Exhibit 4.1
Third Amendment and Waiver to Credit Agreement
This Third Amendment and Waiver to Credit Agreement dated as of
December 19, 2002 (this "Third Amendment"), is entered into among Exide
Technologies, a Delaware corporation and a debtor and a debtor in possession
(the "Company"); Exide Delaware LLC, a Delaware limited liability company
("Exide LLC"); Exide Illinois, Inc., a Pennsylvania corporation ("Exide
Illinois"); RBD Liquidation, LLC, a Delaware limited liability company ("RBD";
together with the Company, Exide LLC and Exide Illinois, the "Borrowers"); GNB
Battery Technologies Japan, Inc., a Delaware corporation ("GNB"; and together
with the Borrowers, the "Domestic Guarantors"); the Lenders party hereto; and
Citicorp USA, Inc. ("CUSA"), as agent for the Lenders and the Issuers (in such
capacity, the "Administrative Agent") and as collateral monitoring agent (in
such capacity, the "Collateral Monitoring Agent"), and amends that certain
Credit Agreement dated as of April 15, 2002 and amended as of a First Amendment
dated as of May 17, 2002 and a Second Amendment dated as of June 10, 2002 (as
amended hereby and as the same may be further amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") entered into among the
Borrowers, the Domestic Guarantors, the Lenders, the Issuers, and CUSA as
Administrative Agent and Collateral Monitoring Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Company has requested that certain provisions of the
Credit Agreement be amended and that certain transactions be permitted, all as
more particularly set forth herein;
WHEREAS, pursuant to Section 13.1(a) (Amendments, Waivers, Etc.) of
the Credit Agreement, the consent of the Requisite Lenders is required to modify
certain portions of the Credit Agreement and permit certain transactions as
requested by the Company;
NOW, THEREFORE, in consideration of the above premises, the Borrowers,
the Domestic Guarantors and the Lenders party hereto agree as follows:
SECTION 1. Third Amendment to the Credit Agreement. The Credit
Agreement is, effective as of the Third Amendment Effective Date (as defined
below), hereby amended as follows:
(a) The preamble of the Credit Agreement is amended by adding the
phrase "and any Subsidiary that becomes a Guarantor hereunder pursuant to
Section 10.9" immediately after the words "hereof as Guarantors" and before the
parenthetical following such words.
(b) Article I of the Credit Agreement is amended by adding the
following new defined terms in the appropriate alphabetical order therein:
"Escrow Agent" has the meaning set forth in the Intercreditor
Agreement.
"Existing Indebtedness" has the meaning set forth in Section 8.1(b).
"Existing Intercompany Indebtedness" has the meaning set forth in
Section 8.6(b).
"Guaranty Joinder" has the meaning set forth in Section 10.9.
"Lending Party" means each of the Lenders, the Issuers, the
Administrative Agent and the Collateral Monitoring Agent, as the case may
be.
"Other Intercompany Indebtedness" has the meaning set forth in Section
8.6(b).
(c) Article I of the Credit Agreement is amended by replacing each of
the following definitions in its respective entirety with the following new
definitions:
"Available Prepayment Amount" means, at any time,
(a) in respect of any Property Loss Event or any Asset Sale
(other than any Asset Sale contemplated in clause (b), (c) or (d) below),
an amount equal to the excess, if any, of (i) the aggregate Net Cash
Proceeds of all Asset Sales and Property Loss Events received by the
Company or any Subsidiary thereof after the Closing Date over (ii)
$10,000,000;
(b) in respect of any Asset Sale pursuant to clause (h) or clause
(i) of Section 8.4 (Sale of Assets), an amount equal to the excess, if any,
of (i) 100% of the Net Cash Proceeds of such Asset Sale received by a
Foreign Subsidiary of the Company over (ii) the amount of such Net Cash
Proceeds to be utilized for the working capital needs of such Foreign
Subsidiary and the working capital needs of other Foreign Guarantors
domiciled in such Foreign Subsidiary's country of origin;
(c) in respect of any Foreign Borrowing Base Asset Sale, an
amount equal to 100% of the Net Cash Proceeds of such Asset Sale;
(d) in respect of any Asset Sale comprised in whole or in part of
Foreign Collateral, an amount equal to 100% of the Net Cash Proceeds
attributable to such Foreign Collateral; and
(e) in respect of any Restricted Payment, an amount equal to 100%
of the Net Cash Proceeds received by a Borrower.
