EXHIBIT 4.13
EXECUTION COPY
STANDSTILL AGREEMENT AND
FIFTH AMENDMENT TO THE CREDIT AGREEMENT
STANDSTILL AGREEMENT AND FIFTH AMENDMENT TO THE CREDIT AGREEMENT,
dated as of April 15, 2002 (this "Agreement"), 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 the Borrowing Subsidiaries signatories thereto, the Foreign Subsidiary
Guarantors signatories thereto and GNB Battery Technologies Japan, Inc., a
Delaware corporation, (the "Domestic Non-Debtor", together with the Borrowing
Subsidiaries and the Foreign Subsidiary Guarantors, the "Standstill Parties"),
the several lenders from time to time parties thereto (the "Lenders"), Credit
Suisse First Boston, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders, and others.
PRELIMINARY STATEMENTS
(1) Pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the Company
and the Borrowing Subsidiaries.
(2) The Credit Agreement has been amended by (i) an Amendment dated
as of June 20, 2001, (ii) a Second Amendment dated as of October 31, 2001, (iii)
a Third Amendment and Waiver to the Loan Documents dated as of December 28, 2001
and (iv) a Fourth Amendment and Waiver to the Credit Agreement dated as of March
28, 2002.
(3) On April 15, 2002 (the "Petition Date"), the Company, Exide
Delaware, LLC, Exide Illinois, Inc. and RBD Liquidation, LLC (collectively, the
"Debtors") each filed a voluntary petition for relief (collectively, the
"Cases") under chapter 11 of title 11 of the United States Code (the "Bankruptcy
Code") in the U.S. Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court"). The Debtors continue to operate their businesses and manage
their properties as debtors-in-possession pursuant to Sections 1107 and 1108 of
the Bankruptcy Code.
(4) The Company, the other Debtors and certain Foreign Subsidiaries
have entered into a Secured Super-Priority Debtor In Possession Revolving Credit
Agreement dated as of April 15, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Post-Petition Credit Agreement") with Citicorp
USA, Inc. ("Citicorp") as administrative agent and collateral agent (the
"Post-Petition Administrative Agent") and certain other lenders party thereto
(the "DIP Lenders"). The Post-Petition Administrative Agent for the benefit of
the DIP Lenders, the Administrative Agent, the Lenders, the Company and the
Standstill Parties are entering into an Intercreditor and Subordination
Agreement dated as of April 15, 2002 (the "Intercreditor Agreement").
(5) The execution of this Agreement and the Intercreditor Agreement
by the Lenders is a condition precedent to the effectiveness of the
Post-Petition Credit Agreement.
Standstill Agreement and Fifth Amendment
(6) Upon the commencement of the Cases, the Commitments
automatically terminated with respect to each Borrower and the Loans made to the
Company and all other amounts owing from the Company became immediately due and
payable and remain unpaid as of the date hereof. The commencement of the Cases
and the entry into the Post-Petition Credit Agreement and related loan documents
have given rise to Defaults and Events of Default pursuant to the Credit
Agreement (the "Bankruptcy Defaults"). The Company and the Borrowing
Subsidiaries have also advised the Administrative Agent that the Company and the
Borrowing Subsidiaries will be unable to make certain payments of principal,
interest and other amounts with respect to the Obligations on or after the date
hereof (the "Payment Defaults") and that there may be certain other Defaults and
Events of Default during the continuation of the Cases (the "Standstill Period
Defaults", and together with the Bankruptcy Defaults and the Payment Defaults,
the "Standstill Agreement Defaults").
(7) The Standstill Parties have requested that the Lenders forbear
for a period of time from exercising any rights or remedies that they may have
under the Credit Agreement and the other Loan Documents arising from the
Standstill Agreement Defaults and the Company and the other Loan Parties have
requested that the Lenders consent to the amendment of certain provisions of the
Credit Agreement.
(8) The Lenders are willing to consent to such forbearance and
amendments upon and subject to the terms and conditions hereinafter set forth,
notwithstanding any of the provisions contained in the Credit Agreement and the
Loan Documents, as amended, supplemented or otherwise modified heretofore.
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. On the Effective Date (as
hereinafter defined) the Credit Agreement shall be amended as follows:
(a) Amendments to Section 1.1. Section 1.1 of the Credit Agreement
shall be amended as follows:
(i) The following defined terms shall be added to Section 1.1 of the
Credit Agreement in the appropriate alphabetical position and shall have the
meanings given to them in the Post-Petition Credit Agreement (as such agreement
shall be in effect as of the Effective Date and without giving effect to any
amendments or modifications thereto after the Effective Date unless approved by
the Required Standstill Lenders (as defined below)):
"Customary Permitted Liens", "EHE", "Escrow Account", "Final Order",
"Interim Order", "Responsible Officer" and "Restricted Payment".
(ii) The following defined terms, together with the related
definitions, shall be added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical position:
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"Additional Standstill Lenders' Liens": has the meaning given to
such term in Section 11(b) of the Standstill Agreement.
"EHA": means Exide Holding Asia Pte Limited, a company
incorporated under the laws of Singapore.
"Fourth Amendment": the Fourth Amendment and Waiver to the
Credit Agreement, dated as of March 28, 2002.
"Intercreditor Agreement": has the meaning given to such term in
the Standstill Agreement.
"Post-Petition Credit Agreement": has the meaning set forth in
the Standstill Agreement.
"Post-Petition Loan Documents": means the Loan Documents as
defined in the Post-Petition Credit Agreement.
"Post-Petition Obligations": means the Obligations as defined in
the Post-Petition Credit Agreement.
"Standstill Agreement": the Standstill Agreement and Fifth
Amendment to the Credit Agreement, dated as of April 15, 2002.
"Standstill Documents": means the Standstill Agreement and the
Intercreditor Agreement.
"Standstill Lenders' Liens": has the meaning given to such term
in Section 11(a) of the Standstill Agreement.
"Significant Foreign Subsidiary": any Subsidiary of EHE or EHA
with assets having a fair market value in excess of $250,000.
"Standstill Lender": any Lender that is a party to each of the
Standstill Documents or any Assignee of a Standstill Lender which
becomes a Lender pursuant to Section 12.6(c) of the Credit Agreement
and their respective successors.
"Non-Standstill Lender": any Lender that is not a Standstill
Lender.
"Principal Property": has the meaning given to such term in the
DM Agreement.
(iii) The definition of "Amendment Documents" is amended in its
entirety to read as follows:
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"Amendment Documents": the First Amendment, Second Amendment,
Third Amendment, Fourth Amendment, Standstill Agreement and any future
Amendments to the Credit Agreement.
(iv) The definition of "European Receivables Maximum Commitment
Amount" is amended by increasing such amount to $200,000,000.
(v) The definition of "Material Adverse Effect" is amended in its
entirety to read as follows:
""Material Adverse Effect": a material adverse effect on (a) the
condition (financial or otherwise), business, performance,
prospects, operations or properties of EHE, EHA and their
Subsidiaries taken as a whole, (b) the legality, validity or
enforceability of the Standstill Agreement or any other Loan
Document to which a Standstill Party is a party, (c) the
perfection or priority of the Liens granted pursuant to the
Security Documents to which a Standstill Party is a party , (d)
the ability of any Standstill Party to perform its obligations
under the Standstill Agreement or any other Loan Document to
which such Standstill Party is a party or (e) the rights and
remedies of the Administrative Agent, the Lenders or the Issuers
under the Standstill Agreement or any other Loan Document to
which such Standstill Party is a party."
(b) Amendments to Section 4. Section 4.1 of the Credit Agreement shall
be amended by deleting the proviso at the end of clause (a) and inserting in its
place the following:
"provided that any Letter of Credit may be renewed for additional
periods of the same duration or any shorter period (which shall in no event
extend beyond the date referred to in clause (y) except on terms satisfactory to
the Issuing Bank, which may include cash collateralization of the outstanding
Letters of Credit)."
(c) Amendments to Section 11. Section 11.9 of the Credit Agreement
shall be amended by deleting the words "from among the Lenders" where they
appear after the word "appoint".
