EXHIBIT 4.1
AMENDMENT
AMENDMENT, dated as of June 20, 2001 (this "Amendment"), to the
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Amended and Restated Credit and Guarantee Agreement, dated as of September 29,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Exide Corporation, a Delaware corporation (the
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"Company"), the Borrowing Subsidiaries signatories thereto, the Guarantors
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signatories thereto, the several Lenders from time to time parties thereto,
Credit Suisse First Boston, as sole book manager (in such capacity, the "Book
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Manager"), Credit Suisse First Boston, as administrative agent (in such
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capacity, the "Administrative Agent") for the Lenders, and others.
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W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested the Lenders to consent to the
amendment of certain provisions of the Credit Agreement, and the Lenders are
willing to consent to such amendments upon and subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and
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used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement.
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(a) Amendments to Section 1.1. Section 1.1 of the Credit Agreement
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is hereby amended as follows:
(i) The defined terms "Amendment Period", "Consolidated Senior
Secured Debt" and "Consolidated Senior Secured Debt Ratio", together with
the related definitions, shall be added in the appropriate alphabetical
position as follows:
"Amendment Period": the period from FQ1 2002 through and
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including FQ2 2003.
"Consolidated Senior Secured Debt": all Consolidated Total
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Debt that is secured by a Lien on any Property of the Company or any
Subsidiary.
"Consolidated Senior Secured Debt Ratio": as at the last
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day of any period of four consecutive fiscal quarters, the ratio of
(a) Consolidated Senior Secured Debt on such day to (b) Consolidated
EBITDA for such period; provided that for purposes of calculating
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Consolidated EBITDA of the Company and its Subsidiaries for any
period, the Consolidated EBITDA of any Person acquired by the Company
or its Subsidiaries during such period shall be included on a pro
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forma basis for such period (assuming the consummation of each such
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acquisition
and the incurrence or assumption of any Indebtedness in connection
therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the
acquisition of such Person and the related consolidated statements of
income and stockholders' equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated (i) have been
previously provided to the Administrative Agent and the Lenders and
(ii) either (A) have been reported on without a qualification arising
out of the scope of the audit by independent certified public
accountants of nationally recognized standing or (B) have been found
acceptable by the Administrative Agent.
"Lender": each bank or other financial institution listed
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on Schedule 1.1A hereto, each Assignee which becomes a Lender pursuant
to Section 12.6(c) and their respective successors.
(ii) The definition of "Consolidated Fixed Charge Coverage Ratio"
shall be modified by adding to the end of such definition a semicolon
followed by the following proviso:
"provided that with respect to any calculation of the Consolidated
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Fixed Charge Coverage Ratio for any period of four consecutive fiscal
quarters ending during the Amendment Period, Restructuring Charges
shall not be deducted from Consolidated EBITDA for such period to the
extent (and only to the extent) that the aggregate amount of
Restructuring Charges does not exceed either (a) $60,000,000 for any
such period of four consecutive fiscal quarters or (b) $75,000,000 for
the Amendment Period".
(b) Amendments to Section 3.5(a). Section 3.5(a) is hereby amended
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by replacing the parenthetical in its entirety with the phrase "(other than
paragraphs (p) and (q) thereof)".
(c) Amendments to Section 7.1. Section 7.1 is hereby amended by
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deleting the word "and" at the end of paragraph (a) thereof, adding a semicolon
and the word "and" to the end of paragraph (b) thereof and adding a new
paragraph (c) immediately after paragraph (b), as follows:
"(c) as soon as available, but in any event not later than 45
days after the end of each month during the Amendment Period (other
than any month at the end of a fiscal period to which the reporting
requirements of either (a) or (b) above apply), the unaudited
consolidated balance sheet of the Company and its consolidated
Subsidiaries and the related unaudited consolidated statements of
income and of cash flows for such month, certified by a Responsible
Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments);"
(d) Amendments to Section 8.1. Section 8.1 is hereby amended as
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follows:
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(i) Section 8.1(a) shall be restated in its entirety as follows:
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
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Ratio as at the last day of any period of four consecutive fiscal quarters
of the Company ending during any period set forth below to exceed the ratio
set forth below opposite such period:
Consolidated
Period Leverage Ratio
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FQ1 2002 5.25
FQ2 2002 5.25
FQ3 2002 5.00
FQ4 2002 4.75
FQ1 2003 4.75
FQ2 2003 4.50
FQ3 2003 3.25
FQ4 2003 and thereafter 3.00
(ii) Section 8.1(c) shall be restated in its entirety as follows:
(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
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Interest Coverage Ratio for any period of four consecutive fiscal quarters
of the Company ending during any period set forth below to be less than the
ratio set forth below opposite such period:
Consolidated
Period Interest Coverage Ratio
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FQ1 2002 2.25
FQ2 2002 2.50
FQ3 2002 2.50
FQ4 2002 2.50
FQ1 2003 2.75
FQ2 2003 2.75
FQ3 2003 and thereafter 3.00
(iii) A new Section 8.1(d) shall be added as follows:
(d) Consolidated Senior Secured Debt Ratio. Permit the Consolidated
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Senior Secured Debt Ratio as at the last day of any period of four
consecutive fiscal quarters of the Company ending during any period set
forth below to exceed the ratio set forth below opposite such period:
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Consolidated Senior
Period Secured Debt Ratio
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FQ1 2002 2.75
FQ2 2002 2.75
FQ3 2002 2.65
FQ4 2002 2.40
FQ1 2003 2.40
FQ2 2003 2.40
(e) Amendments to Section 8.2. Section 8.2 is hereby amended by
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changing the current paragraph (p) to paragraph (q) and inserting a new
paragraph (p) as follows:
"(p) senior unsecured or subordinated unsecured indebtedness of
the Company, provided, that the Net Cash Proceeds thereof are applied
in accordance with Section 3.5(a); and".
(f) Amendments to Section 8.3. Section 8.3 is hereby amended by
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deleting the word "and" at the end of paragraph (q) thereof, adding a semicolon
and the word "and" to the end of paragraph (r) thereof and adding a new
paragraph (s) immediately after paragraph (r), as follows:
"(s) Liens securing inter-company transactions to the extent
permitted under Section 8.2."
(g) Amendments to Section 8.5. Section 8.5 is hereby amended by
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deleting the word "and" at the end of paragraph (i) thereof, adding the word
"and" to the end of paragraph (j) thereof and adding a new paragraph (k)
immediately after paragraph (j), as follows:
"(k) any Asset Sale by the Company and its Subsidiaries with
respect to assets having a fair market value not to exceed
$50,000,000, provided, that the proceeds of such Asset Sale are
applied in accordance with the provisions of Section 3.5(b)."
(h) Amendments to Section 8.7. Section 8.7 is hereby amended by
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deleting the word "and" at the end of paragraph (b) thereof, adding a semicolon
and the word "and" to the end of paragraph (c) thereof and adding a new
paragraph (d) immediately after paragraph (c), as follows:
"(d) Notwithstanding the foregoing, the Company and its
Subsidiaries shall not make Capital Expenditures during any period of
four consecutive fiscal quarters ending during the Amendment Period in
an aggregate amount exceeding $115,000,000."
(i) Amendment to Section 8.9. Section 8.9 is hereby amended by
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adding the following sentence at the end thereof:
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"Nothing in this Section shall prohibit the Company from redeeming,
repurchasing, retiring or acquiring Convertible Notes (including any
claim for accrued interest thereon) for consideration consisting
solely of common stock of the Company or cash in lieu of fractional
shares thereof, such cash amount not to exceed $500,000 in the
aggregate."
SECTION 3. Name Change. Notwithstanding anything contained in the
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Credit Agreement, including Section 7.10, the Company may create a wholly-owned
Domestic Subsidiary with no assets and merge such Domestic Subsidiary into the
Company for the purpose of renaming the Company "Exide Technologies".
SECTION 4. Conditions to Effectiveness. This Amendment shall be
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effective on the date on which all of the following conditions precedent have
been satisfied (the "Effective Date"):
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(a) The Administrative Agent shall have received this Amendment,
executed and delivered by a duly authorized officer of each of the Borrowers and
the Required Lenders.
(b) The Company shall have paid all accrued fees and expenses of the
Administrative Agent in connection with this Amendment, including the accrued
fees and expenses of counsel to the Administrative Agent.