"Foreign Borrowing Base Subsidiary" means, individually, Exide Canada
Inc. and Euro Exide Corporation Limited.
2
"Foreign Collateral Documents" means the Foreign Pledge and Security
Agreements, the Foreign Mortgages and any other document executed and
delivered by a Foreign Loan Party granting a Lien on any of its property to
secure payment of Foreign Obligations.
"Mercolec Cash Proceeds" means any cash proceeds received by Mercolec
arising from (a) any Mercolec Loan, (b) any repayment or prepayment of any
Foreign Intercompany Loan made by Mercolec and (c) any repayment or
prepayment of any intercompany loan made by Mercolec to any Foreign
Subsidiary of the Company permitted under clauses (q) or (s) of Section 8.1
(Indebtedness)
"Net Cash Proceeds" means proceeds received by any Borrower or any of
its Subsidiaries after the Closing Date in cash or Cash Equivalents from
any:
(a) Asset Sale, other than, and only to the extent so permitted
thereunder, Asset Sales set forth in clauses (a), (b), (c), (d), (e), (f),
(g), or (j) of Section 8.4 (Sale of Assets), net of (i) the reasonable cash
costs of sale, assignment or other disposition, (ii) taxes paid or
reasonably estimated to be payable as a result thereof and (iii) any amount
required by the Bankruptcy Court to be paid or prepaid on Indebtedness
(other than the Obligations) secured by a perfected and unavoidable Lien on
the assets subject to such Asset Sale; or
(b) Property Loss Event net of (i) reasonable costs and expenses
associated with settling any claim with respect to such Property Loss
Event, (ii) taxes paid or payable as a result thereof, and (iii) any amount
required by the Bankruptcy Court to be paid or prepaid on Indebtedness
(other than the Obligations) secured by a perfected and unavoidable Lien on
the assets subject to such Property Loss Event; or
(c) incurrence of Indebtedness by any Foreign Subsidiary of the
Company domiciled in Europe permitted under clause (o) of Section 8.1
(Indebtedness), net of brokers' and advisors' fees and other reasonable
costs incurred in connection with such transaction; or
(d) payment of any Restricted Payment by any Subsidiary of the
Company to any Borrower;
provided, however, that in each case set forth in clauses (a), (b), and (c)
above, evidence of such fees, payments, prepayments and all costs is
provided to the Administrative Agent in form and substance satisfactory to
it.
(d) Clause (g) of Section 2.9 of the Credit Agreement is amended by
replacing it in its entirety with the following new clause (g):
(g) Upon receipt by any Foreign Subsidiary of any Net Cash Proceeds
arising from any Other Foreign Asset Sale or Foreign Non-Borrowing
Base Asset Sale, the Company shall cause such Foreign Subsidiary to
pay that portion of such proceeds (1) attributable to assets which
were not Foreign Collateral to the Escrow Agent to be held in the
Escrow Account and (2) attributable to assets which constituted
Foreign Collateral hereunder to the Administrative Agent to be applied
in accordance with clause (h) below.
(e) Clause (h) of Section 2.9 of the Credit Agreement is amended by
replacing it in its entirety with the following new clause (h):
3
(h) Subject to the provisions of Section 2.13(g) (Payments and
Computations), any Net Cash Proceeds held by the Administrative Agent
and required to be applied in accordance with this clause (h) shall be
applied as follows:
first, to prepay Foreign Intercompany Loans made to such Foreign
Subsidiary under the Foreign Sublimit pursuant to clauses (i) and (j)
of Section 8.1 (Indebtedness),
second, to prepay Foreign Intercompany Loans made to such Foreign
Subsidiary under the Foreign Revolving Credit Facility pursuant to
clauses (h) and (j) of Section 8.1 (Indebtedness), and
then, to be held by the Administrative Agent until such time as
the Obligations are paid in full and all Letters of Credit have been
fully cash collateralized at which time the Administrative Agent shall
deliver any remaining Net Cash Proceeds to the Escrow Agent to be held
and applied in accordance with the terms of the Intercreditor
Agreement.
(f) Clause (k) of Section 2.9 of the Credit Agreement is amended by
replacing it in its entirety with the following new clause (k):
(k) Commencing on the sixty-first (61st) day after the Closing Date
and thereafter, to the extent that the sum of (1) the aggregate cash
and Cash Equivalents held by Mercolec plus (2) any Mercolec Cash
Proceeds received by Mercolec during such preceding period exceeds
$1,000,000 on any day, on the next Business Day the Borrowers shall
cause Mercolec to apply such excess to prepay the outstanding balance
of all Foreign Intercompany Loans made to Mercolec by any Intercompany
Lender pursuant to clause (j) of Section 8.1 (Indebtedness) in an
amount equal to 100% of such excess.
(g) Section 2.9 of the Credit Agreement is amended by adding the
following new clause (o) at the end thereof:
(o) Upon receipt by any Borrower of Net Cash Proceeds arising from a
Restricted Payment, such Borrower shall immediately pay an amount
equal to the Available Prepayment Amount to the Administrative Agent
to be applied pro rata to the outstanding balance of Domestic Loans.
No permanent reduction in the Revolving Credit Commitment shall result
from a prepayment under this clause (o).
(h) Clause (h) of Section 6.1 of the Credit Agreement is amended by
adding "(f)," immediately after the word "clauses" and before the reference to
"(q), (r) and (s)" therein.
(i) Section 6.4 of the Credit Agreement is amended by adding the
following sentence to the end thereof:
Within thirty (30) days after the end of each Fiscal Quarter, the
Company shall deliver to the Administrative Agent a cumulative summary
of non-ordinary course Asset Sales completed during such Fiscal Year
that describes such Asset Sale, the total consideration received, the
Net Cash Proceeds resulting from each transaction, and such other
details as reasonably requested by the Administrative Agent.
(j) Article VII of the Credit Agreement is amended by adding the
following new Sections 7.18 and 7.19 at the end thereof to read as follows:
4
Section 7.18 Additional Guarantors. The Borrowers shall cause each new
Domestic Subsidiary formed hereafter to execute a Guaranty Joinder.
Section 7.19 Intercompany Loans. The Borrowers shall cause all
intercompany Indebtedness entered into by and among the Borrowers and
any of their Subsidiaries after the Petition Date to be on a revolving
basis and on commercial terms reasonably acceptable to the
Administrative Agent.