(d) Amendments to Section 12. Section 12.7(b) of the Credit Agreement
shall be amended by adding the following additional proviso to the end thereof
as follows:
"provided further that the Standstill Lenders shall not be
required to (x) purchase from any Non-Standstill Lender a
participating interest in such Non-Standstill Lender's Loans and/or of
the Reimbursement Obligations owing to such Non-Standstill Lender as a
consequence of the receipt by any Standstill Lender of (I) any payment
of interest accruing during the Standstill Period made by a Borrowing
Subsidiary pursuant to the Credit Agreement or any other payment
pursuant to the Standstill Agreement (including, without limitation,
any payment of fees pursuant to Section 5 of the Standstill Agreement)
or (II) the Standstill Lenders' Liens or the Additional Standstill
Lenders' Liens granted during the Standstill Period in connection with
the Standstill Agreement or (y) provide any
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Non-Standstill Lender with the benefits of the Standstill Lenders'
Liens, the Additional Standstill Lenders' Liens, or the proceeds
thereof."
SECTION 3. Agreement to Standstill. (a) During the Standstill Period
(as defined below) the Administrative Agent and each Standstill Lender shall
forbear from suing, asking for, demanding, setting off or taking any action to
recover from the Standstill Parties, payment of any amount of principal payable
under or relating to the Foreign Obligations, and from otherwise enforcing any
of their individual or collective rights and remedies against the Standstill
Parties under the Loan Documents available to such Lender arising solely as a
result of (i) the Bankruptcy Defaults, (ii) the Payment Defaults, (iii) the non
payment of the amounts of principal and interest on the outstanding Loans of the
Borrowing Subsidiaries (and interest accrued thereon) deferred pursuant to the
Fourth Amendment or otherwise due and payable prior to the Petition Date, in
each case, to the extent that such payments are not made on or before the
Petition Date or (iv) the Standstill Period Defaults (except to the extent that
such Standstill Period Default constitutes a Standstill Event (as defined below)
pursuant to this Agreement)). The term "Standstill Period" means the period from
the Effective Date (as defined below) until the earliest to occur of (i) the
date of effectiveness of a plan of reorganization in the Cases, (ii) the date on
which a Standstill Termination Event (as defined below) shall have occurred or
(iii) December 18, 2003 (the "Final Date") (the first such date to occur, the
"Standstill Termination Date").
(b) Notwithstanding anything to the contrary contained in Section 3(a)
hereof, on the Standstill Termination Date, (i) the forbearance set forth in
Section 3(a) hereof shall automatically terminate and be of no further force or
effect, (ii) any breach, Default or Event of Default that was the subject of
forbearance under Section 3(a) hereof is, without further action, reinstated and
shall have the same force and effect as if the forbearance had not been agreed
to by the parties hereto and (iii) any Lender may thereafter ▇▇▇, ask for or
demand from any Standstill Party, payment of the Foreign Obligations owing to
such Lender, in whole or in part, and otherwise enforce any of their rights and
remedies provided for under the Loan Documents against any party hereto. Nothing
herein shall prevent or restrain the Company or any Standstill Party from
asserting any other rights in any court and the Standstill Lenders from
disputing such rights.
(c) Each of the Standstill Parties agrees that, subject to the
agreement of the Lenders to forbear as and to the extent set forth in this
Agreement, all rights and remedies of the Lenders under the Loan Documents with
respect to the Standstill Parties shall continue to be available to the Lenders
from and after the Effective Date. Notwithstanding the forbearance by any Lender
of any breaches, Defaults or Events of Default under the Credit Agreement, no
Lender shall be required to make any advance or issue any Letter of Credit to
any Borrowing Subsidiary under the Credit Agreement, provided that any Letter of
Credit may be renewed for additional periods of the same duration or any shorter
period (which shall in no event extend beyond the Final Date except on terms
satisfactory to the Issuing Bank, which may include cash collateralization of
the outstanding Letters of Credit) and provided, further, that nothing in this
Agreement or in the Credit Agreement shall prevent any Issuing Bank from issuing
a termination notice with respect to any Letter of Credit in accordance with the
terms of such Letter of Credit.
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SECTION 4. Payments by Borrowing Subsidiaries. (a) During the
Standstill Period, except as otherwise provided in paragraph (c) hereof, the
Borrowing Subsidiaries (and to the extent not paid by any Borrowing Subsidiary,
the other Foreign Subsidiary Guarantors shall guaranty such payments to the
extent set forth in Section 10 of the Credit Agreement) shall make monthly
payments of current interest on the Loans of the Borrowing Subsidiaries
(including, without limitation, any payments required to be made pursuant to
Sections 3.12 and 3.13 of the Credit Agreement), letter of credit (including,
without limitation, any payments required to be made pursuant to Section 4.6 of
the Credit Agreement) and other fees (including any such interest and fees that
are accrued and unpaid as of the commencement of the Cases) to the Standstill
Lenders at the applicable non-default rates provided for pursuant to the Credit
Agreement. Nothing in this Section 4(a) shall restrict the making of any payment
due to any Lender under the Credit Agreement.
(b) Payment of interest pursuant to clause (a) above shall be made on
the dates and at the applicable non-default rates provided for pursuant to the
Credit Agreement, provided that, upon the occurrence and during the continuance
of a Standstill Event, all outstanding Loans and Reimbursement Obligations of
the Borrowing Subsidiaries shall bear interest at the applicable default rates
provided for pursuant to the Credit Agreement.
(c) During the continuance of any default or event of default under
the Post-Petition Credit Agreement, upon receipt by the Administrative Agent of
written notice from the administrative agent under the Post-Petition Credit
Agreement (a "DIP Default Notice"), no payment of interest, letter of credit or
other fees may be made by the Borrowing Subsidiaries or any other Foreign
Subsidiary Guarantor (unless such default or event of default shall have been
cured or waived) during the Standstill Period; provided that, nothing contained
herein is intended to or shall impair, as among the Borrowing Subsidiaries, the
other Foreign Subsidiary Guarantors and the Company, the obligations under the
Credit Agreement, which are absolute and unconditional, to pay the holders as
and when the same become due and payable, interest in accordance with the terms
thereof, nor shall anything herein prevent the Standstill Lenders from
exercising their rights under this Agreement, including the right to declare a
Standstill Event or a Standstill Termination Event and to receive default
interest after a DIP Default Notice shall have been received.
(d) During the Standstill Period, EHE agrees to pay (and to the
extent not paid by EHE, the other Foreign Subsidiary Guarantors shall guaranty
such payment to the extent set forth in Section 10 of the Credit Agreement) the
Administrative Agent's fees of $350,000 per annum payable pursuant to the Credit
Agreement, to be paid in quarterly installments of $87,500 each in advance
commencing on October 1, 2002.
SECTION 5. Fees. (a) In consideration of the entry into this
Agreement, the Borrowing Subsidiaries jointly and severally, agree to pay (and
to the extent not paid by any Borrowing Subsidiary, the other Foreign Subsidiary
Guarantors shall guaranty such payments to the extent set forth in Section 10 of
the Credit Agreement) the Administrative Agent on the Effective Date, for the
account of each Lender which executes and delivers each of the Standstill
Documents, a non-refundable standstill fee (the "Standstill Fee") of 0.25% of
the aggregate amount of the Foreign Obligations of the Standstill Lenders
outstanding on the Effective Date
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calculated according to the pro rata share of each such Lender, as adjusted
pursuant to Section 12.7 of the Credit Agreement.
(b) In consideration of entry into this Agreement, the Borrowing
Subsidiaries, jointly and severally, irrevocably agree to pay (and to the extent
not paid by any Borrowing Subsidiary, the other Foreign Subsidiary Guarantors
shall guaranty such payments to the extent set forth in Section 10 of the Credit
Agreement) the Administrative Agent on the Standstill Termination Date, for the
account of each Standstill Lender, a subordination fee (the "Subordination Fee")
of 3.00% of the aggregate amount of the Foreign Obligations of the Standstill
Lenders outstanding on the Effective Date calculated according to the pro rata
share of each such Lender, as adjusted pursuant to Section 12.7 of the Credit
Agreement. Such fee shall be irrevocably earned on the Effective Date and shall
be payable notwithstanding any Standstill Event or termination of this Agreement
prior to the Final Date.
