Exhibit 4.25
Fourth Amendment and Waiver to Credit Agreement
This Fourth Amendment and Waiver to Credit Agreement dated as of March
31, 2003 (this "Fourth 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, a Second Amendment dated as of June 10, 2002 and a Third Amendment and
Waiver dated as of December 18, 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, the Company had previously been granted a waiver until March
31, 2003 in respect to the maintenance of balances in accounts located outside
the United States in excess of $20,000,000 in contravention of Section 8.12(a)
of the Credit Agreement and the Company has requested an extension of that
waiver, 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. Fourth Amendment to the Credit Agreement. The Credit
Agreement is, effective as of the Fourth Amendment Effective Date (as defined
below), hereby amended as follows:
(a) Section 8.3 (Investments) of the Credit Agreement is amended to
reflect the name change by the Portuguese subsidiary by replacing
subclause 5(ii) within clause (e) with the following new sub-clause
5(ii):
(ii) Sociedade Portuguesa do Acumulador Xxxxx X.X. f/k/a Deta
Portuguesa Baterias, LDA from Deutsche Exide GmbH;
SECTION 2. Consent to Certain Transaction and Waiver of Certain
Covenants of the Credit Agreement.
Effective as of the Fourth Amendment Effective Date (as defined below)
and subject to the terms and conditions set forth herein, the Requisite Lenders
hereby consent to the following and grant a waiver as follows:
(a) The Requisite Lenders hereby consent to the incurrence by March
31, 2003 of first priority mortgages over the industrial plant and
administrative offices owned by Deutsche Exide GmbH located in Bad
Lauterberg, Germany in favor of Exide Sonnak A/S and Tudor AB in
connection with the sale by Deutsche Exide GmbH of 70% of the shares
of Exide Batteriewerke GmbH (Austria) to Exide Sonnak A/S and Xxxxx
XX; and
(b) The Requisite Lenders hereby waive any Event of Default that may
occur pursuant to Section 9.01(d)(i), due to the retention, in
contravention of Section 8.12(a), of cash and Cash Equivalents in
accounts located outside the United States in an aggregate amount in
excess of $20,000,000; provided, however, that the waiver granted
pursuant to this clause (y) shall cease to be in effect and the
aggregate amount in such foreign accounts shall be tested as set forth
in the Credit Agreement on the earlier to occur of (a) June 30, 2003
and (b) the date on which the aggregate amount in such foreign
accounts exceeds $48,000,000; provided further, that on or before the
last Business Day of each Calendar Month, the Loan Parties shall use
their reasonable best efforts (subject to applicable legal
restrictions and cash requirements) to apply such cash and Cash
Equivalents in excess of$20,000,000 to the repayment of any and all
Foreign Intercompany Loans.
SECTION 3. Conditions Precedent to the Effectiveness of this Fourth
Amendment.
This Fourth Amendment shall become effective as of the date hereof on
the date (the "Fourth Amendment Effective Date") when the following conditions
precedent have been satisfied:
(i) Certain Documents. The Administrative Agent shall have
received on or before the Fourth Amendment Effective Date all of the
following, all of which shall be in form and substance satisfactory to
the
2
Administrative Agent, in sufficient quantity and, as applicable,
originally executed for each of the Lenders:
(A) this Fourth Amendment executed by the Borrowers, the Domestic
Guarantors, sufficient Lenders to constitute the Requisite Lenders and
the Administrative Agent; and
(B) such additional documentation as the Administrative Agent or,
if appropriate, 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 Fourth 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 Fourth Amendment Effective Date (other than
representations and warranties in any such Loan Document expressly
that are limited to a specific date).
(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 Fourth 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 Fourth 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 Fourth 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).
3
SECTION 5. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Fourth 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 ofthe 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 Fourth 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 ofthe
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 Fourth 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 7. Execution in Counterparts. This Fourth 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 Fourth Amendment in its capacity as a
guarantor under the Credit Agreement and agrees that the terms of this Fourth
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
ofwhich is hereby reaffirmed.
