Exhibit 4.1
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of October 31, 2001 (this "Amendment"),
to the 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 Technologies, a Delaware corporation
(the "Company"), the Borrowing Subsidiaries signatories thereto, the Guarantors
signatories thereto, the several Lenders from time to time parties thereto,
Credit Suisse First Boston, as sole book manager (in such capacity, the "Book
Manager"), Credit Suisse First Boston, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders, and others.
W I T N E S S E T H:
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
used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement. On the Effective Date (as
hereinafter defined) the Credit Agreement shall be amended as follows:
(a) Amendments to Section 1.1. Section 1.1 of the Credit Agreement
shall be amended as follows:
(i) The following defined terms, together with the related
definitions, shall be added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical position:
"Effective Date of the Second Amendment": the "Effective Date"
as defined in the Second Amendment.
"Revolving Outstandings": on any date, the sum of (a) the
aggregate principal amount of all Revolving Credit Loans made by
such Lender then outstanding, (b) such Lender's Revolving Credit
Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Credit Percentage of the aggregate principal
amount of all Swing Line Loans then outstanding."
"Second Amendment": the Second Amendment, dated as of October
31, 2001, to this Agreement.
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"Suspension Period": the period from and including the last
day of FQ2 2002 (ended September 30, 2001) through and including
December 28, 2001.
(b) Amendments to Section 3.2. Section 3.2 of the Credit Agreement
shall be amended as follows:
(i) The first sentence of Section 3.2(a) of the Credit
Agreement shall be amended to read in its entirety as follows:
"The Company agrees to pay to the Administrative Agent for the
account of each Revolving Credit Lender a facility fee for the
period from and including the Restatement Effective Date to the
later of (i) the last day of the Revolving Credit Commitment Period
and (ii) the date on which all Revolving Outstandings shall have
been repaid in full, computed at the Facility Fee Rate on the amount
of the Revolving Credit Commitment of such Lender during the period
for which payment is made (or, in the case of payments made pursuant
to the foregoing clause (ii) in respect of any period after the end
of the Revolving Credit Commitment Period, computed on the average
daily amount of Revolving Outstandings of such Lender during such
period), payable quarterly in arrears on the third Business Day of
each January, April, July and October for the period ending on (and
including) the last day of the immediately preceding December,
March, June or September, respectively, and on the Revolving Credit
Termination Date and on any date after the Revolving Credit
Termination Date on which all Revolving Outstandings are repaid in
full."
(ii) The following new Section 3.2(f) shall be added after
Section 3.2(e) of the Credit Agreement:
"(f) The Borrowers agree to pay to the Administrative Agent for the
account of each Lender who signs and returns the Second Amendment by
November 6, 2001, an amendment fee of 0.10% of the sum of (x) the
aggregate outstanding principal amount of Term Loans of such Lender
and (y) the amount of the Revolving Credit Commitment of such
Lender, such fee payable on the earlier of (i) December 28, 2001 or
(ii) the effective date of the amendment, if any, to the Credit
Agreement next succeeding the Second Amendment."
(c) Amendments to Section 7.2. Section 7.2 of the Credit Agreement
shall be amended by (i) deleting the word "and" at the end of paragraph (f)
thereof, (ii) adding a semicolon and the word "and" in place of the period at
the end of paragraph (g) thereof and (iii) adding the following new Section
7.2(h) after Section 7.2(g) of the Credit Agreement:
"(h) during the Suspension Period and commencing with the week
ending October 26, 2001, on or before the last Business Day of each
calendar week, deliver to the Administrative Agent and the Lenders, in
form and detail reasonably satisfactory to the Administrative Agent, (i) a
cash flow forecast setting forth a projection of cash flows for the
Borrower and its Subsidiaries for the week in which such report is
delivered and the next succeeding eleven weeks and (ii) a comparison of
the actual cash flows of the
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Borrower and its Subsidiaries for the week immediately preceding the week
in which such report is delivered as against the forecast for such
immediately preceding week shown in the cash flow forecast delivered
pursuant to the preceding clause (i) at the end of such immediately
preceding week; provided that no such comparison pursuant to the preceding
clause (ii) shall be required for the week ending October 26, 2001."