SECTION 6. Incorporation of DIP Covenants. Each of EHE and EHA hereby
jointly and severally agree that, during the Standstill Period, each of EHE and
EHA shall and shall cause each of their Subsidiaries to comply with the
affirmative and negative covenants set forth in Sections 5.1, 5.2, 5.3, 7.1,
7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.10, 8.1, 8.2, 8.3, 8.4, 8.6, 8.7, 8.8,
8.10, 8.11, 8.12, 8.13, 8.15 and 8.16 of the Post-Petition Credit Agreement (the
"Cross Referenced Covenants") which covenants are hereby incorporated by
reference as if fully set forth herein, and all defined terms in those sections
shall have the meanings given those terms in Section 1.1 of the Post-Petition
Credit Agreement except that (i) each reference to "Borrower" includes EHE, EHA
and each of their Subsidiaries, (ii) each reference to a "Lender" shall be
deemed to be a reference to a Standstill Lender, (iii) each reference to
"Requisite Lenders" shall be deemed to be a reference to the Required Standstill
Lenders, (iv) each reference to the "Obligations" shall be deemed to be a
reference to the Obligations under the Credit Agreement and (v) each reference
to the "Administrative Agent" shall be deemed to be a reference to the
Administrative Agent under the Credit Agreement. Any amendment or modification
to any of the Cross Referenced Covenants set forth in the Post-Petition Credit
Agreement shall not, without the prior written consent of the Required
Standstill Lenders, be deemed to be an amendment or modification to the
Post-Petition Credit Agreement for purposes of this Section 6. If, at any time,
the Post-Petition Credit Agreement is not in effect, the Cross-Referenced
Covenants shall, absent the prior written consent of the Required Standstill
Lenders, survive for purposes of this Section 6.
SECTION 7. Additional Covenants. Each of EHE and EHA hereby jointly
and severally agree that, during the Standstill Period, each of EHE and EHA
shall comply and shall cause each of their Subsidiaries to comply with the
covenants set forth on Schedule A hereto.
SECTION 8. Standstill Events. If any of the following events
(applicable to the Standstill Parties) ("Standstill Events") shall occur and be
continuing:
(i) Any Standstill Party shall fail to pay any interest on any
Foreign Obligation, or any other amount payable hereunder or under any other
Loan Document (other than any payment with respect to which the Standstill
Lenders have agreed to forbear pursuant to Section 3(a) of this Agreement),
within two Business Days after any such interest or other
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amount becomes due in accordance with the terms of this Agreement or the Credit
Agreement, as the case may be; or
(ii) Any representation or warranty made or deemed made by
Standstill Party herein or any material representation or warranty made or
deemed made hereafter by any Standstill Party in any other Loan Document or
which is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with any such other Loan
Document shall prove to have been inaccurate in any material respect on or as of
the date made or deemed made; or
(iii) The Company or any Standstill Party shall default in the
observance or performance of any agreement contained in (A) Sections 5.1, 5.2,
5.3 and 7.1 of the Post-Petition Credit Agreement as incorporated into this
Agreement by Section 6 hereof, (B) paragraph (c) of the affirmative covenants
set forth on Part I of Schedule A hereto, (C) any of the negative covenants
contained in the Post-Petition Credit Agreement and incorporated into this
Agreement by Section 6 hereof or (D) any of the negative covenants set forth on
Part II of Schedule A hereto; or
(iv) The Company or any Standstill Party shall fail to perform or
observe any other agreement contained in this Agreement or any other Loan
Document to which it is a party (other than the Credit Agreement or as provided
in paragraphs (i) through (iii) of this Section 8), and such default shall
continue unremedied for 30 days after the earlier of (A) the date on which a
Responsible Officer of any Standstill Party becomes aware of such failure and
(B) the date on which written notice thereof shall have been given to any
Standstill Party by the Administrative Agent or any Standstill Lender; or
(v) An event of default shall have occurred under the Post-Petition
Credit Agreement, the European Receivables Facility or the DM Agreement (whether
or not waived or amended by the lenders or noteholders thereunder); or
(vi) (A) Any Standstill Party shall fail to make any payment on any
Indebtedness of such Standstill Party (including, without limitation, any
Guarantee Obligation, but excluding any payments the subject of forbearance
under Section 3(a) hereof) in respect of Indebtedness of any other Person, and,
in each case, such failure relates to Indebtedness having a principal amount of
$5,000,000 or more, when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), (B) any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Indebtedness, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or (C) any such Indebtedness shall become or be declared to be due
and payable, or required to be prepaid or repurchased (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof; or
(vii) EHE shall make any prepayment of principal, interest, premium
or fees in respect of the DM Notes or payment of principal under the DM Notes at
final maturity; or
(viii) (A) Any Significant Foreign Subsidiary shall commence any case,
proceeding or other action (I) under any existing or future law of any
jurisdiction, domestic or
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foreign, relating to bankruptcy, insolvency, reorganization, or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition,
rehabilitation, custodianship, administration or other relief with respect to it
or its debts, or (II) seeking appointment of a receiver, trustee, administrative
receiver, administrator, custodian, conservator "conciliateur", "mandataire ad
hoc" or other similar official for it or for all or any substantial part of its
assets, or any Foreign Subsidiary shall make a general assignment for the
benefit of its creditors; or (B) there shall be commenced against any Foreign
Subsidiary any case, proceeding or other action of a nature referred to in
clause (A) above (a "Proceeding") which (x) results in the entry of an order for
relief or any such adjudication or appointment or (y) remains undismissed,
undischarged or unbonded for a period of 30 days or, if shorter, for the period
which expires on the first date on which any such order for relief, adjudication
or appointment can be made against such Foreign Subsidiary, or (z) requires the
taking prior to the expiry of the period of 30 days after commencement of such
Proceeding, of enforcement or other action by or on behalf of the Standstill
Lenders which the Standstill Lenders are only entitled to take following a
Standstill Event in order to oppose such case, proceeding or action and to
protect the rights of the Standstill Lenders, or (C) there shall be commenced
against any Foreign Subsidiary any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process (an
"Execution Proceeding") against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal either within 30 days
after the entry thereof or if earlier, on or before the first date on which any
final order for attachment, execution, distraint or similar process can be made
under the law of any applicable jurisdiction; or (D) any Foreign Subsidiary
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (A), (B) or (C)
above; or (E) any Foreign Subsidiary shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they become due; or
(ix) One or more judgments or orders (or other similar process)
involving, in the case of money judgments, an aggregate amount in excess of
$2,000,000, to the extent not covered by insurance, shall be rendered against
one or more of any of the Foreign Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 20 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(x) Any of the Security Documents to which a Standstill Party is a
party shall cease, for any reason (other than any termination in accordance with
its terms), to be in full force and effect, or any Standstill Party or any
Affiliate of any Standstill Party shall so assert, or any Lien created by any of
such Security Documents shall (except to the extent released in accordance with
the terms of the Credit Agreement) cease to be enforceable other than any
subordination of priorities pursuant to the Intercreditor Agreement; or
(xi) The guarantee contained in Section 10 of the Credit Agreement
shall cease, for any reason (other than in connection with the release of all
Guarantors parties thereto in accordance with the terms of the Credit
Agreement), to be in full force and effect with respect
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to any Standstill Party or any Standstill Party or any Affiliate of any
Standstill Party shall so assert; or
(xii) (A) Either of EHE or EHA shall cease to be a Wholly Owned
Subsidiary of the Company subject to Liens that are not prohibited by this
Agreement; (B) any Significant Foreign Subsidiary shall cease to be a Wholly
Owned Subsidiary of EHE or EHA, as the case may be, subject to Liens that are
not prohibited by this Agreement; or (C) a "Change of Control" as defined in the
DM Agreement shall occur, provided that any sale of the assets or stock of a
Subsidiary that is permitted pursuant to Section 8.4(j) of the Post-Petition
Credit Agreement (as incorporated by reference herein) shall not be a Standstill
Event under this clause (xii); or
(xiii) Any Borrowing Subsidiary shall during the Standstill Period
make any payment of interest or principal to a Lender that is not a Standstill
Lender; or
(xiv) There shall occur a material adverse change in the financial
condition, business, assets, revenues or prospects of EHE and its Subsidiaries
taken as a whole; or
(xv) There shall occur any modification of or amendment to the
Post-Petition Credit Agreement that could have a Material Adverse Effect; or
(xvi) There shall be a failure by the Company to obtain the entry of
each of the Interim Order and the Final Order providing for the adequate
protection of the Lenders on terms and conditions acceptable to the
Administrative Agent or there shall occur a material breach, violation or
adverse modification of (without consent or waiver of the Administrative Agent)
any order of the Bankruptcy Court providing for adequate protection to the
Lenders;
then, upon the affirmative vote of the Required Standstill Lenders (as defined
below), such Standstill Event shall constitute a "Standstill Termination Event".
The occurrence of a Standstill Termination Event shall cause the forbearance
under Section 3(a) of this Agreement to terminate pursuant to Section 3(b) above
and constitute an Event of Default under the Credit Agreement and entitle the
Lenders to all of the rights and remedies exercisable upon an Event of Default
pursuant to the Credit Agreement. "Required Standstill Lenders" means Standstill
Lenders holding at least 51% of the aggregate unpaid principal amount of the
Obligations of Standstill Lenders.
SECTION 9. Conditions to Effectiveness of Section 2. Section 2 of this
Agreement shall be effective on the date on which the Administrative Agent shall
have signed this Agreement and the Administrative Agent shall have received (i)
counterparts of this Agreement executed and delivered by an authorized officer
of each of the Standstill Parties and the Required Lenders and (ii) counterparts
of the Consent appended hereto (the "Consent") executed by the Company and each
of the Domestic Subsidiary Guarantors.
SECTION 10. Conditions to Effectiveness of Agreement. This Agreement
(other than Section 2 hereof, which shall become effective in accordance with
Section 9 hereof) shall be effective on the date on which the Administrative
Agent shall have signed this Agreement and all of the following conditions
precedent set forth below have been satisfied (the "Effective Date"):
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(a) the Administrative Agent shall have received each of the
Standstill Documents, executed and delivered by an authorized officer of each of
the Standstill Parties;
(b) the Administrative Agent shall have received each of the
Standstill Documents, executed and delivered by an authorized officer of each
Lender directly affected hereby;
(c) the Post-Petition Credit Agreement shall have been duly executed
and delivered by the Company and each of the DIP Lenders;
(d) entry of an interim order issued by the Bankruptcy Court in
substantially the form of Exhibit A and otherwise in form and substance
satisfactory to the Administrative Agent, in consultation with the Steering
Committee;
(e) delivery to the Administrative Agent of the security agreements
that are required to be delivered on the Effective Date pursuant to Section 11
of this Agreement;
(f) delivery to the Administrative Agent of a complete list of Liens
on the Property or assets of each Foreign Subsidiary, known to a Responsible
Officer of the Company, existing on the date of the Standstill Agreement;
(g) satisfactory legal opinions with respect to the Standstill
Agreement and any other documents executed in connection therewith including
legal opinions that the additional security agreements do not conflict with the
DM Notes;
(h) payment of the Standstill Fee and all accrued fees and expenses of
the Administrative Agent in connection with all matters relating to this
Agreement and the Loan Documents, including, without limitation, the fees and
expenses of counsel (including local counsel in foreign jurisdictions) and
financial advisor to the Administrative Agent and the Steering Committee;
(i) The Administrative Agent shall have received certified copies of
(i) the resolutions of the Board of Directors of (A) each of the Standstill
Parties approving this Agreement and the matters contemplated hereby and thereby
and (B) the Company and each of the Domestic Subsidiary Guarantors evidencing
approval of the Consent and this Agreement and the matters contemplated hereby
and thereby and (ii) all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this Agreement and the
matters contemplated hereby and thereby; and
(j) The items set forth on Schedule B hereto relating to the
reorganization of the Foreign Subsidiaries that the Foreign Subsidiaries are
reasonably capable of completing prior to the Effective Date shall have been
completed to the satisfaction of the Administrative Agent.
Standstill Agreement and Fifth Amendment
11
SECTION 11. Additional Collateral. Each of EHE and EHA hereby, jointly
and severally agree that they shall and shall cause each of their Subsidiaries
to comply with the following conditions:
(a) On the Effective Date, subject to limitations imposed by
applicable law, the DM Agreement or other Contractual Obligations of any Foreign
Subsidiaries, EHE shall grant and shall cause each of its Subsidiaries (other
than Subsidiaries which are purchasers under the European Receivables Facility)
to grant the Standstill Lenders perfected security interests (the "Standstill
Lenders' Liens") (subject only to Customary Permitted Liens, the Liens granted
in connection with the Post-Petition Credit Agreement and the Liens of the
Lenders existing on the Effective Date) on such of the Property (including,
without limitation, any receivables released from or not subject to the European
Receivables Facility) of the Foreign Subsidiaries as may be requested by the
Administrative Agent in consultation with the Steering Committee, provided that,
the amount of Indebtedness secured by Liens granted by Foreign Subsidiaries in
connection with the Post-Petition Credit Agreement shall not exceed
$115,000,000. If EHE is unable to comply with this condition on the Effective
Date, the Administrative Agent may, in consultation with the Steering Committee,
allow an additional 30 days for the grant of the Standstill Lenders' Liens.
(b) During the Standstill Period, each of EHE and EHA shall (i) grant
and shall cause each of their Subsidiaries to grant to the Administrative Agent,
on behalf of the Standstill Lenders, within 60 days of a request by the
Administrative Agent, in consultation with the Steering Committee, perfected
security interests (the "Additional Standstill Lenders' Liens") (subject only to
Customary Permitted Liens, the Liens granted in connection with the
Post-Petition Credit Agreement and the Liens of the Lenders existing on the
Effective Date) in all or such of the Property (including, without limitation,
any receivables released from or not subject to the European Receivables
Facility) of Foreign Subsidiaries as may be requested by the Administrative
Agent, subject to restrictions imposed by applicable law, the DM Agreement or
other Contractual Obligations of any Foreign Subsidiaries (ii) upon the request
of the Administrative Agent, in consultation with the Steering Committee, at the
cost of the Standstill Parties, take (and ensure that their Subsidiaries take)
all such steps and comply with all such formalities as may be reasonably
required to perfect or to more fully evidence or assure the effectiveness of the
Security Documents and the rights of the Administrative Agent and the Standstill
Lenders from time to time thereunder and (iii) cause, within 60 days of a
request of the Administrative Agent, in consultation with the Steering
Committee, a Foreign Subsidiary to execute a Foreign Obligations Joinder
Agreement. For the avoidance of doubt, the Standstill Lenders' Liens and the
Additional Standstill Lenders' Liens shall not include any Liens granted to the
Lenders in connection with the execution of any pledge agreement or the taking
of any other action described on Schedule B hereto.
(c) If reasonably requested by the Administrative Agent, deliver to
the Administrative Agent legal opinions and any other necessary documentation
relating to the matters described in this Section 11, which opinions and
documentation shall be in form and substance, and, in the case of opinions, from
counsel, reasonably satisfactory to the Administrative Agent.
Standstill Agreement and Fifth Amendment
12
SECTION 12. Representations and Warranties. To induce the Standstill
Lenders to enter into this Agreement, each of the Loan Parties party to this
Agreement hereby represents and warrants to the Administrative Agent and the
Standstill Lenders the following:
(a) The execution, delivery and performance by each Loan Party party
hereto of this Agreement and the Loan Documents to which it is a party, as
amended hereby, and the consummation of the transactions contemplated hereby and
thereby, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene such
Loan 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 Loan 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 Loan Parties party hereto in connection
with the execution and delivery, or performance by any such Loan Party of any of
its obligations under this Agreement and the Credit Agreement, as amended
hereby.