SECTION 9. Governing Law. This Fourth 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]
4
IN WITNESS WREREOF, this Fourth 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: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: SVP General Counsel & Secretary
EXIDE DELAWARE LLC, a debtor and
a debtor in possession
as a Borrower and a Domestic
Guarantor
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: SVP General Counsel & Secretary
RBD LIQUIDATION, LLC, a debtor and
a debtor in possession
as a Borrower and a Domestic
Guarantor
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: SVP General Counsel & Secretary
GNB BATTERY TECHNOLOGIES
JAPAN, INC., as a Domestic Guarantor
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: SVP General Counsel & Secretary
EXIDE ILLINOIS, INC., a debtor and a
debtor in possession
as a Borrower and a Domestic
Guarantor
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: SVP General Counsel & Secretary
Citicorp USA, Inc.,
as Administrative Agent, Swing Loan
Lender, Collateral Monitoring Agent,
and a Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Citibank, N.A.,
as Issuer
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Other Lenders:
CIT GROUP BUSINESS CREDIT
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, NEW
YORK AGENCY
By:
-----------------------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Director
BEAR XXXXXXX & CO., INC.
By:
-----------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
GE CAPITAL CFE, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
CREDIT AGRICOLE INDOSUEZ
By:
-----------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
By:
-----------------------------------------
Name: Xxx xxx Xxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
Other Lenders:
CIT GROUP BUSINESS CREDIT
By:
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF A SCOTIA, NEW
YORK AGENCY
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: XXXXXX XXXXXXXX
Title: Director
BEAR XXXXXXX & CO., INC.
By:
-----------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
GE CAPITAL CFE, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
CREDIT AGRICOLE INDOSUEZ
By:
-----------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
By:
-----------------------------------------
Name: Xxx xxx Xxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
Other Lenders:
CIT GROUP BUSINESS CREDIT
By:
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, NEW
YORK AGENCY
By:
-----------------------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Director
BEAR XXXXXXX & CO., INC.
By: /s/ Xxxx X. XxXxxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
GE CAPITAL CFE, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
CREDIT AGRICOLE INDOSUEZ
By:
-----------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
By:
-----------------------------------------
Name: Xxx xxx Xxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
XXXXX XXXXX SENIOR INCOME
TRUST
By: Xxxxx Xxxxx Management as Investment
Advisor
By:
-------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
US BANK NATIONAL ASSOCIATION
By:
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ XXXX XXXXXXXXXX
-----------------------------------------
Name: XXXX XXXXXXXXXX
Title: AUTHORIZED SIGNATORY
SUMITOMO MITSUI BANKING CORPORATION
By:
-----------------------------------------
Name:
Title:
Other Lenders:
CIT GROUP BUSINESS CREDIT
By:
-----------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, NEW
YORK AGENCY
By:
-----------------------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Director
BEAR XXXXXXX & CO., INC.
By:
-----------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Senior Managing Director
GE CAPITAL CFE, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
CREDIT AGRICOLE INDOSUEZ
By:
-----------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
By:
-----------------------------------------
Name: Xxx xxx Xxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
SPCP GROUP LLC
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
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: Xxxx X. Xxxxxx CFA
Title: Vice President
SPCP GROUP LLC
By:
-----------------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
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: Xxxx X. Xxxxxx CFA
Title: Vice President
SPCP GROUP LLC
By:
-----------------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
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 Generai Partner
By:
-------------------------------------
Name:
Title: Managing Member
ENDURANCE CLO I, LTD.
By: ING Capital Advisors LLC, as Portfolio
Manager
By /s/ Xxxxxx X. Xxxxxxx CFA
-------------------------------------
Name: Xxxxxx X. Xxxxxxx CFA
Title: Vice President
ORYX CLO, LTD.
By: ING Capital Advisors LLC, as Collateral
Manager
By /s/ Xxxxxx X. Xxxxxxx CFA
-------------------------------------
Name: Xxxxxx X. Xxxxxxx CFA
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management, as Investment
Advisor
By:
-------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXXXX & CO
By: Boston Management and Research as
Investment Advisor
By:
--------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Managementand Research as
Investment Advisor
By:
-------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
-------------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management, as
Investment Advisor
By: /s/ Xxxxx X. Page
-------------------------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
XXXXXXX & CO
By: Boston Managment and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
-------------------------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
-------------------------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Xxxxx X. Page
-------------------------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
US BANK NATIONAL ASSOCIATION
By:
-----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By:
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
SUMITOMO MITSUI BANKING CORPORATION
By:
-----------------------------------------
Name:
Title:
