Exhibit 4.2
THIRD AMENDMENT AND WAIVER TO THE STANDSTILL AGREEMENT
THIRD AMENDMENT AND WAIVER TO THE STANDSTILL AGREEMENT, dated as of
December 27, 2002 (this "Amendment"), to the Standstill Agreement and Fifth
Amendment to the Credit Agreement dated as of April 15, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Standstill
Agreement"), among the Borrowing Subsidiaries signatories thereto, the Foreign
Subsidiary Guarantors signatories thereto, GNB Battery Technologies Japan, Inc.,
(GNB Battery Technologies Japan, Inc., together with the Borrowing Subsidiaries
and the Foreign Subsidiary Guarantors, the "Standstill Parties"), the Standstill
Lenders (as defined in the Credit Agreement), Credit Suisse First Boston, as
administrative agent (in such capacity, the "Administrative Agent") for the
Standstill Lenders, and others.
PRELIMINARY STATEMENTS
(1) The Company has requested that the DIP Lenders amend certain
provisions of the Post-Petition Credit Agreement, including amendments to
certain of the Cross Referenced Covenants incorporated by reference in the
Standstill Agreement and that certain transactions be permitted as more
particularly set forth herein.
(2) The Standstill Parties have requested that the Standstill Lenders
make and permit certain transactions as requested by the Standstill Parties. The
Standstill Lenders are willing to consent to such transactions 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 Standstill Agreement or
the Credit Agreement and used herein shall have the meanings given to them in
the Standstill Agreement or the Credit Agreement, as applicable.
SECTION 2. Amendments to Standstill Agreement. On the Effective Date
(as hereinafter defined), the Standstill Agreement shall be amended as follows:
(i) Section 6 shall be amended by adding the number "7.19," after
"7.10,"; and
(ii) Part I(f) of Schedule A shall be amended by replacing "2.8(g)"
with "2.9(g) (as such section is in effect prior to the Third Amendment and
Waiver to the Post-Petition Credit Agreement)".
Third Amendment and Waiver to Standstill Agreement
2
SECTION 3. Waiver and Consent. Effective as of the Effective Date (as
defined below) and subject to the terms and conditions set forth herein, the
Required Standstill Lenders hereby waive the requirements of Cross-Reference
Covenants 8.3, 8.6 and 8.7 in Section 6 of the Standstill Agreement (as such
Cross-Referenced Covenants were set forth in the Post-Petition Credit Agreement
as in effect prior to the Third Amendment and Waiver to the Post-Petition Credit
Agreement) solely to permit the following:
(i) the liquidation of: GNB Technologies Ltd.; B.I.G. Batteries Ltd.;
BIG Batteries Distribution Ltd.; B.I.G. France Sarl; BIG Espana S.A.; Gemala
Distribution Ltd.; Gemala Ignition Company Ltd.; All Batteries Ltd.; and Friwo
Batteries Ltd.;
(ii) the merger of MBD National Ltd., Fulmen UK Ltd., Nord Group Ltd.
and National Battery Distribution UK into Exide (Dagenham) Ltd., followed by the
liquidation of MBD National Ltd., Fulmen UK Ltd., Nord Group Ltd. and National
Battery Distribution UK;
(iii) the transfer of:
(a) Exide Batteries (Ireland) Ltd. to Exide Batteries Ltd UK; and
(b) Exide Sweden to Exide Technologies Holding B.V.;
followed by the liquidation of Gemala Ireland Holding Ltd. and
Gemala Ireland Company Limited;
(iv) the transfer of:
(a) OHE Ltd. to TS Batteries Ltd.; and
(b) Spitfire Batteries Ltd. trade receivables to TS Batteries
Ltd.;
followed by the liquidation of Friwo Batteries Ltd. and Spirtfire
Batteries Ltd.;
(v) the transfer of the operating assets of Exide Holdings Ltd. and
Exide (Dagenham) Ltd. to Exide Batteries Ltd. followed by the liquidation of
Exide Holdings Ltd. and Exide (Dagenham) Ltd.;
provided however, that with respect to the transaction described in (i) through
(v) above, the proceeds of any dividends, distributions, or asset sales in
connection with such transactions shall be applied as set forth in Sections
2.9(g) and 2.9(h) of the Post-Petition Credit Agreement as in effect prior to
the Third Amendment and Waiver to the Post-Petition Credit Agreement;
(vi) the following stock sales:
(a) the sale of stock of Centra S.A. from Compagnie Europeenne
d'Accumulateurs S.A. to Exide Transportation Holding Europe,
S.L.;
Third Amendment and Waiver to Standstill Agreement
3
(b) the sale of stock of Sociedade Portugesa do Acumulador Tudor,
S.A. from Deutsche Exide GmbH to Exide Transportation Holding
Europe, S.L.;
(c) the sale of stock of Exide Batterier AB from Exide (Dagenham)
Ltd., to Exide Technologies Holding, B.V.;
(d) the sale of stock of Exide Batteriewerke GmbH from Deutsche
Exide GmbH to Tudor AB and Exide Sonnak A.S. and the provision of
intercompany security by Deutsche Exide GmbH to Exide Sonnak A/S
and Tudor AB in connection with the sale of the stock of Exide
Batteriewerke GmbH;
Solely with respect to the transaction in (vi)(d), the Required
Standstill Lenders hereby waive any Default or Event of Default
that may occur under Section 6 of the Standstill Agreement with
respect to the Cross-Referenced Covenant in Section 8.2 of the
Post-Petition Credit Agreement.
(vii) Exide Holding Europe contributing approximately Euro4.5 million
to Euro Exide Limited;
(viii) the following Norwegian dividend payments:
(a) a dividend payment of approximately Euro13.7 million from
Exide Sonnak A/S to Exide Technologies Holding, B.V.;
(b) a dividend payment of approximately Euro6.3 million from
Exide Technologies Holding, B.V. to Exide Transportation Holding
Europe, S.L.;
provided however, that (i) a liquidating dividend in an amount
equal to the value of the assets transferred to a Subsdiary
("Newco") created from the demerger of Exide Sonnak A/S, less any
amounts required to be maintained at Newco under local law, shall
be made to Exide Technologies Holding, B.V. on or before February
15, 2003, and (ii) a further dividend in an amount equal to the
value of all remaining assets transferred to Newco shall be made
to Exide Technologies Holding, B.V. on or before March 31, 2003;
(ix) the following Swedish dividend payments:
(a) a dividend payment not to exceed approximately Euro5.6
million from Tudor AB to Exide Technologies Holding, B.V.;
(b) a dividend payment not to exceed approximately Euro5.6
million from Exide Technologies Holding, B.V. to Exide
Transportation Holding Europe, S.R.L.;
Third Amendment and Waiver to Standstill Agreement
4
(x) the following Finnish dividend payment and related transactions:
(a) a dividend payment of up to Euro5.1 million from Exide OY to
Exide Technologies Holding, B.V. and the offset of approximately
Euro5.1 million of Indebtedness owed by Exide Technologies
Holding, B.V to Exide OY;
(b) the incurrence of indebtedness by Exide Technologies Holding,
B.V. of up to Euro5,000,000 at any one time outstanding in
intercompany Indebtedness payable to Exide OY so long as all of
the funds received are immediately lent by Exide Technologies
Holding B.V. to Mercolec; and
(c) the repayment and prepayment of that intercompany
Indebtedness by Exide Technologies Holding, B.V. so long as each
fiscal year there shall be a payment of dividends from Exide OY
in settlement of amounts due and owing from Exide Technologies
Holding B.V.;
Solely with respect to the transactions in clause (x)(b) and (c),
the Required Standstill Lenders hereby waive any Default or Event
of Default that may occur under Section 6 of the Standstill
Agreement with respect to the Cross-Referenced Covenant in
Section 8.1 (Indebtedness) of the Post-Petition Credit Agreement.
(xi) the repayment of approximately Euro2.1 million of loans from
Exide Danmark A/S to Tudor AB.;
(xii) the issuance of approximately Euro 47 million in notes from
Exide Italia S.R.L. to Mercolec Tudor B.V. and in turn the issuance of notes
from Mercolec Tudor B.V. to Deutsche Exide Standby GmbH and Xxxxx Batterie AG in
connection with the purchase of the intercompany receivables from Deutsche Exide
Gmbh on the books of (a) Deutsche Exide Standby GmbH in the amount of
approximately Euro 35.5 million and (b) Xxxxx Batterie AG in the amount of
approximately Euro 11.5 million, and the acquisition by Exide Italia, S.R.L. of
a twenty-five percent (25%) capital stock ownership in Deutsche Exide GmbH in
exchange for such intercompany receivables.
Third Amendment and Waiver to Standstill Agreement
5
SECTION 4. Further Waivers. Upon written request from a Standstill
Party, the Administrative Agent, in consultation with the Steering Committee,
may waive the requirements of the Cross-Referenced Covenants incorporated into
Section 6 of the Standstill Agreement in order to permit any transactions
described in the "Presentation to the Senior Lenders" dated December 9, 2002, to
the extent that such transaction is not specifically waived in Section 3 above.
SECTION 5. Authorization for Lien Release. The Administrative Agent is
hereby irrevocably authorized to release any Lien covering any Property of EHE
or any of its Subsidiaries that is the subject of a Disposition which is
permitted by this Amendment.
SECTION 6. Conditions to Effectiveness. This Amendment shall be
effective on the date on which the Administrative Agent shall have signed the
Amendment and all of the following conditions precedent have been satisfied (the
"Effective Date"):
(a) Certain Documents. The Administrative Agent shall have received on
or before the Effective Date all of the following, each of which shall be in
form and substance satisfactory to the Administrative Agent:
(i) this Amendment, executed and delivered by (x) sufficient
Standstill Lenders to constitute the Required Standstill Lenders, (y) each of
the Standstill Parties and (z) the Administrative Agent; and
(ii) such additional documentation as the Administrative Agent may
reasonably require.
(b) Amendment Fee. On the Effective Date, the Standstill Parties shall
have paid to each Standstill Lender that has executed and delivered this
Amendment prior to the close of business on December 27, 2002, an amendment fee
equal to such Standstill Lender's pro rata share of $250,000 based on such
Standstill Lender's outstanding Loans as of the Effective Date.
(c) 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 Amendment shall be
satisfactory in all respects in form and substance to the Administrative Agent.
(d) No Events of Default. After giving effect to the Amendment, no
Standstill Event shall have occurred and be continuing, and the representations
and warranties contained in the Standstill Agreement shall be correct in all
material respects as though made on and as of the Effective Date.
(e) Payment of Costs, Fees and Expenses. All accrued and unpaid fees
and expenses of the Administrative Agent in connection with this Amendment
including, without limitation, the unpaid fees and expenses of counsel to the
Administrative Agent (including United States and local counsel in foreign
jurisdictions) shall have been paid.
Third Amendment and Waiver to Standstill Agreement
6
SECTION 7. Representations and Warranties. To induce the Standstill
Lenders parties hereto to enter into this Amendment, each of the Standstill
Parties hereby represents and warrants to the Administrative Agent and all of
the Standstill Lenders the following:
(a) The execution, delivery and performance by each Standstill Party
of the Amendment and the Loan Documents to which it is a party, as amended
hereby, are within such Standstill Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene such
Standstill Party's Constituent Documents, (ii) violate any law (including,
without limitation, the Securities Exchange Act of 1934), rule, regulation
(including, without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award applicable to such Standstill Party, or (iii) conflict
with or result in the breach of, or constitute a default under, any Contractual
Obligation, including, without limitation, the bilateral loan documents, of EHE,
EHA or any of their Subsidiaries. As of the Effective Date, no Standstill Party
is in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such contract,
loan agreement, indenture, mortgage, deed of trust, lease or other instrument,
the violation or breach of which is reasonably expected to have a Material
Adverse Effect.
(b) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required to be obtained by the Standstill Parties in connection with
the execution and delivery, or performance by any Standstill Party of any of its
obligations under the Amendment and the Standstill Agreement, as amended hereby.
(c) The Amendment has been duly executed and delivered by each
Standstill Party, and is the legal, valid and binding obligation of such
Standstill Party, enforceable against such Standstill Party in accordance with
its terms except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or limiting creditors' rights or by
equitable principles generally.
(d) No Standstill Party has an existing claim against any Standstill
Lender arising out of, relating to or in connection with the Loan Documents.
(e) As of the Effective Date, EHE is not in breach of, or in default
under, the DM Agreement, and no Foreign Subsidiary is in breach of, or in
default under, any other Contractual Obligation, binding on or affecting any
Foreign Subsidiary or any of their properties, where the consequence of such
default is to confer rights upon any person against such Foreign Subsidiary
which, if exercised, can be reasonably expected to have a Material Adverse
Effect.
(f) The representations and warranties made by each of the Standstill
Parties 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.
(g) Each Standstill Party hereby represents and warrants to the
Standstill Lenders and the Administrative Agent that as of the date hereof, and
after giving effect to the waiver
Third Amendment and Waiver to Standstill Agreement
7
contained herein, (a) no Standstill Event under the Standstill Agreement shall
have occurred and be continuing and (b) all of the representations and
warranties of such Standstill Party contained in Section 12 of the Standstill
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 8. Reference to and Effect on the Loan Documents.
(a) On and after the Effective Date, each reference in the Standstill
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Standstill Agreement and each reference in the Credit Agreement
and other Loan Documents to "the Standstill Agreement", "thereunder", "thereof"
or words of like import referring to the Standstill Agreement, shall mean and be
a reference to the Standstill Agreement as amended and otherwise modified
hereby.
(b) The Standstill Agreement, the Credit Agreement and each of the
other Loan Documents, except to the extent of the amendments and other
modifications specifically provided above, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Standstill Lender or any Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
(d) This Amendment is and shall be a Loan Document.
SECTION 9. Affirmation of Loan Documents. Each Standstill Party, in
its capacity as a Guarantor or otherwise, hereby consents to the modification of
the Standstill Agreement effected hereby and hereby acknowledges and agrees that
the terms of this Amendment shall not affect in any way its obligations and
liabilities under the Credit Agreement, including under its guarantee, the
Standstill Agreement 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 10. 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 11. Waiver of Jury Trial. Each of the Standstill Parties, the
Administrative Agent and the Standstill Lenders irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Amendment or the
actions of the Administrative Agent or any Standstill Lender in the negotiation,
administration, performance or enforcement thereof.
Third Amendment and Waiver to Standstill Agreement
8
SECTION 12. 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.
SECTION 13. Costs and Expenses. EHE hereby agrees to pay, and each of
the other Foreign Subsidiary Guarantors guarantees payment (subject to the
exceptions set forth in Schedule 10.1 of the Credit Agreement) of, all
reasonable costs and expenses associated with the preparation, execution,
delivery, administration, and enforcement of this Amendment, including, without
limitation, the fees and expenses of the Administrative Agent's counsel
(including local counsel in foreign jurisdictions) and financial advisor and the
out-of-pocket expenses of the Steering Committee (in each case, whether incurred
prior to or after the Effective Date).
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Third Amendment and Waiver to Standstill Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
Each of the following Subsidiaries as a
Borrowing Subsidiary and as a Guarantor,
subject to the limitations, if any,
contained in Section 10.1 of the Credit
Agreement
EXIDE HOLDING EUROPE S.A.
By:
----------------------------------------
Name:
Title:
COMPAGNIE EUROPEENNE D'ACCUMULATEURS S.A.
By:
----------------------------------------
Name:
Title:
EURO EXIDE CORPORATION LIMITED
By:
----------------------------------------
Name:
Title:
SOCIEDAD ESPANOLA DEL ACUMULADOR XXXXX X.X.
By:
----------------------------------------
Name:
Title:
TUDOR A.B.
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
EXIDE TECHNOLOGIES NEDERLAND B.V.
By:
----------------------------------------
Name:
Title:
CMP BATTERIES LIMITED
By:
----------------------------------------
Name:
Title:
DEUTSCHE EXIDE STANDBY GMBH
By:
----------------------------------------
Name:
Title:
DEUTSCHE EXIDE GMBH
By:
----------------------------------------
Name:
Title:
MERCOLEC TUDOR B.V.
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
Each of the following Subsidiaries as a
Guarantor, subject to the limitations,
if any, contained in Section 10.1 of the
Credit Agreement
FULMEN IBERICA S.L.
By:
----------------------------------------
Name:
Title:
CMP BATTERIJEN N.V.
By:
----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE BATTERIE GMBH
By:
----------------------------------------
Name:
Title:
XXXXX BATTERIE AG
By:
----------------------------------------
Name:
Title:
ELECTRO MERCANTIL INDUSTRIAL S.L.
By:
----------------------------------------
Name:
Title:
EXIDE (DAGENHAM) LIMITED
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
FULMEN UK LIMITED
By:
----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By:
----------------------------------------
Name:
Title:
SOCIEDADE PORTUGUESA DO ACUMULADOR
XXXXX X.X.
By:
----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By:
----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
----------------------------------------
Name:
Title:
CENTRA S.A.
By:
----------------------------------------
Name:
Title:
XXXXXXXX & WOLF BATTERIETECHNIK GMBH
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
EXIDE S0NNAK A/S
By:
----------------------------------------
Name:
Title:
EXIDE BATTERIES LIMITED
By:
----------------------------------------
Name:
Title:
B.I.G. BATTERIES LIMITED
By:
----------------------------------------
Name:
Title:
EXIDE LENDING LIMITED
By:
----------------------------------------
Name:
Title:
EXIDE ITALIA S.R.L.
By:
----------------------------------------
Name:
Title:
INDUSTRIA COMPOSIZIONI STAMPATE, SPA
By:
----------------------------------------
Name:
Title:
EXIDE HOLDINGS LIMITED
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
EXIDE TECHNOLOGIES HOLDING BV
By:
----------------------------------------
Name:
Title:
EXIDE TRANSPORTATION HOLDING EUROPE, SL
By:
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Name:
Title:
EXIDE AUSTRALIA PTY LIMITED
By:
----------------------------------------
Name:
Title:
EXIDE TECHNOLOGIES LIMITED
By:
----------------------------------------
Name:
Title:
EXIDE HOLDING ASIA PTE LIMITED
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
GNB TECHNOLOGIES (CHINA) LIMITED
By:
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Name:
Title:
EXIDE SINGAPORE PTE LIMITED
By:
----------------------------------------
Name:
Title:
EXIDE CANADA INC.
By:
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Name:
Title:
1036058 ONTARIO INC.
By:
----------------------------------------
Name:
Title:
GNB TECHNOLOGIES LIMITED
By:
----------------------------------------
Name:
Title:
MBD NATIONAL LIMITED
By:
----------------------------------------
Name:
Title:
NATIONAL BATTERY DISTRIBUTION LIMITED
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
NORD GROUP LIMITED
By:
----------------------------------------
Name:
Title:
OHE LIMITED
By:
----------------------------------------
Name:
Title:
SPITFIRE BATTERIES LIMITED
By:
----------------------------------------
Name:
Title:
TS BATTERIES LIMITED
By:
----------------------------------------
Name:
Title:
GNB TECHNOLOGIES NV
By:
----------------------------------------
Name:
Title:
DETA UK LIMITED
By:
----------------------------------------
Name:
Title:
FRIWO BATTERIES LIMITED
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
GEMALA IRELAND (HOLDINGS) LIMITED
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
GNB BATTERY TECHNOLOGIES JAPAN, INC.
As a Guarantor, subject to the limitations,
if any, contained in Section 10.1 of the
Credit Agreement
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
Third Amendment and Waiver to Standstill Agreement
Lenders
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[Print Name of Lender]
By
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Name:
Title:
Third Amendment and Waiver to Standstill Agreement