(c) This Agreement has been duly executed and delivered by each Loan
Party party hereto, and is the legal, valid and binding obligation of such Loan
Party, enforceable against such Loan 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 Loan Party party hereto has an existing claim against any
Lender Party 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) Other than as contemplated herein, 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 Agreement, as if made on and as of the date
hereof.
Standstill Agreement and Fifth Amendment
13
SECTION 13. Reference to and Effect on the Loan Documents.
(a) On and after the Effective Date, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and the other
Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement, as amended and otherwise modified hereby.
(b) 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 Agreement shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or any Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 14. Amendments. This Agreement may not be amended,
supplemented or modified except in accordance with the provisions of this
Section 14. The Required Standstill Lenders and each Standstill Party may, or
(with the written consent of the Required Standstill Lenders) the Administrative
Agent and each Standstill Party may, from time to time, (a) enter into written
amendments, supplements or modifications hereto for the purpose of adding any
provisions to this Agreement or changing in any manner the rights of the
Standstill Lenders or of the Loan Parties hereunder or (b) waive, on such terms
and conditions as the Required Standstill Lenders, or the Administrative Agent,
as the case may be, may specify in such instrument, any of the requirements of
this Agreement or any Standstill Event and its consequences; provided, however,
that no such waiver and no such amendment, supplement or modification shall (i)
extend the Final Date without the consent of each Lender directly affected
thereby or (ii) amend, modify or waive any provision of this Section 14 or
reduce the percentage specified in the definition of Required Standstill
Lenders. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the relevant Standstill Lenders and shall be
binding upon the Loan Parties, the Standstill Lenders, the Administrative Agent
and all future Standstill Lenders.
SECTION 15. Costs and Expenses. EHE 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 Agreement and all related
matters during the Standstill Period, 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 of the Standstill Agreement). The Foreign Subsidiary Guarantors
(subject to the exceptions set forth in Schedule 10.1 of the Credit Agreement)
shall also be required to pay all costs associated with any field examinations
from time to time requested by the Administrative Agent, provided, that, the
Foreign Subsidiary
Standstill Agreement and Fifth Amendment
14
Guarantors shall be deemed to have satisfied this obligation by providing the
field examinations prepared by a third party for Post-Petition Administrative
Agent.
SECTION 16. Acknowledgment of Adjustment. Each Standstill Lender
acknowledges that, upon the commencement of the Cases, pursuant to Section
12.7(a) of the Credit Agreement, each Lender was deemed to have purchased an
interest in the Obligations owing to each other Lender (and, to the extent
necessary after giving effect to any actual recoveries on such Obligations is
required actually fund such purchase) such that, after giving effect to all such
purchases or deemed purchases, each Lender is owed directly or through such
purchase or deemed purchase the portion of the aggregate amount of Obligations
then outstanding with respect to each of the Tranche A Term Loan Facility, the
Tranche B Term Loan Facility and the Revolving Credit Facility equal to such
Lender's ratable share (determined on the basis of the amount of the Commitment
of such Lender to such Facility or of the aggregate outstanding principal and/or
face amount of Obligations owing to such Lender under such Facility, as the case
may be, immediately prior to the commencement of the Cases) of all Obligations
then outstanding.
SECTION 17. Tolling of Statute of Limitations. Each and every statute
of limitations or other applicable law, rule or regulation governing the time by
which any Standstill Lender must commence legal proceedings or otherwise take
any action with respect to exercising any of its respective rights, powers or
remedies directly or indirectly against any of the Standstill Parties with
respect to any breach or default existing on or prior to the Standstill
Termination Date, including, without limitation, actions under or in respect of
any of the Credit Agreement or any other Loan Document, shall be tolled during
the Standstill Period. Each of the Standstill Parties agrees, to the fullest
extent permitted by law, not to include such period of time in any assertion by
it at any time that a statute of limitations or other applicable law, rule or
regulation bars or otherwise acts as a defense (whether equitable or legal) to
any legal proceeding or other action by any Lender in exercise of its respective
rights, powers or remedies, directly or indirectly, with respect to any or all
of the breaches or defaults referred to in the immediately preceding sentence.
SECTION 18. Agreement Not a Defense. Each of the Standstill Parties
agrees that, subject to the agreement of the Standstill Lenders to forbear as
and to the extent set forth herein, the agreements of the Standstill Lenders
under this Agreement shall not constitute a waiver by any of the Standstill
Lenders of, or a defense by any of the Standstill Parties to, the exercise by
any of the Standstill Lenders of any right, power or remedy which any of the
Standstill Lenders may have under or in respect of the Credit Agreement or any
other Loan Document or any other agreement or document relating thereto (and
including rights, powers and remedies at law, in equity or by statute). Nothing
in this Agreement shall be deemed to be a consent to jurisdiction by any
bankruptcy court over any of the Standstill Lenders.
SECTION 19. Affirmation of Loan Documents. Each Standstill Party
hereby consents to the modification of the Credit Agreement effected hereby and
hereby acknowledges and agrees that the obligations of such Standstill Party
contained in the Loan Documents as modified hereby are, and shall remain, in
full force and effect.
Standstill Agreement and Fifth Amendment
15
SECTION 20. GOVERNING LAW. THIS AGREEMENT 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 21. Waiver and Release. The Standstill Parties hereby waive
and agree not to assert any claims or causes of action against the
Administrative Agent, any Lender Party or any of their Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on any
theory of liability, whether known or unknown, matured or contingent, including,
without limitation, for special, indirect, consequential or punitive damages,
arising by virtue of actions taken, actions omitted, or the occurrence of any
event prior to the Effective Date of this Agreement arising out of or relating
to, or in connection with, this Agreement, the Facilities, the actual use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions entered into in connection therewith.
SECTION 22. 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 Agreement or the
actions of the Administrative Agent or any Standstill Lender in the negotiation,
administration, performance or enforcement thereof.
SECTION 23. Execution in Counterparts. This Agreement may be executed
by one or more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
Standstill Agreement and Fifth Amendment
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
EXIDE HOLDING EUROPE S.A.
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
EURO EXIDE CORPORATION LIMITED
SOCIEDAD ESPANOLA DEL ACUMULADOR
TUDOR ▇.▇.
▇▇▇▇▇ A.B.
EXIDE TECHNOLOGIES NEDERLAND B.V.
CMP BATTERIES LIMITED
DEUTSCHE EXIDE STANDBY GMBH
DEUTSCHE EXIDE GMBH
MERCOLEC TUDOR B.V.
Each as a Borrowing Subsidiary and as a Guarantor
By:__________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
FULMEN IBERICA S.L.
CMP BATTERIJEN N.V.
EXIDE AUTOMOTIVE BATTERIE GMBH
▇▇▇▇▇ BATTERIE AG
ELECTRO MERCANTIL INDUSTRIAL S.L.
EXIDE (DAGENHAM) LIMITED
FULMEN UK LIMITED
EXIDE AUTOMOTIVE S.A.
SOCIEDADE PORTUGUESA
DO ACUMULADOR ▇▇▇▇▇ ▇.▇.
EXIDE DANMARK A/S
EXIDE BATTERIER AB
CENTRA ▇.▇.
▇▇▇▇▇▇▇▇ & ▇▇▇▇ BATTERIETECHNIK GMBH
EXIDE S0NNAK A/S
EXIDE BATTERIES LIMITED
B.I.G. BATTERIES LIMITED
EXIDE LENDING LIMITED
EXIDE HOLDINGS LIMITED
EXIDE TECHNOLOGIES HOLDING BV
EXIDE HOLDING ASIA PTE LIMITED
GNB TECHNOLOGIES (CHINA) LIMITED
EXIDE SINGAPORE PTE LIMITED
EXIDE CANADA INC.
1036058 ONTARIO INC.
Each as a Guarantor, subject to the limitations,
if any, contained in Section 10.1
By:___________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
EXIDE ITALIA S.R.L.
As a Guarantor, subject to the limitations, if
any, contained in Section 10.1
By:___________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
INDUSTRIA COMPOSIZIONI STAMPATE, SPA
As a Guarantor, subject to the limitations, if
any, contained in Section 10.1
By:___________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
EXIDE AUSTRALIA PTY LIMITED
As a Guarantor, subject to the limitations, if
any, contained in Section 10.1
By:___________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
EXIDE TECHNOLOGIES LIMITED
As a Guarantor, subject to the limitations, if
any, contained in Section 10.1
By:___________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
GNB BATTERY TECHNOLOGIES JAPAN, INC.