(k) Section 8.1 of the Credit Agreement is amended by respectively
replacing clauses (f) and (r) therein with the following new clauses:
(f) Indebtedness arising from intercompany loans (i) from any Borrower
to any Domestic Guarantor, (ii) from any Domestic Guarantor to any
other Domestic Guarantor, or (iii) from any Subsidiary of the Company
to any Borrower;
(r) Indebtedness of any Foreign Guarantor arising from intercompany
loans from any Foreign Subsidiary which is not a Foreign Guarantor;
provided that such intercompany loans are fully subordinated, on terms
acceptable to the Administrative Agent, to all obligations of such
Foreign Guarantor owing to any Borrower, any Domestic Guarantor, any
other Foreign Guarantor, any Foreign Borrowing Base Subsidiary, and
any Lending Party;
(l) Section 8.3 of the Credit Agreement is amended by (i) replacing
the phrase in the lead-in sentence that commences with the words "nor shall they
permit" through the comma at the end of such phrase with "nor shall it permit
any of its Subsidiaries to," and (ii) replacing clause (e) therein with the
following new clause (e):
(e) Investments by (1) any Borrower in any Domestic Guarantor, (2) any
Domestic Guarantor in any Borrower, (3) any Foreign Guarantor in any
Borrower, any Foreign Borrowing Base Subsidiary or any other Foreign
Guarantor, (4) any Foreign Borrowing Base Subsidiary in any other
Foreign Borrowing Base Subsidiary, and (5) Exide Transportation
Holding Europe S.L. by way of acquisition of the shares of (i) Centra
S.A. from Compagnie Europeenne D'Accumulateurs and (ii) Deta
Portuguesa Baterias, LDA from Deutsche Exide GmbH;
(m) Section 8.4 of the Credit Agreement is amended by replacing
clauses (f) and (k) therein with the following new clauses respectively:
(f) any Asset Sale to any Foreign Guarantor or to any Foreign
Borrowing Base Subsidiary;
(k) so long as no Default or Event of Default is continuing or would
result therefrom, any other Asset Sale for Fair Market Value, payable
in cash upon such sale (or, to the extent previously consented to by
the Administrative Agent, payable for at least seventy-five percent
(75%) cash); provided, however, that with respect to any such Asset
Sale pursuant to this clause (k), (i) the aggregate consideration
received for the sale of all assets sold during (1) the Fiscal Year
ending March 31, 2003 shall not exceed $10,000,000 and (2) any Fiscal
Year thereafter shall not exceed $10,000,000 and (ii) all Net Cash
Proceeds of such Asset Sale are applied as set forth in and as
required by Section 2.9 (Mandatory Prepayments);
5
(n) Clause (a) of Section 8.5 of the Credit Agreement is amended by
deleting the "and" at the end of clause (i), inserting an "and" after the end of
clause (ii) and adding a new clause (iii) as follows:
(iii) Restricted Payments by any Subsidiary that is not a Loan Party
to (x) any Loan Party or (y) any other Subsidiary that is not a Loan
Party.
(o) Section 8.6 of the Credit Agreement is amended by replacing it in
its entirety with the following new clause (b):
(b) Such Borrower shall not, and shall not permit any of its
Subsidiaries to,
(x) make any payment of principal, premium (if any),
interest, fees (including fees to obtain any waiver or consent in
connection with any Security) or other charges on,
(y) prepay, redeem, purchase, retire, defease, make any
sinking fund or similar payment with respect to, or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, or
(z) amend or modify in any material regard any payment terms
of,
any Indebtedness (including, without limitation, except as permitted
under clause (viii) below, the Existing Mercolec Loans);
provided, however, that:
(i) the Borrowers may repay or prepay the Obligations in
accordance with the terms of this Agreement;
(ii) the Intercompany Borrowers may repay or prepay the
Foreign Intercompany Loans;
(iii) Mercolec may repay or prepay Mercolec Loans (A) if the
Other TForeign Subsidiary making such Mercolec Loan to Mercolec is a
Net Lender or (B) if such Other Foreign Subsidiary making such
Mercolec Loan is not a Net Lender, so long as there is no outstanding
balance under any Foreign Intercompany Loan to Mercolec pursuant to
clause (j) of Section 8.1 (Indebtedness) (both before and after giving
effect to such prepayment);
(iv) any Foreign Guarantor may repay or prepay intercompany
loans permitted under clause (q) of Section 8.1 (Indebtedness) from