(c) After giving effect to the Amendment, no Default or Event of
Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received payment of the
amendment fee payable pursuant to Section 7 of this Amendment.
SECTION 5. Representations and Warranties. To induce the Lenders
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parties hereto to enter into this Amendment, each of the Borrowers hereby
represents and warrants to the Administrative Agent and all of the Lenders that
the representations and warranties made by each of the Borrowers in the Loan
Documents are true and correct in all material respects on and as of the date
hereof, after giving effect to the effectiveness of this Amendment, as if made
on and as of the date hereof.
SECTION 6. Effect on the Loan Documents. (a) Except as specifically
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amended above, the Credit Agreement and all other Loan Documents shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed.
(b) The execution, delivery and effectiveness of this Amendment
except as expressly provided herein, shall not operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 7. Amendment Fee. The Company shall pay to the
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Administrative Agent, for the account of each Lender which executes and delivers
this Amendment prior to 5:00 p.m., New York City time, June 20, 2001, an
amendment fee equal to .375% of such Lender's Aggregate Exposure, such fee to be
earned and payable on the Effective Date.
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SECTION 8. Affirmation of Loan Documents. Each Loan Party hereby
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consents to the modification of the Credit Agreement effected hereby and hereby
acknowledges and agrees that the obligations of such Loan Party contained in the
Loan Documents as modified hereby are, and shall remain, in full force and
effect.
SECTION 9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
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OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Execution in Counterparts. This Amendment may be
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executed by one or more of the parties to this Amendment on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Amendment signed by all the parties shall be lodged with the Company and the
Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
EXIDE CORPORATION, as a Borrower and as a
Guarantor
By:___________________________________
Name:
Title:
EXIDE HOLDING EUROPE S.A.
COMPAGNIE EUROPEENNE D'ACCUMULATEURS S.A.
EURO EXIDE CORPORATION LIMITED
SOCIEDAD ESPANOLA DEL ACUMULADOR TUDOR X.X.
XXXXX A.B.
CMP BATTERIJEN B.V.
CMP BATTERIES LIMITED
ACCUMULATORENFABRIK SONNENSHEIN GMBH
DEUTSCHE EXIDE GMBH
MERCOLEC TUDOR B.V.,
each as a Borrowing Subsidiary and as a Guarantor
By:__________________________________
Name:
Title:
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ACCUMULATORENFABRIK SONNENSCHEIN GMBH
COMPAGNIA GENERALE ACCUMULATORI S.P.A.
SOCIETA INDUSTRIALE ACCUMULATORI S.P.A.
FULMEN IBERICA S.A.
CMP BATTERIES LIMITED
CMP BATTERIJEN B.V.
CMP BATTERIJEN N.V.
SOCIETE FRANCAISE DES ACCUMULATEURS XXXXX X.X.
EXIDE AUTOMOTIVE BATTERIE GMBH
XXXXX BATTERIE A.G.
INDUSTRIA COMPOSIZIONI STAMPATE S.P.A.
XXXXX BATTERIJEN B.V.
ELECTRO MERCANTIL INDUSTRIAL S.A.
EXIDE (DAGENHAM) LIMITED
EXIDE FRANCE S.A.
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
SOCIEDAD PORTUGUESA DO ACUMULADOR XXXXX X.X.
EXIDE DENMARK A/S
GEMALA SWEDEN AB
CENTRA S.A.
DETA AKKUMULATORENWERK GMBH
MAREG ACCUMULATOREN GMBH
XXXXXXXX & XXXXX BATTERIETECHNIK GMBH
EXIDE SONNAK A/S
EXIDE AUTOMOTIVE B.V.
EXIDE BATTERIES LIMITED
B.I.G. BATTERIES LIMITED
EXIDE LENDING LIMITED
each as a Guarantor, subject to the limitations,
if any, contained in Schedule 10.1
By: ___________________________________
Name:
Title:
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CREDIT SUISSE FIRST BOSTON, as Joint Lead
Arranger, Book Manager and Administrative Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
XXXXXXX XXXXX BARNEY INC., as Joint Lead Arranger
By:__________________________________
Name:
Title:
XXXXXXX XXXXX XXXXXX INC., as Syndication Agent
By:__________________________________
Name:
Title:
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[LENDER NAME]
By:__________________________________
Name:
Title:
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