As a Guarantor, subject to the limitations, if
any, contained in Section 10.1
By:_______________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
Lenders
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------- ----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY Title: Assistant Vice
President
AG CAPITAL FUNDING PARTNERS, LP.
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., LP.
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title: MANAGING DIRECTOR
Standstill Agreement and Fifth Amendment
25
Lenders
For and on behalf of:
Alliance Capital Funding, L.L.C.
By: Alliance Capital Management L.P., as Manager
By: Alliance Capital Management Corporation,
General Partner of Alliance Capital Management L.P
By: /s/ Sverker Johansson
--------------------------------------------
Name: Sverker Johansson
Title: Vice President
Alliance Investments Limited
By: Alliance Capital Management L.P., as Asset Manager
By: Alliance Capital Management Corporation, as
General Partner
By: /s/ Sverker Johansson
--------------------------------------------
Name: Sverker Johansson
Title: Vice President
Monument Capital Ltd., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation, as
General Partner
By: /s/ Sverker Johansson
--------------------------------------------
Name: Sverker Johansson
Title: Vice President
Standstill Agreement and Fifth Amendment
26
Lenders
------------------------------------------------
ALPHA BANK A.E, LONDON BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. Polychroniadis
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Polychroniadis
Title: Deputy General Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Operations Manager
EXIDE AMMC CDO II, LIMITED
By: American Money Management Corp.,
as Collateral Manager
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXIDE AMMC CDO II, LIMITED
By: American Money Management Corp.,
as Collateral Manager
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Standstill Agreement and Fifth Amendment
27
Lenders
ARCHIMEDES FUNDING, LLC.
By: ING Capital Advisors LLC, as Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: VICE PRESIDENT
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC, as Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: VICE PRESIDENT
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC, as Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: VICE PRESIDENT
ARCHIMEDES FUNDING IV, (CAYMAN), LTD.
By: ING Capital Advisors LLC, as Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: VICE PRESIDENT
Standstill Agreement and Fifth Amendment
28
Lenders
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc. As Portfolio
Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
AVALON CAPITAL LTD.2
By: INVESCO Senior Secured Management, Inc. As Portfolio
Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
BANCA POPOLARE DI BERGAMO-▇▇ ▇▇▇▇
By: /s/ Riocardo Sora /s/ ▇▇▇▇▇▇ Locatolli
---------------------------- --------------------------
Name: Riocardo Sora Name: ▇▇▇▇▇▇ Locatolli
Title:Deputy General Manager Title: Senior V. President
For Banco Espirito Santo, S.A
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Senior Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Manager
Standstill Agreement and Fifth Amendment
29
Lenders
Bank of Montreal
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Bank One, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: First Vice President
BANK PEKAO S.A.
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Senior Lending Officer
Illegible
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------- ----------------
Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇
Title: Deputy Head of Department Title: Senior
International Loans Director
and Securitized Assets
------------------------------------------------
The Governor and Company of The Bank of Scotland
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate Director
Standstill Agreement and Fifth Amendment
30
Lenders
Bear ▇▇▇▇▇▇▇ Investment Products, Inc.
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Illegible
------------------------------------------------
[Print Name of Lender]
By: /s/ Illegible By: /s/ Illegible
------------------------ ----------------------
Name: Illegible Name: Illegible
Title: SVP Title: VICE PRESIDENT
Illegible
------------------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Illegible
------------------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Illegible
------------------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Standstill Agreement and Fifth Amendment
31
Lenders
BNP Paribas
------------------------------------------------
[Print Name of Lenders]
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title: Illegible
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CAPTIVA III Finance Ltd. (Acct. 275),
as advised by Pacific Investment Management Company LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
CAPTIVA IV Finance Ltd. (Acct. 1275),
as advised by Pacific Investment Management Company LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Director
Centurion CDO I, Limited
By: American Express Asset Management Group Inc.
as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CRESS II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc.
As Sub-Managing Agent (Financial)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Citicorp, U.S.A Inc.
------------------------------------------------
[Print NAme of Lender]
By: /s/ ▇▇▇▇▇ Vlandi
--------------------------------------------
Name: ▇▇▇▇▇ Vlandi
Title: Vice President
Standstill Agreement and Fifth Amendment
32
Lenders
Comerica Bank
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: V.P.
COSTANTINUS ▇▇▇▇▇ ▇▇▇▇▇ CDO V, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
Illegible
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: MEMBER
CREDIT AGRICOLE INDOSUEZ
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
------------------------------------------------
CREDIT INDUSTRIEL ET COMMERICAL
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------- ----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Title: Vice President
Credit Industriel et Commercial
London Branch
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------- ----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Manager Title: Manager
Standstill Agreement and Fifth Amendment
33
Lenders
CSAM FUNDING I
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
CypressTree Investment Partners I, Ltd.
By: CypressTree Investment Management Company
As Portfolio Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
CypressTree Investment Partners II, Ltd.
By: CypressTree Investment Management Company
As Portfolio Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
Department of Fire & Police Pansions - City of Los Angeles
----------------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
Magten Asset Management Corp.
As Attorney-in-Fact for
Department of Fire & Police Pansions - City
of Los Angeles
Pre-Petition Lenders:
Dreadner Bank AG, New York
And Grand Cayman Branches
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
Standstill Agreement and Fifth Amendment
34
Lenders
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇▇ ▇▇▇▇▇ CDO II, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇▇ ▇▇▇▇▇ CDO III, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
▇▇▇▇▇ ▇▇▇▇▇ CD0 IV, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
FIRST DOMINION FUNDING I
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
Standstill Agreement and Fifth Amendment
35
Lenders
FIRST DOMINIUN FUNDING II
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇.▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇.▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Citibank N.A. as Additional Investment
Manager for and on behalf of
Five Finance Corporation
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ VP
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ VP
Illegible
Fleet National Bank
------------------------------------------------
[Print Name of Lender]
By: /s/ Christophes ▇. ▇▇▇▇▇
--------------------------------------------
Name: Christophes ▇. ▇▇▇▇▇
Title: Vice President
Forte I CDO (CAYMAN) LTD.
1ST: STRONG CAPITAL MANAGEMENT, INC.
AS COLLATERAL MANAGER
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: PORTFOLIO MANAGER
Standstill Agreement and Fifth Amendment
36
Lenders
Fortis Bank Nederland N.V.
------------------------------------------------
[Print Name of Lender]
By: /s/ C.den Hartog By: /s/ Illegible
---------------------- -----------------
Name: C.den Hartog Illegible
Title:
Franklin CLO II, Limited
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
Franklin Floating Rate Trust
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Vice President
GE Capital CFE, INC.
------------------------------------------------
[Print Name of Lender]
By: /s/ Illegible
--------------------------------------------
Name:
Title:
General Motors Employees Global Group Pension Trust
---------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
Magten Asset Management Corp.
As Attorney-in-Fact for
General Motors Employees Global Group
Pension Trust
▇▇▇▇▇▇▇ & CO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
Standstill Agreement and Fifth Amendment
37
Lenders
Grayston CLO 2001-01 LTD.
By: Bear ▇▇▇▇▇▇▇ Asset Management Inc.
as its Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
------------------------------------------------
Indosuez Capital Funding IV, L.P.
By: RBC Leveraged Capital as Portfolio Advisor
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
ING PRIME RATE TRUST
By: ING Investments, LLC
as its investment manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇, CFA
Title: Vice President
Investkredit Bank AG
A-1013 Wien, Renngasse 10
------------------------------------------------
Investkredit Bank AG
By: /s/ ▇. ▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇▇▇
---------------- ---------------------
Name: ▇. ▇▇▇▇▇▇ Name: ▇. ▇▇▇▇▇▇▇
Title: AVP Title: SVP
Standstill Agreement and Fifth Amendment
38
Lenders
-----------------------------------------------
JHW CASH FLOW FUND LLP
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: FUND CONTROLLER
KZH CNC LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: AUTHORIZED AGENT
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: AUTHORIZED AGENT
KZH ING-2 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: AUTHORIZED AGENT
KZH PONDVIEW LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: AUTHORIZED AGENT
KZH STERLING LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: AUTHORIZED AGENT
Standstill Agreement and Fifth Amendment
39
Lenders
KZH WATERSIDE LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: AUTHORIZED AGENT
------------------------------------------------
▇▇▇▇▇▇ Brothers Bankhouse, AG
By: /s/ ▇▇▇▇▇ Summer By: /s/ ▇. ▇▇▇▇▇▇▇
------------------ -----------------
Name: ▇▇▇▇▇ Summer Name: ▇. ▇▇▇▇▇▇▇
Title: Title:
▇▇▇▇▇▇ Syndicated Loans Inc
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
MIZUHO CORPORATE BANK, LTD.
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ Fahcy
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ Fahcy
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ EMERGING MARKETS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME INCOME TRUST
------------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
Standstill Agreement and Fifth Amendment
40
Lenders
Muzinich Cashflow CBOII, Ltd.
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
NATEXIS BANQUES POPULAIRES
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: VICE PRESIDENT & GROUP MANAGER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ASSOCIATE
OCTAGON INVESTMENT PARTNERS II, LLC
By: Octagon Credit Investors, LLC
as sub-investment manager
--------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III, LTD.
By: Octagon Credit Investors, LLC
as Portfolio Manager
--------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV, LTD.
By: Octagon Credit Investors, LLC
as collateral manager
--------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
ORIX Finance Corp. I
By: /s/ ▇▇▇▇▇▇▇▇ ▇.▇.▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇.▇▇▇▇▇, ▇▇.
Title: Authorized Representative
Standstill Agreement and Fifth Amendment
41
Lenders
OXFORD STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
AS INVESTMENT ADVISOR
------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
Illegible
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ Funds Trust -
▇▇▇▇▇▇ High Yield Trust II
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇ ▇.▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ▇.▇.
▇▇▇▇▇▇ High Yield Trust
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: ▇.▇.
▇▇▇▇▇▇ Diversified Income Trust
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P.
R/2/ TOP HAT, LTD.
By: Amalgamated Gadget, L.P. as Investment Manager
By: Illegible
---------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Standstill Agreement and Fifth Amendment
42
Lenders
ROYALTON COMPANY (Acct 280)
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
Saloman Brothers Holding Corporation, Inc.
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SCOTIABANK EUROPE plC
------------------------------------------------
[Print Name of Lender]
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title: Director
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as Investment Advisor
----------------------------------------------------
[Print Name of Lender]
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: PAYSON ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
Illegible
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SEQUILS-ING I (HBDGM), LTD
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: VICE PRESIDENT
BALANCED HIGH-YIELD FUND I, LTD
By: ING Capital Advisor LLC,
as Asset Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ CFA
Title: VICE PRESIDENT
Standstill Agreement and Fifth Amendment
43
Lenders
Illegible
------------------------------------------------
[Print Name of Lender]
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title: MANAGING DIRECTOR
Societe Generale
------------------------------------------------
[Print Name of Lender]
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
SP OFFSHORE LIMITED
------------------------------------------------
[Print Name of Lender]
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title: Illegible
STRONG HIGH YIELD BOND FUND
------------------------------------------------
[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Assistant Secretary
Illegible
------------------------------------------------
[Print Name of Lender]
By: /s/ Illegible
--------------------------------------------
Name: Illegible
Title: Illegible
Standstill Agreement and Fifth Amendment
44
Lenders
TEXTRON FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
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The Bank Of Nova Scotia
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
TORONTO DOMINION (TEXAS), INC.
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[Print Name of Lender]
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
UBS AG, Stamford Branch
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[Print Name of Lender]
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate Director Title: Associate Director
Banking Products Banking Products
Services, US Services, US
WINGED FOOT FUNDING TRUST
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[Print Name of Lender]
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: AUTHORIZED AGENT
Standstill Agreement and Fifth Amendment
45
CONSENT
Dated as of April 14, 2002
Exide Technologies, a Delaware corporation (the "Company") and each of
the undersigned, as a Domestic Subsidiary Guarantor under the Amended and
Restated Credit Agreement and Guarantee dated September 29, 2000 (the "Credit
Agreement"; capitalized terms defined in the Credit Agreement or the foregoing
Agreement and not otherwise defined in this Consent are used herein as therein
defined) hereby consents to the modification of the Credit Agreement effected by
the foregoing Agreement and hereby acknowledges and agrees that the obligations
of such Loan Party contained in the Loan Documents as modified by the foregoing
Agreement are, and shall remain, in full force and effect and are hereby
ratified and confirmed in all respects. The Company and each of the Domestic
Subsidiary Guarantors acknowledges and agrees that its signature on this Consent
shall be deemed to be its signature to the foregoing Agreement for the purposes
of Section 12.1 of the Credit Agreement.
EXIDE TECHNOLOGIES, as a Borrower and as a
Guarantor
By:___________________________________
Name:
Title:
EXIDE DELAWARE, LLC
GNB BATTERY TECHNOLOGIES JAPAN, INC.
RBD LIQUIDATION, LLC
Each as a Guarantor, subject to the limitations,
if any, contained in Section 10.1
By:___________________________________
Name:
Title:
Standstill Agreement and Fifth Amendment
SCHEDULE A
AFFIRMATIVE AND NEGATIVE COVENANTS
Part I - Affirmative Covenants
Each of EHE and EHA hereby jointly and severally agree that, during the
Standstill Period, each of EHE and EHA shall and shall cause each of their
Subsidiaries to:
(a) Financial Statements. (i) Cause to be furnished to the
Administrative Agent and each Standstill Lender copies of all financial
statements and other information furnished to the Post-Petition Administrative
Agent under Article VI of the Post-Petition Credit Agreement or any comparable
provisions of any successor loan agreement on the dates provided for therein.
(ii) Together with each delivery of any financial statement pursuant
to clause (i) above, deliver a certificate of a Responsible Officer of EHE or
the Company (A) showing in reasonable detail the calculations demonstrating
compliance with each of the financial covenants contained in Section 6 of this
Agreement and (B) stating that no Standstill Event has occurred and is
continuing or, if a Standstill Event has occurred and is continuing, stating the
nature thereof and the action that the Foreign Subsidiaries propose to take with
respect thereto.
(b) Additional Reporting. Promptly cause to be furnished to the
Administrative Agent and each Standstill Lender information from time to time
reasonably requested by the Administrative Agent.
(c) Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(i) the occurrence of any default or event of default pursuant to
(A) the Post-Petition Credit Agreement, whether or not waived by the
Post-Petition Administrative Agent or the DIP Lenders, (B) the DM Agreement
whether or not waived by the noteholders thereunder or (C) the European
Receivables Facility, whether or not waived by the lenders thereunder; and
(ii) the occurrence of any Standstill Event (as defined in the
Standstill Agreement) or any event which, with the giving of notice or passage
of time would be a Standstill Event.
(d) Polish Foreign Exchange Controls. Use all reasonable endeavors to
obtain any foreign exchange control permit which may at any time be required for
any Guarantor incorporated under the laws of Poland to assume any liability
under this Agreement or any other Loan Document which it is precluded from
assuming until such permit is obtained.
(e) German Merger. As soon as legally practicable consummate the
upstream merger of ▇▇▇▇▇ Batterie AG and Deutsche Exide GmbH.
(f) Deposits to Escrow Accounts. Upon receipt by any Foreign
Subsidiary of any Net Cash Proceeds arising from any asset sale which results in
such Foreign Subsidiary being required pursuant to Section 2.8(g) of the
Post-Petition Credit Agreement to pay any amounts to
Standstill Agreement and Fifth Amendment
the Post-Petition Administrative Agent to be held in an Escrow Account, such
Foreign Subsidiary shall, to the extent consistent with applicable law, pay any
such amounts into an Escrow Account maintained by a Foreign Borrowing Base
Subsidiary and take all other steps necessary for such Net Cash Proceeds to be
included in the Foreign Borrowing Base under the Post-Petition Credit Agreement.
(g) Perfection and Post Reorganization Items. As soon as reasonably
and legally practicable, complete the items set forth on Schedule B hereto
relating to the reorganization of the Foreign Subsidiaries that the Foreign
Subsidiaries were not able to complete prior to the Effective Date.
Part II - Negative Covenants
Each of EHE and EHA hereby jointly and severally agree that, during the
Standstill Period, each of EHE and EHA shall not and shall not permit any of
their Subsidiaries to directly or indirectly:
(a) Restricted Payments. Declare, order, pay, make or set apart any
sum for any Restricted Payment except for Restricted Payments by any Subsidiary
of EHE or EHA to EHE or EHA or any Foreign Subsidiary Guarantor.
(b) Transactions with Affiliates. Except as otherwise expressly
permitted herein, do any of the following: (a) make any Investment in an
Affiliate of EHE or EHA that is not a Subsidiary of EHE or EHA, (b) transfer,
sell, lease, assign or otherwise dispose of any asset to any Affiliate of EHE or
EHA that is not a Subsidiary of EHE or EHA, (c) merge into or consolidate with
or purchase or acquire assets from any Affiliate of EHE or EHA that is not a
Subsidiary of EHE or EHA, (d) repay any Indebtedness to any Affiliate of EHE or
EHA that is not a Subsidiary of EHE or EHA or (e) enter into any other material
transaction directly or indirectly with or for the benefit of any Affiliate of
EHE or EHA that is not a Foreign Subsidiary Guarantor (including guaranties and
assumptions of obligations of any such Affiliate), except for (i) transactions
in the ordinary course of business on a basis no less favorable to EHE, EHA or
such Subsidiary Guarantor as would be obtained in a comparable arm's length
transaction with a Person not an Affiliate, (ii) transactions in the ordinary
course of business and consistent with past practice, (iii) transactions for
which the Required Standstill Lenders have given their prior written consent,
such consent not to be unreasonably withheld and (iv) salaries and other
director or employee compensation to officers or directors of EHE, EHA or any of
their Subsidiaries commensurate with current compensation levels.
(c) Limitations on Negative Covenants. (i) Notwithstanding Sections 6
and 7 of the Standstill Agreement, clauses (a) and (b) of Part II of this
Schedule A, Section 5.2, 5.3, 8.8, 8.13 and 8.15 of the Post-Petition Credit
Agreement as incorporated herein by Section 7 hereof (the "Relevant Restrictive
Covenants") shall not apply to any German Obligor or any of its Subsidiaries
from time to time whose Relevant Jurisdiction is Germany.
(ii) Each German Obligor shall give the Administrative Agent no less
than ten Business Days' prior written notice of the intention of it or of its
subsidiaries whose Relevant
Standstill Agreement and Fifth Amendment
Jurisdiction is Germany to carry out any of the acts or take any of the steps
referred to in the Relevant Restrictive Covenants.
(iii) The Administrative Agent shall be entitled within ten Business
Days of receipt of the relevant German Obligor's notice under clause (ii) to
request the relevant German Obligor to supply to the Administrative Agent in
sufficient copies for the Standstill Lenders any relevant information in
connection with the proposed action or steps referred to in such notice.
(iv) The Administrative Agent shall notify the relevant German
Obligor, within ten Business Days of receipt of the relevant German Obligor's
notice under clause (ii) or if additional information has been requested by the
Administrative Agent within the prescribed time, within ten Business Days of
receipt of such information, whether the proposed action or steps under clause
(ii) is or is not, in the opinion of the Administrative Agent, acting on the
instructions of the Required Standstill Lenders likely to have a Material
Adverse Effect.
(v) If the proposed action or steps under clause (ii) is so
considered by the Administrative Agent to have a Material Adverse Effect and the
relevant member of the German Group nevertheless takes such action or steps
under clause (ii), the Administrative Agent shall be entitled to take any action
permitted under Section 7 (subject to obtaining the consent of the Required
Standstill Lenders).
Standstill Agreement and Fifth Amendment
SCHEDULE B
EXIDE - PERFECTION AND POST-REORGANIZATION CHECKLIST
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Jurisdiction Item Responsibility and status
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Poland 1. Registration of Pledge Shearman & Sterling New York to
co-ordinate lenders
requires each of lenders to produce a
notarised, apostilled and certified Salans have received 79
original of representation letter (in representation letters to date
anticipation of such letter being
requested by the court). Gide to arrange for registration
of pledge; Salans to monitor the
registration proceedings
Application to court submitted on
8/2/02 and court decision expected
in 2 months from submission (but
exact date cannot be predicted)
Netherlands 1. New enforceability opinion on new Dutch Van Doorne
pledge over ETH's shares
Italy 1. Evidence of the due authorisation and Freshfields Milan
execution of the 1997 Credit Agreement and
the 2000 Credit Agreement - delivery of We understand that K&E have
copies of the 1997 and 2000 board instructed Exide's former Italian
resolutions passed by all the Italian counsel, Gianni & Origini to
guarantors. provide us with such documentation
- K&E and Freshfields co-ordinating
2. Confirmation of the identity of the person Freshfields Milan
who signed on behalf of the guarantors in
order to verify whether such individuals We understand that K&E have
were authorized by the Italian companies. instructed Exide's former Italian
counsel, Gianni & Origini to provide
us with such documentation - K&E and
Freshfields co-ordinating
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Standstill Agreement and Fifth Amendment
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Jurisdiction Item Responsibility and status
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3. Confirmation that TS Batteries SRL duly Freshfields Milan
authorized and executed the 1997 and 2000
Credit Agreements. We understand that K&E have
instructed Exide's former Italian
counsel, Gianni & Origini to provide
us with such documentation - K&E and
Freshfields co-ordinating
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Spain 1. Completion of process of ▇▇▇▇▇-▇▇▇▇/Freshfields Madrid
conversion of Fulmen Iberica SL ("Fulmen")
Filed in January 2002. Rejected by
Commercial Registry of Barcelona.
Freshfields Madrid and ▇▇▇▇▇-▇▇▇▇
to resolve situation and advise of
progress.
Public deed expected back week of
April 1, 2002. Corrections to filing
will be made upon receipt. Process
expected to take at least a week
from filing of correction.
2. Registration of the appointment Freshfields co-ordinating with
of new director and vice chairman for ▇▇▇▇▇-▇▇▇▇
Fulmen (i.e. Mr ▇▇▇▇▇ ▇▇▇▇▇▇ Barrosa) with
the Barcelona Mercantile Register. Dependent upon status of 1 above
3. Shareholder resolution of SEAT Freshfields Madrid. Meeting held
ratifying entry into the Credit Agreement on 25/3/02.
(and particularly the guarantee) and any
other relevant documents
4. Due capacity opinion based upon Freshfields Madrid
the above actions having been duly
completed
Standstill Agreement and Fifth Amendment
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Jurisdiction Item Responsibility and status
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5. Enforceability opinion based Uria & ▇▇▇▇▇▇▇▇
upon the above actions having been duly
completed
6. Registration of the pledge over ▇▇▇▇▇-▇▇▇▇/Freshfields
SEAT's shares with the registry of Bancoval
Verbal confirmation received from
the notary public that this has been
met.
U&M are still awaiting written
confirmation.
7. Registration of the pledges Freshfields Madrid/▇▇▇▇ ▇▇▇▇▇▇
over Fulmen shares (participaciones) in
its respective Shareholder Books (Libro
Registro de Socios)
8. Evidence of notification of the ▇▇▇▇▇-▇▇▇▇/Freshfields.
transfer of shares in SEAT to Sociedad
Rectora and Sociedad Bolsas
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UK 1. Confirmation of the location of the title Exide/Wragge & Co.
deeds in relation to the properties charged
by the legal charges granted by B.I.G.
Batteries Limited and CMP Batteries Limited.
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Germany 1. Upstream merger of ▇▇▇▇▇ Batterie AG and Freshfields expect this to be
Deutsche Exide GmbH completed within next few months.
Freshfields to give periodic updates
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Standstill Agreement and Fifth Amendment