another Foreign Guarantor domiciled in the same country;
(v) the Borrowers may pay the Adequate Protection Payments
(to the extent permitted pursuant to the Orders);
(vi) the Borrowers may make any Permitted Pre-Petition Claim
Payments;
(vii) the Borrowers and their respective Subsidiaries may
prepay any Indebtedness of the type permitted under clause (d) of
Section 8.1
6
(Indebtedness) so long as the aggregate amount of all Indebtedness
prepaid under this clause (viii) does not exceed $5,000,000;
(viii) subject to the prior written consent of the
Administrative Agent (which consent may be withheld in its sole
discretion), the Borrowers and their respective Subsidiaries may
prepay (A) any Indebtedness listed on Schedule 8.6 (Specified Foreign
Indebtedness) and (B) any intercompany Indebtedness not otherwise
permitted herein;
(ix) any Foreign Guarantor may repay or prepay intercompany
loans permitted under clause (s) of Section 8.1 (Indebtedness) so long
as Mercolec is in compliance with Section 2.9(k) (Mandatory
Prepayments) (both before and after giving effect to such prepayment)
and such repayment or prepayment, as the case may be, is not made with
proceeds of Loans;
(x) any Foreign Subsidiary that is not a Foreign Loan Party
may repay or prepay any intercompany Indebtedness it owes to a Foreign
Loan Party; and
(xi) the Borrowers and their respective Subsidiaries may
make scheduled payments of principal, interest and fees on any other
Indebtedness permitted under clauses (b), (e), (g), (k), (l), (m),
(n), and (o) of Section 8.1 (Indebtedness) (other than (A)
Indebtedness of the Borrowers and their respective Domestic
Subsidiaries under the Pre-Petition Facility, (B) any other
pre-petition Indebtedness of the Borrowers, (C) any intercompany
Indebtedness incurred prior to the Petition Date ("Existing
Intercompany Indebtedness"), and (D) any post-Petition Date
intercompany Indebtedness not otherwise expressly permitted under
clauses (f), (h), (i), (j), (p), (q), (r), and (s) of Section 8.1
(Indebtedness) ("Other Intercompany Indebtedness"); provided, however,
(1) interest may be paid on Existing Intercompany Indebtedness and
Other Intercompany Indebtedness so long as the payment is not made
with proceeds of Loans, (2) scheduled principal may be paid on Other
Intercompany Indebtedness so long as the intercompany borrower making
the payment has no outstanding obligations at such time resulting from
the receipt of proceeds of Loans and such payment is not made with
proceeds of Loans and (3) scheduled principal may be paid on Existing
Intercompany Indebtedness only if all obligations related to the
Foreign Intercompany Loans have been paid in full).
(p) Section 8.7 of the Credit Agreement is amended by (1) changing the
cross-reference in clause (e) therein from "Section 8.3(j) (Investments)" to
"Section 8.3(i) (Investments)" and (2) replacing clause (f) through the end
thereof with the following:
(f) acquire, form, create, divide, dissolve or liquidate any
Subsidiary;
provided, however, the following actions shall be permitted:
(i) the formation or creation of any Subsidiary resulting from
the division of Exide Sonnak, A/S into two Subsidiaries of the
Company;
(ii) a merger or consolidation of any Subsidiary of the Company
into the Company or any other Subsidiary of the Company or any
acquisition of all or substantially all of the Stock or Stock
Equivalents of any Subsidiary of the Company by the Company or any
other Subsidiary of the Company so long as in each case if such
merger, consolidation or acquisition involves a Loan Party and a
non-Loan Party, the Loan Party shall be the surviving Person; and
7
(iii) so long as no other Default would arise therefrom, a
dissolution or liquidation of any dormant Subsidiary of the Company
after the transfer or dividending of all of such Subsidiary's assets
to a Loan Party;
provided, further, that none of the actions permitted by this
Section 8.7 (Restriction on Fundamental Changes) shall result in any
reduction in the collateral security and credit support provided on
account of the Obligations and the Administrative Agent shall not be
required to release any security interests in the assets of any such
Person except in connection with the simultaneous grant by the
surviving or receiving Person, as the case may be, to the
Administrative Agent of security interests in the same assets.