(d) Amendments to Section 7. Section 7 of the Credit Agreement shall
be amended by adding a new Section 7.12 as follows:
"7.12 Foreign Collateral. Use its best efforts to cause to be
granted to the Administrative Agent on behalf of the Lenders, as
promptly as practicable after the Effective Date of the Second
Amendment, perfected first-priority security interests (subject to
customary permitted liens) in substantially all assets and capital
stock of Foreign Subsidiaries, to the extent that such security
interests can be created without violating, constituting a default
under, requiring prepayment of or triggering any mandatory option to
purchase any applicable Contractual Obligation of the Company or any
of its Subsidiaries and without unfavorable tax consequences to the
Company and its Subsidiaries."
(e) Amendments to Section 8. Section 8 of the Credit Agreement shall
be amended by adding a new Section 8.17 as follows:
"8.17 Limitation on prepayments during Suspension Period. From
and after the Effective Date of the Second Amendment and for the
duration of the Suspension Period, make or offer to make any
voluntary prepayment or repayment of principal, interest, premium or
fees in respect of any Indebtedness (other than Indebtedness under
this Agreement), or make or offer to make any optional redemption,
purchase or repurchase of any such Indebtedness. To the extent that
the provisions of this Section 8.17 prohibit any action that would
otherwise be permitted by other provisions of this Agreement or any
other Loan Document, the provisions of this Section 8.17 shall
control."
(f) Amendments to Section 12.5. Section 12.5 of the Credit Agreement
shall be amended by deleting the word "and" immediately prior to clause (d)
therein and by adding clauses (e) and (f) immediately after clause (d) as
follows:
"(e) to pay or reimburse the members of the steering committee
of Lenders for all of their reasonable out-of-pocket expenses in
connection with steering committee meetings and other steering
committee activities in connection with this Agreement, and (f) to
pay the reasonable fees and expenses (including a reasonable
retainer in an amount to be agreed upon) incurred during the
Suspension Period of both legal counsel and a financial advisor to
the Agents and Lenders selected by the Agents and the Lenders to
advise the Agents and Lenders with regard to the Borrowers."
SECTION 3. Suspension of Sections 8.1(a) and 8.1(c). The provisions
of Sections 8.1(a) and 8.1(c) shall not be applicable during the Suspension
Period.
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SECTION 4. Conditions to Effectiveness. This Amendment shall be
effective on the date on which all of the following conditions precedent have
been satisfied (the "Effective Date"):
(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.
SECTION 5. Representations and Warranties. To induce the Lenders
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
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. Affirmation of Loan Documents. Each Loan Party hereby
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 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Execution in Counterparts. This Amendment may be 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 TECHNOLOGIES, as a Borrower and as
a Guarantor
By:_____________________________________
Name:
Title:
EXIDE HOLDING EUROPE S.A.
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
EURO EXIDE CORPORATIONS. LIMITED
SOCIEDAD ESPANOLA DEL ACUMULADOR
TUDOR, X.X.
XXXXX A.B.
CMP BATTERIJEN B.V.
CMP BATTERIES LIMITED
DEUTSCHE EXIDE STANDBY GMBH
DEUTSCHE EXIDE GMBH
MERCOLEC TUDOR, B.V.,
each as a Borrowing Subsidiary and as
a Guarantor
By:_____________________________________
Name:
Title:
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COMPAGNIA GENERALE ACCUMULATORI
S.P.A.
SOCIETA INDUSTRIALE ACCUMULATORI
S.P.A.
FULMEN IBERICA S.L.
CMP BATTERIJEN N.V.
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.S.
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
SOCIEDADE PORTUGUESA DO
ACUMULADOR XXXXX X.X.
EXIDE DENMARK A/S
GEMALA SWEDEN AB
CENTRA S.A.
MAREG ACCUMULATOREN GMBH
XXXXXXXX & XXXXX BATTERIETECHNIK
GMBH
EXIDE S0NNAK 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:
