W I T N E S S E T H:
Exhibit 4.19
Waiver
This Waiver dated as of July 30, 2002 (this "Waiver") is granted by
the Requisite Lenders signatory hereto in connection with that certain Credit
Agreement dated as of April 15, 2002 and amended as of 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 temporarily waives certain
provisions of the Credit Agreement. 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 a certain reporting covenant
of the Credit Agreement and the resultant Event of Default be temporarily
waived, 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 grant
the waiver of the reporting provision of the Credit Agreement 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. Waiver of Certain Covenants of the Credit Agreement. This
Waiver is, effective as of the Waiver Effective Date (as defined below) and
subject to the terms and conditions set forth herein, hereby granted as follows:
The Requisite Lenders hereby waive any Default or Event of Default
that may have occurred due to the failure of the Company to deliver within
120 days after the end of its Fiscal Year the annual Consolidated and
consolidating Financial Statements in the manner and form (including such
analysis, discussion, narrative, reports, certifications and opinion) set
forth in Section 6.1(c) of the Credit Agreement; provided, however, that
if as of August 31, 2002 the Company has not delivered the annual financial
information in conformity with Section 6.1(c) of the Credit Agreement, this
Waiver shall be deemed null and void and shall cease to be of any further
force and effect as of the date of this Waiver.
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 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,
all of which shall be in form and substance satisfactory to the
Administrative Agent and in sufficient originally executed copies for
each of the Lenders:
(i) this Waiver executed by sufficient Lenders to constitute the
Requisite Lenders, each of the Loan Parties and the Administrative
Agent;
(ii) such additional documentation as the Administrative Agent
or, if appropriate, the Requisite Lenders may reasonably require; and
(iii) annual financial information for the Fiscal Year ended
March 31, 2002 in form and substance reasonably satisfactory to the
Administrative Agent.
(b) 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, other than as suspended by this
Waiver, 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 Waiver Effective Date (other than
representations and warranties in any such Loan Document expressly
that are limited to a specific date).
(c) No Events of Default. Other than the Default being waived by
this Waiver, no Event of Default or Default shall have occurred and be
continuing on the Waiver Effective Date.
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 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
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 fill 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
2
Expenses) of the Credit Agreement all costs and expenses of the
Administrative Agent in connection with the preparation, 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]
3
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/ Illegible
------------------------------------
Name:
Title:
EXIDE DELAWARE LLC, A DEBTOR AND A
DEBTOR IN POSSESSION
as a Borrower and a Domestic
Guarantor
By: /s/ Illegible
------------------------------------
Name:
Title:
EXIDE ILLINOIS, INC., A DEBTOR AND A
DEBTOR IN POSSESSION
as a Borrower and a Domestic
Guarantor
By: /s/ Illegible
------------------------------------
Name:
Title:
RBD LIQUIDATION, LLC, A DEBTOR AND A
DEBTOR IN POSSESSION
as a Borrower and a Domestic
Guarantor
By: /s/ Illegible
------------------------------------
Name:
Title:
GNB BATTERY TECHNOLOGIES JAPAN,
INC., as a Domestic Guarantor
By: /s/ Illegible
------------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
Citicorp USA, Inc.,
as Administrative Agent, Swing Loan
Lender, Collateral Monitoring Agent,
and a Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXX
Title: Vice President
Asset Based Finance
(000)000-0000
Citibank, N.A.,
as Issuer
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXX
Title: Vice President
Asset Based Finance
(000)000-0000
[SIGNATURE PAGE TO WAIVER - EXIDE]
Other Lenders:
CIT GROUP BUSINESS CREDIT
By: /s/ Xxxxxxxx Jhrrett
------------------------------------
Name: XXXXXXXX JHRRETT
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 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/ Xxxx X. XxXxxxxxx
------------------------------------
Name: XXXX X. XxXXXXXXX
Title: SENIOR MANAGING DIRECTOR
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]
SPCP GROUP LLC
By: /s/ Illegible
------------------------------------
Name: Illegible
Title: CFO
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.
By: ING Capital Advisors LLC,
as Portfolio Manager
By:
--------------------------------
Name:
Title:
[SIGNATURE PAGE TO WAIVER - EXIDE]
SPCP GROUP LLC
By:
------------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ Xxxxx XxXxxxxxx
------------------------------------
Name: Xxxxx XxXxxxxxx
Title: Authorized Signatory
FOOTHILL INCOME TRUST, L.P.
By: FIT II 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 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
--------------------------------
Name: Xxxx X. Xxxxxx CFA
Title: Vice President
[SIGNATURE PAGE TO WAIVER - EXIDE]
ORYX CLO, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
--------------------------------
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]
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By:
--------------------------------
Name:
Title:
US BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE
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 Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Director
ClBC World Markets Corp.
As Agent
CIBC INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Director
ClBC World Markets Corp.
As Agent
[SIGNATURE PAGE TO WAIVER - EXIDE]