(p) Section 8.13 of the Credit Agreement is amended by adding the
following proviso at the end of clause (b) therein immediately prior to the
period at the end thereof:
; provided, however, the Subsidiaries listed on Schedule 8.13
(German Tax Year Changes) shall be permitted for statutory reporting
purposes to change their Fiscal Year to a calendar year basis if the
Federal Republic of Germany passes legislation making it mandatory or
beneficial and advantageous for such Subsidiaries to so change
(q) Article X of the Credit Agreement is amended by adding a new
Section 10.9 to read as follows:
Section 10.9 Additional Guarantors Upon the execution and
delivery by any Person of a guaranty joinder agreement in substantially the form
of Exhibit P hereto (each, a "Guaranty Joinder"), (i) such Person shall be
referred to as an "Additional Guarantor" and shall become and be a Guarantor
hereunder, and each reference in this Guaranty to a "Guarantor" shall also mean
and be a reference to such Additional Guarantor, and each reference in any other
Loan Document to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to "this Guaranty",
"hereunder", "hereof" or words of like import referring to this Guaranty, and
each reference in any other Loan Document to the "Guaranty", "thereunder",
"thereof" or words of like import referring to this Guaranty, shall include each
such duly executed and delivered Guaranty Joinder.
SECTION 2. Consent to Certain Transactions and Waiver of Certain
Covenants of the Credit Agreement.
Effective as of the Third Amendment Effective Date (as defined below)
and subject to the terms and conditions set forth herein, the Requisite Lenders
hereby consent to the following transactions and grant a waiver in respect
thereof as follows:
The Requisite Lenders hereby consent to:
(i) the incurrence of indebtedness by Exide Technologies Holding, B.V.
of up to US$ 5,000,000 at any one time outstanding in intercompany
Indebtedness payable to Exide OY so long as all of the funds received
are immediately lent by Exide Technologies Holding B.V. to Mercolec;
and
(ii) the repayment and prepayment of that intercompany Indebtedness by
Exide Technologies Holding, B.V. so long as each fiscal year there
shall
8
be a payment of dividends from Exide OY in settlement of amounts due
and owing from Exide Technologies Holding B.V.; and
the Requisite Lenders hereby waive any Default or Event of Default
that may occur under Section 8.1 (Indebtedness) or Section 8.6
(Prepayment and Cancellation of Indebtedness) of the Credit Agreement
due to the completion of the transactions as set forth in clauses (i)
and (ii).
SECTION 3. Conditions Precedent to the Effectiveness of this Third
Amendment.
This Third Amendment shall become effective as of the date hereof on
the date (the "Third Amendment Effective Date") when the following conditions
precedent have been satisfied:
(i) Certain Documents. The Administrative Agent shall have
received on or before the Third Amendment Effective Date all of the
following, all of which shall be in form and substance satisfactory to
the Administrative Agent, in sufficient quantity and, as applicable,
originally executed for each of the Lenders:
(A) this Third Amendment executed by the Borrowers, the Domestic
Guarantors, sufficient Lenders to constitute the Requisite Lenders and
the Administrative Agent;
(B) Schedule 8.13 (German Tax Year Changes); and
(C) such additional documentation as the Administrative Agent or,
if appropriate, the Requisite Lenders may reasonably require.
(ii) Amendment Fee. On the Third Amendment Effective Date the
Borrowers shall have paid to each Lender that has executed this Third
Amendment prior to the close of business on December 18, 2002, an
amendment fee equal to ten basis points (0.10%) of such Lender's
outstanding Term Loans and Revolving Credit Commitment.
(iii) Representations and Warranties. Each of the representations
and warranties made by the Borrowers or the other Loan Parties in or
pursuant to the Credit Agreement, as amended by this Third Amendment,
and the other Loan Documents to which the Borrowers or any of the
other Loan Parties is a party or by which the Borrowers or any of the
Loan Parties is bound, shall be true and correct in all material
respects on and as of the Third Amendment Effective Date (other than
representations and warranties in any such Loan Document expressly
that are limited to a specific date).
