Lenders;
26.2.5 any matter which, by the terms of this Agreement as at the date
hereof, is stated to be subject to the
126
<PAGE>
consent of all Lenders shall not be amended, varied or modified save
with the consent of all the Lenders.
26.3 Any amendment, waiver, variation or modification of Clause 16 (The
Agent and the other Finance Parties) may not be effected without the
agreement of the Agent (giving effect to Clause 16.1.4).
27. INDEMNITIES
-----------
27.1 General Indemnity and Breakage Costs
------------------------------------
The Borrowers will fully indemnify each of the Finance Parties, and
their respective officers, employees, subsidiaries and affiliates
(collectively the "Finance Indemnitees") from and against any expense,
-------------------
loss, damage or liability (including without limitation any arising
from any actual or alleged breach of any Environmental Laws) which any
of the Finance Indemnitees may incur as a consequence of or in
connection with (i) the Acquisition, (ii) the provision of the
Facilities or the use of proceeds thereof, (iii) the execution,
delivery or performance of any of the Finance Documents, other than,
in the case of a Finance Indemnitee, any such expense, loss, damage or
liability which is finally determined by a court having jurisdiction
(the determination not being subject to appeal) to have resulted
principally from the negligence or wilful misconduct of such Finance
Indemnitee or which is otherwise reimbursed by a member of the
Borrowing Group under the Finance Documents. The Borrowers will
further fully indemnify each of the Finance Parties from and against
any expense, loss, damage or liability which they may incur as a
consequence of any failure to pay any sum due pursuant to the Finance
Documents when due, or any failure to borrow when obliged to do so in
accordance with this Agreement or repaying an Advance otherwise than
on the last day of an Interest Period or otherwise in connection with
a breach by the Parent or any member of the Borrowing Group of this
Agreement or of any Finance Document, except where it is otherwise
reimbursed by a member of the Borrowing Group under the Finance
Documents. Without prejudice to its generality, the indemnity in the
preceding sentence extends to any interest, fees or other sums
whatsoever paid or payable on account of any funds borrowed in order
to carry any amount which a member of the Borrowing Group fails to pay
in breach of this Agreement and to any loss (including loss of
profit), premium, penalty or expenses which may be incurred in
liquidating or employing deposits from third parties acquired to make,
maintain or fund outstanding Advances or any other amount due or to
become due under this Agreement.
127
<PAGE>
27.2 Currency Indemnity
------------------
Without prejudice to Clause 27.1, if:-
27.2.1 any amount payable by any Obligor under or in connection with any
Finance Document is received by any Finance Party in a currency (the
"Payment Currency") other than that agreed in the relevant Finance
Document (the "Agreed Currency"), whether as a result of any judgement
or order or the enforcement thereof, the liquidation of that member or
otherwise; and
27.2.2 the amount produced by converting the Payment Currency so received
into the Agreed Currency is less than the relevant amount of the
Agreed Currency;
then the relevant Obligor shall, as an independent and joint and
several obligation, indemnify the relevant Finance Party for the
deficiency and any loss sustained as a result. Such conversion shall
be made at such prevailing rate of exchange, on such date and in such
market as is determined by the relevant Finance Party as being most
appropriate for the conversion. The relevant Obligor shall in addition
pay the costs of the conversion as an independent and joint and
several obligation.
27.3 Waiver
------
Each Obligor waives any right it may have in any jurisdiction to pay
any amount under any Finance Document in a currency other than that in
which it is expressed to be payable in the relevant Finance Document.
28. CERTIFICATES CONCLUSIVE
-----------------------
A certificate, determination, notification or opinion of a Finance
Party, the Majority Lenders or any Lender provided for in any Finance
Document shall be conclusive save in the case of manifest error.
29. GOVERNING LAW
-------------
This Agreement shall be governed by and construed in accordance with
the laws of England.
30. JURISDICTION
------------
30.1 Submission
----------
For the benefit of each Finance Party, each Obligor agrees that the
courts of France and of England have jurisdiction to settle any
disputes in connection with any Finance Documents and accordingly
submits
128
<PAGE>
to the jurisdiction of both the French courts and the English
courts.
30.2 Service of Process
------------------
Without prejudice to any other mode of service, each Obligor:-
(a) irrevocably appoints (i) CEAC, 5-7 allee des Pierres Mavettes,
92636 Gennevilliers, France, as its agent for service of process
relating to any proceedings before the French courts in
connection with any Finance Document, and (ii) Euro Exide, Exide
House, Atlantic Square, Station Road, Witham, Essex CM8 ZTL,
England, as its agent for service of process relating to any
proceedings before the English courts in connection with any
Finance Document;
(b) agrees that failure by a process agent to notify it of the
process will not invalidate the proceedings concerned; and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for notices to it from time to time under Clause 21
(Notices).
30.3 Forum Convenience and Enforcement Abroad
----------------------------------------
Each Obligor:-
(a) waives objection to the French and English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgement or order of a French court or English in
connection with a Finance Document is (subject to rights of
appeal before the French courts (in the case of the judgement of
a French court) or English courts (in the case of the judgement
of an English court)) conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.
30.4 Non-Exclusivity
---------------
Nothing in this Clause 30 limits the right of a Finance Party to bring
proceedings against any Obligor in connection with any Finance
Document:-
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
129
<PAGE>
31. COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one
and the same instrument .
32. LIMITATION OF LIABILITY OF THE PARENT AND EXIDE HOLDINGS
--------------------------------------------------------
Notwithstanding any other provision of this Agreement to the contrary,
neither the Finance Parties nor any other person shall have any right
of suit or other recourse a gainst the Parent, Exide Holdings or any
of their respective assets arising from any representation, warranty,
certification, undertaking or other agreement of the Parent or Exide
Holdings set forth herein or made in connection herewith (including
without limitation pursuant to Clauses 4.1.1 or 4.2), except for those
set forth in Clause 13.5.4 and, by virtue of Clause 4.5.4, the
agreement to indemnify arising from failure to borrow set forth in
Clause 27.1 and the agreement to pay commitment fees set forth in
Clause 11.1.1(a); provided that nothing in this Clause 32 shall
--------
prevent the occurrence of a Potential Event of Default or an Event of
Default or the exercise against or in respect of any member of the
Borrowing Group of any right or remedy arising therefrom by virtue of
the untruth or inaccuracy of any representation, warranty or
certification, or the failure to observe or perform any undertaking or
other agreement, of the Parent set forth in this Agreement or made in
connection herewith; provided further that nothing in this
--------
Agreement shall be deemed to terminate or otherwise limit the Parent's
obligations under the letter agreements dated January 19, 1995 between
it and Bankers Trust Company.
130
<PAGE>
EXIDE CORPORATION
645 Penn Street
P.O. Box 14205
Reading Pennsylvania 19612-4205
United States of America
Attn: Corporate Treasurer
By: /s/ Alan E. Gauthier
--------------------
Its: Exec. V. President and Chief Financial Officer
-----------------------------------------------
BANKERS TRUST COMPANY, in its capacities as Arranger, a Lead Manager, a Lender
and Agent
By: /s/ Benoit Deschamps
-------------------------
Its: Vice President
------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, in its capacities as a
Lead Manager and a Lender.
By: /s/ Neil Alexander
------------------------
Its: Vice President
------------------------
DRESDNER BANK LUXEMBOURG S.A., in its capacities as a Lead Manager and a
Lender.
By: /s/ Klaus Diederich
-----------------------
Its: Assistant Manager Loans
------------------------
By: /s/ Andreas Leimbach
------------------------
Its: Vice President
------------------------
BANK OF MONTREAL, in its capacities as a Lead Manager and a Lender.
By: /s/ Tony Ebdon
------------------------
Its: Director
------------------------
131
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
Names and Addresses of Initial Term Loan Revolving
- ------------------------------ --------- ---------
Finance Parties Commitment Credit
- --------------- ---------- ------
Commitment
----------
<S> <C> <C>
BANKERS TRUST COMPANY FF 139,000,000 FF 139,000,000
1 Appold Street, Broadgate
London EC2A 2HE
England
Attention: Barry Jeffries/Philip
Pentney
Tel: + 44-171-982-2500
Fax: + 44-171-982-2271
BANK OF AMERICA NATIONAL FF 92,000,000 FF 92,000,000
TRUST AND SAVINGS
ASSOCIATION
43-47 Avenue de la Grande Armee
75782 Paris Cedex 16
France
Attention: Charmaine Donnelly
Tel: + 33-1-45-02-68-00
Fax: + 33-1-45-01-77-89
BANK OF MONTREAL FF 92,000,000 FF 92,000,000
1 Walbrook, 2nd Floor
London EC4N 8ED
England
Attention: Tony Ebdon
Tel: + 44-171-236-1010
Fax: + 44-171-248-5090
</TABLE>
For Administrative Matters:
11 Walbrook, 2nd Floor
London EC4N 8ED
England
Attention: David Binning
(Loan Administration)
Tel: + 44-171-236-1010
Fax: + 44-171-236-2821
S1-1
<PAGE>
<TABLE>
<CAPTION>
Names and Addresses of Initial Term Loan Revolving
- ------------------------------ --------- ---------
Finance Parties Commitment Credit
- --------------- ---------- ------
Commitment
----------
<S> <C> <C>
With a copy to:
BANK OF MONTREAL
234 Sincoe Street, 3rd Floor
Toronto, Canada
Attention: Vera Decosta
(Loan Administration)
Tel: + 1-416-867-5185
Fax: + 1-416-867-4116
DRESDNER BANK FF 92,000,000 FF 92,000,000
LUXEMBOURG S.A.
B.P. 355
26, rue du Marche-aux-Herbes
L-2097 Luxembourg
Attention: Mr Reuter
Tel: + 352-4760-315
Fax: + 352-4760-295
</TABLE>
S1-2
<PAGE>
SCHEDULE 2
----------
Repayment Schedule
------------------
TERM LOAN FACILITY
- ------------------
<TABLE>
<CAPTION>
Repayment Date Amount (FF)
- ------------------- -----------
<S> <C>
December 31, 1995 25,000,000
June 30, 1996 25,000,000
December 31, 1996 35,000,000
June 30, 1997 35,000,000
December 31, 1997 47,500,000
June 30, 1998 47,500,000
December 31, 1998 50,000,000
June 30, 1999 50,000,000
December 31, 1999 50,000,000
April 30, 2000 50,000,000
</TABLE>
S2-1
<PAGE>
EXECUTION FORM -
CONFORMED COPY
FIRST AMENDMENT AND WAIVER DATED 16TH MAY, 1995
TO
FACILITIES AGREEMENT DATED 28TH FEBRUARY, 1995
THIS FIRST AMENDMENT (this "AMENDMENT") is made on 16th May, 1995 between
(1) Exide Corporation, a corporation organised under the laws of Delaware with
its chief executive offices at 1400 North Woodward Avenue, Bloomfield Hills,
Michigan 48304, United States of America (the "PARENT"); (2) the financial
institutions listed on the signature pages hereof (the "LENDERS"), and (3)
Bankers Trust Company ("BTCO"), as Agent under, and as defined in, the
Facilities Agreement dated 28th February, 1995 between the Parent, Bank of
America National Trust and Savings Association, Bank of Montreal and Dresdner
Bank Luxembourg S.A. as Lead Managers and Bankers Trust Company as Arranger, a
Lead Manager and Agent (the "FACILITIES AGREEMENT"). Capitalised terms used in
this Amendment without definition shall have the same meanings herein as set
forth in the Facilities Agreement.
R E C I T A L S
WHEREAS, the parties hereto entered into the Facilities Agreement on
February 28, 1995; and
WHEREAS, the Facilities Agreement contemplates the accession of certain
Borrowers and Guarantors thereto pursuant to one or more Deeds of Accession,
which accession has not occurred as of the date of this Amendment; and
WHEREAS, the Borrowers' Agent has requested the amendment of certain
provisions of the Facilities Agreement and limited waiver of certain other such
provisions in contemplation of such accession and Drawdown; and
WHEREAS, the Borrowers's Agent has requested that a facility for the
issuance of a guarantee be added to the Term Loan Facility.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
<PAGE>
1. AMENDMENTS TO DEFINITIONS.
-------------------------
1.1 Clause 1.1 of the Facilities Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"'ADDITIONAL DRAWING' has the meaning given to it in Clause 5.1.5;
'ATSA' means Accumulateurs Tudor S.A., a company organised under the
laws of the Kingdom of Belgium;
'CGA' means Compagnia Generale Accumulatori SpA, a company organised
under the laws of the Republic of Italy;
'CMP NETHERLANDS' means CMP Batterijen B.V., a company organised under
the laws of the Kingdom of The Netherlands;
'CMP UK' means CMP Batteries Limited, a company organised under the laws
of England;
'DG BANK LOAN MATURING IN 1995' means a loan in the aggregate principal
amount outstanding as at 28th February, 1995 of DM 3,238,000 with a
final maturity of 30th June, 1995, made by Deutsche Genossenschaftsbank
to Sonnenschein pursuant to a letter agreement dated 22nd September,
1987, provided that the aggregate principal amount of such loan shall
--------
not be increased after the date of this Agreement;
'DG BANK LOAN MATURING IN 1997' means a loan in the aggregate principal
amount outstanding as at 28th February, 1995 of DM 3,821,350 with a
final maturity of 31st December, 1997, made by Deutsche
Genossenschaftsbank to Sonnenschein pursuant to a letter agreement dated
9th September, 1991, provided that the aggregate principal amount
--------
of such loan shall not be increased after the date of this Agreement;
'DG BANK LOAN MATURING IN 2002' means a loan in the aggregate principal
amount outstanding as at 28th February 1995 of DM 8,749,850 with a final
maturity of 31st December, 2002, made by Deutsche Genossenschaftsbank to
Sonnenschein pursuant to a letter agreement dated 22nd September, 1987,
provided that the aggregate principal amount of such loan shall not be
--------
increased after the date of this Agreement;
'DG BANK LOANS' means, together, the DG Bank Loan Maturing in 1995, the
DG Bank Loan Maturing in 1997 and the DG Bank Loan Maturing in 2002;
2
<PAGE>
'DG/SNCI COMMITMENT AMOUNT' means the FF Equivalent Amount (calculated
as of the Rate Fixing Day applicable to the Drawdown) of the aggregate
principal amount of the SNCI Loans and DG Bank Loan Maturing in 1995
immediately prior to the date of Drawdown;
'FAY' means Fabbrica Accumulatori York SpA, a company organised under
the laws of the Republic of Italy;
'FIAT FRANCE' means Fiat France S.A., a company organised under the laws
of the Republic of France;
'FIAT GEVA' means Fiat Geva, a company organised under the laws of the
Republic of Italy;
'FIAT WORKING CAPITAL INDEBTEDNESS' means:-
(i) up to FF 32,000,000 or its Equivalent Amount borrowed by CEAC
from Fiat France prior to Drawdown;
(ii) up to FF 7,600,000 or its Equivalent Amount borrowed by CMP UK
from Fiat France prior to Drawdown;
(iii) up to FF 17,400,000 or its Equivalent Amount borrowed by
Sonnenschein from Fiat France prior to Drawdown;
(iv) up to FF 44,500,000 or its Equivalent Amount borrowed by SINAC
from Fiat Geva prior to Drawdown ;
(v) up to FF 30,100,000 or its Equivalent Amount borrowed by CGA
from Fiat Geva prior to Drawdown ;
(vi) up to FF 4,800,000 or its Equivalent Amount borrowed by FAY
from Fiat Geva prior to Drawdown ;
(vii) up to FF 9,100,000 or its Equivalent Amount borrowed by SAEM
from Fiat Geva prior to Drawdown; and
(viii) up to FF 2,800,000 or its Equivalent Amount borrowed by
Fulmen Iberica from Fiat France prior to Drawdown;
provided the Fiat Working Capital Indebtedness is borrowed by the
--------
relevant Borrower for the purpose of meeting the reasonably anticipated
working capital needs of such Borrower and other members of the
Borrowing Group and provided further that such Fiat Working
----------------
Capital Indebtedness is not incurred in connection with, or in
contemplation of, the Acquisition.
'FULMEN IBERICA' means Fulmen Iberica S.A., a company organised under
the laws of the Kingdom of Spain;
3
<PAGE>
'NGL' means the lawful currency from time to time of the Kingdom of The
Netherlands;
'SAEM' means Societa Apparecchiature Eletriche Monza SpA, a company
organised under the laws of the Republic of Italy;
'SINAC' means Societa Industriale Accumulatori Srl, a company organised
under the laws of the Republic of Italy;
'SNCI LOANS' means, together, (i) a loan in the aggregate principal
amount outstanding as at 28th February 1995 of BF 25,000,000 with a
final maturity of 15th February, 1996, made by Societe Nationale de
Credit a l'Industrie S.A. to
ATSA pursuant to an agreement dated 21st January, 1985, and (ii) a loan
in the aggregate principal amount outstanding as at 28th February 1995
of BF 66,667,000 with a final maturity of 10th December, 1996, made by
Societe Nationale de Credit a l'Industrie S.A. to ATSA pursuant to an
agreement dated 18th November, 1993; provided that the aggregate
--------
principal amount of such loans shall not be increased after the date of
this Agreement;
'TERM CREDIT GUARANTEE' means a guarantee denominated in ITL undertaken
and issued by an Issuing Lender at the request of the Borrower's Agent
and made on behalf of SINAC, and includes any replacement Term Credit
Guarantee issued in accordance with Clause 5.2.4;
'TERM CREDIT GUARANTEE OUTSTANDINGS' means the maximum liability of the
Issuing Lender under the Term Credit Guarantee, such liability being
calculated by the relevant Issuing Lender on the basis of its discharge
in due course of its liabilities under the Term Credit Guarantee;"
1.2 The definition of "Available Currency" in Clause 1.1 of the Facilities
Agreement is hereby amended by inserting ", NGL" immediately following the
appearance of the term "ITL" therein.
1.3 The definition of "Borrowers" in Clause 1.1 of the Facilities Agreement
is hereby amended by deleting it in its entirety and substituting the following
therefor:
"BORROWERS" means CEAC, ATSA, CMP UK, CMP Netherlands, SINAC, CGA, FAY,
SAEM, Sonnenschein and Fulmen Iberica.
1.4 The definition of "CEAC" in Clause 1.1 of the Facilities Agreement is
hereby amended by deleting the word "Mavettes" therein and substituting
"Mayettes" therefor.
4
<PAGE>
1.5 The definition of "Drawdown Date" in Clause 1.1 of the Facilities
Agreement is hereby amended by inserting ", Term Credit Guarantee" immediately
following the term "Revolving Credit Guarantee" therein.
1.6 The definition of "Finance Document" in Clause 1.1 of the Facilities
Agreement is hereby amended by inserting ", each Term Credit Guarantee"
immediately following the term "Revolving Credit Guarantee" therein.
1.7 The definition of "Issuing Lender" in Clause 1.1 of the Facilities
Agreement is hereby amended by inserting ", a Term Credit Guarantee" immediately
following the term "Revolving Credit Guarantee" therein.
1.8 The definition of "Net Income" in Clause 1.1 of the Facilities Agreement
is hereby amended by adding the word "net" between the words "resultat" and
--- --------
"consolide" in clause (i) thereof.
- ----------
1.9 The definition of "Net Worth" in Clause 1.1 of the Facilities Agreement
is hereby amended by deleting the parenthetical "(capitaux propres)" therein and
----------------
substituting "(capitaux propres du groupe)" therefor.
--------------------------
1.10 The definition of "Participation" in Clause 1.1 of the Facilities
Agreement is hereby amended by (i) deleting ", in the case of the Revolving
Credit Facility" therefrom, and (ii) inserting ", the Term Credit Guarantee"
immediately following the phrase "the Revolving Credit Guarantees" therein.
1.11 Clause (xii) of the definition of "Permitted Indebtedness" in Clause 1.1
of the Facilities Agreement is hereby amended by adding ", and term loan
facilities backstopped by and in an aggregate principal amount not exceeding the
aggregate amount of the Term Credit Guarantee" immediately before the ";"
therein.
1.12 The definition of "Permitted Security Interest" in Clause 1.1 of the
Facilities Agreement is hereby amended by (i) deleting the final "and" in clause
(viii) thereof, (ii) substituting "; and" for the final "." in clause (ix)
thereof, and adding the following after clause (ix) thereof:-
"(x) Security Interests (a) in the Sonnenschein plant at Weiden,
Germany in favour of Deutsche Genossenschaftsbank securing the DG
Bank Loans, (b) in certain assets of ATSA, securing the SNCI
Loans; provided that the principal Financial Indebtedness secured
by any such Security Interest shall not be increased after the
date of this Agreement."
5
<PAGE>
1.13 The definition of "Term Loan Facility" is hereby amended by deleting it
in its entirety and substituting the following therefor:
"'TERM LOAN FACILITY' means the multicurrency term credit facility not
in excess of the Term Loan Commitment granted to the Borrowers hereunder
(as the same may be reduced in accordance with the terms of this
Agreement), which may be utilised by way of Term Advances and a Term
Credit Guarantee."
1.14 The definition of "Tudor" in Clause 1.1 of the Facilities Agreement is
hereby amended by adding the word "Tudor" immediately following the word
"Acumulador" therein.
2. AMENDMENTS GENERALLY.
--------------------
2.1 Clause 2.2.1 of the Facilities Agreement is hereby amended by deleting
it in its entirety and substituting the following therefor:
"2.2.1 Term Loan Facility: The proceeds of any Advance under the
------------------
Term Loan Facility shall be used by the relevant Borrower (i) to
refinance its Specified Existing Indebtedness and, to the extent
permitted herein, Specified Existing Indebtedness of other
members of the Borrowing Group in an amount not to exceed the
amount so refinanced (plus premiums, accrued interest, fees and
expenses on such Specified Existing Indebtedness and any
refinancings thereof), or (ii) for the issue of a Term Credit
Guarantee to backstop term loan facilities to SINAC the proceeds
of which are used to refinance SINAC's Specified Existing
Indebtedness and, to the extent permitted herein, Specified
Existing Indebtedness of other members of the Borrowing Group in
an amount not to exceed the amount so refinanced (plus premiums,
accrued interest, fees and expenses on such Specified Existing
Indebtedness and any refinancings thereof)."
2.2 Clause 4.1.1(c) of the Facilities Agreement is hereby amended by
deleting the reference to "and CEAC" contained therein.
2.3 Clause 4.1.1(g) of the Facilities Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(g) evidence that Exide Holdings has received no less than USD
400,000,000 in net debt proceeds for use in connection with the
Acquisition;"
6
<PAGE>
2.4 Clause 4.2.1(a) of the Facilities Agreement is hereby amended by
deleting the reference to "31st March 1994" contained therein and substituting
"31st March 1995" therefor.
2.5 Clause 4.4 of the Facilities Agreement is hereby amended by inserting ",
Term Credit Guarantee" immediately following each appearance of the term
"Revolving Credit Guarantee" therein".
2.6 Clause 5.1.2(a) of the Facilities Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor:
"(a) the Borrower, provided that the aggregate amount which (after
giving effect to the Advance) is outstanding under the Term Loan
Facility to (i) CEAC shall not exceed FF 151,000,000 or its
Equivalent Amount, (ii) CMP UK shall not exceed FF 119,300,000 or
its Equivalent Amount, (iii) Sonnenschein shall not exceed FF
39,100,000 or its Equivalent Amount, and (iv) SINAC shall not
exceed FF 60,900,000 or its Equivalent Amount; provided further
that no Advance under the Term Loan Facility may be requested for
a Borrower other than CEAC, CMP UK, Sonnenschein or SINAC;"
2.7 Clause 5.1.5 of the Facilities Agreement is hereby amended by deleting
it in its entirety and substituting the following therefor:
"5.1.5 (a) Advances under the Term Loan Facility may only be requested
for the Completion Date.
(b) Without prejudice to Clauses 5.1.3 or 5.1.2(c), no Advance
under the Term Loan Facility may be requested to the extent
that, after giving effect thereto, the aggregate principal
amount of the outstanding Advances under the Term Loan
Facility exceeds the aggregate Term Loan Commitments less
----
the FF Equivalent Amount (calculated as of the Rate Fixing
Day applicable to the Drawdown) of the aggregate principal
amount of the DG Bank Loan Maturing in 1997 and the DG Bank
Loan Maturing in 2002.
(c) Without prejudice to Clauses 5.1.3 or 5.1.2(c), no Advance
under the Revolving Credit Facility may be requested to the
extent that, after giving effect thereto, the aggregate
principal amount of the outstanding Advances under the
Revolving Credit Facility exceeds (such excess being
referred to herein as the "Additional Drawing") the
------------------
aggregate Revolving Credit
7
<PAGE>
Commitments less the DG/SNCI Commitment Amount, unless
---- ------
the Borrowers' Agent has confirmed in writing to the Agent
that either (x) the proceeds of such Additional Drawing are
to be used to refinance the SNCI Loans and/or DG Bank Loan
Maturing in 1995 (plus premiums, accrued interest, fees and
expenses on such SNCI Loans and DG Bank Loan Maturing in
1995 and any refinancings thereof), and such proceeds are
used for that purpose, or (y) the proceeds of an earlier
Advance were used to refinance the SNCI Loans and/or DG
Bank Loan Maturing in 1995 (plus premiums, accrued
interest, fees and expenses on such SNCI Loans and/or DG
Bank Loan Maturing in 1995) in an amount not less than such
Additional Drawing.
(d) The Lenders' Revolving Credit Commitments shall
automatically be reduced immediately following Drawdown to
equal the aggregate principal amount of the Revolving
Credit Advances made at Drawdown, plus, if the DG Bank Loan
----
Maturing in 1995 and SNCI Loans are not refinanced from
proceeds of Advances made at Drawdown, the DG/SNCI
Commitment Amount."
2.8 Clause 5.2 of the Facilities Agreement is hereby amended by deleting it
in its entirety and substituting the following therefor:
"5.2 Drawdown of Revolving Credit Guarantees or the Term Credit
----------------------------------------------------------
Guarantee
----------
5.2.1 Whenever a Borrower wishes an Issuing Lender to issue a Revolving
Credit Guarantee or the Term Credit Guarantee, the Borrowers'
Agent must deliver to the Agent a duly completed Drawdown Request
in the form of Schedule 3 Part B not later than 10.00 a.m. three
Business Days prior to the proposed Drawdown Date specifying:-
(i) the Borrower, subject to the limits set forth in Clause
5.1.2(a) and Clause 5.1.7; provided that SINAC shall be the
--------
Borrower for the Term Credit Guarantee;
(ii) the proposed Drawdown Date (which shall be a Business Day
during the Availability Period) for issue of the relevant
Revolving Credit Guarantee or Term Credit Guarantee;
(iii) the currency of the relevant Revolving Credit
Guarantee or Term Credit Guarantee and the
8
<PAGE>
maximum aggregate liability of the Issuing Lender under such
Revolving Credit Guarantee or Term Credit Guarantee, subject to
the limits set forth in Clause 5.1.2(c);
(iv) the person to whom the relevant Revolving Credit Guarantee or
Term Credit Guarantee is to be issued (which, in the case of a
Revolving Credit Guarantee, must be a person providing, or which
has agreed to provide, working capital facilities to the
requesting Borrower, and in the case of a Term Credit Guarantee,
must be a person providing, or which has agreed to provide, term
loan facilities to the requesting Borrower) together, if
required, with details of such person's address for delivery of
the relevant Revolving Credit Guarantee or Term Credit
Guarantee;
(v) the expiry date of the relevant Revolving Credit Guarantee or
Term Credit Guarantee, which date shall not be later than the
Final Repayment Date; and
(vi) the name of the proposed Issuing Lender, which may be any Lender,
but if no other Lender has agreed in advance of delivery of the
relevant Drawdown Request to issue the relevant Revolving Credit
Guarantee or Term Credit Guarantee, the Issuing Lender shall be
the Agent.
5.2.2 The Borrowers' Agent shall deliver to the Agent, with each
Drawdown Request pursuant to Clause 5.2.1, the form of the
Revolving Credit Guarantee or Term Credit Guarantee which is
the subject of the Drawdown Request.
5.2.3 Provided it has received the notice referred to in Clause 5.5 and
subject to Clause 5.1.7(b), the Issuing Lender shall deliver the
relevant Revolving Credit Guarantee or Term Credit Guarantee,
duly executed, to the Borrowers' Agent (or, if so directed by the
Borrowers' Agent, to the beneficiary specified in the relevant
Drawdown Notice) on the Drawdown Date.
5.2.4 The Term Credit Guarantee may only be requested for the date of
initial Drawdown; provided that the Issuing Lender may, with the
--------
consent of the Agent and Borrowers' Agent and, to the extent
required by the terms of the Term Credit Guarantee, the
beneficiary thereof, agree to issue one or more replacement Term
Credit Guarantees in substitution for an existing Term Credit
Guarantee, in each case (i) for SINAC as
9
<PAGE>
Borrower, and (ii) otherwise complying with the terms of this
Agreement, provided that the maximum aggregate Term Credit
Guarantee Outstandings shall not be increased by the issuance of
any such replacement Term Credit Guarantee."
2.9 Clause 5.4.3 is hereby amended by deleting it in its entirety and
substituting the following therefor:
"5.4.3 The issue of a Revolving Credit Guarantee or a Letter of Credit
will constitute a utilisation of the Revolving Credit Facility
and accordingly the Revolving Credit Facility will be deemed to
have been drawn down (and an Advance made) on the relevant
Drawdown Date in an amount equal to the maximum aggregate
principal amount guaranteed by the relevant Issuing Lender under
the Revolving Credit Guarantee or the Letter of Credit (which
amount may be less than the maximum aggregate liability of the
Issuing Lender under the Revolving Credit Guarantee or the
Letter of Credit by not more than three months and ten days'
interest on such guaranteed principal amount) and on the basis
that each Lender has participated in such drawing in an amount
equal to its Participation Proportion. The issue of a Term
Credit Guarantee will constitute a utilisation of the Term Loan
Facility and accordingly the Term Loan Facility will be deemed
to have been drawn down (and an Advance made) on the relevant
Drawdown Date in an amount equal to the maximum aggregate
principal amount guaranteed by the relevant Issuing Lender under
the Term Credit Guarantee (which amount may be less than the
maximum aggregate liability of the Issuing Lender under the Term
Credit Guarantee by not more than three months and ten days'
interest on such guaranteed principal amount) and on the basis
that each Lender has participated in such drawing in an amount
equal to its Participation Proportion."
2.10 Clause 5.5 of the Facilities Agreement is hereby amended by inserting ",
Term Credit Guarantee" immediately following the term "Revolving Credit
Guarantee" therein.
2.11 Clauses 5.7, 5.9 and 5.10 of the Facilities Agreement are hereby amended
by inserting (i) ", a Term Credit Guarantee" immediately following each
appearance of the phrase "a Revolving Credit Guarantee" therein, and (ii) ",
Term Credit Guarantee" immediately following each appearance of the
10
<PAGE>
phrases "any Revolving Credit Guarantee", "any Revolving Credit Guarantees",
"each Revolving Credit Guarantee" or "the Revolving Credit Guarantees" therein.
2.12 Clause 5.8 of the Facilities Agreement is hereby amended by deleting it
in its entirety and substituting the following therefor:
"5.8 Indemnities in favour of Issuing Lenders
----------------------------------------
(a) Each of the Revolving Credit Lenders other than the relevant
Issuing Lender (each being a "Revolving Indemnity Lender")
--------------------------
hereby irrevocably and unconditionally undertakes to
indemnify each Issuing Lender (in the proportion which such
Revolving Indemnity Lender's Net Revolving Credit Commitment
bears to the Net Revolving Credit Commitments of all of the
Lenders) on its first demand against all amounts due and
payable from time to time from the Requesting Borrower to
such Issuing Lender and which are unpaid as a result of the
Requesting Borrower's failure to discharge its obligations
and liabilities to such Issuing Lender under Clause 5.7 in
respect of a Revolving Credit Guarantee or a Letter of
Credit.
(b) Each of the Term Loan Lenders other than the relevant Issuing
Lender (each being a "Term Indemnity Lender"; the Term
---------------------
Indemnity Lenders together with the Revolving Indemnity
Lenders being the "Indemnity Lenders") hereby
-----------------
irrevocably and unconditionally undertakes to indemnify the
Issuing Lender (in the proportion which such Term Indemnity
Lender's Term Loan Commitment bears to the Term Loan
Commitments of all of the Lenders) on its first demand
against all amounts due and payable from time to time from
the Requesting Borrower to such Issuing Lender and which are
unpaid as a result of the Requesting Borrower's failure to
discharge its obligations and liabilities to such Issuing
Lender under Clause 5.7 in respect of a Term Credit
Guarantee."
2.13 Clauses 5.11.1 and 5.11.3 of the Facilities Agreement are hereby amended
by (i) inserting ", Term Credit Guarantee Outstandings" immediately following
the term "Revolving Credit Guarantee Outstandings" therein, and (ii) inserting
", Term Credit Guarantee" immediately following each appearance of the terms
"Revolving Credit Guarantees" or "Revolving Credit Guarantee" therein.
2.14 Clause 5.11.4 of the Facilities Agreement is hereby amended by (i)
inserting "or Term Credit Guarantee"
11
<PAGE>
immediately following the phrase "or Revolving Credit Guarantee" therein, and
(ii) inserting "or Term Credit Guarantee Outstandings" immediately following the
phrase "or Revolving Credit Guarantee Outstandings" therein.
2.15 Clause 7.2(c) of the Facilities Agreement is hereby amended by (i)
inserting ", the Term Credit Guarantee" immediately following the phrase "each
Revolving Credit Guarantee" therein, and (ii) inserting ", Term Credit
Outstandings" immediately following the term "Letter of Credit Outstandings"
therein.
2.16 Clauses 9.6(b) and 11.1.1(b) of the Facilities Agreement are hereby
amended by inserting ", Term Credit Guarantee" immediately following the term
"Letter of Credit" therein.
2.17 Clause 13.4.1(b) of the Facilities Agreement is hereby amended by
deleting the phrase "the Net Worth of the Borrowing Group" therein and
substituting "Net Worth" therefor; deleting the figure "FF 1,600 million" and
substituting "FF 1,500 million" therefor; and deleting the words "the Net Income
of CEAC and its subsidiaries" and substituting "Net Income" therefor.
2.18 Clause 13.4.1(c) of the Facilities Agreement is hereby amended by
deleting the reference to ".30" in the table appearing therein and substituting
".35" therefor.
2.19 Clause 13.5 of the Facilities Agreement is hereby amended by adding the
following sub-clause 13.5.6 thereto:
"13.5.6 The Parent undertakes that it will contribute, including,
without limitation, in the form of an exchange of debt between
the Parent and Exide Holdings for equity interests in Exide
Holdings, no less than USD 200,000,000 in equity to the capital
of Exide Holdings within 20 days after Drawdown, and will
furnish the Agent with evidence, in form and substance
reasonably satisfactory to the Agent, of such contribution as
soon as reasonably practicable thereafter, but in no event more
than three Business Days after the 20th such day."
2.20 Clause 14.2(c) of the Facilities Agreement is hereby amended by (i)
inserting ", the Term Credit Guarantee" immediately following the term
"Revolving Credit Guarantee" therein, and (ii) inserting "or Term Credit
Outstandings" immediately following the term "Revolving Credit Guarantee
Outstandings" therein.
2.21 Clause 16.1.4 of the Facilities Agreement is hereby amended by adding
the word "Lender" immediately before the parenthetical contained therein.
12
<PAGE>
2.22 Clause 16.9.2 of the Facilities Agreement is hereby amended by deleting
the last appearance of the word "affiliate" in such clause and substituting
"Affiliate" therefor.
2.23 Clause 25.3 of the Facilities Agreement is hereby amended by adding the
following at the end thereof:
"25.3.6 The Transferee shall notify Loeff Claeys Verbeke, Postbus
75088, 1070 AB Amsterdam, The Netherlands (attn: Tineke
Lambooy) upon the Transferee becoming a party to Agreement,
provided that no failure to give such notice shall prejudice
--------
or otherwise affect in any way the effectiveness of the
relevant Transfer Certificate, the rights or obligations of the
Transferee hereunder or the rights or obligations of any other
party hereto.
2.24 Clause 30.2 of the Facilities Agreement is hereby amended by deleting
the word "Mavettes" therein and substituting "Mayettes" therefor.
3. AMENDMENTS TO SCHEDULES.
-----------------------
3.1 Schedule 1 to the Facilities Agreement is hereby amended by deleting the
address for Bank of America National Trust and Savings Association therein and
substituting the following therefor:
"1 Alie Street
London E1 8DE
England
Attention: Steve Johnson/Neil Alexander
Tel: + 44-171-634-4893/4385
Fax: + 44-171-634-4383
For Administrative Matter
1 Alie Street
London E1 8DE
England
Attention: Joy Baker
Tel: + 44-181-383-2503
Fax: + 44-181-383-2392
Telex: 888412 Answer Back: BAMER G"
3.2 Part B of Schedule 3 to the Facilities Agreement is hereby deleted in
its entirety and the following substituted therefor:
13
<PAGE>
"PART B
Form of [Revolving][Term] Credit Guarantee
------------------------------------------
Drawdown Request
----------------
[Form of [Revolving][Term] Credit Guarantee to be attached]
To: [Insert details of Agent's administrations department]
Attention: [ ]
FF 830,000,000 facilities agreement dated 28th February, 1995
- -------------------------------------------------------------
We refer to the above agreement between, inter alia, ourselves, the Arranger and
Lead Manager, the Lenders described therein and yourselves as Agent (the
"Facilities Agreement", which expression includes any amendments or supplements
thereto or restatements thereof). Terms defined in the Facilities Agreement
have the same meaning in this notice.
Pursuant to Clause 5.2 of the Facilities Agreement, we hereby give you notice of
the following proposed drawing of a [Revolving][Term] Credit Guarantee under the
[Revolving Credit][Term Loan] Facility:
(a) Borrower:
(b) Proposed Drawdown Date (a Business Day):
(c) Currency:
(d) Amount:
(e) Person to whom the [Revolving][Term] Credit Guarantee is to be issued,
together with details of the address for its delivery:
(f) Expiry date of the [Revolving][Term] Credit Guarantee:
(g) Name of proposed Issuing Lender:
We confirm that no Event of Default or Potential Event of Default has occurred
and is continuing unremedied or unwaived or will occur as a result of making
this [Revolving][Term] Credit Guarantee and that each of the representations and
warranties required to be made in accordance with Clause 13.1.2 of the
Facilities Agreement are true and accurate on the date hereof.
14
<PAGE>
[In the case of an extension of credit requested by or on behalf of
Accumulatorenfabrik Sonnenschein GmbH, Sonnenschein Lithium GmbH or any other
Borrower incorporated in Germany, we hereby certify that, after the making of
such extension of credit, the aggregate amount which is utilised under the
Facilities to or by the Drawdown Request Borrower will be a level of
indebtedness which the Drawdown Request Borrower can reasonably be expected to
repay without receiving any financial support (other than from its
subsidiaries).]
Dated 19[ ]
[Borrowers' Agent] [Parent [if Drawdown Request for Drawdown]]
By: .......................
Notes
- -----
(1) The expiry date of the Revolving Credit Guarantee or Term Credit Guarantee
may not be later than the Final Repayment Date.
(2) Currencies other than BF, DEM, ESP, FF, GBP and ITL may not be requested
unless the Agent has confirmed in writing to the Borrowers' Agent that such
other currency is freely available to all the Lenders and is one in which
dealings regularly occur in the London interbank market.
(3) These notes are included for convenience only and are to be ignored in
construing the Facilities Agreement."
3.3 Schedule 5 to the Facilities Agreement is hereby amended by:-
(a) deleting the references to "463,321" and "140,151" in the table
labelled "Summary" (the "Summary") therein and substituting "346,533" and
"256,939", respectively, therefor;
(b) adding the following (i) immediately after the Summary and (ii) at
the end of such Schedule 5:
"In addition to the foregoing, Specified Existing Indebtedness shall
include the Fiat Working Capital Indebtedness."; and
(c) deleting from page 5 of such schedule each reference to a
receivable financing (and the amount thereof) with Sifind as
counterparty, and subtracting an amount in FF equal to the "Outstanding
FRF/000" of such
15
<PAGE>
deletions from the column "A/R Finance" for Italy in the Summary to such
schedule.
3.4 Schedule 8 to the Facilities Agreement is hereby amended by deleting the
reference to "USD 750" in Clause 3 of the Form of Transfer Certificate
represented thereby and substituting "GBP 500" for such reference.
3.5 Schedule 8 to the Facilities Agreement is hereby further amended by (i)
deleting the final "and" in Clause 4(c) thereof, (ii) substituting "; and" for
the final "." in Clause 4(d) thereof and (iii) adding the following after Clause
4(d) thereof:-
"(e) confirms that it is responsible for compliance with the notification
requirements, if any, to CEAC and the other Obligors organised under the
laws of the Republic of France, pursuant to article 1690 of the French
Civil Code in connection with the execution and delivery of this
Certificate."
3.6 Schedule 9 to the Facilities Agreement is hereby amended by adding the
following (i) immediately following the table on the Summary to such schedule
and (ii) at the end of such Schedule 9:
"In addition to the foregoing, the DG Bank Loans and SNCI Loans shall
constitute Existing Indebtedness for all purposes of this Agreement."
4. WAIVERS TO THE FACILITIES AGREEMENT
4.1 The requirements of Clauses 4.1.1(e) and 4.1.1(q) are hereby waived to
the extent that they require delivery of the opinions and evidence referred to
therein more than one Business Day prior to the initial Drawdown Date, provided
--------
such opinions and evidence are delivered no later than one Business Day prior to
the initial Drawdown Date.
4.2 The requirements of Clause 4.2.1(a) of the Facilities Agreement are
hereby waived provided Drawdown takes place no later than 30th June, 1995.
--------
4.3 The requirements of Clause 4.2.2 of the Facilities Agreement are hereby
waived provided the Parent holds a telephonic meeting with the Lenders no
--------
earlier than 15 and no later than 4 Business Days before Drawdown, at which
meeting shall be reviewed, by officers of the Parent described in such clause,
the matters described in such clause, and giving the Lenders a reasonable
opportunity to ask reasonable questions of such officers relating to such
matters, and to have such questions answered to the Majority Lenders' reasonable
satisfaction; provided further that Drawdown takes place on or before 30th May,
----------------
1995.
16
<PAGE>
4.4 The requirements of Clause 5.1.2(c) of the Facilities Agreement are
hereby waived solely to the extent that such clause would prohibit the Borrowers
from requesting a Cash Advance of DM 7,000,000 to Sonnenschein at Drawdown.
4.5 The requirements of Clause 5.2.1(iii) of the Facilities Agreement are
hereby waived solely to the extent that such clause would prohibit the Borrowers
from requesting the issuance of the following Revolving Credit Guarantees at
Drawdown:
(i) Revolving Credit Guarantee up to the amount of ESP 380,000,000 in
favour of Bankers Trust Company, Madrid branch, for the account of Fulmen
Iberica;
(ii) Revolving Credit Guarantee in the amount of ITL 6,411,980,000 in
favour of Efibanca for the account of CGA; and
(iii) Revolving Credit Guarantee in the amount of ITL 7,000,000,000 in
favour of Bankers Trust International PLC, Milan branch, for the account
of SINAC.
4.6 The requirements of Clauses 4.1.1(d), 4.5.1 and 13.2.25 of the Facilities
Agreement are hereby waived solely to the extent they require CENTRA S.A., a
company organised under the laws of Poland, to accede to the Facilities
Agreement as a Guarantor, provided CENTRA accedes to the Agreement pursuant to a
--------
Deed of Accession no later than 31st July, 1995.
4.7 The requirements of Clauses 4.1.1(d), 4.5.1 and 13.2.25 of the Facilities
Agreement are hereby waived solely to the extent they require Sonnenschein to
accede to the Facilities Agreement as a Guarantor; provided Sonnenschein accedes
--------
as a Borrower to the Facilities Agreement pursuant to a Deed of Accession on or
prior to Drawdown; provided further that Sonnenschein accedes as a Guarantor to
----------------
the Facilities Agreement pursuant to a Deed of Accession within 30 days after
the first date on which the percentage of the aggregate ownership of the issued
and outstanding shares of capital stock of CEAC and its subsidiaries in
Sonnenschein exceeds 75%.
4.8 The requirements of Clause 4.1.1(h) of the Facilities Agreement are
hereby waived to the extent they must be satisfied two Business Days before
Drawdown, provided they are satisfied no later than 12:00 noon, Paris time, one
--------
Business Day before Drawdown.
17
<PAGE>
5. MISCELLANEOUS.
-------------
5.1 This Amendment shall become effective on the date (the "FIRST AMENDMENT
EFFECTIVE DATE") when each of the Parent, the Lenders and the Agent shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered (including by way of facsimile transmission) the same to
the Agent.
5.2 On and after the First Amendment Effective Date, each reference in the
Facilities Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Facilities Agreement, and each reference
in the other Finance Documents to the "Facilities Agreement", "thereunder",
"thereof" or words of like import referring to the Facilities Agreement shall
mean and be a reference to the Facilities Agreement as amended by this
Amendment.
5.3 This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Facilities
Agreement, any provision of any other Finance Document or any right, power or
remedy of the Agent or any Lender under the Facilities Agreement or any other
Finance Document. Except as specifically amended or waived by this Amendment,
the Facilities Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
5.4 Clause headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other
purpose or be given any substantive effect.
5.5 This Amendment shall be governed by and construed in accordance with laws
of England.
5.6 This Amendment may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument.
[Remainder of page intentionally left blank]
18
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered on the date first written above.
EXIDE CORPORATION
By: /s/ Catherine B. Hnatin
------------------------
Title: Treasurer
---------------------
BANKERS TRUST COMPANY,
INDIVIDUALLY AND AS AGENT
By: /s/ B. Deschamps
------------------------
Title: Vice President
---------------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, AS A LENDER
By: /s/ Simon Hughes
------------------------
Title: Vice President
---------------------
BANK OF MONTREAL, AS A LENDER
By: /s/ A.L. Ebdon
------------------------
Title: Director
---------------------
DRESDNER BANK LUXEMBOURG
S.A., AS A LENDER
By: /s/ J. Schlin
------------------------
Title: Senior Manager Loans
---------------------
By: /s/ K. Diederich
------------------------
Title: Ass't Manager Loans
--------------------
19
<PAGE>
EXHIBIT 99.3
EXECUTION COPY
--------------
==========================================================================
EXIDE CORPORATION,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
______________________________
Indenture
Dated as of April 28, 1995
______________________________
10% Senior Notes Due 2005
==========================================================================
<PAGE>
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
- ------------ ------------------
310(a)(1)..................................7.9
(a)(2)..................................7.9
(b).....................................7.07
313(c).....................................7.05; 10.02
314(a).....................................4.16; 10.02
(a)(4)..................................4.15; 10.02
(c)(1)..................................10.03
(c)(2)..................................10.03
(e).....................................10.04
315(b).....................................7.04; 10.02
316(a)(1)(A)...............................6.05
(a)(1)(B)...............................6.04
(b).....................................6.07
317(a)(1)..................................6.08
(a)(2)..................................6.09
318(a).....................................10.01
(c).....................................10.01
____________
Note: The Table of Contents shall not for any purposes be deemed to be a part of
the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
Definitions and Incorporation by Reference
SECTION 1.01. Definitions............................... 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act............................. 21
SECTION 1.03. Rules of Construction..................... 22
ARTICLE TWO
The Securities
SECTION 2.01. Form and Dating........................... 22
SECTION 2.02. Restrictive Legends....................... 23
SECTION 2.03. Execution, Authentication and
Denominations............................. 25
SECTION 2.04. Registrar and Paying Agent................ 27
SECTION 2.05. Paying Agent to Hold Money in Trust....... 27
SECTION 2.06. Transfer and Exchange..................... 28
SECTION 2.07. Book-Entry Provisions for Global
Securities................................ 29
SECTION 2.08. Special Transfer Provisions............... 30
SECTION 2.09. Replacement Securities.................... 33
SECTION 2.10. Outstanding Securities.................... 34
SECTION 2.11. Temporary Securities...................... 34
SECTION 2.12. Cancellation.............................. 35
SECTION 2.13. CUSIP Numbers............................. 35
SECTION 2.14. Defaulted Interest........................ 35
ARTICLE THREE
Redemption
SECTION 3.01. Right of Redemption....................... 35
SECTION 3.02. Notices to Trustee........................ 36
SECTION 3.03. Selection of Securities to Be Redeemed. .. 37
SECTION 3.04. Notice of Redemption. .................... 37
SECTION 3.05. Effect of Notice of Redemption............ 39
SECTION 3.06. Deposit of Redemption Price or
Special Redemption Price.................. 39
SECTION 3.07. Payment of Securities Called for
Redemption................................ 39
SECTION 3.08. Securities Redeemed in Part............... 40
ARTICLE FOUR
Covenants
<PAGE>
ii
SECTION 4.01. Payment of Securities. ................... 40
SECTION 4.02. Maintenance of Office or Agency........... 40
SECTION 4.03. Limitation on Indebtedness. .............. 41
SECTION 4.04. Limitation on Restricted Payments......... 45
SECTION 4.05. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries.............................. 47
SECTION 4.06. Limitation on the Issuance of Capital
Stock of Restricted Subsidiaries.......... 49
SECTION 4.07. Limitation on Transactions with
Shareholders and Affiliates............... 49
SECTION 4.08. Limitation on Liens. ..................... 50
SECTION 4.09. Limitation on Asset Sales................. 52
SECTION 4.10. Repurchase of Securities upon a
Change of Control Triggering Event........ 54
SECTION 4.11. Limitation on Sale-Leaseback Transactions. 55
SECTION 4.12. Existence................................. 56
SECTION 4.13. Payment of Taxes and Other Claims......... 56
SECTION 4.14. Maintenance of Properties and Insurance... 56
SECTION 4.15. Notice of Defaults. ...................... 57
SECTION 4.16. Compliance Certificates. ................. 57
SECTION 4.17. Commission Reports and Reports to Holders. 58
SECTION 4.18. Waiver of Stay, Extension or Usury Laws. . 58
ARTICLE FIVE
Successor Corporation
SECTION 5.01. When Company May Merge, Etc............... 58
SECTION 5.02. Successor Substituted..................... 59
ARTICLE SIX
Default and Remedies
SECTION 6.01. Events of Default. ....................... 60
SECTION 6.02. Acceleration. ............................ 61
SECTION 6.03. Other Remedies............................ 62
SECTION 6.04. Waiver of Past Defaults................... 62
SECTION 6.05. Control by Majority....................... 63
SECTION 6.06. Limitation on Suits. ..................... 63
SECTION 6.07. Rights of Holders to Receive Payment...... 63
SECTION 6.08. Collection Suit by Trustee................ 64
SECTION 6.09. Trustee May File Proofs of Claim.......... 64
SECTION 6.10. Priorities. .............................. 64
SECTION 6.11. Undertaking for Costs..................... 65
<PAGE>
iii
SECTION 6.12. Restoration of Rights and Remedies........ 65
SECTION 6.13. Rights and Remedies Cumulative............ 65
SECTION 6.14. Delay or Omission Not Waiver. ........... 65
ARTICLE SEVEN
Trustee
SECTION 7.01. Certain Rights of Trustee. ............... 66
SECTION 7.02. Individual Rights of Trustee. ............ 67
SECTION 7.03. Trustee's Disclaimer...................... 67
SECTION 7.04. Notice of Default......................... 67
SECTION 7.05. Reports by Trustee to Holders. ........... 67
SECTION 7.06. Compensation and Indemnity. .............. 67
SECTION 7.07. Replacement of Trustee. .................. 68
SECTION 7.08. Successor Trustee by Merger, Etc.......... 69
SECTION 7.09. Eligibility............................... 69
SECTION 7.10. Indenture Not Creating Potential
Conflicting Interests for the Trustee..... 70
SECTION 7.11 Withholding Taxes......................... 70
ARTICLE EIGHT
Discharge of Indenture
SECTION 8.01. Termination of Company's Obligations. .... 70
SECTION 8.02. Defeasance and Discharge of Indenture..... 71
SECTION 8.03. Defeasance of Certain Obligations......... 73
SECTION 8.04. Application of Trust Money................ 75
SECTION 8.05. Repayment to Company...................... 75
SECTION 8.06. Reinstatement............................. 76
ARTICLE NINE
Amendments, Supplements and Waivers
SECTION 9.01. Without Consent of Holders................ 76
SECTION 9.02. With Consent of Holders. ................. 76
SECTION 9.03. Revocation and Effect of Consent.......... 78
SECTION 9.04. Notation on or Exchange of Securities..... 78
SECTION 9.05. Trustee to Sign Amendments, Etc. ......... 78
SECTION 9.06. Conformity with Trust Indenture Act....... 79
ARTICLE TEN
<PAGE>
iv
Miscellaneous
SECTION 10.01. Trust Indenture Act of 1939. ............ 79
SECTION 10.02. Notices.................................. 79
SECTION 10.03. Certificate and Opinion as to Conditions
Precedent................................ 80
SECTION 10.04. Statements Required in Certificate or
Opinion.................................. 80
SECTION 10.05. Rules by Trustee, Paying Agent or
Registrar................................ 81
SECTION 10.06. Payment Date Other Than a Business Day. . 81
SECTION 10.07. Governing Law. .......................... 81
SECTION 10.08. No Adverse Interpretation of Other
Agreements............................... 81
SECTION 10.09. No Recourse Against Others............... 81
SECTION 10.10. Successors. ............................. 82
SECTION 10.11. Duplicate Originals. .................... 82
SECTION 10.12. Separability. ........................... 82
SECTION 10.13. Table of Contents, Headings, Etc......... 82
EXHIBIT A Form of Security..............................A-1
EXHIBIT B Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited
Investors.....................................B-1
EXHIBIT C Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to
Regulation S..................................C-1
<PAGE>
INDENTURE, dated as of April 28, 1995, between EXIDE CORPORATION, a
Delaware corporation, as Issuer (the "Company"), and The Bank of New York, a New
-------
York State banking corporation, as Trustee (the "Trustee").
-------
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of up to $300,000,000 aggregate principal
amount at any one time outstanding of the Company's 10% Senior Notes Due 2005
(the "Securities") issuable as provided in this Indenture. All things necessary
----------
to make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done, and the Company has done all things necessary to make the
Securities, when executed by the Company and authenticated and delivered by the
Trustee hereunder and duly issued by the Company, the valid obligations of the
Company as hereinafter provided.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act of 1939, as amended, that are required to be a part of
and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, the Company and the Trustee, as follows.
ARTICLE ONE
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
-----------
"Acceleration Notice" has the meaning specified in Section 6.02(a).
"Acquired Indebtedness" means Indebtedness of a Person existing at the time
such Person became a Subsidiary and not Incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary.
"Acquisition Financing" means the transactions pursuant to which the
Securities are issued, the Company Incurs Indebtedness under the revolving
credit portion of the Credit Agreement and CEAC and its Subsidiaries refinance
certain Indebtedness, in each case in connection with the CEAC Acquisition.
<PAGE>
2
"Adjusted Consolidated Net Income" means, for any period, the aggregate net
income (or loss) of any Person and its consolidated Subsidiaries for such period
determined in conformity with GAAP; provided that the following items shall be
--------
excluded in computing Adjusted Consolidated Net Income (without duplication):
(i) the net income (or loss) of such Person (other than a Subsidiary of such
Person) in which any other Person (other than such Person or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to such Person or any of its
Subsidiaries by such other Person during such period; (ii) solely for the
purposes of calculating the amount of Restricted Payments that may be made
pursuant to clause (C) of the first paragraph of Section 4.04 (and in such case,
except to the extent includible pursuant to the foregoing clause (i) above), the
net income (or loss) of such Person accrued prior to the date it becomes a
Subsidiary of any other Person or is merged into or consolidated with such other
Person or any of its Subsidiaries or all or substantially all of the property
and assets of such Person are acquired by such other Person or any of its
Subsidiaries; (iii) the net income (or loss) of any Subsidiary of any Person to
the extent that the declaration or payment of dividends or similar distributions
by such Subsidiary of such net income is not at the time permitted by the
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Subsidiary; (iv) any gains or losses (on an after-tax basis) attributable to
Asset Sales; and (v) all extraordinary gains and extraordinary losses; provided
--------
that, solely for purposes of calculating the Interest Coverage Ratio (and in
such case, except to the extent includible pursuant to clause (i) above),
"Adjusted Consolidated Net Income" of the Company shall include the amount of
all cash dividends received by the Company or any Subsidiary of the Company from
an Unrestricted Subsidiary.
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. For purposes of this
definition, neither any Bank Agent nor any Bank nor any affiliate of any of them
shall be deemed to be an Affiliate of the Company.
"Agent" means any Registrar, Paying Agent, authenticating agent or co-
Registrar.
"Agent Members" has the meaning provided in Section 2.07(a).
"Asset Acquisition" means (i) an investment by the Company or any of its
Subsidiaries in any other Person pursuant to which such Person shall become a
Subsidiary of the Company or any of its Subsidiaries or shall be merged into or
consolidated with the Company or any of its Subsidiaries or (ii) an acquisition
by the Company or any of its
<PAGE>
3
Subsidiaries of the assets of any Person other than the Company or any of its
Subsidiaries that constitute substantially all of a division or line of business
of such Person.
"Asset Disposition" means the sale or other disposition by the Company or
any of its Subsidiaries (other than to the Company or another Subsidiary of the
Company) of (i) all or substantially all of the Capital Stock of any Subsidiary
of the Company or (ii) all or substantially all of the assets that constitute a
division or line of business of the Company or any of its Subsidiaries.
"Asset Sale" means, with respect to any Person, any sale, transfer or other
disposition (including by way of merger, consolidation or sale-leaseback
transactions) in one transaction or a series of related transactions by such
Person or any of its Subsidiaries to any Person other than the Company or any of
its Subsidiaries of (i) all or any of the Capital Stock of any Subsidiary of
such Person, (ii) all or substantially all of the property and assets of an
operating unit or business of such Person or any of its Subsidiaries or (iii)
any other property and assets of such Person or any of its Subsidiaries outside
the ordinary course of business of such Person or such Subsidiary and, in each
case, that is not governed by the provisions of Article Five of this Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Company; provided that neither (A) sales or
--------
other dispositions of inventory, receivables and other current assets nor (B)
sales or other dispositions of surplus equipment, furniture or fixtures in an
aggregate amount not to exceed $5 million in any fiscal year of the Company
shall be included within the meaning of "Asset Sale."
"Attributable Indebtedness" means, when used in connection with a sale-
leaseback transaction referred to in Section 4.11, at any date of determination;
the product of (i) the net proceeds from such sale-leaseback transaction and
(ii) a fraction, the numerator of which is the number of full years of the term
of the lease relating to the property involved in such sale-leaseback
transaction (without regard to any options to renew or extend such term)
remaining at the date of the making of such computation and the denominator of
which is the number of full years of the term of such lease (without regard to
any options to renew or extend such term) measured from the first day of such
term.
"Average Life" means, at any date of determination with respect to any debt
security, the quotient obtained by dividing (i) the sum of the product of (A)
the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security multiplied by (B)
the amount of such principal payment by (ii) the sum of all such principal
payments.
"Bank Agents" means Bankers Trust Company, Bank of America National Trust
and Savings Association and Bank of Montreal, as agents for the Banks pursuant
to the Credit Agreement, and any successor or successors thereto.
<PAGE>
4
"Banks" means the lenders who are from time to time parties to the Credit
Agreement.
"Board of Directors" means the Board of Directors of the Company or any
committee of such Board of Directors duly authorized to act under this
Indenture.
"Board Resolution" means a copy of a resolution, certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
Common Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) the discounted present value of the
rental obligations of such Person as lessee of which, in conformity with GAAP,
is required to be capitalized on the balance sheet of such Person; and
"Capitalized Lease Obligation" means the rental obligations, as aforesaid, under
such lease.
"CEAC" means Compagnie Europeene d'Accumulateurs S.A., a French
corporation.
"CEAC Acquisition" means the acquisition by the Company or its Subsidiaries
of at least 98% of the Capital Stock of CEAC.
"Change of Control" means such time as (i) a "person" or "group" (within
the meaning of Sections 13(d) and 14(d) of the Exchange Act), other than the
Original Investors and their respective Affiliates, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of more than fifty
percent (50%) of the total voting power of the then outstanding Voting Stock of
the Company; or (ii) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the Company's Board
of Directors (together with any new directors whose election by the Company's
Board of Directors or whose nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the Directors then
still in office who either were Directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the directors then in office; or (iii)
(A) the Company consolidates with or
<PAGE>
5
merges into any other Person or conveys, transfers or leases all or
substantially all of its assets to any Person or (B) any Person merges into the
Company, in either event pursuant to a transaction in which any Voting Stock of
the Company outstanding immediately prior to the effectiveness thereof is
reclassified or changed into or exchanged for cash, securities or other
property; provided that any consolidation, conveyance, transfer or lease (x)
--------
between the Company and any of its Subsidiaries or between Subsidiaries
(including, without limitation, the reincorporation of the Company in another
jurisdiction) or (y) for the purpose of creating a public holding company for
the Company in another jurisdiction or (z) for the purpose of creating a public
holding company for the Company in which all holders of the Company's Capital
Stock would be entitled to receive (other than cash in lieu of fractional
shares) solely Capital Stock of the holding company in amounts proportionate to
their holdings of Capital Stock of the Company immediately prior to such
transaction, shall be excluded from the operation of this clause (iii).
"Change of Control Offer" has the meaning provided in Section 4.10.
"Change of Control Payment" has the meaning provided in Section 4.10.
"Change of Control Payment Date" has the meaning provided in Section 4.10.
"Change of Control Triggering Event" means the occurrence of both a Change
of Control and a Rating Decline.
"Closing Date" means April 28, 1995.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"Commodity Agreement" means any agreement or arrangement designed to
protect the Company or any of its Subsidiaries against fluctuations in the
prices of commodities used by the Company or any of its Subsidiaries in the
ordinary course of its business and entered into with any bank.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of the Indenture, including, without limitation, all
series and classes of such common stock.
<PAGE>
6
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means such successor.
"Company Order" means a written request or order signed in the name of the
Company (i) by its Chairman, its President, an Executive Vice President or a
Vice President and (ii) by its Chief Financial Officer, Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
- -------- -------
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Consolidated EBITDA" means, with respect to any Person for any period, the
sum of the amounts for such period of (i) Adjusted Consolidated Net Income, (ii)
Consolidated Interest Expense, (iii) income taxes (other than income taxes
(either positive or negative) attributable to extraordinary and nonrecurring
gains or losses or sales of assets), (iv) depreciation expense, (v) amortization
expense and (vi) all other non-cash items reducing Adjusted Consolidated Net
Income, less all non-cash items increasing Adjusted Consolidated Net Income, all
as determined on a consolidated basis for such Person and its Subsidiaries in
conformity with GAAP; provided that, if a Person has any Subsidiary that is not
--------
a Wholly Owned Subsidiary of such Person, Consolidated EBITDA of such Person
shall be reduced by an amount equal to (A) the Adjusted Consolidated Net Income
of such Subsidiary multiplied by (B) the quotient of (1) the number of shares of
outstanding Common Stock of such Subsidiary not owned on the last day of such
period by such Person or any Subsidiary of such Person divided by (2) the total
number of shares of outstanding Common Stock of such Subsidiary on the last day
of such period.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the aggregate amount of interest in respect of Indebtedness (including
amortization of original issue discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing; and the net costs associated with Interest Rate Agreements) and all
but the principal component of rentals in respect of Capitalized Lease
Obligations paid, accrued or scheduled to be paid or to be accrued by such
Person and its consolidated subsidiaries during such period; excluding, however,
(i) any amount of such interest of any Subsidiary of such Person if the net
income (or loss) of such Subsidiary is excluded in the calculation of Adjusted
Consolidated Net Income for such Person pursuant to clause (iii) of the
definition thereof (but only in the same proportion as the net income (or loss)
of such Subsidiary is excluded from the calculation of Adjusted Consolidated Net
Income for such Person pursuant to clause (iii) of the definition thereof) and
(ii) any premiums, fees and expenses (and any amortization thereof) payable in
connection with the Refinancing and the Acquisition Financing, all as determined
on a consolidated basis in conformity with GAAP.
<PAGE>
7
"Consolidated Net Tangible Assets" means the total amount of assets of the
Company and its Subsidiaries (less applicable depreciation, amortization and
other valuation reserves), except to the extent resulting from write-ups of
capital assets (excluding write-ups in connection with accounting for
acquisitions in conformity with GAAP), after deducting therefrom (i) all current
liabilities of the Company and its consolidated Subsidiaries (excluding
intercompany items) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recently available consolidated balance sheet of the Company
and its consolidated Subsidiaries, prepared in conformity with GAAP.
"Consolidated Net Worth" means, at any date of determination, shareholders'
equity as set forth on the most recently available consolidated balance sheet of
the Company and its consolidated Subsidiaries (which shall be as of a date not
more than 60 days prior to the date of such computation), less any amounts
attributable to Redeemable Stock or any equity security convertible into or
exchangeable for Indebtedness, the cost of treasury stock and the principal
amount of any promissory notes receivable from the sale of Capital Stock of the
Company or any Subsidiary of the Company, each item to be determined in
accordance with GAAP (excluding the effects of foreign currency exchange
adjustments under Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 52).
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 101 Barclay Street, Floor 21 West, New York, New York 10286,
Attention: Corporate Trust Trustee Administration.
"Credit Agreement" means the Credit Agreement, dated as of August 30, 1994,
as amended, among the Company the Banks party thereto and the Bank Agents,
together with all other agreements, instruments and documents executed or
delivered pursuant thereto or in connection therewith (including, without
limitation, any promissory notes, Guarantees and security documents), in each
case, as such agreements, instruments and documents may be amended (including,
without limitation, any amendment and restatement thereof), supplemented,
extended, renewed, replaced or otherwise modified from time to time, including,
without limitation, any agreement increasing the amount of, extending the
maturity of, refinancing or otherwise restructuring (including, but not limited
to, by the inclusion of additional borrowers or Guarantors thereunder that are
Subsidiaries of the Company and whose obligations are Guaranteed by the Company
thereunder or by the requirement of additional collateral or other credit
enhancement to support the obligations thereunder) all or any portion of the
Indebtedness under such agreement or any successor agreement or agreements;
provided that, with respect to any agreement providing for the refinancing of
- --------
Indebtedness under the Credit Agreement, such agreement shall be the Credit
Agreement under the Indenture only if a notice to that effect is delivered by
the
<PAGE>
8
Company to the Trustee and there shall be at any time only one instrument
that is the Credit Agreement under the Indenture.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any of its Subsidiaries against fluctuations in currency values to or
under which the Company or any of its Subsidiaries is a party or a beneficiary
on the date of this Indenture or becomes a party or a beneficiary thereafter.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" shall mean The Depository Trust Company, its nominees, and
their respective successors.
"Escrow Agent" has the meaning assigned to that term in the Escrow
Agreement.
"Escrow Agreement" means the Escrow & Security Agreement, dated as of April
28, 1995, among the Company, Morgan Stanley & Co. Incorporated, as Placement
Agent, the Trustee, and The Bank of New York, as Escrow Agent.
"Escrowed Property" has the meaning assigned to that term in the Escrow
Agreement.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.09.
"Excess Proceeds Offer" has the meaning provided in Section 4.09.
"Excess Proceeds Payment" has the meaning provided in Section 4.09.
"Excess Proceeds Payment Date" has the meaning provided in Section 4.09.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Securities" means any securities of the Company containing terms
identical to the Securities (except that such Exchange Securities (i) shall be
registered under the Securities Act, (ii) will not provide for any increase in
the rate of interest and (iii) will not contain terms with respect to transfer
restrictions) that are issued and exchanged for the Securities pursuant to the
Registration Rights Agreement and this Indenture.
<PAGE>
9
"Facilities Agreement" means the Facilities Agreement, dated February 28,
1995, among the Company and a group of lenders led by Bankers Trust, Bank of
America, Bank of Montreal and Dresdner Bank Luxembourg S.A., as amended.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the date of the Indenture, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations based on GAAP
contained in the Indenture shall be computed in conformity with GAAP, except
that calculations made for purposes of determining compliance with the terms of
the covenants set forth in Article Four and Article Five of this Indenture and
with other provisions of this Indenture shall be made without giving effect to
(i) the amortization of any expenses incurred in connection with the Refinancing
and the Acquisition Financing and (ii) except as otherwise provided, the
amortization of any amounts required or permitted by Accounting Principles Board
Opinion Nos. 16 and 17.
"Global Security" has the meaning provided in Section 2.01.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided that the term "Guarantee" shall not include endorsements for collection
- --------
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Holder" or "Securityholder" means the registered holder of any Security.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness;
provided that neither the accrual of interest (whether such interest is payable
- --------
in cash or kind) nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person for
borrowed
<PAGE>
10
money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person
in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
which purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables, (v) all obligations of such Person as
lessee under Capitalized Leases, (vi) all Indebtedness of other Persons secured
by a Lien on any asset of such Person (other than a Lien permitted under the
second paragraph of the "Limitation on Liens" covenant), whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
--------
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person, (viii) all obligations in respect of
borrowed money under the Credit Agreement and any Guarantees thereof and (ix) to
the extent not otherwise included in this definition, obligations under Currency
Agreements, Interest Rate Agreements and Commodity Agreements. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date; provided that the amount outstanding
--------
at any time of any Indebtedness issued with original issue discount is the face
amount of such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at such time as determined in
conformity with GAAP.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture.
"Institutional Accredited Investor" shall mean an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act.
"Interest Coverage Ratio" means, with respect to any Person on any
Transaction Date, the ratio of (i) the aggregate amount of Consolidated EBITDA
of such Person for the four fiscal quarters for which financial statements of
the Company have been filed with the Commission pursuant to the "Commission
Reports and Reports to Holders" covenant immediately prior to such Transaction
Date to (ii) the aggregated Consolidated Interest Expense of such Person during
such four fiscal quarters. In making the foregoing calculation, (A) pro forma
--- -----
effect shall be given to (1) any Indebtedness Incurred subsequent to the end of
the four-fiscal-quarter period referred to in clause (i) and prior to the
Transaction Date (other than Indebtedness Incurred under a revolving credit or
similar arrangement to the extent of the commitment thereunder (or under any
predecessor revolving credit or similar arrangement) on the last day of such
period), (2) any Indebtedness Incurred during such period to the extent such
Indebtedness is outstanding at
<PAGE>
11
the Transaction Date and (3) any Indebtedness to be incurred on the Transaction
Date, in each case as if such Indebtedness had been Incurred on the first day of
such four-fiscal-quarter period and after giving pro forma effect to the
--- -----
application of the proceeds thereof as if such application occurred on such
first day; (B) Consolidated Interest Expense attributable to interest on any
Indebtedness (whether existing or being Incurred) computed on a pro forma basis
--- -----
and bearing a floating interest rate shall be computed as if the rate in effect
on the Transaction Date (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months) had been the applicable rate for the entire period;
(C) there shall be excluded from Consolidated Interest Expense any Consolidated
Interest Expense related to any amount of Indebtedness that was outstanding
during such four-fiscal-quarter period or thereafter but that is not outstanding
or is to be repaid on the Transaction Date, except for Consolidated Interest
Expense accrued (as adjusted pursuant to clause (B)) during such four-fiscal-
quarter period under a revolving credit or similar arrangement to the extent of
the commitment thereunder (or under any successor revolving credit or similar
arrangement) on the Transaction Date; (D) pro forma effect shall be given to
--- -----
Asset Dispositions and Asset Acquisitions (including giving pro forma effect to
--- -----
the application of proceeds of any Asset Disposition) that occur during such
four-fiscal-quarter period or thereafter and prior to the Transaction Date as if
they had occurred and any such proceeds had been applied on the first day of
such four-fiscal-quarter period; (E) with respect to any such four-fiscal-
quarter period commencing prior to the Acquisition Financing, the Acquisition
Financing shall be deemed to have taken place on the first day of such period;
and (F) pro forma effect shall be given to asset dispositions and asset
--- -----
acquisitions that have been made by any Person that has become a Subsidiary of
the Company or has been merged with or into the Company or any Subsidiary of the
Company during the four-fiscal-quarter period referred to above or subsequent to
such period and prior to the Transaction Date and that would have been Asset
Dispositions or Asset Acquisitions had such transactions occurred when such
Person was a Subsidiary of the Company as if such asset dispositions or asset
acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the
first day of such period.
"Interest Payment Date" means each semiannual interest payment date on
April 15 and October 15 of each year, commencing October 15, 1995.
"Interest Rate Agreement" means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement or other similar agreement or arrangement designed
to protect the Company or any of its Subsidiaries against fluctuations in
interest rates to or under which the Company or any of its Subsidiaries is a
party or a beneficiary on the date of the Indenture or becomes a party or a
beneficiary thereafter.
"Investment" means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business that are recorded as
accounts receivable on
<PAGE>
12
the balance sheet of any Person or its Subsidiaries) or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by any other Person. For purposes
of the definition of "Unrestricted Subsidiary" and Section 4.04, (i)
"Investment" shall include the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary of the Company is
designated an Unrestricted Subsidiary and shall exclude the fair market value of
the net assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Subsidiary of the Company and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined by the
Board of Directors in good faith.
"Investment Grade" means BBB- or higher by S&P or Baa3 or higher by Moody's
or the equivalent of such ratings by S&P or Moody's. In the event that the
Company shall select any other Rating Agency, the equivalent of such ratings by
such Rating Agency shall be used.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof, any sale with recourse
against the seller or any Affiliate of the seller, or any agreement to give any
security interest).
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds of
such Asset Sale in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or cash equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Subsidiary of the Company) and proceeds
from the conversion of other property received when converted to cash or cash
equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale without regard
to the consolidated results of operations of the Company and its Subsidiaries,
taken as a whole, (iii) payments made to repay Indebtedness or any other
obligation outstanding at the time of such Asset Sale that either (A) is secured
by a Lien on the property or assets sold or (B) is required to be paid as a
result of such sale and (iv) appropriate amounts to be provided by the Company
or any Subsidiary of the Company as a reserve against any liabilities associated
with such Asset Sale, including, without limitation, pension and other post-
employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as determined in conformity with GAAP.
<PAGE>
13
"Non-U.S. Person" means a person who is not a U.S. person, as defined in
Regulation S.
"Officer" means, with respect to the Company, the Chairman of the Board,
the President, any Executive Vice President, any Vice President, the Chief
Financial Officer, the Treasurer or any Assistant Treasurer, or the Secretary or
any Assistant Secretary.
"Officers' Certificate" means a certificate signed by two Officers. Each
Officers' Certificate (other than certificates provided pursuant to TIA Section
314(a)(4)) shall include the statements provided for in TIA Section 314(e).
"Offshore Global Security" has the meaning provided in Section 2.01.
"Offshore Physical Securities" has the meaning provided in Section 2.01.
"Operating Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) that is not a Capitalized Lease.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee.
"Paying Agent" has the meaning provided in Section 2.04. The term "Paying
Agent" includes any additional Paying Agent.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made; (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of a
similar nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (v) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the
<PAGE>
14
Company or any of its Subsidiaries; (vi) Liens (including extensions
and renewals thereof) upon real or tangible personal property
acquired after the Closing Date; provided that (a) such Lien is created
--------
solely for the purpose of securing Indebtedness Incurred (1) to finance the cost
(including the cost of improvement or construction) of the item of property or
assets subject thereto and such Lien is created prior to, at the time of or
within six months after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or (2) to
refinance any Indebtedness previously so secured, (b) the principal amount of
the Indebtedness secured by such Lien does not exceed 100% of such cost and (c)
any such Lien shall not extend to or cover any property or assets other than
such item of property or assets and any improvements on such item; (vii) leases
or subleases granted to others that do not materially interfere with the
ordinary course of business of the Company or any of its Subsidiaries; (viii)
Liens encumbering property or assets under construction arising from progress or
partial payments by a customer of the Company or any of its Subsidiaries
relating to such property or assets; (ix) any interest or title of a lessor in
the property subject to any Capitalized Lease or Operating Lease; provided that
--------
any sale-leaseback transaction related thereto complies with Section 4.11; (x)
Liens arising from filing Uniform Commercial Code financing statements regarding
leases; (xi) Liens on property of, or on shares of stock or Indebtedness of, any
Person existing at the time such Person becomes, or becomes a part of, any
Restricted Subsidiary; (xii) Liens in favor of the Company or any Restricted
Subsidiary; (xiii) Liens securing any real property or other assets of the
Company or any Subsidiary of the Company in favor of the United States of
America or any State, or any department, agency, instrumentality or political
subdivision thereof, in connection with the financing of industrial revenue bond
facilities or of any equipment or other property designed primarily for the
purpose of air or water pollution control; provided, however, that any such Lien
-------- -------
on such facilities, equipment or other property shall not apply to any other
assets of the Company or such Subsidiary of the Company; (xiv) Liens arising
from the rendering of a final judgment or order against the Company or any
Subsidiary of the Company that does not give rise to an Event of Default; (xv)
Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the
products and proceeds thereof; (xvi) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (xvii) Liens encumbering customary
initial deposits and margin deposits, and other Liens that are either within the
general parameters customary in the industry and incurred in the ordinary course
of business or otherwise permitted under the terms of the Credit Agreement, in
each case securing Indebtedness under Interest Rate Agreements and Currency
Agreements and forward contracts, options, futures contracts, futures options or
similar agreements or arrangements designed to protect the Company or any of its
Subsidiaries from fluctuations in the price of commodities; (xviii) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any of its
Subsidiaries in the ordinary course of business in accordance with the past
practices of the Company and its Subsidiaries prior to the Closing Date; and
(xix) Liens on or sales of receivables.
<PAGE>
15
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Physical Securities" has the meaning provided in Section 2.01.
"Plans" means any employee benefit plan, pension plan, stock option plan or
similar plan or arrangement of the Company or any Subsidiary of the Company, or,
in the case of the ECA Stock Award Plan, of EC Acquisition, Inc., or, in each
case, any successor plan thereof including, without limitation, the Exide
Corporation Salaried Retirement Plan, the Exide Retirement Income Security Plan,
the Exide Corporation Long Term Incentive Compensation Plan, the ECA Stock Award
Plan and the Exide Savings Plan.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"principal" of a debt security, including the Securities, means the
principal amount due on the Stated Maturity as shown on such debt security.
"Principal Property" means any manufacturing, processing or smelting plant,
warehouse or other building used by the Company or any Restricted Subsidiary,
other than a plant, warehouse or other building that, in the good faith opinion
of the Board of Directors as reflected in a Board Resolution, is not of material
importance to the respective businesses conducted by the Company or any
Restricted Subsidiary as of the date such Board Resolution is adopted.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth in Section 2.02(a).
"Proceeds" has the meaning assigned to that term in the Escrow Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Rating Agencies" means (i) S&P and (ii) Moody's or (iii) if S&P or Moody's
or both shall not make a rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P or Moody's or both,
as the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories); (ii)
with
<PAGE>
16
respect to Moody's, any of the following categories: Ba, B, Caa, Ca, C and
D (or equivalent successor categories); and (iii) the equivalent of any such
category of S&P or Moody's used by another Rating Agency. In determining
whether the rating of the Securities has decreased by one or more gradations,
gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for Moody's; or
the equivalent gradations for another Rating Agency) shall be taken into account
(e.g., with respect to S&P, a decline in a rating from BB+ to BB, as well as
from BB- to B+, will constitute a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to the earlier of (i) a
Change of Control and (ii) public notice of the occurrence of a Change of
Control or of the intention by the Company to effect a Change of Control.
"Rating Decline" means the occurrence of the following on, or within 90
days after, the date of public notice of the occurrence of a Change of Control
or of the intention by the Company to effect a Change of Control (which period
shall be extended so long as the rating of the Securities is under publicly
announced consideration for possible downgrade by any of the Rating Agencies):
(a) in the event the Securities are rated by either Moody's or S&P on the Rating
Date as Investment Grade, the rating of the Securities by both Rating Agencies
shall be below Investment Grade, or (b) in the event the Securities are rated
below Investment Grade by both Rating Agencies on the Rating Date, the rating of
the Securities by either Rating Agency shall be decreased by one or more
gradations (including gradations within Rating Categories as well as between
Rating Categories).
"Redeemable Stock" means any class or series of Capital Stock of any Person
that by its terms or otherwise is (i) required to be redeemed prior to the
Stated Maturity of the Securities, (ii) redeemable at the option of the holder
of such class or series of Capital Stock at any time prior to the Stated
Maturity of the Securities or (iii) convertible into or exchangeable for Capital
Stock referred to in clause (i) or (ii) above or Indebtedness having a
scheduled maturity prior to the Stated Maturity of the Securities; provided that
--------
any Capital Stock that would not constitute Redeemable Stock but for provisions
thereof giving holders thereof the right to require the Company to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" occurring prior
to the Stated Maturity of the Securities shall not constitute Redeemable Stock
if the asset sale provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions contained in
the "Limitations on Asset Sales" covenant described below and such Capital Stock
specifically provides that the Company will not repurchase or redeem any such
stock pursuant to such provisions prior to the Company's repurchase of such
Securities as are required to be repurchased pursuant to the provisions of
Section 4.09 of this Indenture.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
<PAGE>
17
"Redemption Price", when used with respect to any Security to be redeemed,
other than pursuant to Section 3.01(b), means the price at which such Security
is to be redeemed pursuant to this Indenture.
"Refinancing" means the refinancing of the Company in 1992, consisting of
the issuance of the 10 3/4% Notes and the Senior Subordinated Debentures, the
amendments to, and repayment of certain Indebtedness outstanding under, the
Company's then existing credit agreement, the repayment of loans to the Company
from Wilmington Securities, Inc., the redemption of preferred stock of EC
Acquisition, Inc. and the redemption of the 12 7/8% Subordinated Notes due June
15, 1997 of the Company.
"Registrar" has the meaning provided in Section 2.04.
"Registration" has the meaning provided in Section 4.17.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of April 28, 1995, between the Company and Morgan Stanley & Co.
Incorporated, and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined and
described in the Registration Rights Agreement.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date, the April 1 or October 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above-designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning provided in Section 4.04.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary.
<PAGE>
18
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" means any of the securities, as defined in the first paragraph
of the recitals hereof, that are authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term "Securities" shall
include any Exchange Securities to be issued and exchanged for any Securities
pursuant to the Registration Rights Agreement and this Indenture and, for
purposes of this Indenture, all Securities and Exchange Securities shall vote
together as one series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.04.
"Senior Subordinated Debentures" means the 12 1/4% Senior Subordinated
Deferred Coupon Debentures Due June 2004 of the Company.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary of the Company that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company or (ii) as of the end of such fiscal year,
was the owner of more than 10% of the consolidated assets of the Company, all as
set forth on the most recently available consolidated financial statements of
the Company for such fiscal year.
"Sonnenschein" means Sonnenschein GmbH and its successors.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Special Redemption" has the meaning provided in Section 3.01(b).
"Special Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to Section
3.01(b) of this Indenture.
"Special Redemption Price" has the meaning provided in Section 3.01(b).
"Stated Maturity" means, (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and/or one or more
other Subsidiaries of such
<PAGE>
19
Person; provided that, with respect to the Company, except as the term
--------
"Subsidiary" is used in the definition of "Unrestricted Subsidiary" described
below, an Unrestricted Subsidiary shall not be deemed to be a Subsidiary of the
Company for purposes of this Indenture.
"Temporary Cash Investment" means any of the following: (i) direct
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally guaranteed by the United States of America or any
agency thereof, (ii) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America, any state thereof or any foreign country recognized by
the United States, and which bank or trust company has capital, surplus and
undivided profits aggregating in excess of $50 million (or the foreign currency
equivalent thereof) and has outstanding debt which is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act) or any
money-market fund sponsored by a registered broker dealer or mutual fund
distributor, (iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above entered
into with a bank meeting the qualifications described in clause (ii) above, (iv)
commercial paper, maturing not more than 90 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America, any state thereof
or any foreign country recognized by the United States of America with a rating
at the time as of which any investment therein is made of "P-1" (or higher)
according to Moody's or "A-1" (or higher) according to S&P, and (v) securities
with maturities of six months or less from the date of acquisition issued or
fully and unconditionally guaranteed by any state, commonwealth or territory of
the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by S&P or Moody's.
"10 3/4% Notes" means the 10 3/4% Senior Notes Due 2002 of the Company.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended (15 U.S. Code (S)(S) 77aaa-77bbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.06.
"Trade Payables" means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
<PAGE>
20
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"Tudor" means Sociedad Espanola del Acumulador Tudor, S.A. and its
successors.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended and as codified in Title 11 of the United States Code, as amended from
time to time hereafter, or any successor federal bankruptcy law.
"U.S. Global Security" has the meaning provided in Section 2.01.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Securities, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt; provided that (except as required by law)
--------
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"U.S. Physical Securities" has the meaning provided in Section 2.01.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at
the time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the Company or
any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided that either (A) the Subsidiary to be so designated
--------
has total assets of $1,000 or less or (B) if such Subsidiary has assets greater
than $1,000, that such designation would be permitted under Section 4.04. The
Board of Directors may designate any Unrestricted Subsidiary to be a Subsidiary
of the Company; provided that immediately after giving effect to such
--------
designation (x) the Company could Incur $1.00 of additional Indebtedness under
the first
<PAGE>
21
paragraph of Section 4.03(a) and (y) no Event of Default, or event or
condition that after notice or passage of time or both would become an Event of
Default, shall have occurred and be continuing. Any such designation by the
Board of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"Voting Stock" means Capital Stock of any class or kind ordinarily having
the power to vote for the election of directors.
"Wholly Owned Subsidiary", solely as used in clause (ii) of the second
paragraph of the "Limitation on Indebtedness" covenant means, with respect to
any Person, any Subsidiary of such Person if at least 98.5% of the Common Stock
or other similar equity ownership interests (but not including Preferred Stock)
in such Subsidiary (other than any director's qualifying shares or Investments
by foreign nationals mandated by applicable law) is owned directly or indirectly
by such Person; provided that (i) with respect to Tudor and its Subsidiaries,
--------
the Company directly or indirectly owns at least 89% of the Common Stock or
other similar equity ownership interest (but not including Preferred Stock) in
Tudor (other than director's qualifying shares or Investments by foreign
nationals mandated by applicable law) and (ii) with respect to Sonnenschein, the
Company directly or indirectly owns at least 74.5% of the Common Stock or other
similar equity ownership interest (but not including Preferred Stock) in
Sonnenschein (other than director's qualifying shares or Investments by foreign
nationals mandated by applicable law).
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. Whenever
-------------------------------------------------
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
<PAGE>
22
SECTION 1.03. Rules of Construction. Unless the context otherwise
---------------------
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the plural
include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(vii) all ratios and computations based on GAAP contained in this
Indenture shall be computed in accordance with the definition of GAAP set forth
in Section 1.01; and
(viii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
The Securities
SECTION 2.01. Form and Dating. The Securities and the Trustee's
---------------
certificate of authentication shall be substantially in the form annexed hereto
as Exhibit A. The Securities may have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the Indenture
and may have letters, notations, legends or endorsements required by law, stock
exchange agreements to which the Company is subject or usage. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security. The Company shall
approve the form of the Securities and any notation, legend or endorsement on
the Securities. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the form of the Securities annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part of
this Indenture. Each of the Company and the Trustee, by its execution and
delivery of this Indenture, expressly agrees to the terms and provisions of the
Securities applicable to it and to be bound thereby.
<PAGE>
23
Securities offered and sold in reliance on Rule 144A shall be issued in the
form of a single permanent global Security in registered form, substantially in
the form set forth in Exhibit A (the "U.S. Global Security"), deposited with the
--------------------
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of a single permanent global Security
in registered form substantially in the form set forth in Exhibit A (the
"Offshore Global Security") deposited with the Trustee, as custodian for the
- -------------------------
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided.
Securities which are offered and sold to Institutional Accredited Investors
which are not QIBs (excluding Non-U.S. Persons) shall be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in Exhibit A (the "U.S. Physical Securities"). Securities issued
------------------------
pursuant to Section 2.07 in exchange for interests in the U.S. Global Security
or the Offshore Global Security shall be in the form of U.S. Physical Securities
or in the form of permanent certificated Securities in registered form
substantially in the form set forth in Exhibit A (the "Offshore Physical
-----------------
Securities"), respectively.
- ----------
The Offshore Physical Securities and U.S. Physical Securities are sometimes
collectively herein referred to as the "Physical Securities". The U.S. Global
-------------------
Security and the Offshore Global Security are sometimes referred to as the
"Global Securities".
- ------------------
The definitive Securities shall be typed, printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.02. Restrictive Legends. (a) Unless and until a Security is
-------------------
exchanged for an Exchange Security in connection with an effective Registration
Statement pursuant to the Registration Rights Agreement, the U.S. Global
Security and each U.S. Physical Security shall bear the following legend on the
face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1)
<PAGE>
24
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN "INSTITUTIONAL
ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT, WITHIN THREE YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
EXIDE OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN
$100,000, AN OPINION OF COUNSEL ACCEPTABLE TO EXIDE THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
OF THIS NOTE WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTE,
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
AND EXIDE SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
<PAGE>
25
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Global Security, whether or not an Exchange Security, shall also
bear the following legend on the face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and Denominations. Two
-------------------------------------------
Officers shall execute the Securities for the Company by facsimile or manual
signature in the name and on behalf of the Company.
<PAGE>
26
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee or authenticating agent authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee or authenticating
agent manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee or an authenticating agent shall upon receipt of a Company
Order authenticate for original issue Securities in the aggregate principal
amount of up to $300,000,000 plus any Exchange Securities that may be issued
pursuant to the Registration Rights Agreement; provided that the Trustee shall
--------
be entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Company in connection with such authentication of Securities. The Opinion of
Counsel shall state:
(a) that the form and terms of such Securities have been established by or
pursuant to a Board Resolution or an indenture supplemental hereto in conformity
with the provisions of this Indenture;
(b) that such supplemental indenture, if any, when executed and delivered
by the Company and the Trustee, will constitute a valid and binding obligation
of the Company;
(c) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and binding obligations of the
Company in accordance with their terms and will be entitled to the benefits of
this Indenture, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
(d) that the Company has been duly incorporated in, and is a validly
existing corporation in good standing under the laws of, the State of Delaware.
Such Company Order shall specify the amount of Securities to be authenticated
and the date on which the original issue of Securities is to be authenticated.
The aggregate principal amount of Securities outstanding at any time may not
exceed the amount set forth above except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 2.06, 2.09, 2.10 or 2.11.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such
<PAGE>
27
authenticating agent. An authenticating agent has the same rights as an Agent to
deal with the Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 in principal amount and any integral
multiple of $1,000 in excess thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall maintain
--------------------------
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar"), an office or agency where Securities
---------
may be presented for payment (the "Paying Agent") and an office or agency where
------------
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served, which shall be in the Borough of Manhattan, The City of
New York. The Company shall cause the Registrar to keep a register of the
Securities and of their transfer and exchange (the "Security Register"). The
-----------------
Company may have one or more co-Registrars and one or more additional Paying
Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands for so long as such failure shall continue. The Company may
remove any Agent upon written notice to such Agent and the Trustee; provided
--------
that no such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by the Company and such successor Agent and
delivered to the Trustee or (ii) notification to the Trustee that the Trustee
shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company, any Subsidiary of the
Company, or any Affiliate of any of them may act as Paying Agent (other than
with respect to a Special Redemption under Section 3.01(b) hereof), Registrar or
co-Registrar, and/or agent for service of notice and demands; provided, however,
-------- -------
that neither the Company, a Subsidiary of the Company nor an Affiliate of any of
them shall act as Paying Agent in connection with the defeasance of the
Securities or the discharge of this Indenture under Article Eight.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. If, at any
time, the Trustee is not the Registrar, the Registrar shall make available to
the Trustee on or before each Interest Payment Date and at such other times as
the Trustee may reasonably request, the names and addresses of the Holders as
they appear in the Security Register.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than
-----------------------------------
each due date of the principal, premium, if any, and interest on any Securities,
the Company shall
<PAGE>
28
deposit with the Paying Agent money in immediately available funds sufficient to
pay such principal, premium, if any, and interest so becoming due. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent shall hold in trust for the benefit of the Holders or the
Trustee all money held by the Paying Agent for the payment of principal of,
premium, if any, and interest on the Securities (whether such money has been
paid to it by the Company or any other obligor on the Securities), and that such
Paying Agent shall promptly notify the Trustee of any default by the Company (or
any other obligor on the Securities) in making any such payment. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or
any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it will, on or before each due date of any principal of, premium, if any,
or interest on the Securities, segregate and hold in a separate trust fund for
the benefit of the Holders a sum of money sufficient to pay such principal,
premium, if any, or interest so becoming due until such sum of money shall be
paid to such Holders or otherwise disposed of as provided in this Indenture, and
will promptly notify the Trustee of its action or failure to act as required by
this Section 2.05.
SECTION 2.06. Transfer and Exchange. The Securities are issuable
---------------------
only in registered form. A Holder may transfer a Security by written
application to the Registrar stating the name of the proposed transferee and
otherwise complying with the terms of this Indenture. No such transfer shall be
effected until, and such transferee shall succeed to the rights of a Holder only
upon, final acceptance and registration of the transfer by the Registrar in the
Security Register. Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Trustee, and any agent of the Company shall
treat the person in whose name the Security is registered as the owner thereof
for all purposes whether or not the Security shall be overdue, and neither the
Company, the Trustee, nor any such agent shall be affected by notice to the
contrary. Furthermore, any Holder of a Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interests in such
Global Security, may be effected only through a book-entry system maintained by
the Depositary (or its agent), and that ownership of a beneficial interest in
the Security shall be required to be reflected in a book entry. When Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of
other authorized denominations (including on exchange of Securities for Exchange
Securities), the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided that no
--------
exchanges of Securities for Exchange Securities shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Securities that are exchanged for Exchange Securities shall be cancelled by the
Trustee. To permit registrations of transfers and exchanges in accordance with
the terms, conditions and restrictions hereof, the Company shall execute and the
Trustee shall authenticate Securities at
<PAGE>
29
the Registrar's request. No service charge shall be made for any registration of
transfer or exchange or redemption of the Securities, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or other similar governmental charge payable upon transfers,
exchanges or redemptions pursuant to Section 2.11, 3.08, 4.09, 4.10 or 9.04).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 3.03 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 2.07. Book-Entry Provisions for Global Securities. (a) The
-------------------------------------------
U.S. Global Security and Offshore Global Security initially shall (i) be
registered in the name of the Depositary for such Global Securities or the
nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) bear legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent Members") shall
-------------
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under any
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the applicable rules and
procedures of the Depositary and the provisions of Section 2.08. In addition,
U.S. Physical Securities and Offshore Physical Securities shall be transferred
to all beneficial owners in exchange for their beneficial interests in the U.S.
Global Security or the Offshore Global Security, respectively, if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the U.S. Global Security or the Offshore Global Security, as the
case may be, and a successor depositary is not appointed by the Company within
90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary.
<PAGE>
30
(c) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer pursuant to paragraph (b) of this
Section of a portion of the beneficial interests in the U.S. Global Security to
beneficial owners who are required to hold U.S. Physical Securities, the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Security in an amount equal to the principal
amount of the beneficial interest in the U.S. Global Security to be transferred,
and the Company shall execute, and the Trustee shall authenticate and deliver,
one or more U.S. Physical Securities of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global Security
or Offshore Global Security to beneficial owners pursuant to paragraph (b) of
this Section, the U.S. Global Security or Offshore Global Security, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the U.S. Global Security or Offshore Global Security, as
the case may be, an equal aggregate principal amount of U.S. Physical Securities
or Offshore Physical Securities, as the case may be, of authorized
denominations.
(f) Any U.S. Physical Security delivered in exchange for an interest
in the U.S. Global Security pursuant to paragraph (b) or (d) of this Section
shall, except as otherwise provided by paragraph (a)(i)(x) and paragraph (e) of
Section 2.08, bear the legend regarding transfer restrictions applicable to the
U.S. Physical Security set forth in Section 2.02.
(g) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.08. Special Transfer Provisions. Unless and until a
---------------------------
Security is exchanged for an Exchange Security in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The following
-------------------------------------------------------
provisions shall apply with respect to the registration of any proposed transfer
of a Security to any Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons):
<PAGE>
31
(i) The Registrar shall register the transfer of any Security, whether or
not such Security bears the Private Placement Legend, if (x) the requested
transfer is at least three years after the later of the original issue date of
the Securities and the last date on which such Security was held by the Company
or an Affiliate of the Company or (y) the proposed transferee has delivered to
the Registrar (A) a certificate substantially in the form of Exhibit B hereto
and (B) if the aggregate principal amount of the Securities being transferred is
less than $100,000 at the time of such transfer, an Opinion of Counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act.
(ii) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Security, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the U.S. Global Security in an amount equal to the principal amount of
the beneficial interest in the U.S. Global Security to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more U.S. Physical Securities of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with respect
-----------------
to the registration of any proposed transfer of a U.S. Physical Security or an
interest in the U.S. Global Security to a QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of (x) U.S. Physical
Securities, the Registrar shall register the transfer if such transfer is being
made by a proposed transferor who has checked the box provided for on the form
of Security stating, or has otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with the provisions of Rule
144A to a transferee who has signed the certification provided for on the form
of Security stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Security for its own account or an account
with respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A or (y) an interest
in the U.S. Global Security, the transfer of such interest may be effected only
through the book entry system maintained by the Depositary.
<PAGE>
32
(ii) If the proposed transferor is an Agent Member, and the Security to be
transferred consists of U.S. Physical Securities, upon receipt by the Registrar
of the documents referred to in clause (i) and instructions given in accordance
with the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of the U.S. Global Security in an amount equal to the principal amount of
the U.S. Physical Securities to be transferred, and the Trustee shall cancel the
Physical Security so transferred.
(c) Transfers of Interests in the Offshore Global Security or Offshore
------------------------------------------------------------------
Physical Securities to U.S. Persons. The following provisions shall apply with
- -----------------------------------
respect to any transfer of interests in the Offshore Global Security or Offshore
Physical Securities to U.S. Persons: The Registrar shall register the transfer
of any such Security without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at any Time. The following provisions
-----------------------------------------
shall apply with respect to any transfer of a Security to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any Non-U.S.
Person if the Security to be transferred is a U.S. Physical Security or an
interest in the U.S. Global Security, upon receipt of a certificate
substantially in the form of Exhibit C from the proposed transferor.
(ii) (a) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Security, upon receipt by the Registrar of (x) the
documents, required by paragraph (i) and (y) instructions in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred, and (b) if the proposed
transferee is an Agent Member, upon receipt by the Registrar of instructions
given in accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase in the
principal amount of the Offshore Global Security in an amount equal to the
principal amount of the U.S. Physical Securities or the U.S. Global Security, as
the case may be, to be transferred, and the Trustee shall cancel the Physical
Security, if any, so transferred or decrease the amount of the U.S. Global
Security.
(e) Private Placement Legend. Upon the transfer, exchange or replacement
------------------------
of Securities not bearing the Private Placement Legend, the Registrar shall
deliver Securities that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Securities bearing the Private Placement
Legend, the Registrar shall deliver only Securities that bear the Private
Placement Legend unless
<PAGE>
33
either (i) the circumstances contemplated by the fourth paragraph of Section
2.01 or paragraphs (a)(i)(x) or (d)(i) of this Section 2.08 exist or (ii) there
is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(f) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture. The Registrar shall not register a transfer of any Security
unless such transfer complies with the restrictions on transfer of such Security
set forth in this Indenture. In connection with any transfer of Securities,
each Holder agrees by its acceptance of the Securities to furnish the Registrar
or the Company such certifications, legal opinions or other information as
either of them may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the Registrar
--------
shall not be required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such certifications, legal
opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Securities. If a mutilated Security is
----------------------
surrendered to the Trustee or if the Holder claims that the Security has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding; provided that the
--------
requirements of the second paragraph of Section 2.10 are met. If required by
the Trustee or the Company, an indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee in replacing a Security. In case any such
mutilated, lost, destroyed or wrongfully taken Security has become or is about
to become due and payable, the Company in its discretion may pay such Security
instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
<PAGE>
34
SECTION 2.10. Outstanding Securities. Securities outstanding at any
----------------------
time are all Securities that have been authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation, those paid
pursuant to Section 2.09 and those described in this Section 2.10 as not
outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
---- ----
purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay Securities payable
on that date, then on and after that date such Securities cease to be
outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one
of its Affiliates holds such Security, provided, however, that, in determining
-------- -------
whether the Holders of the requisite principal amount of the outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
SECTION 2.11. Temporary Securities. Until definitive Securities are
--------------------
ready for delivery, the Company may prepare and upon Company order the Trustee
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have insertions,
substitutions, omissions and other variations determined to be appropriate by
the Officers executing the temporary Securities, as evidenced by their execution
of such temporary Securities. If temporary Securities are issued, the Company
will cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall be entitled to the same benefits under
this Indenture as definitive Securities.
<PAGE>
35
SECTION 2.12. Cancellation. The Company at any time may deliver to
------------
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for transfer, exchange or payment. The Trustee shall cancel
all Securities surrendered for transfer, exchange, payment or cancellation and
shall dispose of them in accordance with its normal procedure. The Company may
not issue new Securities to replace Securities it has paid in full or delivered
to the Trustee for cancellation.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities
-------------
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Company,
or the Trustee on behalf of the Company, shall use CUSIP numbers or CINS
numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders; provided that any such notice shall state that no
--------
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers printed on
the Securities; provided further that failure to use CUSIP numbers or CINS
-------- -------
numbers, as the case may be, in any notice of redemption or exchange shall not
affect the validity or sufficiency of such notice.
SECTION 2.14. Defaulted Interest. If the Company defaults in a
------------------
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with respect
to the payment of any defaulted interest, shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether or
not such day is a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder and to the Trustee a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest to be paid.
ARTICLE THREE
Redemption
SECTION 3.01. Right of Redemption. (a) The Securities may be
-------------------
redeemed at the election of the Company, in whole or in part, at any time on or
after April 15, 2000 and prior to maturity, upon not less than 30 nor more than
60 days' prior notice mailed by first class mail to each Holders' last address
as it appears in the Security Register, at the following Redemption Prices
(expressed in percentages of principal amount), plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of Holders of
record
<PAGE>
36
on the relevant Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date), if redeemed during the
12-month period commencing April 15 of the applicable year set forth below:
Year Redemption Price
---- ----------------
2000 105.0%
2001 102.5%
2002 and thereafter 100.0%
(b) In addition, the Securities will be subject to mandatory
redemption (the "Special Redemption") at 101% of the principal amount thereof
plus accrued interest to the redemption date (the "Special Redemption Price") in
the event that the Escrow Agent has not received the Officers' Certificate and
Opinion of Counsel (each as defined in the Escrow Agreement) provided for in the
Escrow Agreement on or prior to June 30, 1995, subject to an extension, in
accordance with the provisions of the Escrow Agreement, of up to one month at
the option of the Company (such date, as extended, being the "Termination
Date"). The redemption date for the Special Redemption (the "Special Redemption
Date") will be five Business Days after the Termination Date.
If, on or prior to the Termination Date, the Escrow Agent receives (i)
an Officers' Certificate from the Company stating that (A) pursuant to the terms
of the Credit Agreement (1) the CEAC Acquisition may be consummated, (2) the
Company will be entitled to borrow thereunder funds sufficient, together with
the Proceeds, to consummate the CEAC Acquisition and (3) there are no defaults
in existence under the Credit Agreement, (B) CEAC will be entitled to borrow
funds under the Facilities Agreement to refinance the indebtedness of CEAC on
the closing date of the CEAC Acquisition and there are no defaults in existence
under the Facilities Agreement and (C) the CEAC Acquisition will be consummated
within three Business Days following release of the Proceeds and (ii) an opinion
of counsel from Kirkland & Ellis, special counsel for the Company, to the effect
that pursuant to the terms of the Credit Agreement, the CEAC Acquisition may be
consummated, the Escrow Agreement provides that the Escrow Agent will release
the Escrowed Property in accordance with the provisions of the Escrow Agreement.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem
------------------
Securities pursuant to Section 3.01(a), it shall notify the Trustee in writing
of the Redemption Date and the principal amount of Securities to be redeemed.
The Company shall give each notice provided for in this Section 3.02
in an Officers' Certificate at least 45 days before the Redemption Date (unless
a shorter period shall be satisfactory to the Trustee).
<PAGE>
37
SECTION 3.03. Selection of Securities to Be Redeemed. If less than
--------------------------------------
all of the Securities are to be redeemed at any time, the Trustee shall select
the Securities to be redeemed in compliance with the requirements, as certified
to it by the Company, of the principal national securities exchange, if any, on
which the Securities are listed or, if the Securities are not listed on a
national securities exchange, on a pro rata basis, by lot or by such other
method as the Trustee in its sole discretion shall deem fair and appropriate;
provided that no Securities of $1,000 in principal amount or less shall be
- --------
redeemed in part.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption. Securities in denominations of $1,000
in principal amount may only be redeemed in whole. The Trustee may select for
redemption portions (equal to $1,000 in principal amount or any integral
multiple thereof) of Securities that have denominations larger than $1,000 in
principal amount. Provisions of this Indenture that apply to Securities called
for redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company and the Registrar promptly in writing of the
Securities or portions of Securities to be called for redemption.
SECTION 3.04. Notice of Redemption. (a) With respect to any
--------------------
redemption of Securities pursuant to Section 3.01(a), at least 30 days but not
more than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first class mail to each Holder whose Securities are to be
redeemed.
The notice shall identify (including CUSIP or CINS number, as the case
may be) the Securities to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to the
Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price plus accrued interest to the Redemption
Date upon surrender of the Securities to the Paying Agent;
(vi) if any Security is being redeemed in part, the portion of the
principal amount (equal to $1,000 in principal amount or any integral multiple
thereof) of such Security to be redeemed and that, on and after the Redemption
Date, upon surrender
<PAGE>
38
of such Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be reissued; and
(vii) that, if any Security contains a CUSIP or CINS number as
provided in Section 2.13, no representation is being made as to the correctness
of the CUSIP or CINS number either as printed on the Securities or as contained
in the notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities.
At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least 60 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company. If, however, the Company gives such notice to the
Holders, the Company shall concurrently deliver to the Trustee an Officers'
Certificate stating that such notice has been given.
(b) With respect to any redemption of Securities pursuant to Section
3.01(b), if the Escrow Agent does not receive the Officers' Certificate and
Opinion of Counsel as described in Section 3.01(b) prior to or by 9:00 A.M.
local time on the Termination Date, the Escrow Agent shall direct the Trustee
to, and the Trustee shall, in the name and at the expense of the Company, mail a
notice of redemption by first class mail to each Holder whose Securities are to
be redeemed.
The notice shall identify (including CUSIP or CINS number, as the case
may be) the Securities to be redeemed and shall state:
(i) the Special Redemption Date;
(ii) the Special Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to the
Paying Agent in order to collect the Special Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Special Redemption Date and the only remaining right of the Holders is
to receive payment of the Special Redemption Price upon surrender of the
Securities to the Paying Agent; and
(vi) that, if any Security contains a CUSIP or CINS number as provided
in Section 2.13, no representation is being made as to the correctness of the
CUSIP or
<PAGE>
39
CINS number either as printed on the Securities or as contained in the
notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities.
SECTION 3.05. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Securities called for redemption become due and payable on
the Redemption Date or the Special Redemption Date, at the Redemption Price plus
accrued and unpaid interest to the Redemption Date or Special Redemption Price,
as the case may be. Upon surrender of any Securities to the Paying Agent, such
Securities shall be paid at the Redemption Price, plus accrued interest to the
Redemption Date, or at the Special Redemption Price, as the case may be.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Securities held by Holders to whom such notice was
properly given.
SECTION 3.06. Deposit of Redemption Price or Special Redemption
-------------------------------------------------
Price. (a) On or prior to any Redemption Date, the Company shall deposit with
the Paying Agent (or, if the Company is acting as its own Paying Agent, shall
segregate and hold in trust as provided in Section 2.05) money sufficient to pay
the Redemption Price of and accrued interest on all Securities to be redeemed on
that date other than Securities or portions thereof called for redemption on
that date that have been delivered by the Company to the Trustee for
cancellation.
(b) On the Business Day prior to the Special Redemption Date, the
Escrow Agent will disburse all Escrowed Property (subject to the provisions of
the Escrow Agreement) to the Trustee and the Trustee shall deposit such amount
with the Paying Agent. In the event such amount deposited by the Trustee is
insufficient to pay the Redemption Price of and accrued interest on all
Securities to be redeemed on the Special Redemption Date, then the Company
shall, on the Business Day prior to the Special Redemption Date, deposit with
the Paying Agent the amount of money in U.S. dollars necessary to permit all
outstanding Securities to be redeemed at the Special Redemption Price in
accordance with Section 3.01(b).
SECTION 3.07. Payment of Securities Called for Redemption. If notice
-------------------------------------------
of redemption has been given in the manner provided above, the Securities or
portion of Securities specified in such notice to be redeemed shall become due
and payable on the Redemption Date or the Special Redemption Date, at the
Redemption Price stated therein, together with accrued interest to such
Redemption Date, or at the Special Redemption Price, as the case may be, and on
and after such date (unless the Company shall default in the payment of such
Securities at the Redemption Price and accrued interest to the Redemption Date,
or at the Special Redemption Price, as the case may be, in which case the
principal, until paid, and, to the extent lawful, interest thereon, shall bear
interest from the Redemption
<PAGE>
40
Date or the Special Redemption Date, as the case may be, at the rate prescribed
in the Securities), such Securities shall cease to accrue interest. Upon
surrender of any Security for redemption in accordance with a notice of
redemption, such Security shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest to the Redemption Date, or at
the Special Redemption Date, as the case may be; provided that installments of
--------
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders registered as such at the close of business on the
relevant Regular Record Date.
SECTION 3.08. Securities Redeemed in Part. Upon surrender of any
---------------------------
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security equal in principal
amount to the unredeemed portion of such surrendered Security.
ARTICLE FOUR
Covenants
SECTION 4.01. Payment of Securities. The Company shall pay the
---------------------
principal of, premium, if any, and interest on the Securities on the dates and
in the manner provided in the Securities and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date due
if the Trustee or Paying Agent (other than the Company, a Subsidiary of the
Company, or any Affiliate of any of them) holds on that date money designated
for and sufficient to pay the installment. If the Company or any Subsidiary of
the Company or any Affiliate of any of them, acts as Paying Agent, an
installment of principal, premium, if any, or interest shall be considered paid
on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to the Company, the Trustee shall serve as the
Paying Agent and conversion agent, if any, for the Securities.
The Company shall pay interest on overdue principal, premium, if any,
and interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
-------------------------------
maintain in the Borough of Manhattan, The City of New York an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
<PAGE>
41
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
- --------
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, The City of New York, as such
office of the Company in accordance with Section 2.04.
SECTION 4.03. Limitation on Indebtedness. (a) The Company will not,
--------------------------
and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (other than the Securities and Indebtedness existing on the Closing
Date); provided that the Company may Incur Indebtedness if, after giving effect
--------
to the Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Interest Coverage Ratio of the Company would be greater
than 2.0:1.
Notwithstanding the foregoing, the Company and any Restricted
Subsidiary (except as expressly provided otherwise below) may Incur each and all
of the following:
(i) Indebtedness outstanding at any one time in an aggregate principal
amount not to exceed the greater of (A) $255 million or (B) 30% of accounts
receivable and 20% of inventory, in each case net of reserves and as shown on
the consolidated balance sheet of the Company and most recently (as of the date
of the Incurrence under this clause (a)(i)(B)) filed on Form 10-Q or 10-K by the
Company with the Commission; provided that the aggregate principal amount of
--------
Indebtedness of Restricted Subsidiaries pursuant to this clause (i) shall not
exceed $100 million at any one time outstanding;
(ii) Indebtedness of the Company to any of its Restricted Subsidiaries
that is a Wholly Owned Subsidiary of the Company, or of a Restricted Subsidiary
to the Company or to any other Restricted Subsidiary that is a Wholly Owned
Subsidiary of the Company;
(iii) Indebtedness the net proceeds of which are used to refinance
outstanding Indebtedness of the Company or any of its Restricted Subsidiaries,
other than Indebtedness Incurred under clause (i), (iv), (vi), (viii), (ix) or
(x) of this Section 4.03(a) and any refinancings thereof, in an amount (or, if
such new Indebtedness
<PAGE>
42
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof, with an original
issue price) not to exceed the amount so refinanced (plus premiums, accrued
interest, fees and expenses); provided that Indebtedness the proceeds of
--------
which are used to refinance the Securities or other Indebtedness of the Company
that is subordinated in right of payment to the Securities shall only be
permitted under this clause (iii) if (A) in case the Securities are refinanced
in part, such Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such Indebtedness is issued, is expressly made pari
passu with, or subordinate in right of payment to, the remaining Securities, (B)
in case the Indebtedness to be refinanced is subordinated in right of payment to
the Securities, such Indebtedness, by its terms or by the terms of any agreement
or instrument pursuant to which such Indebtedness is issued, is expressly made
subordinate in right of payment to the Securities at least to the extent that
the Indebtedness to be refinanced is subordinated to the Securities and (C) in
case the Securities are refinanced in part or the Indebtedness to be refinanced
is subordinated in right of payment to the Securities, such Indebtedness,
determined as of the date of Incurrence of such new Indebtedness, does not
mature prior to one year after the Stated Maturity of the Indebtedness being
refinanced and the Average Life of such Indebtedness is equal to or greater than
the remaining Average Life of the Indebtedness being refinanced plus one year;
and provided further that in no event may Indebtedness of the Company that is
-------- -------
pari passu with, or subordinated in right of payment to, the Securities be
refinanced by means of Indebtedness of any Subsidiary of the Company pursuant to
this clause (iii);
(iv) unsecured Indebtedness, in an aggregate principal amount not to
exceed $2 million at any one time outstanding, Incurred by the Company in
connection with the purchase, redemption, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the Company, options on any
such shares or related stock appreciation rights or similar securities held by
officers or employees or former officers or employees (or their estates or
beneficiaries under their estates) or by any Plan, upon death, disability,
retirement, termination of employment or pursuant to the terms of such Plan, or
any other agreement under which such shares of stock or related rights were
issued; provided that (A) such Indebtedness, by its terms or by the terms of any
--------
agreement or instrument pursuant to which such Indebtedness is issued, is
expressly made subordinate in right of payment to the Securities, at least to
the extent that the Senior Subordinated Debentures are subordinated to Senior
Indebtedness (as defined in the Indenture pursuant to which the Senior
Subordinated Debentures were issued ("Senior Indebtedness")), (B) such
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such Indebtedness is issued, provides that no payments of
principal of such Indebtedness by way of sinking fund, mandatory redemption or
otherwise (including defeasance) may be made by the Company at any time prior to
one year after the Stated Maturity of the Securities, and (C) the scheduled
maturity of all principal of such Indebtedness is one year beyond the Stated
Maturity of the Securities;
<PAGE>
43
(v) Indebtedness (A) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided in the
ordinary course of business and letters of credit under the Credit Agreement,
(B) under Currency Agreements, Interest Rate Agreements and Commodity
Agreements; provided that, in the case of Currency Agreements that relate to
--------
other Indebtedness, such Currency Agreements do not increase the Indebtedness of
the Company outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder and (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any Subsidiary of the Company pursuant to such
agreements, in any case Incurred in connection with the disposition of any
business, assets or Subsidiary of the Company (other than Guarantees of
Indebtedness Incurred by any Person acquiring all or any portion of such
business, assets or Subsidiary of the Company for the purpose of financing such
acquisition), in a principal amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in connection with such
disposition;
(vi) Indebtedness under Guarantees Incurred by the Company in respect
of obligations of Unrestricted Subsidiaries outstanding at any time in an
aggregate amount not to exceed $10 million;
(vii) Acquired Indebtedness; provided that, after giving pro forma
-------- --- -----
effect to the Incurrence of such Indebtedness, the Company could Incur at least
$1.00 of Indebtedness under the first paragraph of this Section 4.03(a); and
refinancings thereof, provided that such refinancing Indebtedness may not be
--------
Incurred by any Person other than the Company or the Restricted Subsidiary that
is the obligor on such Acquired Indebtedness;
(viii) unsecured Indebtedness of the Company outstanding at any time
in an aggregate amount not to exceed $25 million; provided that such
--------
Indebtedness, (A) by its terms or by the terms of any agreement or instrument
pursuant to which such Indebtedness is issued, is expressly made subordinate in
right of payment to the Securities, at least to the extent the Senior
Subordinated Debentures are subordinated to Senior Indebtedness, (B) determined
as of the date of Incurrence of such Indebtedness, does not mature prior to one
year after the Stated Maturity of the Securities, and the Average Life of such
Indebtedness is one year beyond the remaining Average Life of the Securities,
(C) by its terms or by the terms of any agreement or instrument pursuant to
which such Indebtedness is issued, provides that no payments of principal of
such Indebtedness by way of sinking fund, mandatory redemption or otherwise
(including defeasance) may be made by the Company (including, without
limitation, at the option of the holder thereof, other than an option given to a
holder pursuant to an "asset sale" provision that is no more favorable to the
<PAGE>
44
holders of such Indebtedness than the provisions contained in Section 4.09 and
such Indebtedness specifically provides that the Company will not repurchase or
redeem such Indebtedness pursuant to such provision prior to the Company's
repurchase of the Securities required to be repurchased by the Company under the
"Limitation on Asset Sales" covenant) at any time prior to the Stated Maturity
of the Securities; and provided further that after giving effect to the
-------- -------
Incurrence of such Indebtedness and the receipt and application of the proceeds
therefrom, the Interest Coverage Ratio of the Company would be at least 1.25:1;
(ix) Indebtedness under any revolving credit or other working capital
facility in an aggregate amount not to exceed, at any one time outstanding, $40
million;
(x) other Indebtedness in an aggregate principal amount not to exceed
$200 million at any one time outstanding; and
(xi) Guarantees, existing as of November 1, 1994, by Restricted
Subsidiaries of Indebtedness of the Company, which Guarantees, to the extent
Incurred or outstanding under this clause (xi), do not exceed $50 million; and
refinancings thereof.
