Exhibit 4.20
Execution Copy
Waiver and Consent
This Waiver and Consent dated as of November 7, 2002 (this "Waiver")
is granted by the Administrative Agent and the Lenders signatory hereto in
connection with that certain Credit Agreement dated as of April 15, 2002 and as
amended by a First Amendment dated as of May 17, 2002 and a Second Amendment
dated as of June 10, 2002 (as the same may be further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") 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"); GNB Battery Technologies Japan, Inc., a Delaware
corporation ("GNB"; and together with the Borrowers, the "Domestic Guarantors");
the Lenders party thereto; 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 waives compliance with certain provisions of the Credit Agreement
on the terms and conditions set forth herein. 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 the dilution of its ownership
interest held by Compagnie Europeene D'Accumulateurs, S.A. (France) ("CEAC") in
INCI Exide Akumulator Sanayi ve Ticaret Anonim Sirketi (Turkey) ("INCIExide")
from 50% to 20% in contravention of the covenant prohibiting sales of assets
contained in Section 8.4 of the Credit Agreement and the resultant Event of
Default be waived, all as more particularly set forth herein;
WHEREAS, the Company has requested that the issuance of Stock and
Stock Equivalents by INCIExide to Inci Holding A.S., Cinex Dis Ticaret ve
Pazarlama A.S., Celkap Makina Xxxx Celik Anayi ve Ticaret A.S., and Cevdet Inci
(such recipients, collectively, the "INCI Group", and such transaction, the
"Stock Issuance"), without an independent third party appraisal as to the Fair
Market Value of the consideration being given therefor in contravention of
Section 8.4 of the Credit Agreement and the resultant Event of Default be
waived, all as more particularly set forth herein;
WHEREAS, the Company has requested that any exercise by CEAC of the
option it is being granted in connection with the Stock Issuance to reinstate
its ownership interest from 20% back to 50%, the exercise of which is currently
prohibited by Section 8.9 of the Credit Agreement, be specifically exempt from
the application of such provision;
WHEREAS, the Company has requested that INCIExide be permitted to
amend its Constituent Documents to allow for the issuance of additional share
interests in its registered capital in contravention of Section 8.11 of the
Credit Agreement and the resultant Event of Default be waived, all as more
particularly set forth herein;
WHEREAS, the Company has requested that the failure of its Subsidiary,
Refined Metals Corporation, to discharge or obtain a stay of enforcement or
execution of a particular
judgment within 20 days in contravention of Section 8.2 of the Credit Agreement
and the resultant Event of Default be waived, all as more particularly set forth
herein;
WHEREAS, the Company intends to commence bankruptcy proceedings with
respect to two Non-Filing Subsidiaries, Xxxxx Metals ("Xxxxx") and Refined
Metals Corporation ("Refined"), both Delaware companies. Pursuant to Section
9.1(f)(ii) of the Credit Agreement, the commencement of such proceedings would
constitute an Event of Default. The Company has therefore requested the waiver
of any such Event of Default;
WHEREAS, the Company has requested that 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 be waived until March
31, 2003, 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 Administrative Agent and the Requisite
Lenders is required to grant certain waivers of provisions of the Credit
Agreement as requested by the Company;
NOW, THEREFORE, in consideration of the above premises, the Borrowers,
the Domestic Guarantors, the Administrative Agent and the Lenders party hereto
agree as follows:
SECTION 1. Waiver and Consent. Effective as of the Waiver Effective
Date (as defined below) and subject to the terms and conditions set forth
herein, a waiver is hereby granted as follows:
The Administrative Agent and the Requisite Lenders hereby:
(i) waive any Default or Event of Default that may occur or may have
occurred due to the undertaking and completion of the issuance of Stock and
Stock Equivalents in accordance with the Agreement made on 30 September
2002 between the INCI Group and CEAC as attached hereto as Exhibit A (the
"Turkish JV Agreement"), whether due to the modification of the INCIExide's
Constituent Documents, the dilution of CEAC's interest or the lack of an
independent third party appraisal;
(ii) consent to the exercise by CEAC of the option contained in the
Turkish JV Agreement so long as such exercise is in conformity with all
other provisions of the Credit Agreement;
(iii) waive the Event of Default that arose pursuant to Section
9.01(d)(i), due to the failure of Refined Metals Corporation, in
contravention of Section 8.2(j), to discharge or obtain a stay of that
certain judgment in the amount of $179,060.61 in favor of Xxxxxxx Iron &
Metal;
(iv) temporarily waive the Event of Default that has occurred or 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 (iv) 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) March 31, 2003 and (b) the date on which the
aggregate amount in such foreign accounts exceeds $55,000,000; provided
further, that on or before the last Business Day of each
2
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;
(v) waive any Default or Event of Default under Section 9.01(f)(ii)
that may occur due to the commencement of any proceeding by or against
Xxxxx or Refined to render either or both of such companies bankrupt or
insolvent.
SECTION 2. Conditions Precedent to the Effectiveness of this Waiver.
This Waiver shall become effective as of the date hereof on the date
(the "Waiver Effective Date") when all of the following conditions precedent
have been satisfied:
(a) Certain Documents. The Administrative Agent shall have received on
or before the Waiver Effective Date all of the following, each of which
shall be in form and substance satisfactory to the Administrative Agent:
(i) this Waiver executed by (x) sufficient Lenders to constitute
the Requisite Lenders, (y) each of the Loan Parties and (z) the
Administrative Agent;
(ii) such additional documentation as the Administrative Agent
or, if appropriate, the Requisite Lenders may reasonably require;
(iii) each of the amended Shareholders Agreement, the amended
Articles of Association, the Share Purchase Agreement (each as defined
in the Turkish JV Agreement) and the Turkish JV Agreement fully and
duly executed by the parties thereto including, without limitation, an
option for CEAC to purchase, repurchase or infuse capital such that
its equity position in INCIExide may be reinstated to 50%, such option
to be on terms reasonably satisfactory to the Administrative Agent;
and
(iv) agreements from each of Exinco Aku Ve Otomotive San. Ltd.
Sti. and INCIExide to sell their products to the Company and its
Subsidiaries and containing covenants prohibiting competition in
certain markets.
(b) Representations and Warranties. Each of the representations and
warranties made by the Loan Parties in or pursuant to the Credit Agreement
or any other Loan Document, other than Sections 4.1 and 4.3(b) as and only
to the extent suspended by this Waiver, shall be true and correct in all
material respects on and as of the Waiver Effective Date (other than
representations and warranties expressly limited to a specific date).
(c) No Events of Default. Other than the Defaults and Events of
Default being waived by this Waiver, no Event of Default or Default shall
have occurred and be continuing on the Waiver Effective Date.
(d) Other. The Company shall pay all outstanding fees and expenses due
and payable to counsel for the Administrative Agent on or prior to the
Waiver Effective Date.
3
SECTION 3. Representations and Warranties. Each Loan Party hereby
represents and warrants to the Lenders and the Administrative Agent that as of
the date hereof, and after giving effect to the waiver contained herein, (a) 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 Loan
Party contained in Article IV (Representations and Warranties) of the Credit
Agreement and in any other Loan Document are, as of the date of execution
hereof, true and correct in all material respects, as though made on and as of
such date (other than representations and warranties in any such Loan Document
expressly limited to a specific date).
SECTION 4. Reference to and Effect on the Loan Documents.
(a) All of the terms of the Credit Agreement and all other Loan
Documents shall remain unchanged and in full force and effect except as
specifically waived hereby.
(b) This Waiver is and shall be a Loan Document.
(c) Except as expressly provided herein, the execution, delivery and
effectiveness of this Waiver 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 other 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, production,
reproduction, execution and delivery of this Waiver 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 Waiver 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 Waiver in its capacity as a guarantor under
the Credit Agreement and agrees that the terms of this Waiver 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.
SECTION 8. Governing Law. This Waiver 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 WHEREOF, this Waiver 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 X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
EXIDE DELAWARE LLC, A DEBTOR AND A
DEBTOR IN POSSESSION
as a Borrower and a Domestic
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President,
General Counsel and Secretary
EXIDE ILLINOIS, INC., A DEBTOR AND A
DEBTOR IN POSSESSION
as a Borrower and a Domestic
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
RBD LIQUIDATION, LLC, A DEBTOR AND A
DEBTOR IN POSSESSION
as a Borrower and a Domestic
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
GNB BATTERY TECHNOLOGIES JAPAN INC., as
a Domestic Guarantor
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
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
[SIGNATURE PAGE TO WAIVER - EXIDE]
Other Lenders:
ClT GROUP BUSINESS CREDIT
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: XXXXXXXX XXXXXXX
Title: AVP
THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY
By:
------------------------------------
Name:
Title:
BEAR XXXXXXX & CO., INC.
By:
------------------------------------
Name:
Title:
GE CAPITAL CFE, INC.
By:
------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
XXXXXX COMMERCICAL PAPER, INC.
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
Other Lenders:
CIT GROUP BUSINESS CREDIT
By:
------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY
By: /s/ Xxxxxxxxxxx Xxxx
------------------------------------
Name: XXXXXXXXXXX XXXX
Title: DIRECTOR
BEAR XXXXXXX & CO., INC.
By:
------------------------------------
Name:
Title:
GE CAPITAL CFE, INC.
By:
------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
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/ Illegible
------------------------------------
Name: Illegible
Title: Illegible
GE CAPITAL CFE, INC.
By:
------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
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:
------------------------------------
Name:
Title:
GE CAPITAL CFE, INC.
By:
------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxx xxx Xxxxxxx
------------------------------------
Name: Xxx xxx Xxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
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:
------------------------------------
Name:
Title:
GE CAPITAL CFE, INC.
By:
------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO WAIVER - EXIDE]
SPCP GROUP LLC
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: CFO
XXXXXXX SACHS CREDIT PARTNERS L.P.
By:
------------------------------------
Name:
Title:
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:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
SPCP GROUP LLC
By:
------------------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
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:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
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
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
[SIGNATURE PAGE TO WAIVER - EXIDE]
ING-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:
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:
[SIGNATURE PAGE TO WAIVER - EXIDE]
ING-ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
--------------------------------
Name:
Title:
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: Xxxxx Xxxxx Management, as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
--------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXXXX & CO
By: Boston Management and Research
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
--------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
--------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO WAIVER - EXIDE]
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
--------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
US BANK NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
------------------------------------
Name:
Title:
CIBC INC.
By:
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
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/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: AUTHORIZED SIGNATORY
[SIGNATURE PAGE TO WAIVER - EXIDE]