9
(iv) Corporate and Other Proceedings. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Third Amendment
shall be satisfactory in all respects, including without limitation,
form and substance, to the Administrative Agent in its sole
discretion.
(v) No Events of Default. No Event of Default or Default shall
have occurred and be continuing on the Third Amendment Effective Date.
(vi) Payment of Costs, Fees and Expenses. Counsel, including all
foreign counsel, to the Administrative Agent shall have been paid all
outstanding fees and expenses due and owing in connection with the
Credit Agreement, the other Loan Documents and this Third Amendment.
SECTION 4. Representations and Warranties. Each Borrower and each
Domestic Guarantor hereby represents and warrants to the Lenders that (a) as of
the date hereof, and after giving effect to the amendments contained herein, no
Event of Default or Default under the Credit Agreement shall have occurred and
be continuing and (b) all of the representations and warranties of such Borrower
and such Domestic Guarantor contained in Article IV (Representations and
Warranties) of the Credit Agreement and in any other Loan Document are true and
correct as of the date of execution hereof in all material respects, as though
made on and as of such date (other than representations and warranties in any
such Loan Document expressly that are limited to a specific date).
SECTION 5. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Third Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import, and each reference in the other Loan Documents to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended hereby, all of the terms of the
Credit Agreement and all other Loan Documents shall remain unchanged and in full
force and effect.
(c) The execution, delivery and effectiveness of this Third Amendment
shall not operate as a waiver of any right, power or remedy under the Credit
Agreement or any of the Loan Documents of any Lender, any Issuer, the
Administrative Agent, the Collateral Monitoring Agent, or the Swing Loan Lender
nor constitute a waiver of any provision of the Credit Agreement or any of the
Loan Documents.
SECTION 6. Fees, Costs and Expenses. The Borrowers and the Domestic
Guarantors agree to pay on demand in accordance with the terms of Section 13.3
(Costs and Expenses) of the Credit Agreement all costs and expenses of the
Administrative Agent in connection with the preparation, reproduction, execution
and delivery of this Third Amendment and all other Loan Documents entered into
in
10
connection herewith, including the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto.
SECTION 7. Execution in Counterparts. This Third Amendment may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
SECTION 8.Affirmation of Guaranties. Each of the Domestic Guarantors
hereby consents to the terms of this Third Amendment in its capacity as a
guarantor under the Credit Agreement and agrees that the terms of this Third
Amendment shall not affect in any way its obligations and liabilities under its
Guaranty or any other Loan Document to which it is a party, all of which
obligations and liabilities shall remain in full force and effect and each of
which is hereby reaffirmed.
SECTION 9. Governing Law. This Third Amendment shall be interpreted,
and the rights and liabilities of the parties determined, in accordance with the
internal law of the State of New York.
[Signature Pages Follow]
11
IN WITNESS WHEREOF, this Third Amendment has been duly executed on the
date set forth above.
EXIDE TECHNOLOGIES, a debtor and a
debtor in possession
as a Borrower and a Domestic
Guarantor
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
EXIDE DELAWARE LLC, a debtor and
a debtor in possession
as a Borrower and a Domestic
Guarantor
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
RBD LIQUIDATION, LLC, a debtor and
a debtor in possession
as a Borrower and a Domestic
Guarantor
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Secretary
GNB BATTERY TECHNOLOGIES
JAPAN, INC., as a Domestic Guarantor
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
EXIDE ILLINOIS, INC., a debtor and a
debtor in possession
as a Borrower and a Domestic
Guarantor
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Secretary
[SIGNATURE PAGE TO THIRD AMENDMENT-EXIDE]
Citicorp USA, Inc.,
as Administrative Agent, Swing Loan
Lender, Collateral Monitoring Agent,
and a Lender
By:
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Citibank, N.A.,
as Issuer
By:
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO THIRD AMENDMENT-EXIDE]
Other Lenders:
CIT GROUP BUSINESS CREDIT
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, NEW
YORK AGENCY
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
BEAR ▇▇▇▇▇▇▇ & CO., INC.
By:
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Managing Director
GE CAPITAL CFE, INC.
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Duly Authorized Signatory
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By:
------------------------------------------
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.
By:
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
[SIGNATURE PAGE TO THIRD AMENDMENT-EXIDE]
SPCP Group LLC
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signature
FOOTHILL INCOME TRUST, L.P.
By: FIT GP, LLC, its General Partner
By:
---------------------------------------
Name:
Title: Managing Member
FOOTHILL INCOME TRUST II, L.P.
By FIT II GP, LLC, its General Partner
By:
---------------------------------------
Name:
Title: Managing Member
ENDURANCE CLO I, LTD.
By: ING Capital Advisors LLC,
as Portfolio Manager
By:
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: Vice President
[SIGNATURE PAGE TO THIRD AMENDMENT-EXIDE]
ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL
SENIOR LOAN FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as
Investment Advisor
By:
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ & CO
By: Boston Management and Research
as Investment Advisor
By:
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO THIRD AMENDMENT-EXIDE]
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME
TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
as Investment Advisor
By:
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
US BANK NATIONAL ASSOCIATION
By:
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By:
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
SUMITOMO BANK
By:
------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO THIRD AMENDMENT-EXIDE]
EXHIBIT P
GUARANTY JOINDER
[Form of Guarantor Accession Agreement
for Accessions to that certain Credit Agreement
dated as of April 15, 2002]
This Accession Agreement dated as of [______] is made by [insert name of
acceding domestic subsidiary], a ("New Guarantor"), pursuant to a Secured
Super-Priority Debtor in Possession Credit Agreement dated as of April 15, 2002
(as the same may be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") among Exide Technologies as a borrower
("Exide"), other Borrowers party thereto, the Guarantors party thereto, the
Lenders party thereto and the Agents named therein. Terms used herein and not
defined herein have the meanings ascribed to such terms in the Credit Agreement.
Whereas, this Accession Agreement is entered into to record the accession
of the New Guarantor as a Guarantor party under the Credit Agreement pursuant to
the provisions of Section 10.9 therein.
Accordingly the parties hereto agree as follows:
SECTION 1. Accession of New Guarantor. The New Guarantor hereby agrees to:
(a) become, with immediate effect, a party to the Credit Agreement as an
"Additional Guarantor" pursuant to Section 10.9, (b) be bound by all of the
terms, covenants, agreements and other provisions of the Credit Agreement
binding upon a Guarantor party thereto to the same extent and in the same manner
as if it had originally been a party thereto (including those as a Grantor
thereunder), and (c) perform all obligations required of a Guarantor, a Domestic
Guarantor and a Grantor pursuant to the Credit Agreement.
A. Effectiveness. The parties hereto agree upon the full and complete
execution hereof that this Accession Agreement constitutes a Guaranty
Joinder as contemplated in the Credit Agreement.
B. Governing Law. This Accession Agreement shall be governed by and
shall be construed in accordance with the laws of the state of New York.
C. Counterparts. This Accession Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterpart, each of which when so executed and delivered shall be an
original, but all of which counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, each of undersigned have caused this Accession
Agreement to be duly executed and delivered as of the date set forth
hereinabove.
EXIDE TECHNOLOGIES, a debtor and a
debtor-in-possession, as a Borrower
By:
------------------------------------------
Name:
Title:
CITICORP USA, INC., as Administrative
Agent
By:
------------------------------------------
Name:
Title:
[Insert Signature Blocks of
New Guarantors:]
[_________________], as Guarantor
By:
------------------------------------------
Name:
Title:
SCHEDULE 8.13
German Tax Year Changes
Subsidiaries:
Deutsche Exide GmbH
Deutsche Exide Standby GmbH
Exide Automotive Batterie GmbH