Notwithstanding any other provision of this Section 4.03, (i) the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
Incur pursuant to this Section 4.03 shall not be deemed to be exceeded due
solely to the result of fluctuations in the exchange rates of currencies and
(ii) the Company shall not Incur any Indebtedness that is expressly subordinated
to any other Indebtedness of the Company unless such Indebtedness, by its terms
or the terms of any agreement or instrument pursuant to which such Indebtedness
is issued, is also expressly made subordinate to the Securities at least to the
extent it is subordinated to such other Indebtedness.
(b) For purposes of determining any particular amount of Indebtedness
under this Section 4.03, (1) Indebtedness Incurred pursuant to the revolver,
including swingline, portion of the Credit Agreement prior to or on the Closing
Date shall be treated as Incurred pursuant to clause (i) of the second paragraph
of Section 4.03(a), (2) Guarantees of, or obligations with respect to letters of
credit supporting, Indebtedness otherwise included in the determination of such
particular amount shall not be included, (3) any Liens granted pursuant to the
equal and ratable provisions referred to in the first paragraph or clause (i) of
the second paragraph of Section 4.08 of this Indenture shall not be treated as
Indebtedness and (4) Indebtedness Incurred under clauses (iv), (vi), (viii),
(ix), (x) and (xi) of the second paragraph of the "Limitation on Indebtedness"
covenant contained in the indenture for the 10 3/4% Notes, as amended through
the Closing Date (which clauses are substantially similar (other than certain
dollar amounts) to the clauses referred to above), and outstanding on the
Closing Date, shall be treated as Incurred pursuant to clauses (iv), (vi),
(viii), (ix), (x) and (xi), respectively of the second paragraph of Section
4.03(a). For purposes of determining
<PAGE>
45
compliance with Section 4.03(a), (x) in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
the above clauses, the Company, in its sole discretion, shall classify such item
of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses and (y) the amount of Indebtedness issued at
a price that is less than the principal amount thereof shall be equal to the
amount of the liability in respect thereof determined in conformity with GAAP.
SECTION 4.04. Limitation on Restricted Payments. The Company will
---------------------------------
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution on its Capital Stock
(other than dividends or distributions payable solely in shares of its or such
Restricted Subsidiary's Capital Stock (other than Redeemable Stock) of the same
class or in options, warrants or other rights to acquire such shares of Capital
Stock) held by Persons other than the Company or another Restricted Subsidiary
and other than pro rata dividends or distributions on Common Stock of Restricted
Subsidiaries (provided that the Company owns, directly or indirectly, at least
--------
74.5% of the Voting Stock of such Restricted Subsidiaries) payable to the
holders thereof (provided that the amount of such dividends and distributions
--------
paid to Persons other than the Company and its Restricted Subsidiaries shall be
applied to reduce the amount available for Restricted Payments under clause (C)
below), (ii) purchase, redeem, retire or otherwise acquire for value any shares
of Capital Stock of the Company, Restricted Subsidiary or any Unrestricted
Subsidiary (including options, warrants or other rights to acquire such shares
of Capital Stock) held by Persons other than the Company or another Restricted
Subsidiary, (iii) make any voluntary or optional principal payment, or voluntary
or optional redemption, repurchase, defeasance, or other acquisition or
retirement for value, of Indebtedness of the Company that is subordinated in
right of payment to the Securities, or (iv) make any Investment in any Affiliate
(other than the Company or a Restricted Subsidiary) or any Unrestricted
Subsidiary (such payments or any other actions described in clauses (i) through
(iv) being collectively "Restricted Payments") if, at the time of, and after
giving effect to, the proposed Restricted Payment; (A) an Event of Default or
event that, after notice or passage of time or both would become an Event of
Default, shall have occurred and be continuing, (B) the Company could not Incur
at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or
(C) the aggregate amount expended for all Restricted Payments (the amount so
expended, if other than in cash, to be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) after the date of this Indenture shall exceed the sum of (1) 50% of
the aggregate amount of Adjusted Consolidated Net Income (or, if the Adjusted
Consolidated Net Income is a loss, minus 100% of such amount) of the Company
(determined by excluding income resulting from the transfers of assets received
by the Company or a Restricted Subsidiary from an Unrestricted Subsidiary)
accrued on a cumulative basis during the period (taken as one accounting period)
beginning on the first day of the month immediately following December 17, 1992
and ending on the last day of the last fiscal quarter preceding the Transaction
Date plus (2) the aggregate net proceeds (including the fair market value of
non-cash proceeds as determined in good faith by the Board of Directors)
received by the
<PAGE>
46
Company from the issuance and sale permitted by the Indenture of its Capital
Stock to a Person who is not a Subsidiary of the Company (not including
Redeemable Stock), including an issuance or sale permitted by this Indenture for
cash or other property upon the conversion of any Indebtedness of the Company
subsequent to December 17, 1992, or from the issuance of any options, warrants
or other rights to acquire Capital Stock of the Company (in each case, exclusive
of any Redeemable Stock or any options, warrants or other rights that are
redeemable at the option of the holder, or are required to be redeemed, prior to
the Stated Maturity of the Securities) plus (3) an amount equal to the net
reduction in Investments in Unrestricted Subsidiaries resulting from payments of
interest on Indebtedness, dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or any Restricted Subsidiary
from Unrestricted Subsidiaries, or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the
definition of "Investments"), not to exceed in the case of any Unrestricted
Subsidiary the amount of Investments previously made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $15 million.
The foregoing provision shall not take into account and shall not be
violated by reason of:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment would comply
with the foregoing provision;
(ii) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of payment to
the Securities, including premium, if any, and accrued and unpaid interest, with
the proceeds of Indebtedness Incurred under clause (iii) or (viii) of the second
paragraph of Section 4.03 of this Indenture;
(iii) the declaration or payment of dividends on the Capital Stock of
the Company, following any issuance of the Capital Stock of the Company
subsequent to December 17, 1992, of up to 6% per annum of the net proceeds
received by the Company in such issuance of the Capital Stock of the Company;
(iv) the purchase, redemption, acquisition, cancellation or other
retirement for value of shares of Capital Stock of the Company, options on any
such shares or related stock appreciation rights or similar securities held by
officers or employees or former officers or employees (or their estates or
beneficiaries under their estates) or by any Plan, upon death, disability,
retirement, termination of employment or pursuant to the terms of such Plan or
any other agreement under which such shares of stock or related rights were
issued; provided that the aggregate cash consideration paid for such purchase,
--------
redemption, acquisition, cancellation or other retirement of such shares of
Capital Stock after the date of the Indenture does not exceed $5 million and
that any consideration in excess of such $5 million is in the form of
Indebtedness
<PAGE>
47
that would be permitted to be Incurred under clause (iv) of the second paragraph
of Section 4.03(a) of this Indenture;
(v) the repurchase, redemption or other acquisition of Capital Stock
of the Company in exchange for, or out of the proceeds of a substantially
concurrent offering of, shares of Capital Stock of the Company (other than
Redeemable Stock);
(vi) the acquisition of Indebtedness of the Company that is
subordinated in right of payment to the Securities in exchange for, or out of
the proceeds of a substantially concurrent offering of, shares of the Capital
Stock of the Company (other than Redeemable Stock); and
(vii) payments or distributions pursuant to or in connection with a
consolidation, merger or transfer of assets that complies with the provisions of
this Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company;
provided that, in the case of each of the foregoing clauses of this paragraph,
- --------
other than clause (i), no Event of Default, or event that after notice or
passage of time or both would become an Event of Default, shall have occurred
and be continuing or shall occur as a consequence thereof.
Notwithstanding the foregoing, in the event of an issuance of Capital
Stock of the Company and (1) the repurchase, redemption or other acquisition of
Capital Stock out of the proceeds of such issuance or (2) the acquisition of
Indebtedness that is subordinated in right of payment to the Securities out of
the proceeds of such issuance, as permitted by clause (v) or (vi) above, then,
in calculating whether the conditions of clause (C) of the first paragraph of
this Section 4.04 have been met with respect to any subsequent Restricted
Payments, both the proceeds of such issuance and the application of such
proceeds shall be included under clause (C).
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions
-----------------------------------------------------
Affecting Restricted Subsidiaries. The Company will not, and will not permit
- ---------------------------------
any Restricted Subsidiary to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (iii) make loans or advances to the Company or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provision shall not restrict or prohibit any
encumbrances or restrictions:
<PAGE>
48
(i) existing on the Closing Date in the Credit Agreement, the
Securities or any other agreements in effect on the Closing Date, and any
extensions, refinancings, renewals or replacements thereof, provided that the
--------
encumbrances and restrictions in any such extensions, refinancings, renewals or
replacements are no less favorable in any material respect to the Holders than
those encumbrances or restrictions that are then in effect and that are being
extended, refinanced, renewed or replaced;
(ii) existing or created under or by reason of applicable law;
(iii) with respect to any Person or the property or assets of such
Person acquired by the Company or any Restricted Subsidiary and existing at the
time of such acquisition, which encumbrances or restrictions are not applicable
to any Person or the property or assets of any Person other than such Person or
the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this Section
4.05, (A) that restrict in a customary manner the subletting, assignment or
transfer of any property or asset that is a lease, license, conveyance or
contract or similar property or asset, (B) by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any property
or assets of the Company or any Restricted Subsidiary not otherwise prohibited
by the Indenture or (C) arising or agreed to in the ordinary course of business
and that do not, individually or in the aggregate, detract from the value of
property or assets of the Company or any Restricted Subsidiary in any manner
material to the Company or such Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock of, or property and assets of, such
Restricted Subsidiary; or
(vi) existing or created with respect to Tudor or any of its
Restricted Subsidiaries, related to Indebtedness of Tudor or any of its
Restricted Subsidiaries, and which expressly provides that (except in the case
of (x) an event of default which has led to an acceleration of such Indebtedness
or (y) the failure to pay such Indebtedness in full at the final maturity of
such Indebtedness) Tudor or such Restricted Subsidiary, as the case may be, may
make such payments, loans, advances and transfers in an amount equal to 100% of
its Adjusted Consolidated Net Income subsequent to October 2, 1994 (provided
--------
that in the event such payments, loans, advances and transfers are made in the
form of asset transfers, such assets shall be valued at the value of such assets
set forth on the Company's books under GAAP).
Nothing contained in this Section 4.05 shall prevent the Company or
any Restricted Subsidiary from (1) entering into any agreement permitting the
incurrence of Liens otherwise permitted in Section 4.08 of this Indenture or (2)
restricting the sale or other
<PAGE>
49
disposition of property or assets of the Company or any of its Subsidiaries that
secure Indebtedness of the Company or any of its Subsidiaries.
SECTION 4.06. Limitation on the Issuance of Capital Stock of
----------------------------------------------
Restricted Subsidiaries. The Company will not permit any Restricted Subsidiary,
- -----------------------
directly or indirectly, to issue or sell any shares of its Capital Stock
(including options, warrants or other rights to purchase shares of such Capital
Stock) except (i) to the Company or another Restricted Subsidiary that is a
Wholly Owned Subsidiary of the Company or (ii) if, immediately after giving
effect to such issuance or sale, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary.
SECTION 4.07. Limitation on Transactions with Shareholders and
------------------------------------------------
Affiliates. The Company will not, and will not permit any Subsidiary of the
- ----------
Company to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) with any holder (or any
Affiliate of such holder) of 5% or more of any class of Capital Stock of the
Company (other than any Bank Agent, Bank or any of their respective Affiliates)
or any Subsidiary of the Company or with any Affiliate of the Company or any
Subsidiary of the Company, except upon fair and reasonable terms no less
favorable to the Company or such Subsidiary of the Company than could be
obtained in a comparable arm's-length transaction with a Person that is not such
a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to:
(i) transactions (A) approved by a majority of the disinterested
members of the Board of Directors or (B) for which the Company or a Subsidiary
delivers to the Trustee a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Company or such
Subsidiary of the Company from a financial point of view;
(ii) any transaction between the Company and any Wholly Owned
Restricted Subsidiary or between Wholly Owned Restricted Subsidiaries;
(iii) the payment of reasonable and customary regular fees to
directors of the Company who are not employees of the Company;
(iv) any payments or other transactions pursuant to any tax-sharing
agreement between the Company and any other Person with which the Company is
required or permitted to file a consolidated tax return or with which the
Company is or could be part of a consolidated group for tax purposes; or
(v) any Restricted Payments not prohibited by Section 4.04.
<PAGE>
50
Notwithstanding the foregoing, any transaction covered by the first
paragraph of this Section 4.07 and not covered by clauses (ii) through (v)
hereof the aggregate amount of which exceeds $1 million in value must be
approved in the manner provided for in clause (i) hereof.
SECTION 4.08. Limitation on Liens. The Company may not, and may not
-------------------
permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Lien on any Principal Property, or any shares of Capital Stock or
Indebtedness of any Restricted Subsidiary, without making effective provision
for all of the Securities and all other amounts due under this Indenture to be
directly secured equally and ratably with (or prior to) the obligation or
liability secured by such Lien unless, after giving effect thereto, the
aggregate amount of any Indebtedness so secured, plus the Attributable
Indebtedness for all sale-leaseback transactions restricted as described in
Section 4.11, does not exceed 10% of Consolidated Net Tangible Assets.
The foregoing limitation does not apply to:
(i) Liens securing obligations under the Credit Agreement, the
Securities or up to $10 million of other Indebtedness at any one time
outstanding;
(ii) other Liens existing on the Closing Date;
(iii) Liens with respect to the assets of a Restricted Subsidiary
granted by such Restricted Subsidiary to the Company or a Restricted Subsidiary
that is a Wholly-Owned Subsidiary of the Company to secure Indebtedness owing to
the Company or such other Restricted Subsidiary by such Restricted Subsidiary;
(iv) Liens securing Indebtedness (other than subordinated
Indebtedness) Incurred under clause (v) of the second paragraph of Section
4.03(a);
(v) Liens granted in connection with the extension, renewal or
refinancing, in whole or in part, of any Indebtedness described in clauses (i)
through (iv) of this Section 4.08; provided that (1) such new Indebtedness is
--------
permitted to be Incurred under Section 4.03(a) and (2) the amount of
Indebtedness secured by such Lien is not increased thereby (except to the extent
that Indebtedness under clause (i) above is increased to the extent permitted by
clause (i) of the second paragraph of Section 4.03(a)); and provided further
-------- -------
that the extension, renewal or refinancing of Indebtedness of the Company may
not be secured by Liens on assets of any Restricted Subsidiary other than to the
extent the Indebtedness being extended, renewed or refinanced was at any time
previously secured by Liens on assets of such Restricted Subsidiary;
(vi) Liens with respect to Acquired Indebtedness and refinancings
thereof permitted under clause (vii) of the second paragraph of Section 4.03(a);
provided that
- --------
<PAGE>
51
such Liens do not extend to or cover any property or assets of the Company or
any Restricted Subsidiary of the Company other than the property or assets of
the Subsidiary acquired;
(vii) Liens securing Indebtedness which is Incurred to refinance
secured Indebtedness and which is permitted to be Incurred under clause (i) or
(iii) of the second paragraph of Section 4.03(a); provided that such Liens do
--------
not extend to or cover any property or assets of the Company or any Restricted
Subsidiary other than the property or assets securing the Indebtedness being
refinanced;
(viii) Liens securing obligations under any revolving credit or other
working capital facility Incurred under clause (ix) of the second paragraph of
Section 4.03(a);
(ix) Permitted Liens;
(x) Liens on (A) the stock of Restricted Subsidiaries, provided that
--------
each such Restricted Subsidiary is either (x) acquired after January 3, 1995 or
(y) formed for the purpose of holding stock referred to in clause (x) and holds
no assets other than such stock, its minimum statutory capital, intercompany
notes, assets having a value not in excess of $10,000 and dividends,
distributions or advances received; provided that such dividends, distributions
--------
or advances are promptly paid to such Restricted Subsidiary's parent; and (B)
intercompany notes; provided that with respect to each of clause (A) and clause
--------
(B) above, such intercompany notes and stock of Restricted Subsidiaries are only
used to secure Indebtedness, all or a substantial portion of which constituted a
substantial portion of the financing of an acquisition of, or relating to the
acquisition of, a Restricted Subsidiary (or a direct or indirect parent of such
Restricted Subsidiary), and refinancings of such Indebtedness; and provided
--------
further that with respect to each of clause (A) and clause (B) above, (1) any
- -------
such refinancing Indebtedness shall have (A) an Average Life no less than the
Indebtedness being refinanced (B) a Stated Maturity no earlier than the
Indebtedness being refinanced and (C) a principal amount not in excess of the
Indebtedness being refinanced (plus premiums, accrued interest, fees and
expenses) and (2) in no event shall Indebtedness of the Company be refinanced by
Indebtedness of a Restricted Subsidiary pursuant to this clause and this clause
(x) shall not be construed to permit Liens on property other than such stock or
such intercompany notes; or
(xi) Liens on assets of each Restricted Subsidiary acquired on or
subsequent to the Closing Date that are incurred for the purpose of securing
Indebtedness, all or a portion of which constituted a substantial portion of the
financing of the acquisition of, or relating to the acquisition of, such
Restricted Subsidiary (or a direct or indirect parent of such Restricted
Subsidiary) and refinancings of such Indebtedness; provided that, in the case of
--------
each such Restricted Subsidiary, the Indebtedness secured by the Principal
Property of such Restricted Subsidiary that is subject to any Lien incurred
pursuant to this clause (xi) shall not exceed 80% of the fair market value (as
<PAGE>
52
determined by the Board of Directors of the Company in good faith as of the date
of incurrence of such Lien) of the Principal Property of such Restricted
Subsidiary; provided that fluctuations in such fair market values shall be
--------
deemed not to result in a violation of this Section 4.08.
SECTION 4.09. Limitation on Asset Sales. In the event and to the
-------------------------
extent that the Net Cash Proceeds received by the Company or any of its
Restricted Subsidiaries from one or more Asset Sales occurring on or after the
Closing Date in any period of 12 consecutive months (other than Asset Sales by
the Company or any Restricted Subsidiary to the Company or another Restricted
Subsidiary) exceed 15% of Consolidated Net Tangible Assets in any one fiscal
year (determined as of the date closest to the commencement of such 12-month
period for which a balance sheet of the Company and its Subsidiaries has been
prepared), then the Company shall, or shall cause such Restricted Subsidiary to,
(i) within 12 months after the date Net Cash Proceeds so received exceed 15% of
Consolidated Net Tangible Assets in any one fiscal year (determined as of the
date closest to the commencement of such 12-month period for which a balance
sheet of the Company and its Subsidiaries has been prepared) (A) apply an amount
equal to such excess Net Cash Proceeds to repay unsubordinated Indebtedness of
the Company or Indebtedness of any Restricted Subsidiary, in each case owing to
a Person other than the Company or any of its Subsidiaries or (B) invest an
equal amount, or the amount not so applied pursuant to clause (A) (or enter into
a definitive agreement committing to so invest within 12 months after the date
of such agreement), in property or assets of a nature or type or that are used
in a business (or in a company having property and assets of a nature or type,
or engaged in a business) similar or related to the nature or type of the
property and assets of, or the business of, the Company and its Subsidiaries
existing on the date thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) and (ii) apply such excess Net Cash Proceeds (to the extent not
applied pursuant to clause (i)) as provided in the following paragraphs of this
Section 4.09. The amount of such excess Net Cash Proceeds required to be
applied (or to be committed to be applied) during such 12-month period as set
forth in clause (A) or (B) of the preceding sentence and not applied as so
required by the end of such period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined
below) totals at least $5 million, the Company must, not later than the
fifteenth Business Day of such month, make an offer (an "Excess Proceeds Offer")
to purchase from the Holders on a pro rata basis an aggregate principal amount
of Securities equal to the Excess Proceeds on such date, at a purchase price
equal to 101% of the principal amount of such Securities, plus, accrued interest
(if any) to the date of purchase (the "Excess Proceeds Payment").
The Company shall commence an Excess Proceeds Offer by mailing a
notice to the Trustee and each Holder stating:
<PAGE>
53
(i) that the Excess Proceeds Offer is being made pursuant to this
Section 4.09 and that all Securities validly tendered will be accepted for
payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Excess Proceeds Payment Date");
(iii) that any Note not tendered will continue to accrue interest
pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the Excess
Proceeds Payment, any Note accepted for payment pursuant to the Excess Proceeds
Offer shall cease to accrue interest after the Excess Proceeds Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the
Excess Proceeds Offer will be required to surrender the Note, together with the
form entitled "Option of the Holder to Elect Purchase" on the reverse side of
the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day immediately preceding the
Excess Proceeds Payment Date;
(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Excess Proceeds Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of such Holder,
the principal amount of Securities delivered for purchase and a statement that
such Holder is withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; provided that each Note purchased and
--------
each new Note issued shall be in a principal amount at maturity of $1,000 or
integral multiples thereof.
On the Excess Proceeds Payment Date, the Company shall (i) accept for
payment on a pro rata basis Securities or portions thereof tendered pursuant to
the Excess Proceeds Offer; (ii) deposit with the Paying Agent money sufficient
to pay the purchase price of all Securities or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee all Securities or
portions thereof so accepted together with an Officers' Certificate specifying
the Securities or portions thereof accepted for payment by the Company. The
Paying Agent shall promptly mail to the Holders of Securities so accepted
payment in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; provided that each Note
--------
purchased and each new Note issued shall be in an original principal amount at
maturity of $1,000 or integral
<PAGE>
54
multiples thereof. The Company will publicly announce the results of the Excess
Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date.
For purposes of this Section 4.09, the Trustee shall act as the Paying Agent.
The Company will comply with Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that such Excess Proceeds are received
by the Company under this Section 4.09 and the Company is required to repurchase
Securities as described above.
SECTION 4.10. Repurchase of Securities upon a Change of Control
-------------------------------------------------
Triggering Event. Upon the occurrence of a Change of Control Triggering Event,
- ----------------
each Holder shall have the right to require the repurchase of its Securities by
the Company in cash pursuant to the offer described below (the "Change of
Control Offer") at a purchase price equal to 101% of the principal amount of
such Securities plus accrued interest (if any) to the date of purchase (the
"Change of Control Payment").
Within 30 days following any Change of Control Triggering Event, the
Company shall mail a notice to the Trustee and each Holder stating:
(i) that a Change of Control Triggering Event has occurred, that the
Change of Control Offer is being made pursuant to this Section 4.10 and that all
Securities validly tendered will be accepted for payment;
(ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Change of Control Payment Date");
(iii) that any Note not tendered will continue to accrue interest
pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the Change of
Control Payment, any Note accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Payment Date;
(v) that Holders electing to have any Note purchased pursuant to the
Change of Control Offer will be required to surrender such Note, together with
the form entitled "Option of the Holder to Elect Purchase" on the reverse side
of such Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day immediately preceding
the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Change of Control Payment Date, a
telegram, telex, facsimile
<PAGE>
55
transmission or letter setting forth the name of such Holder, the principal
amount of Securities delivered for purchase and a statement that such Holder is
withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; provided that each Note purchased and
--------
each new Note issued shall be in a principal amount at maturity of $1,000 or
integral multiples thereof.
On the Change of Control Payment Date, the Company shall: (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Offer; (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee all Securities or portions
thereof so accepted together with an Officers' Certificate specifying the
Securities or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail to such Holders a new Note equal in principal amount to any unpurchased
portion of the Note surrendered; provided that each Note purchased and each new
--------
Note issued shall be in a principal amount at maturity of $1,000 or integral
multiples thereof. The Company will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date. For purposes of this Section 4.10, the Trustee shall act as
Paying Agent.
The Company will comply with Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that a Change of Control Triggering
Event occurs under this Section 4.10 and the Company is required to repurchase
Securities as described above.
SECTION 4.11. Limitation on Sale-Leaseback Transactions. The Company
-----------------------------------------
will not, and will not permit any Restricted Subsidiary to, enter into any sale-
leaseback transaction involving any Principal Property, unless the aggregate
amount of all Attributable Indebtedness with respect to such transactions, plus
all Indebtedness secured by Liens on Principal Properties (excluding secured
Indebtedness that is excluded as described in Section 4.08) does not exceed 10%
of Consolidated Net Tangible Assets.
The foregoing restriction does not apply to, and any computation of
Attributable Indebtedness under such limitation shall exclude, any sale-
leaseback transaction if (i) the lease is for a period, including renewal
rights, of not in excess of three years; (ii) the sale or transfer of the
Principal Property is entered into prior to, at the time of, or within 12 months
after the later of the acquisition of the Principal Property or the completion
of construction thereof; (iii) the lease secures or relates to industrial
revenue or pollution control bonds; (iv) the transaction is between the Company
and any Restricted Subsidiary or between Restricted Subsidiaries; or (v) the
Company or such Restricted Subsidiary, within
<PAGE>
56
12 months after the sale of any Principal Property is completed, applies an
amount not less than the net proceeds received from such sale to the retirement
of Senior Indebtedness, to Indebtedness of a Restricted Subsidiary or to the
purchase of other property that will constitute Principal Property or
improvements thereto.
SECTION 4.12. Existence. Subject to Articles Four and Five of this
---------
Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each such Subsidiary and the rights
(whether pursuant to charter, partnership certificate, agreement, statute or
otherwise), material licenses and franchises of the Company and each such
Subsidiary; provided that the Company shall not be required to preserve any such
--------
right, license or franchise, or the existence of any Restricted Subsidiary, if
the maintenance or preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.13. Payment of Taxes and Other Claims. The Company will
---------------------------------
pay or discharge and shall cause each of its Subsidiaries to pay or discharge,
or cause to be paid or discharged, before the same shall become delinquent (i)
all material taxes, assessments and governmental charges levied or imposed upon
(a) the Company or any such Subsidiary, (b) the income or profits of any such
Subsidiary which is a corporation or (c) the property of the Company or any such
Subsidiary and (ii) all material lawful claims for labor, materials and supplies
that, if unpaid, might by law become a Lien upon the property of the Company or
any such Subsidiary; provided that the Company shall not be required to pay or
--------
discharge, or cause to be paid or discharged, any such tax, assessment, charge
or claim the amount, applicability or validity of which is being contested in
good faith by appropriate proceedings and for which adequate reserves have been
established.
SECTION 4.14. Maintenance of Properties and Insurance. The Company
---------------------------------------
will cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries, to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided
--------
that nothing in this Section 4.14 shall prevent the Company or any such
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company, desirable in the conduct of the business of the
Company or such Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability
<PAGE>
57
insurance, with reputable insurers or with the government of the United States
of America, or an agency or instrumentality thereof, in such amounts, with such
deductibles and by such methods as shall be customary for corporations similarly
situated in the industry in which the Company or such Restricted Subsidiary, as
the case may be, is then conducting business.
SECTION 4.15. Notice of Defaults. In the event that the Company
------------------
becomes aware of any Default or Event of Default the Company, promptly after it
becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 4.16. Compliance Certificates. (a) The Company shall
-----------------------
deliver to the Trustee, within 45 days after the end of each fiscal quarter (90
days after the end of the last fiscal quarter of each year), an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that occurred during such fiscal quarter. In the case of the Officers'
Certificate delivered within 90 days of the end of the Company's fiscal year,
such certificate shall contain a certification from the principal executive
officer, principal financial officer or principal accounting officer that a
review has been conducted of the activities of the Company and its Subsidiaries
and the Company's and its Subsidiaries' performance under this Indenture and
that the Company has complied with all conditions and covenants under this
Indenture. For purposes of this Section 4.16, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. If they do know of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default and
its status. The first certificate to be delivered pursuant to this Section
4.16(a) shall be for the first fiscal quarter beginning after the execution of
this Indenture.
(b) The Company shall deliver to the Trustee, within 90 days after the
end of the Company's fiscal year, a certificate signed by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, (ii) that they have read the
most recent Officers' Certificate delivered to the Trustee pursuant to paragraph
(a) of this Section 4.16 and (iii) whether, in connection with their audit
examination, anything came to their attention that caused them to believe that
the Company was not in compliance with any of the terms, covenants, provisions
or conditions of Article Four and Section 5.01 of this Indenture as they pertain
to accounting matters and, if any Default or Event of Default has come to their
attention, specifying the nature and period of existence thereof; provided that
--------
such independent certified public accountants shall not be liable in respect of
such statement by reason of any failure to obtain knowledge of any such Default
or Event of Default that would not be disclosed in the course of an audit
examination conducted in accordance with generally accepted auditing standards
in effect at the date of such examination.
(c) Within 90 days of the end of each of the Company's fiscal years,
the Company shall deliver to the Trustee a list of all Significant Subsidiaries.
The Trustee shall
<PAGE>
58
have no duty with respect to any such list except to keep it on file and
available for inspection by the Holders.
SECTION 4.17. Commission Reports and Reports to Holders. Whether or
-----------------------------------------
not the Company is required to file reports with the Commission, if any
Securities are outstanding the Company shall file with the Commission all such
reports and other information as it would be required to file with the
Commission by Section 13(a) or 15(d) under the Exchange Act. The Company shall
supply the Trustee and each Holder of Securities, or shall supply to the Trustee
for forwarding to each Holder of Securities, without cost to such Holder, copies
of such reports or other information. In addition, upon the request by any
Holder or any prospective purchaser of the Securities designated by a Holder,
the Company shall supply to such Holder or such prospective purchaser the
information required under Rule 144A. The Company also shall comply with the
other provisions of TIA Section 3.14(a).
SECTION 4.18. Waiver of Stay, Extension or Usury Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE FIVE
Successor Corporation
SECTION 5.01. When Company May Merge, Etc. The Company shall not
---------------------------
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person (other than a Restricted Subsidiary that is a
Wholly Owned Subsidiary of the Company with a positive net worth; provided that,
--------
in connection with any merger of the Company with a Restricted Subsidiary that
is a Wholly Owned Subsidiary of the Company, no consideration (other than Common
Stock in the surviving Person or the Company) shall be issued or distributed to
the stockholders of the Company) or permit any Person to merge with or into the
Company unless:
<PAGE>
59
(i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or that acquired or leased such property and assets of the Company
shall be a corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly assume,
by a supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company on all of the
Securities and under the Indenture;
(ii) immediately after giving effect to such transaction, no Event of
Default and no event that, after notice or passage of time or both, will become
an Event of Default, shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on a pro
---
forma basis, the Company (or any Person that becomes the successor obligor of
- -----
the Securities) could Incur $1.00 of Indebtedness under the first paragraph of
Section 4.03(a) of this Indenture;
(iv) immediately after giving effect to such transaction on a pro
---
forma basis, the Company (or any Person that becomes the successor obligor of
- -----
the Securities) shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such transaction; and
(v) the Company delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with clauses
(iii) and (iv), unless such clauses are no longer applicable under Section 8.03)
and an Opinion of Counsel, in each case stating that such consolidation, merger
or transfer and such supplemental indenture comply with this provision and that
all conditions precedent provided for herein relating to such transaction have
been complied with;
provided, however, that clauses (iii) and (iv) above do not apply if, in the
- -------- -------
good faith determination of the Board of Directors, whose determination shall be
evidenced by a Board Resolution, the principal purpose of such transaction is to
change the state of incorporation of the Company; and provided further that any
-------- -------
such transaction shall not have as one of its purposes the evasion of the
foregoing limitations.
SECTION 5.02. Successor Substituted. Upon any consolidation or
---------------------
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein.
<PAGE>
60
ARTICLE SIX
Default and Remedies
SECTION 6.01. Events of Default. An "Event of Default" shall occur
----------------- ----------------
with respect to the Securities if:
(a) the Company defaults in the payment of the principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption (including, without limitation, the Special Redemption)
or otherwise;
(b) the Company defaults in the payment of interest on any Note, when the
same becomes due and payable, and such default continues for a period of 30
days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in the Indenture or under the Securities
and such default or breach continues for a period of 30 consecutive days after
written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount of the Securities;
(d) there occurs with respect to any issue or issues of Indebtedness of the
Company and/or one or more Significant Subsidiaries having an outstanding
principal amount of $5 million or more individually or $10 million or more in
the aggregate for all such issues of all such Persons, whether such Indebtedness
now exists or shall hereafter be created, an event of default that has caused
the holder thereof to declare such Indebtedness to be due and payable prior to
its Stated Maturity and such Indebtedness has not been discharged in full or
such acceleration has not been rescinded or annulled within 30 days of such
acceleration;
(e) any final judgment or order (not covered by insurance) for the payment
of money in excess of $5 million individually or $10 million in the aggregate
for all such final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be rendered
against the Company or any Significant Subsidiary and shall not be discharged,
and there shall be any period of 30 consecutive days following entry of the
final judgment or order in excess of $5 million individually or that causes the
aggregate amount for all such final judgments or orders outstanding against all
such Persons to exceed $10 million during which a stay of enforcement of such
final judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect;
(f) a court having jurisdiction in the premises enters a decree or order
for (i) relief in respect of the Company or any Significant Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or
<PAGE>
61
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (iii) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days;
(g) the Company or any Significant Subsidiary (i) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (iii) effects any general assignment for the benefit
of creditors;
(h) the Company and/or one or more Significant Subsidiaries fails to make
(i) at the final (but not any interim) fixed maturity of an issue of
Indebtedness a principal payment of $5 million or more or (ii) at the final (but
not any interim) fixed maturity of more than one issue of such Indebtedness
principal payments aggregating $10 million or more and, in the case of clause
(i), such defaulted payment shall not have been made, waived or extended within
30 days of the payment default and, in the case of clause (ii), all such
defaulted payments shall not have been made, waived or extended within 30 days
of the payment default that causes the amount described in clause (ii) to exceed
$10 million; or
(i) the nonpayment of any three or more items of Indebtedness that would
constitute at the time of such nonpayments, but for the individual amounts of
such Indebtedness, an Event of Default under clause (d) or clause (h) above, or
both, and which items of Indebtedness aggregate $10 million or more.
SECTION 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in clause (f) or (g) of Section 6.01 that occurs with
respect to the Company) occurs and is continuing under the Indenture, the
Trustee thereunder or the Holders of at least 25% of the aggregate principal
amount of the Securities then outstanding, by written notice to the Company (and
to the Trustee if such notice is given by the Holders (the "Acceleration
Notice")), may, and the Trustee at the request of the applicable Holders shall,
declare the entire unpaid principal of, premium, if any, and accrued interest on
the Securities to be immediately due and payable. Upon a declaration of
acceleration, such principal of, premium, if any, and accrued interest shall be
immediately due and payable. In the event of a declaration of acceleration
because an Event of Default set forth in clause (d) or (h) of Section 6.01 has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (d) or (h) shall be remedied, cured by the
Company or waived by
<PAGE>
62
the holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in clause
(f) or (g) of Section 6.01 occurs with respect to the Company, all unpaid
principal of, premium, if any, and accrued interest on the Securities then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration, but before a
judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Securities by written notice to the Company and to the Trustee may
waive all past Defaults and rescind and annul such declaration of acceleration
and its consequences if (a) the Company has paid or deposited with the Trustee a
sum sufficient to pay (i) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, (ii) all overdue interest on all Securities,
(iii) the principal of and premium, if any, on any Securities that have become
due otherwise than by such declaration or occurrence of acceleration and
interest thereon at the rate prescribed therefor by such Securities, and (iv) to
the extent that payment of such interest is lawful, interest upon overdue
interest at the rate prescribed therefor by such Securities, (b) all existing
Events of Default, other than the non-payment of the principal of, premium, if
any, and accrued interest on the Securities that have become due solely by such
declaration of acceleration, have been cured or waived and (c) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue, in its own name or as trustee of an express
trust, any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02,
-----------------------
6.07 and 9.02, the Holders of at least a majority in principal amount of the
outstanding Securities, by notice to the Trustee, may waive an existing Default
or Event of Default and its consequences, except a Default in the payment of
principal of, premium, if any, or interest on any Security as specified in
clause (a) or (b) of Section 6.01 or in respect of a covenant or provision of
this Indenture which cannot be modified or amended without the consent of the
holder of each outstanding Security affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
<PAGE>
63
SECTION 6.05. Control by Majority. The Holders of at least a
-------------------
majority in aggregate principal amount of the outstanding Securities may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee;
provided that the Trustee may refuse to follow any direction that conflicts with
- --------
law or this Indenture, that may involve the Trustee in personal liability, or
that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders not joining in the giving of such direction; and provided
--------
further that the Trustee may take any other action it deems proper that is not
- -------
inconsistent with any directions received from Holders of Securities pursuant to
this Section 6.05.
SECTION 6.06. Limitation on Suits. A Holder may not institute any
-------------------
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any costs, liabilities or expenses to be
incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(v) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities have not given the Trustee a
direction that is inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
------------------------------------
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal of, premium, if any, or interest on such Holder's
Security on or after the respective due dates expressed on such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
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64
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
--------------------------
payment of principal, premium or interest specified in clause (a) or (b) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor of the Securities for the whole amount of principal, premium, if any,
and accrued interest, if any, remaining unpaid, together with interest on
overdue principal, premium, if any, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate specified in the Securities, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
--------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.06) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor of the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.06. Nothing herein contained shall be
deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
----------
to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.06;
Second: to Holders for amounts then due and unpaid for principal of,
premium, if any, and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively; and
Third: to the Company or any other obligors of the Securities, as their
interests may appear, or as a court of competent jurisdiction may direct.
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65
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require any party litigant in such suit to file an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than
10% in principal amount of the outstanding Securities.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Company, Trustee and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.09, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
<PAGE>
66
ARTICLE SEVEN
Trustee
SECTION 7.01. Certain Rights of Trustee. Subject to TIA Sections
-------------------------
315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to Section
10.04. The Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care;
(iv) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(v) the Trustee or Paying Agent shall not be liable for interest on any
money recovered by it except as the Trustee or Paying Agent may agree in writing
with the Company. Money held in trust by the Trustee or Paying Agent need not
be segregated from other funds except to the extent required by law and except
under Article Eight of this Indenture;
(vi) the Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers or for any action it takes or omits to take in accordance with the
direction of the Holders of a majority in principal amount of the outstanding
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; provided that the Trustee's
--------
conduct does not constitute negligence or bad faith;
<PAGE>
67
(vii) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon; and
(viii) no provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 7.02. Individual Rights of Trustee. The Trustee, in its
----------------------------
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.03. Trustee's Disclaimer. Neither the Trustee nor any of
--------------------
its agents (i) makes any representation as to the validity or adequacy of this
Indenture or the Securities, (ii) shall be accountable for the Company's use or
application of the proceeds from the Securities and (iii) shall be responsible
for any statement in the Securities other than its certificate of
authentication.
SECTION 7.04. Notice of Default. If any Default or any Event of
-----------------
Default occurs and is continuing and if such Default or Event of Default is
known to the Trustee, the Trustee shall mail to each Holder in the manner and to
the extent provided in TIA Section 313(c) notice of the Default or Event of
Default within 90 days after it occurs, unless such Default or Event of Default
has been cured; provided, however, that, except in the case of a default in the
-------- -------
payment of the principal of, premium, if any, or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
SECTION 7.05. Reports by Trustee to Holders. Within 60 days after
-----------------------------
each May 15, beginning with May 15, 1995, the Trustee shall mail to each Holder
as provided in TIA Section 313(c) a brief report dated as of such May 15, if
required by TIA Section 313(a).
SECTION 7.06. Compensation and Indemnity. The Company shall pay to
--------------------------
the Trustee such compensation as shall be agreed upon in writing for its
services. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable
<PAGE>
68
out-of-pocket expenses and advances incurred or made by the Trustee. Such
expenses shall include the reasonable compensation and expenses of the Trustee's
agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee for, and hold it harmless against, any and all loss, damage, claim or
liability or expense, including taxes (other than taxes based on the income of
the Trustee) incurred by it without negligence or bad faith on its part in
connection with the acceptance or administration of this Indenture and its
duties under this Indenture and the Securities, including the costs and expenses
of defending itself against any claim or liability and of complying with any
process served upon it or any of its officers in connection with the exercise or
performance of any of its powers or duties under this Indenture and the
Securities. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay reasonable fees and expenses of such
counsel. The Company need not pay for any settlements made without its consent;
provided that such consent shall not be unreasonably withheld. The Company need
- --------
not reimburse any expense or indemnify against any loss or liability incurred by
the Trustee through negligence or bad faith.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (f) or (g) of Section
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
The Trustee shall have a claim prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.06, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 7.07. Replacement of Trustee. A resignation or removal of
----------------------
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section 7.07.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the consent of the Company. The Company may remove the
Trustee if: (i) the Trustee is no longer eligible under Section 7.9 of this
Indenture; (ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
<PAGE>
69
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, (i) the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee shall become effective and (iii) the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
If the Trustee is no longer eligible under Section 7.09, any Holder
who satisfies the requirements of TIA Section 310(b) may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
The Company shall give notice of any resignation and any removal of
the Trustee and each appointment of a successor Trustee to all Holders. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.07, the Company's obligation under Section 7.06 shall continue for the benefit
of the retiring Trustee.
SECTION 7.08. Successor Trustee by Merger, Etc. If the Trustee
--------------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.09. Eligibility. This Indenture shall always have a
-----------
Trustee who satisfies the requirements of TIA Section 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $25,000,000 as set forth
in its most recent published annual report of condition.
<PAGE>
70
SECTION 7.10. Indenture Not Creating Potential Conflicting Interests
------------------------------------------------------
for the Trustee. The following indenture is hereby specifically described for
- ----------------
the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: the
Indenture dated December 17, 1992 between the Company and The Bank of New York,
as Trustee relating to $110,000,000 principal amount of 12 1/4% Senior
Subordinated Deferred Coupon Debentures due 2004.
SECTION 7.11 Withholding Taxes. The Trustee, as agent for the
-----------------
Company, shall exclude and withhold from each payment of principal and interest
and other amounts due hereunder or under the Securities any and all withholding
taxes applicable thereto as required by law. The Trustee agrees to act as such
withholding agent and, in connection therewith, whenever any present or future
taxes or similar charges are required to be withheld with respect to any amounts
payable in respect of the Securities, to withhold such amounts and timely pay
the same to the appropriate authority in the name of and on behalf of the
holders of the Securities, that it will file any necessary withholding tax
returns or statements when due, and that, it will deliver to each holder of a
Security, in a timely manner, appropriate documentation showing the payment
thereof.
ARTICLE EIGHT
Discharge of Indenture
SECTION 8.01. Termination of Company's Obligations. Except as
------------------------------------
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities and this Indenture if:
(i) all Securities previously authenticated and delivered (other than
destroyed, lost or stolen Securities that have been replaced or Securities that
are paid pursuant to Section 4.01 or Securities for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities mature within one year or all of them are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for giving the notice of redemption, (B) the Company irrevocably
deposits in trust with the Trustee during such one-year period, under the terms
of an irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds solely for the benefit of the Holders for that purpose,
money or U.S. Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if, any, and
interest on the Securities to maturity or redemption (including Special
Redemption), as the case may be, and to pay all other sums payable by it
<PAGE>
71
hereunder, (C) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit, (D) such
deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound and (E) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the satisfaction
and discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), the Company's obligations
under Section 7.06 shall survive. With respect to the foregoing clause (ii),
the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.09, 2.14, 4.01, 4.02, 7.06, 7.07, 8.04, 8.05 and 8.06 shall survive until the
Securities are no longer outstanding. Thereafter, only the Company's obligations
in Sections 7.06, 8.05 and 8.06 shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under the Securities and this Indenture except for
those surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. The Company
-------------------------------------
will be deemed to have paid and will be discharged from any and all obligations
in respect of the Securities on the 123rd day after the date of the deposit
referred to in clause (A) of this Section 8.02, and the provisions of this
Indenture will no longer be in effect with respect to the Securities, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same, except as to (i) rights of registration of transfer and
exchange, (ii) substitution of apparently mutilated, defaced, destroyed, lost or
stolen Securities, (iii) rights of Holders to receive payments of principal
thereof and interest thereon, (iv) the Company's obligations under Section 4.02,
(v) the rights, obligations and immunities of the Trustee hereunder and (vi) the
rights of the Holders as beneficiaries of this Indenture with respect to the
property so deposited with the Trustee payable to all or any of them; provided
--------
that the following conditions shall have been satisfied:
(A) with reference to this Section 8.02, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.09 of this Indenture) and
conveyed all right, title and interest for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Securities, and dedicated solely to, the
benefit of the Holders, in and to (1) money in an amount, (2) U.S. Government
Obligations that, through the payment of interest, premium, if any, and
principal in respect thereof in accordance with their terms, will provide, not
later than one day before the due date of any payment referred to in this clause
(A), money in an amount or (3) a combination thereof in an amount sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in
<PAGE>
72
a written certification thereof delivered to the Trustee, to pay
and discharge, without consideration of the reinvestment of such interest and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and accrued interest on the outstanding Securities at the
Stated Maturity of such principal or interest; provided that the Trustee shall
--------
have been irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to the payment of such principal, premium, if any,
and interest with respect to the Securities;
(B) such deposit will not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(C) immediately after giving effect to such deposit on a pro forma basis,
--- -----
no Default or Event of Default shall have occurred and be continuing on the date
of such deposit or during the period ending on the 123rd day after such date of
deposit;
(D) the Company shall have delivered to the Trustee (1) either (x) a ruling
directed to the Trustee received from the Internal Revenue Service to the effect
that the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under this Section
8.02 and will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such option had
not been exercised or (y) an Opinion of Counsel to the same effect as the ruling
described in clause (x) above accompanied by a ruling to that effect published
by the Internal Revenue Service, unless there has been a change in the
applicable federal income tax law since the date of this Indenture such that a
ruling from the Internal Revenue Service is no longer required and (2) an
Opinion of Counsel to the effect that (x) the creation of the defeasance trust
does not violate the Investment Company Act of 1940 and (y) after the passage of
123 days following the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider" for purposes of the
United States Bankruptcy Code, after one year following the deposit), the trust
funds will not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law in a case
commenced by or against the Company under either such statute, and either (I)
the trust funds will no longer remain the property of the Company (and therefore
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally) or (II) if
a court were to rule under any such law in any case or proceeding that the trust
funds remained property of the Company, (a) assuming such trust funds remained
in the possession of the Trustee prior to such court ruling to the extent not
paid to the Holders, the Trustee will hold, for the benefit of the Holders, a
valid and perfected security interest in such trust funds that is not avoidable
in bankruptcy or otherwise except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing after the
<PAGE>
73
commencement of a case under such statute and (b) the Holders will be entitled
to receive adequate protection of their interests in such trust funds if such
trust funds are used in such case or proceeding;
(E) if the Securities are then listed on a national securities exchange,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not cause the Securities
to be delisted; and
(F) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02
have been complied with.
Notwithstanding the foregoing clause (A), prior to the end of the 123-
day (or one year) period referred to in clause (D)(2)(y) of this Section 8.02,
none of the Company's obligations under this Indenture shall be discharged.
Subsequent to the end of such 123-day (or one year) period with respect to this
Section 8.02, the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.06, 7.07, 8.05 and 8.06 shall
survive until the Securities are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.06, 8.05 and 8.06 shall survive. If and
when a ruling from the Internal Revenue Service or an Opinion of Counsel
referred to in clause (D)(1) of this Section 8.02 is able to be provided
specifically without regard to, and not in reliance upon, the continuance of the
Company's obligations under Section 4.01, then the Company's obligations under
such Section 4.01 shall cease upon delivery to the Trustee of such ruling or
Opinion of Counsel and compliance with the other conditions precedent provided
for herein relating to the defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The Company may
---------------------------------
omit to comply with any term, provision or condition set forth in clauses (iii)
and (iv) of Section 5.01 and Sections 4.03 through 4.17, and clause (c) of
Section 6.01 with respect to clauses (iii) and (iv) of Section 5.01 and Sections
4.03 through 4.17, and clauses (d), (e) and (h) of Section 6.01 shall be deemed
not to be Events of Default, in each case with respect to the outstanding
Securities if:
(i) with reference to this Section 8.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.9) and conveyed all right,
title and interest to the Trustee for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee as trust funds in trust,
<PAGE>
74
specifically pledged to the Trustee for the benefit of the Holders as security
for payment of the principal of, premium, if any, and interest, if any, on the
Securities, and dedicated solely to, the benefit of the Holders, in and to (A)
money in an amount, (B) U.S. Government Obligations that, through the payment of
interest and principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment referred to
in this clause (i), money in an amount or (C) a combination thereof in an amount
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the principal
of, premium, if any, and interest on the outstanding Securities on the Stated
Maturity of such principal or interest; provided that the Trustee shall have
--------
been irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal, premium, if any, and
interest with respect to the Securities;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel to the
effect that (A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, (B) the Holders have a valid first-priority
security interest in the trust funds, (C) the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to federal income tax on
the same amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred and (D) after the
passage of 123 days following the deposit (except, with respect to any trust
funds for the account of any Holder who may be deemed to be an "insider" for
purposes of the United States Bankruptcy Code, after one year following the
deposit), the trust funds will not be subject to the effect of Section 547 of
the United States Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company under either such
statute, and either (1) the trust funds will no longer remain the property of
the Company (and therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally) or (2) if a court were to rule under any such law in any case
or proceeding that the trust funds remained property of the Company, (x)
assuming such trust funds remained in the possession of the Trustee prior to
such court ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected
<PAGE>
75
security interest in such trust funds that is not avoidable in bankruptcy or
otherwise (except for the effect of Section 552(b) of the United States
Bankruptcy Code on interest on the trust funds accruing after the commencement
of a case under such statute), (y) the Holders will be entitled to receive
adequate protection of their interests in such trust funds if such trust funds
are used in such case or proceeding and (z) no property, rights in property or
other interests granted to the Trustee or the Holders in exchange for, or with
respect to, such trust funds will be subject to any prior rights of holders of
other Indebtedness of the Company or any of its Subsidiaries;
(v) if the Securities are then listed on a national securities exchange,
the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not cause the Securities
to be delisted; and
(vi) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.03
have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Sections 8.05
--------------------------
and 8.06, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03,
as the case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Securities and this Indenture to
the payment of principal of, premium, if any, and interest on the Securities;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.06, 8.01,
--------------------
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years; provided that
--------
the Trustee or such Paying Agent before being required to make any payment may
cause to be published at the expense of the Company once in a newspaper of
general circulation in The City of New York or mail to each Holder entitled to
such money at such Holder's address (as set forth in the Security Register)
notice that such money remains unclaimed and that after a date specified therein
(which shall be at least 30 days from the date of such publication or mailing)
any unclaimed balance of such money then remaining will be repaid to the
Company; and provided further that the Trustee may comply with any applicable
-------- -------
escheat or abandoned property law. After payment to the Company, Holders
entitled to such money must look to the Company for payment as general creditors
unless an
<PAGE>
76
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
-------------
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02
or 8.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01, 8.02 or 8.03, as the case may be; provided that, if the
--------
Company has made any payment of principal of, premium, if any, or interest on
any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
ARTICLE NINE
Amendments, Supplements and Waivers
SECTION 9.01. Without Consent of Holders. The Company, when
--------------------------
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement this Indenture or the Securities without notice to or the consent
of any Holder:
(1) to cure any ambiguity, defect or inconsistency in the Indenture;
provided that such amendments or supplements shall not adversely affect the
- --------
interests of the Holders in any material respect;
(2) to comply with Article Five of this Indenture;
(3) to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee; or
(5) to make any change that does not adversely affect the rights of any
Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
-----------------------
6.07 and without prior notice to the Holders, the Company, when authorized by
its Board of Directors (as evidenced by a Board Resolution), and the Trustee may
amend this Indenture
<PAGE>
77
and the Securities with the written consent of the Holders of not less than a
majority in principal amount of the Securities then outstanding, and the Holders
of not less than a majority in principal amount of the Securities then
outstanding by written notice to the Trustee may waive future compliance by the
Company with any provision of this Indenture or the Securities.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption (including Special
Redemption) thereof, or adversely affect any right of repayment at the option of
any Holder of any Security, or change any place of payment where, or the
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date or the Special Redemption Date, as the case may
be);
(ii) reduce the percentage in principal amount of outstanding Securities
the consent of whose Holders is required for any such supplemental indenture,
for any waiver of compliance with certain provisions of this Indenture or
certain Defaults and their consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of, premium, if any,
or interest on, any Security; or
(iv) modify any of the provisions of this Section 9.02, except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
<PAGE>
78
SECTION 9.03. Revocation and Effect of Consent. Until an amendment
--------------------------------
or waiver becomes effective, a consent to it by a Holder is a continuing consent
by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Securities.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in any of clauses (i)
through (iv) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (i) through (iv) of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the consenting
Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an
-------------------------------------
amendment, supplement or waiver changes the terms of a Security, the Trustee may
require the Holder to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security
thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
-------------------------------
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the rights
of the Trustee. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver that affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
<PAGE>
79
SECTION 9.06. Conformity with Trust Indenture Act. Every
-----------------------------------
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the TIA as then in effect.
ARTICLE TEN
Miscellaneous
SECTION 10.01. Trust Indenture Act of 1939. Prior to the
---------------------------
effectiveness of the Registration Statement, this Indenture shall incorporate
and be governed by the provisions of the TIA that are required to be part of and
to govern indentures qualified under the TIA. After the effectiveness of the
Registration Statement, this Indenture shall be subject to the provisions of the
TIA that are required to be a part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 10.02. Notices. Any notice or communication shall be
-------
sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to the Company:
-----------------
Exide Corporation
645 Penn Street
Reading, Pennsylvania 19612-4205
Attention: Chief Financial Officer
if to the Trustee:
-----------------
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to him
at his address as it appears on the Security Register by first class mail and
shall be sufficiently given to him if so mailed within the time prescribed.
Copies of any such communication or notice to a Holder shall also be mailed to
the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except for a
notice to the Trustee,
<PAGE>
80
which is deemed given only when received, and except as otherwise provided in
this Indenture, if a notice or communication is mailed in the manner provided in
this Section 10.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such Counsel,
all such conditions precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based;
(iii) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether or not, in the opinion of each such person,
such condition or covenant has been complied with; provided, however, that, with
-------- -------
<PAGE>
81
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
SECTION 10.05. Rules by Trustee, Paying Agent or Registrar. The
-------------------------------------------
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.06. Payment Date Other Than a Business Day. If an
--------------------------------------
Interest Payment Date, Redemption Date, Special Redemption Date, Change of
Control Payment Date, Excess Proceeds Payment Date, Stated Maturity or date of
maturity of any Security shall not be a Business Day at any place of payment,
then payment of principal of, premium, if any, or interest on such Security, as
the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on the Interest Payment Date, Change of Control Payment Date, Excess
Proceeds Payment Date, Special Redemption Date, or Redemption Date, or at the
Stated Maturity or date of maturity of such Security; provided that no interest
--------
shall accrue for the period from and after such Interest Payment Date, Change of
Control Payment Date, Excess Proceeds Payment Date, Redemption Date, Special
Redemption Date, Stated Maturity or date of maturity, as the case may be.
SECTION 10.07. Governing Law. The laws of the State of New York
-------------
applicable to contracts to be performed entirely in that state shall govern this
Indenture and the Securities. The Trustee, the Company and the Holders agree to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Indenture or the Securities.
SECTION 10.08. No Adverse Interpretation of Other Agreements. This
---------------------------------------------
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.09. No Recourse Against Others. No recourse for the
--------------------------
payment of the principal of, premium, if any, or interest on any of the
Securities, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
contained in this Indenture, or in any of the Securities, or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator or against any past, present or future partner, shareholder, other
equityholder, officer, director, employee or controlling person, as such, of the
Company or of any successor Person, either directly or through the Company or
any successor Person, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.
<PAGE>
82
SECTION 10.10. Successors. All agreements of the Company in this
----------
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 10.11. Duplicate Originals. The parties may sign any number
-------------------
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 10.12. Separability. In case any provision in this Indenture
------------
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.13. Table of Contents, Headings, Etc. The Table of
--------------------------------
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
<PAGE>
83
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
EXIDE CORPORATION,
as Issuer
By:______________________________
Name: Douglas N. Pearson
Title: Executive Vice President
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Name: Mary Jane Morrissey
Title: Assistant Vice President
<PAGE>
EXHIBIT A
---------
[FACE OF NOTE]
EXIDE CORPORATION
10% Senior Note Due 2005
[CUSIP] [CINS] ___________
No. $____________
EXIDE CORPORATION, a Delaware corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to ____________ , or its registered assigns, the
principal sum of _________________ ($__________) on April 15, 2005.
Interest Payment Dates: April 15 and October 15, commencing October
15, 1995.
Regular Record Dates: April 1 and October 1.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
EXIDE CORPORATION
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
<PAGE>
A-2
(Form of Trustee's Certificate of Authentication)
This is one of the 10% Senior Notes Due 2005 described in the within-mentioned
Indenture.
Dated: __________, _____
THE BANK OF NEW YORK,
as Trustee
By
-------------------------------
Authorized Signatory
<PAGE>
A-3
[REVERSE SIDE OF NOTE]
EXIDE CORPORATION
10% Senior Note Due 2005
1. Principal and Interest.
----------------------
The Company will pay the principal of this Note on April 15, 2005.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate of 10% per
annum (subject to adjustment as provided below).
Interest will be payable semiannually (to the holders of record of the
Notes at the close of business on the April 1 or October 1 immediately preceding
the applicable Interest Payment Date) on each Interest Payment Date, commencing
October 15, 1995.
If an exchange offer registered under the Securities Act is not
consummated, or a shelf registration statement under the Securities Act with
respect to resales of the Notes is not declared effective by the Commission, on
or prior to October 28, 1995 in accordance with the terms of a Registration
Rights Agreement dated April 28, 1995 between the Company and Morgan Stanley &
Co. Incorporated, the annual interest rate borne by the Notes shall be
permanently increased by 0.5% from the rate shown above. The Holder of this
Note is entitled to the benefits of such Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from April 28, 1995;
provided that, if there is no existing default in the payment of interest and if
- --------
this Note is authenticated between a Regular Record Date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum that is 2% in excess of the rate otherwise payable.
<PAGE>
A-4
2. Method of Payment.
-----------------
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes as provided above on each April 15 and October 15
commencing October 15, 1995 to the persons who are Holders (as reflected in the
Security Register) at the close of business on such April 1 and October 1
immediately preceding the Interest Payment Date, in each case, even if the Note
is cancelled on registration of transfer or registration of exchange after such
record date; provided that, with respect to the payment of principal, the
--------
Company will make payment to the Holder that surrenders this Note to a Paying
Agent on or after April 15, 2005.
The Company will pay principal, premium, if any, and as provided
above, interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company may
pay principal, premium, if any, and interest by its check payable in such money.
It may mail an interest check to a Holder's registered address (as reflected in
the Security Register). If a payment date is a date other than a Business Day
at a place of payment, payment may be made at that place on the next succeeding
day that is a Business Day and no interest shall accrue for the intervening
period.
3. Paying Agent and Registrar.
--------------------------
Initially, the Trustee will act as authenticating agent, Paying Agent
and Registrar. The Company may change any authenticating agent, Paying Agent or
Registrar without notice to the Holders in accordance with the Indenture. The
Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent,
Registrar or co-Registrar.
4. Indenture; Limitations.
----------------------
The Company issued the Notes under an Indenture dated as of April 28,
1995 (the "Indenture"), between the Company and The Bank of New York, as trustee
(the "Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control.
The Notes are general obligations of the Company. The Indenture
limits the original aggregate principal amount of the Notes to $300,000,000 at
any one time outstanding.
<PAGE>
A-5
5. Redemption.
----------
The Notes will be redeemable, at the Company's option, in whole or in
part, at any time on or after April 15, 2000 and prior to maturity, upon not
less than 30 nor more than 60 days' prior notice mailed by first class mail to
each Holder's last address as it appears in the Security Register, at the
following Redemption Prices (expressed in percentages of principal amount), plus
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the 12-month period commencing on April 15 of the
applicable year set forth below:
Year Redemption Price
---- ----------------
2000 105.0%
2001 102.5%
2002 and thereafter 100.0%
The Notes shall be redeemed, in whole (the "Special Redemption"), at
101% of the principal amount thereof plus accrued interest to the redemption
date (the "Special Redemption Price") in the event that the CEAC Acquisition is
not consummated on or prior to June 30, 1995, subject to an extension of up to
one month at the option of the Company (such date, as extended, being the
"Termination Date"). The redemption date for the Special Redemption (the
"Special Redemption Date") will be five Business Days after the Termination
Date.
Notice of any optional redemption will be mailed at least 30 days but
not more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at his last address as it appears in the Security Register. Notes in
original denominations larger than $1,000 may be redeemed in part. On and after
the Redemption Date or the Special Redemption Date, as the case may be, interest
ceases to accrue on Notes or portions of Notes called for redemption, unless the
Company defaults in the payment of the Redemption Price.
<PAGE>
A-6
6. Repurchase upon Change in Control.
---------------------------------
Upon the occurrence of any Change of Control Triggering Event, each
Holder shall have the right to require the repurchase of its Notes by the
Company in cash pursuant to the offer described in the Indenture at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30 days after
any Change of Control occurs to each Holder at his last address as it appears in
the Security Register. Notes in original denominations larger than $1,000 may be
sold to the Company in part. On and after the Change of Control Payment Date,
interest ceases to accrue on Notes or portions of Notes surrendered for purchase
by the Company, unless the Company defaults in the payment of the Change of
Control Payment.
7. Denominations; Transfer; Exchange.
---------------------------------
The Notes are in registered form without coupons in denominations of
$1,000 of principal amount and multiples of $1,000 in excess thereof. A Holder
may register the transfer or exchange of Notes in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
or exchange of any Notes selected for redemption. Also, it need not register
the transfer or exchange of any Notes for a period of 15 days before a selection
of Notes to be redeemed is made.
8. Persons Deemed Owners.
---------------------
A Holder shall be treated as the owner of a Note for all purposes.
9. Unclaimed Money.
---------------
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
-----------------------------------------
<PAGE>
A-7
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Notes (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Notes, except in certain
circumstances for certain sections thereof, and (b) to the Stated Maturity, the
Company will be discharged from certain covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing default or
compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not materially
and adversely affect the rights of any Holder.
12. Restrictive Covenants.
---------------------
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries, among other things, to Incur additional
Indebtedness, make Restricted Payments, use the proceeds from Asset Sales,
engage in transactions with Affiliates, enter into sale-leaseback transactions
or merge, consolidate or transfer substantially all of its assets. Within 45
days after the end of each fiscal quarter (90 days after the end of the last
fiscal quarter of each year), the Company must report to the Trustee on
compliance with such limitations.
13. Successor Persons.
-----------------
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
14. Defaults and Remedies.
---------------------
The following events constitute "Events of Default" under the
Indenture: (a) the Company defaults in the payment of the principal of (or
premium, if any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, redemption (including, without limitation, the Special
Redemption) or otherwise; (b) the Company defaults in the payment of interest on
any Note, when the same becomes due and payable,
<PAGE>
A-8
and such default continues for a period of 30 days; (c) the Company defaults in
the performance of or breaches any other covenant or agreement of the Company in
the Indenture or under the Notes and such default or breach continues for a
period of 30 consecutive days after written notice by the Trustee or the Holders
of 25% or more in aggregate principal amount of the Notes; (d) issues of
Indebtedness of the Company and/or one or more Significant Subsidiaries having
an outstanding principal amount of $5 million or more individually or $10
million or more in the aggregate for all such issues of all such Persons,
whether such Indebtedness now exists or shall hereafter be created, an event of
default that has caused the holder thereof to declare such Indebtedness to be
due and payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration; (e) any final judgment or order (not
covered by insurance) for the payment of money in excess of $5 million
individually or $10 million in the aggregate for all such final judgments or
orders against all such Persons (treating any deductibles, self-insurance or
retention as not so covered) shall be rendered against the Company or any
Significant Subsidiary and shall not be discharged, and there shall be any
period of 30 consecutive days following entry of the final judgment or order in
excess of $5 million individually or that causes the aggregate amount for all
such final judgments or orders outstanding against all such Persons to exceed
$10 million during which a stay of enforcement of such final judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; (f) a court
having jurisdiction in the premises enters a decree or order for (i) relief in
respect of the Company or any Significant Subsidiary in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (iii) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; (g) the Company or any Significant Subsidiary (i)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (ii) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (iii) effects any general
assignment for the benefit of creditors; (h) the Company and/or one or more
Significant Subsidiaries fails to make (i) at the final (but not any interim)
fixed maturity of an issue of Indebtedness a principal payment of $5 million or
more or (ii) at the final (but not any interim) fixed maturity of more than one
issue of such Indebtedness principal payments aggregating $10 million or more
and, in the case of clause (i), such defaulted payment shall not have been made,
waived or extended within 30 days of the payment default and, in the case of
clause (ii), all such defaulted payments shall not have been made, waived or
extended within 30 days of the payment default that causes the amount described
in clause (ii) to exceed $10 million; or (i) the nonpayment of any three or more
items of Indebtedness that would constitute at the time of such nonpayments, but
for the individual amounts of such
<PAGE>
A-9
Indebtedness, an Event of Default under clause (d) or clause (h) above, or both,
and which items of Indebtedness aggregate $10 million or more.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Notes may declare all the Notes to be due and payable. If a bankruptcy or
insolvency default with respect to the Company occurs and is continuing, the
Notes automatically become due and payable. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of at least a majority in
principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power.
15. Trustee Dealings with Company.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
16. No Recourse Against Others.
--------------------------
No incorporator or any past, present or future partner, shareholder,
other equity holder, officer, director, employee or controlling person as such,
of the Company or of any successor Person shall have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
17. Authentication.
--------------
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
18. Abbreviations.
-------------
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
<PAGE>
A-10
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to Exide
Corporation, 645 Penn Street, Reading, Pennsylvania 19612-4205, Attention:
Chief Financial Officer.
<PAGE>
A-11
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- --------------------------------------------------------------------------------
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
PERMANENT OFFSHORE GLOBAL SECURITIES AND OFFSHORE
PHYSICAL SECURITIES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
three years after the later of the original issuance of this Note or the last
date on which this Note was held by an Affiliate of the Company, the undersigned
confirms that without utilizing any general solicitation or general advertising
that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
--
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
<PAGE>
A-12
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:_______________________ _________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:________________________ _______________________________________
NOTICE: To be executed by an executive
officer
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.09 or Section 4.10 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.09 or Section 4.10 of the Indenture, state the amount:
$____________.
Date:______________
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:____________________________________________________________
<PAGE>
EXHIBIT B
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
_____________, ______
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Exide Corporation (the "Company")
10% Senior Notes Due 2005
(the "Securities")
---------------------------------
Dear Sirs:
In connection with our proposed purchase of $_____________ aggregate
principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture
dated as of April 28, 1995 relating to the Securities (the "Indenture") and
the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not
be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Securities, we
will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you
and to the Company a signed letter substantially in the form of this
letter, (D) outside the United States in accordance with Rule 904 of
Regulation S
<PAGE>
B-2
under the Securities Act, (E) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or (F) pursuant to an
effective registration statement under the Securities Act, and we further
agree to provide to any person purchasing any of the Securities from us a
notice advising such purchaser that resales of the Securities are
restricted as stated herein.
3. We understand that, on any proposed resale of any Securities, we
will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able
to bear the economic risk of our or its investment.
5. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
--------------------------
Authorized Signature
<PAGE>
EXHIBIT C
---------
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
___________, ____
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Re: Exide Corporation (the "Company")
10% Senior Notes Due 2005
(the "Securities")
---------------------------------
Dear Sirs:
In connection with our proposed sale of $_________________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
<PAGE>
C-2
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------
Authorized Signature
