EXHIBIT 4.9
EXECUTION COPY
AMENDMENT
AMENDMENT, dated as of June 20, 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 Corporation, 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.
(a) Amendments to Section 1.1. Section 1.1 of the Credit
Agreement 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 including FQ2 2003.
"Consolidated Senior Secured Debt": all Consolidated
Total 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 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 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
forma basis for such period (assuming the consummation of each
such acquisition
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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 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 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 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
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
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 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
------ --------------
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 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
------ -----------------------
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 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
------ ------------------
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
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
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
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
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
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
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
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.
(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
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. Amendment Fee. The Company shall pay to the
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
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
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
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 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:
[LENDER NAME]
By:__________________________________
Name:
Title:
