EXHIBIT 4.16
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement dated as of May 17, 2002
(this "Amendment"), is entered into among Exide Technologies, a Delaware
corporation (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") and
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 the
Credit Agreement dated as of April 15, 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, 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
the Credit Agreement 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. Amendment to the Credit Agreement. The Credit Agreement is,
effective as of the Amendment Effective Date (as defined below), hereby amended
as follows:
(a) Section 1.1 (Defined Terms) of the Credit Agreement is amended as
follows:
(i) by amending and restating the definition of "Collateral
Agency Agreement" in its entirety to read as follows:
"'Collateral Agency Agreement' means the Collateral Agency
Agreement dated as of April 15, 2002, among the Company, the
Pre-Petition Agent and the Collateral Agent, and acknowledged by the
Administrative Agent.";
(ii) by amending the definition of "Foreign Collateral
Requirement" as follows:
(A) by deleting the words "Foreign Guaranty Obligations"
appearing in clause (a)(i) thereof and substituting in lieu
thereof the words "Foreign Obligations"; and
(B) by deleting the words "Foreign Guarantor" appearing
in clause (a)(xiii) thereof and substituting in lieu thereof the
words "Foreign Loan Party";
(iii) by amending and restating the definition of "Interim
Period" in its entirety to read as follows:
"Interim Period" means the period beginning on the Closing Date
and ending on the earlier to occur of (a) sixty (60) days after the
Closing Date, (b) satisfaction of the Foreign Collateral Requirement
with respect to each Foreign Subsidiary of the Company and (c) the
date of receipt and approval by the Administrative Agent of the notice
required to be delivered by the Company pursuant to Section 6.14
(Notification of Satisfaction of Foreign Collateral Requirement).";
(iv) by amending and restating the definition of "Standstill
Agreement" in its entirety to read as follows:
"'Standstill Agreement' means the Standstill Agreement and Fifth
Amendment to Credit Agreement, in the form attached hereto as Exhibit
K (Form of Standstill Agreement), executed by the Pre-Petition Agent,
the Pre-Petition Lenders holding 100% of the obligations under the
Pre-Petition Facility, the Administrative Agent and the Non-Filing
Subsidiaries, and consented to by the Company.";
(v) by deleting "clauses (a), (b), (c), (d), (e), (f) or (g)"
appearing in the definition of "Net Cash Proceeds" and substituting in lieu
thereof "clauses (a), (b), (c), (d), (e), (f), (g) or (j)"; and
(vi) by adding thereto the following new definition in the
appropriate alphabetical order:
"Net Lender" means any Foreign Subsidiary which is not a Foreign
Borrowing Base Subsidiary or an Other Foreign Subsidiary Borrower."
(b) Section 2.1 (The Commitments) of the Credit Agreement is amended
as follows:
(i) by deleting "$40,000,000" appearing in clause (iii)(A) of
the proviso of clause (a) thereof and substituting in lieu thereof
"$50,000,000"; and
(ii) by amending and restating clause (ii) of the proviso of
clause (b) thereof in its entirety to read as follows:
"(ii) if such Foreign Revolving Loan is requested during the
Interim Period, unless the conditions contained in Section 8.1(h)
(Indebtedness) have been satisfied with respect to the relevant Foreign
Borrowing Base Subsidiary"
(c) Article VI (Reporting Covenants) of the Credit Agreement is
amended as follows:
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(i) by adding a new Section 6.14 (Notification of Satisfaction
of Foreign Collateral Requirement) as follows:
"Section 6.14 Notification of Satisfaction of Foreign Collateral
Requirement
The Company shall provide to the Administrative Agent, on or
prior to the sixtieth (60th) day after the Closing Date, a notice that
the Foreign Collateral Requirement has been satisfied with respect to
each Foreign Subsidiary of the Company listed in such notice."; and
(ii) by re-numbering the existing Section 6.14 (Other
Information) as Section 6.15 (Other Information).
(d) Section 6.13 (Post-Closing Schedules) of the Credit Agreement is
amended as follows:
(i) by (A) deleting the word "and" appearing at the end of
clause (d) thereof and (B) deleting "." at the end of clause (e) thereof
and substituting in lieu thereof "; and"; and
(ii) by adding the following new clause (f):
"(f) within sixty (60) days after the Closing Date, an updated
Schedule 4.18 (Real Property)."
(e) Section 7.11 (Approved Deposit Accounts; Blocked Accounts) of the
Credit Agreement is amended by deleting the word "Proceeds" in each instance in
which it appears in such Section and substituting in lieu thereof the words
"Proceeds of Accounts".
(f) Section 7.16 (Filing of Interim Order) of the Credit Agreement is
amended and restated in its entirety to read as follows:
"Section 7.16 Filing of Final Order
The Borrowers shall, within sixty (60) days after the Closing
Date, file a copy of the Final Order in the real property records
where any domestic owned Real Property is located."
(g) Section 8.1 (Indebtedness) of the Credit Agreement is amended as
follows:
(i) by amending and restating clause (h)(ii) thereof in its
entirety to read as follows:
"(ii) no Foreign Intercompany Loan shall be made pursuant to this
clause (h) during the Interim Period unless the other conditions to
such Foreign Intercompany Loan contained in this clause (h) have been
satisfied";
(ii) by deleting the word "and" appearing immediately before
clause (h)(iii) thereof and substituting in lieu thereof ",";
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(iii) by adding the following at the end of clause (h) thereof:
"and (iv) such Foreign Intercompany Loan shall only be made by
the Company to the Foreign Borrowing Base Subsidiary with respect to
which the Foreign Borrowing Base for such Foreign Revolving Loan is
attributable";
(iv) by deleting "$40,000,000" appearing in clause (i) thereof
and substituting in lieu thereof "$50,000,000"; and
(v) by amending and restating clause (n) thereof in its
entirety to read as follows:
"(n) Indebtedness incurred by any Foreign Subsidiary of the
Company domiciled in Poland resulting from the sale of, or grant of
security interest in, any of such Foreign Subsidiary's Accounts in an
aggregate amount not to exceed $10,000,000;".
(h) Section 8.3 (Investments) of the Credit Agreement is amended as
follows:
(i) by deleting the word "and" appearing at the end of clause
(k) thereof;
(ii) by adding the following new clause (l):
"(l) Investments permitted under Section 8.7 (Restriction on
Fundamental Changes);";
(iii) by adding the following new clause (m):
"(m) Investments by any Domestic Guarantor in Xxxxx Metals Co. or
Refined Metals Corporation which when taken together do not exceed
$400,000 in the aggregate in any calendar year; and"; and
(iv) re-lettering the existing clause (l) as clause (n).
(i) Section 8.4 (Sale of Assets) of the Credit Agreement is amended
as follows:
(i) by deleting the word "and" appearing at the end of clause
(i) thereof;
(ii) by adding the following new clause (j):
"(j) the sale of a reclamation Account owing by K-Mart
Corporation to the Borrowers in an amount not to exceed $1,300,000;
and"; and
(iii) re-lettering the existing clause (j) as clause (k).
(j) Section 8.6 (Prepayment or Cancellation of Indebtedness) of the
Credit Agreement is amended by amending and restating clause (b)(iii) in its
entirety to read as follows:
"(iii) Mercolec may repay or prepay Mercolec Loans (A) if the
Other Foreign Subsidiary making such Mercolec Loan to Mercolec is a Net
Lender or (B) if
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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),"
(k) Section 11.1(a) (Security) of the Credit Agreement is amended by
deleting the words "obligations of such Grantor" appearing in the third line
thereof and substituting in lieu thereof the words "Secured Obligations".
(l) Article XIII (Miscellaneous) of the Credit Agreement is amended
by adding a new Xxxxxxx 00.00 (Xxxxxxxxxxx xx Xxxxx xx Xxxxxxx) as follows:
"Section 13.19 Appointment of Fonde de Pouvoir
Each of the Lenders hereby irrevocably constitutes, to the extent
necessary, the Collateral Agent as the holder of an irrevocable power
of attorney (fonde de pouvoir) (within the mean of Article 2692 of the
Civil Code of Quebec) in order to hold security granted by any
Subsidiary of the Company in the Province of Quebec to secure the
obligations of such Subsidiary under any bond. Each Person accepting
an assignment of, a participation in or an arrangement in respect of,
all or any part of a Lender's interest in the secured obligations of
any such Subsidiary of the Company shall be deemed to have confirmed
and ratified the constitution of the Collateral Agent as the holder of
such irrevocable power of attorney (fonde de pouvoir) by execution of
an assignment or other agreement pursuant to which it becomes such
assignee. Notwithstanding the provisions of Section 32 of An Act
respecting the special powers of legal persons (Quebec), the
Collateral Agent may acquire and be the holder of any such bond."
SECTION 2. Conditions Precedent to the Effectiveness of this
Amendment.
(a) This Amendment shall become effective as of the date hereof on the
date (the "Amendment Effective Date") when the following conditions precedent
have been satisfied:
(i) Certain Documents. The Administrative Agent shall have
received on or before the Amendment Effective Date all of the
following, all of which shall be in form and substance satisfactory to
the Administrative Agent, in sufficient originally executed copies for
each of the Lenders:
(A) this Amendment executed by the Borrowers, the Domestic
Guarantors and Lenders constituting the Requisite Lenders; and
(B) such additional documentation as the Administrative Agent
or the Requisite Lenders may reasonably require.
(ii) 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 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 Amendment Effective Date (other than representations
and warranties in any such Loan Document which expressly speak as of a
different date).
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(iii) 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 Amendment shall
be satisfactory in all respects in form and substance to the
Administrative Agent.
(iv) No Events of Default. No Event of Default or Default shall
have occurred and be continuing on the Amendment Effective Date.
SECTION 3. Representations and Warranties. Each Borrower and each
Domestic Guarantor hereby represents and warrants to the Lenders that (a) as of
the date hereof 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 continue to be 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 which expressly speak
as of a different date).
SECTION 4. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Amendment, on and after the date
hereof, 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 above, 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 Amendment shall
not operate as a waiver of any right, power or remedy of any Lender, any Issuer
or the Administrative Agent under the Credit Agreement or any of the Loan
Documents, nor constitute a waiver of any provision of the Credit Agreement or
any of the Loan Documents.
SECTION 5. 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 Amendment and all other Loan Documents entered into in
connection herewith, including the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto.
SECTION 6. Execution in Counterparts. This 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 7. Affirmation of Guaranties. Each of the Domestic Guarantors
hereby consents to the terms of this Amendment in its capacity as a guarantor
under the Credit Agreement and agrees that the terms of this 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.
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SECTION 8. Governing Law. This 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.
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IN WITNESS WHEREOF, this Amendment has been duly executed on the date set forth
above.
EXIDE TECHNOLOGIES,
as a Borrower and a Domestic Guarantor
By: ____________________________________
Name:
Title:
EXIDE DELAWARE LLC
as a Borrower and a Domestic Guarantor
By: ____________________________________
Name:
Title:
EXIDE ILLINOIS, INC.,
as a Borrower and a Domestic Guarantor
By: ____________________________________
Name:
Title:
RBD LIQUIDATION, LLC,
as a Borrower and a Domestic Guarantor
By: ____________________________________
Name:
Title:
GNB BATTERY TECHNOLOGIES JAPAN, INC.,
as a Domestic Guarantor
By: ____________________________________
Name:
Title:
Citicorp USA, Inc.,
as Administrative Agent, Swing Loan
Lender, Collateral Monitoring Agent,
and Lender
By: ____________________________________
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT - EXIDE]
Citibank, N.A.,
as Issuer
By: ____________________________________
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT - EXIDE]
Other Lenders:
The Bank of Nova Scotia
By: /s/ Xxxxxxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Director
Other Lenders:
CIT GROUP BUSINESS CREDIT
By:
--------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY
By:
--------------------------------------------
Name:
Title:
BEAR XXXXXXX & CO., INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: XXXX X. XXXXX
Title: SENIOR MANAGING DIRECTOR
GE CAPITAL CFE, INC.
By:
--------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT-EXIDE]
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By:
--------------------------------------------
Name:
Title:
SPCP GROUP LLC
By:
--------------------------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P
By:
--------------------------------------------
Name:
Title:
FOOTHILL INCOME TRUST, L.P.
By: FIT GP, LLC, its General Partner
By:
--------------------------------------------
Name:
Title: Managing Member
[SIGNATURE PAGE TO FIRST AMENDMENT-EXIDE]
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XXXXXXX & CO
By: Boston Management and Research as Investment Advisor
By:
--------------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as Investment Advisor
By:
--------------------------------------------
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
BY: Xxxxx Xxxxx Management as Investment Advisor
By:
--------------------------------------------
Name:
Title:
US BANK NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------------------
Name: XXXXXXXXX XXXXXX
Title: AUTHORIZED SIGNATORY
[SIGNATURE PAGE TO FIRST AMENDMENT-EXIDE]
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FOOTHILL INCOME TRUST II, L.P.
By: FIT II GP, LLC, its General Partner
By:
--------------------------------------------
Name:
Title: Managing Member
ENDURANCE CLO I, LTD.
c/o ING Capital Advisors LLC, as Portfolio Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
ORYX CLO, LTD.
By: ING Capital Advisors LLC, as Collateral Manager
By: /s/ Xxxx X. Xxxxxx CFA
--------------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management, as Investment Advisor
By:
-----------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT-EXIDE]
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